December 19, 2019
by Roger Downs, Conservation Director
It is easy to pin blame on President Trump for every environmental calamity and regulatory obstacle confronting New York State. In his short tenure as president, he has rolled back, or is in the process of rolling back, more than 85 key environmental rules and regulations governing climate change, endangered species, oil and gas development, transportation emissions, and water pollution. Moreover, his appointees are quietly dismantling the federal agencies that enforce those protections.
But to be truthful, many of these corrupt federal abdications of responsibility should have little effect in New York, where the state either has superior regulations in place or the power to fill in those regulatory gaps left by the Trump administration. NY lawmakers have already struck back with legislation to ban offshore drilling, restrict some dangerous chemicals, and address climate change within the context of this ugly new political climate. But there are other areas of environmental protection where New York State has itself been derelict in its responsibility for decades, and Trump’s actions have only made things worse.
At the top of this list is the protection of freshwater wetlands, one of NY’s most valuable and mis-understood resources. We rely on swamps, fens, bogs, and wet meadows to filter pollutants from our waterways, recharge our aquifers, and absorb catastrophic floods. Yet there seems to be little public awareness that we are filling, dredging and draining wetlands at an alarming rate – at least until we find our neighborhoods underwater or our public water supplies contaminated. To be fair, the protection of New York’s wetlands is not entirely dire. Wetlands 12.4 acres and larger that are on approved wetlands maps receive some of the country’s strongest protections from NY’s Department of Environmental Conservation, including a 100-foot no-disturbance buffer. But that may only represent 6% of New York’s wetlands.[1] The remaining 94% of NY’s wetlands are administered by the Army Corps of Engineers--under Trump--or inhabit a regulatory limbo where there now may be no authority to oversee their protection at all.
Much of the conflict over which wetlands are to be protected stems from decades of confusing court cases over what constitutes “waters of the United states”. On January 9, 2001, in Solid Waste Agency of Northern Cook County v. United States, (SWANCC), 531 U.S. 159 (2001), the U.S. Supreme Court decided by a vote of 5-4 that the US Army Corps of Engineers (Corps) did not have authority under section 404 (the dredged and fill material permit program) of the Clean Water Act to assert jurisdiction over wetlands that were considered waters of the US solely due to their use by migratory birds.
Prior to the SWANCC decision, the Corps asserted comprehensive regulatory jurisdiction over activities that threaten wetlands. After the SWANCC decision, the Corps limited the waters over which it asserts jurisdiction to “waters of the United States,” defined as tidal, interstate and navigable water bodies and their adjacent wetlands. Wetlands are considered to be adjacent and subject to federal jurisdiction if they are connected by surface water to waters of the US. Wetlands that are not connected by surface water to waters of the US – so-called “isolated wetlands”– are no longer afforded federal protection.
In May 2015, under the direction of the Obama administration, the EPA released a new rule on the definition of "waters of the United States" (WOTUS), which clarified, that, indeed, isolated wetlands and intermittent headwater streams fall under the regulatory control of the federal government. On February 28, 2017 President Trump signed an executive order rolling back Obama’s clean water rule under the Clean Water Act, once again endangering huge swaths of NY’s wetlands and suggesting greater cut backs in enforcement by the Army Corps of Engineers. Governor Andrew Cuomo and State legislators need to make things right by legislating control over wetlands the Trump administration refuses to protect.
It is important to remember that the dysfunction in the regulations did not originate with conservative judges or President Trump. Much of the anemic wetlands protection in New York can be attributed to our own fraudulent state wetlands mapping protocol that has persisted for decades under multiple administrations, under the powerful influence of the development community. Currently, for a wetland to be subject to regulation under state law, it must be delineated on existing freshwater wetlands maps prepared by DEC after lengthy public comment.
Most of these maps have not been updated in over 20 years, making them woefully incomplete. A 2009 survey of the Genesee valley, the Wallkill watershed, and the Oswego/Onondaga watersheds identified over 50,000 acres of wetlands not currently on official DEC maps. But political pressure from land developers has prevented the DEC from releasing these maps to the public – essentially blocking them from state protection. The DEC has sat on these maps for almost a decade – even as they spent more than a half million dollars in state and federal money to create them in the first place. The 2020 legislative session presents a prime opportunity to set things straight.
The Sierra Club supports the Clean Water Protection/Flood Prevention Act, A.3658 /S.5576 a bill that would do away with wetland maps as jurisdictional requirements for protection in favor of defining wetlands based upon physical characteristics (if it has hydric soils or hydrophilic plants it is a wetland). This will clear up any uncertainty and gaps in protection found in the current and suspect mapping program. Additionally, the bill gives the state DEC authority over wetlands one acre and larger – casting a bigger net of responsibility from the current 12.4 acres. New York is the only state in the Northeast not to take on the regulation of all its wetlands.
The Sierra Club is also supporting A.8349 /S.5612-A, a bill that would extend protections to class “C” streams and their intermittent headwaters – waterbodies that used to be covered under Obama’s Clean Water Rule but lost protection when Trump rescinded the regulation. These two pieces of legislation would largely fill the gap in protection created by the Trump administration.
Governor Cuomo has recently announced a new state initiative “reviving mother nature” a program that not only reinvests in fish and oyster hatcheries and restocking programs, but looks to protect the habitats that sustain fisheries and wildlife. While the specifics are still in development, it would appear that embracing a legislative fix to the state’s broken wetlands laws would be a good foundation for the Governor’s platform. If we are truly going to confront the challenges presented by climate change and the imperative to make our communities resilient from increasing floods, droughts and ecological disruption – protecting wetlands may be the most important and cost effective thing we can do.
1. Sierra Club Report: Wetlands at Risk /sites/newyork.sierraclub.org/files/conservation.issues/WetlandsAtRisk.pdf