Wetlands are a hot topic...and not a very happy one
Posted By:
Terresa Bakner
STATE ISSUES
- The Governor of the State of NY has addressed State regulated wetlands in his budget bill proposing to do away with the regulatory freshwater wetlands maps and merely have them in place for educational purposes. This means that like the Army Corps, the State DEC staff will be able to go out in the field and identify areas as wetlands even if they do not show up on a map. Moreover, although to a degree the DEC staff have already begun doing this when reviewing how State mapped wetlands and ACOE identified wetlands overlap, this will free them to do it more often.
- The Legislature is also contemplating regulating not only wetlands 12.4 acres in size but amending Article 24 of the Environmental Conservation Law to regulate wetlands that are 1 acre in size or greater. As you know a 1 acre wetlands with a one hundred feet buffer takes up a lot of property. A bill has been proposed in the Legislature.
FEDERAL ISSUES
- The new WOTUS rule has been announced and a pre-publication version is on the USEPA website for review. Only after it has been published in the Federal Register and 60 days have passed will the new WOTUS rule take effect. Overall it is a substantial improvement from the 2015 WOTUS rule that is currently in effect. Moreover, it provides some clarity to the manner in which wetlands were identified as regulatory prior to the enactment of the 2015 WOTUS rule. Its intent is clearly not to regulate isolated wetlands.
- The Trump administration has issued a press release that they are considering reauthorizing the current nationwide permits this year. These nationwide permits were issued in 2017 and expected to last for the full five years. Overall this may be good news in that it is possible that the administration will issue more permissive nationwide permits; it unfortunately may create some logistical problems for those who have obtained nationwide permit verification letters for their projects. To ensure that no change to the nationwide permits adversely effect an existing project it will be necessary to establish that your project is grandfathered. This requires either commencing work on the project or entering into a contract to commence the work prior to the expiration of the nationwide permits. Once you do either you have one additional year to complete your project.
With all of these changes in the wetlands regulatory programs, please seek legal advice with respect to the specific facts of any of your projects where the projects have or may have wetlands issues.
If you have any questions please feel free to contact Terresa Bakner at (518) 487-7615 or tbakner@woh.com.
