Section 3. Federal and State Regulatory Methods of Wetland Protection
The protection of wetlands can seem like a web of overlapping jurisdictions. For that reason the introduction to Section 3 is lengthy yet informative. To simplify and illustrate jurisdictions we have included a Flow Chart that explains some of the responsibilities of each entity and other resources and links to web sites that provide the text of the legal authority required for regulating wetlands.
Federal Regulatory Review
On the federal level wetland the US ACOE (COE) administers laws and regulations, with oversight by the US Environmental Protection Agency (EPA). The US ACOE also coordinates its regulatory processes with the US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS).
Legal Authority: The COE regulates waters and wetlands under two laws. The first law, which is quite old (1800’s), is the Section 10 Rivers and Harbors Act. Under this regulation, a permit is required from the COE for any project that involves work or structures in, over or under navigable (truly navigable) waters of the United States. Examples of activities regulated under this law are docks in the Hudson River, underground utility crossings of the Mohawk River, or installation of rip rap along the shoreline of Long Island. The second, more recent law is Section 404 of the Clean Water Act. Under this law, a permit is needed from the COE for the discharges of dredged or fill material into any water of the United States, including wetlands, which are a type of water of the United States. Wetlands are identified in the field using the COE delineation manual. [Please note: A recent Supreme Court ruling, SWANCC v USACOE, has impacted regulations of “isolated wetlands.” Unfortunately no clear guidance as to the definition of the term or the impacts has been provided at this time. Please visit http://aswm.org/swancc for updates.] The federal regulatory process is a constantly evolving and shifting regulatory program. These changes are updated on the Corps’ districts websites.
The Districts: New York State is comprised of two regulatory US Army Corps of Engineer Districts. The Buffalo District regulates the western and central portion of New York State, including those watersheds of Lake Ontario, Lake Erie and the St. Lawrence River. The New York City District regulates the eastern portion of New York State, including those waters that flow into the Hudson, Mohawk, and Champlain watersheds.
General and Individual Permits: The COE generally has two different types of permits that it can issue for projects. The first are “General Permits”, and include Nationwide permits, regional permits, and other authorizations for minor projects that have minimal impacts on the aquatic environment. The review process typically involves submitting an application and delineation to the COE office, an abbreviated review process, and a decision whether or not the project should be authorized under the general permit, or under an individual permit. An Individual Permit review process also involves submitting an application and delineation to the COE office. A public notice review process is required, and the regulatory standards associated with this review are typically more stringent than the general permit process. In addition, there is often a more formal coordination process with the FWS, NMFS, and EPA under these reviews. Finally, there are Letters of Permission. These also require interagency coordination and notice to adjacent property owners, but no public notice (so it does not go out to a larger group). A "Letter of Coordination" is issued providing a twenty-day comment period. Activities that can be authorized by Letters of Permission vary from district to district. For example, the COE New York District only authorizes activities under Section 10 of the Rivers and Harbors Act (no Section 404 work allowed).
There are many other agencies involved in the COE’s reviews of projects. The New York State Department of Environmental Conservation must issue a Clean Water Act Section 401 Water Quality Certification. The New York State Department of State, Coastal Zone Management program staff review projects within the New York State’s coastal zone (the Hudson River north to the federal dam at Troy, New York, the Great Lakes, and the ocean) for compliance with the State’s approved Coastal Zone Management plan. In addition, communities along major water bodies in New York State may have adopted Local Coastal Zone Management Plans, and documentation of compliance with those communities’ plans may be necessary as part of the regulatory review process. The National Flood Insurance Program (NFIP) administered by Federal Emergency Management Agency (FEMA) provides detailed maps of flood prone areas, and coordination either with FEMA or the local agency charged with implementing FEMA’s NFIP might be needed. Coordination with the State Historic Preservation Office is required for both the COE’s and New York State Department of Environmental Conservation’s review of projects to assure that there are no adverse impacts to cultural, historic or prehistoric resources eligible for listing or listed on the federal or state register of historic places. Coordination is also required with the FWS and the New York State Department of Environmental Conservation’s significant habitat units to assure that the project does not impact federal or state listed, threatened, or endangered species or their critical habitats.
State Regulatory Review
Article 24: Article 24 of New York State’s Freshwater Wetlands Act regulates draining, filling, construction, pollution or any activity that substantially impairs any of the several functions and values provided by wetlands of 12.4 acres or larger. Wetlands regulated by Article 24 are assigned a number and depicted on regulatory maps that are available through county Soil Water Conservation District (SWCD) offices, County and local municipal offices, and the County Department of Health (DOH) offices. Copies of New York State Freshwater Wetland Maps are also available from Syracuse Blue Print in Syracuse, New York. The regulatory maps correspond to the USGS Topographic Quadrangles for New York State. It should be noted that if a landowner has been notified that a wetland that qualifies for NYSDEC jurisdiction is present on the property, even if it has not been mapped, it is subject to NYSDEC regulatory review. Article 24 of the Freshwater Wetlands Act regulates not only the wetland, but also a 100 foot buffer area. The regulatory standards classify wetlands according to their characteristics and assign a type of value rating (Class I through Class IV, with Class I being the highest quality). The regulatory standards then list different types of activities and whether they are compatible or incompatible with the wetland or its adjacent area. If a proposed activity is not compatible, then the Applicant must demonstrate why the permit should be issued, examining impacts to the environment, public health and welfare. The Applicant must also demonstrate compliance with the “Weighing Standards”, a set of standards associated with the different classes of wetlands. The Weighing Standards for a Class I wetland are more stringent than the Weighing Standards for a Class IV wetland. Review of a permit application follows the processes established in the New York State Uniform Procedures Act. The permitting review process typically involves a completeness review, public notice period, and a time afterwards for review and coordination of comments with the Applicant.
