Expands Freshwater Wetland Regulation (A.6282/S.1749)

Date: 2017

A.6282 Englebright

S.1749 Latimer

MEMORANDUM IN OPPOSITION

Unshackle Upstate, a non-partisan, pro-taxpayer, pro-economic growth, education and advocacy coalition made up of business and trade organizations from all parts of Upstate New York, opposes this legislation.

While Unshackle Upstate and its members recognize the importance of wetlands and their role in protecting water resources. However, this bill would significantly expand the state’s authority over private land, and do so without providing any indication as to exactly which lands will be impacted.

This bill would expand the authority of the Department of Environmental Conservation (DEC) to include freshwater wetlands of one acre or more, as well as other wetlands of significant local importance. The sponsors indicate that this legislation is intended to address 2001 U.S. Supreme Court decision, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, which found that the federal government does not have jurisdiction over these wetlands.

Current state law, the Freshwater Wetlands Act (FWA), Environmental Conservation Law Article 24, provides DEC with the authority to regulate freshwater wetlands in the state. The FWA identifies wetlands on the basis of vegetation because certain types of plants out-compete others when they are in wet soils. To be protected under the Freshwater Wetlands Act, a wetland must be 12.4 acres (5 hectares) or larger, although smaller wetlands may be protected if they are considered to be of unusual local importance. In addition, an adjacent area of 100 feet around every wetland is also protected to provide a buffer for the wetland.

This legislation would reduce the size of protected wetlands in New York State from 12.4 acres to one acre. We note that the sponsors do not indicate (or even attempt to estimate) how much land would be brought under DEC’s jurisdiction throughout the state, nor do have they provided any indication as to what this legislation will cost state taxpayers to implement.

We are also concerned that such a dramatic expansion of DEC’s jurisdiction via this legislation will create unnecessary barriers to economic development throughout the state, especially Upstate. This legislation would make the development rights of landowners more ambiguous, rather than providing the common sense and clarity that the law should provide.

Finally, we are also concerned that the sponsors of this legislation have not thoroughly considered the impact of this bill on the state’s agricultural community. We are concerned this language may allow DEC to regulate ephemeral drainage features, such as ditches and small wetlands on farmland and pastures, even if they are only occasionally wet.

Unshackle Upstate understands the importance of wetlands, but we cannot support legislation that will impose additional regulatory mandates on landowners and developers throughout the state. Upstate New York has lost too many jobs, families and resources to support the expansion of the state’s wetland program in this manner.

For these reasons, Unshackle Upstate opposes the enactment of this legislation.