Article 25: Tidal wetlands regulation is based on the Tidal Wetlands Act (6NYCRR Part 661). Under the Tidal Wetlands Act, DEC administers a permit program regulating activities in tidal wetlands and their adjacent areas. In general, tidal wetlands consist of all the salt marshes, non-vegetated as well as vegetated flats and shorelines subject to tides. The adjacent areas extend up to 300 feet inland from the wetland boundary (up to 150 feet inland within New York City). DEC requires a permit for almost any activity that will alter wetlands or the adjacent areas. The United States ACOE also has jurisdiction and a Corps Permit may be required whether or not DEC requires one. The DEC website http://www.dec.state.ny.us/website/dfwmr/marine/twcat.htm lists a number of tidal wetlands categories and definitions.
Adirondack Park Agency: The Adirondack Park Agency is responsible for administering the State of New York’s Article 24 Freshwater Wetlands Act within the Adirondack Park. Within the Park protected wetlands can be as small as one acre in size. Other regulatory measures are substantially similar to those administered outside of the Park.
New York State Protection of Waters Program: Article 15 of New York State’s Freshwater Wetlands Act protects the beds, banks and areas within 50 feet of water bodies by requiring permits for the excavation, placement of fill material, or use of navigable or protected waters of the New York. The New York State Department of Environmental Conservation administers this program. A permit is needed for any activity or work within or 50 feet from a stream with a classification rating of C(T) or better. Additionally, under this regulation, the New York State Office of General Services reviews the use of waters owned by New York State.
SPDES: The State Pollution Discharge Elimination System (SPDES) Permit regulates discharges from industrial and sanitary wastewater facilities to surface and groundwater. SPDES implements the Clean Water Act under the review umbrella of NYS Department of Environmental Conservation. There are also SPDES General Permits for Stormwater Discharges for Construction Activities (Article 7, 8 and 70 of the Environmental Conservation Law). These regulations require that a stormwater management, soil erosion, and pollution prevention plan be prepared and submitted to the NYSDEC and the local municipality for activities disturbing greater than 5 acres of land.
State Wild, Scenic and Recreational River Corridors: Regulations at Title 6, Chapter X, Article 1, Part 666, requires a review of the impacts of any change to the land in areas within ½ of a mile of a water body or river designated as part of the Wild, Scenic, and Recreational River System of New York State. This Act is administered by the Adirondack Park Agency in the Adirondack Park, and the New York State Department of Environmental Conservation for the rest of the state.
SEQRA:The State Environmental Quality Review Act (SEQRA), (6 NYCRR Part 617) requires all levels of government in New York State to fully disclose the potential impacts associated with a proposed action. This includes impacts to any wetlands affected by the action, except those specifically exempted or excluded. This law is administered by the lead agency, as designed during the SEQRA lead agency review process for each project.
Other Federal Laws, Executive Orders, and Treaties
For a complete listing of all laws, executive orders, and treaties that could impact wetland management, view the US ACOE’s Wetland Management Handbook on the Toolkit CD ROM (details below).
- Building Near Wetlands: The Dry Facts. EPA Region 2, 1999. Available from the Wetlands Hotline: 800-832-7828
- The Freshwater Wetlands Act: A Primer for Landowners. NYS Department of Environmental Conservation, year of publication unknown. For additional copies call your local NYS DEC Regional Office listed in Appendix A.
- “Wetlands and Real Property Valuation – What does it mean for your property taxes.” NYS Department of Environmental Conservation, 1990. For additional copies call your local NYS DEC Regional Office listed in Appendix A.
- Tidal Wetlands Program: Applicant’s Guide, NYSDEC, 1996. For additional copies call your local NYS DEC Regional Office listed in Appendix A.
- “Wetlands Management Handbook.” ACOE Engineer Research and Development Center. December, 2000.
Relevant Web Pages:
Army Corps of Engineers Headquarters www.usace.army.mil/public.html
ACOE NY District Regulatory Web Page www.nan.usace.army.mil/business/buslinks/regulat/forms.htm
ACOE Buffalo District Regulatory Web Page www.lrb.usace.army.mil/orgs/reg
ACOE Selected Statutory Materials www.usace.army.mil/inet/functions/cw/cecwo/reg/sstat3.htm
EPA and The Clean Water Act www.epa.gov/region5/defs/html/cwa.htm
NYS DEC Freshwater Wetlands Program www.dec.state.ny.us/website/dfwmr/habitat/fwwprog.htm
NYS DEC Program to Conserve Wetlands www.dec.state.ny.us/website/dfwmr/habitat/fwwprog4.htm
NYS DEC Freshwater Wetlands Delineation Manual www.dec.state.ny.us/website/dfwmr/habitat/wdelman.pdf
NYS DEC Freshwater Guidance to Compensatory Mitigation www.dec.state.ny.us/website/dfwmr/habitat/wetlmit.pdf
NYS DEC Tidal Wetlands Program