Several environmental organizations are seeking to have their say in a lawsuits filed by the Chautauqua Lake Property Owners Association and Chautauqua Lake Partnership that seek to overturn the state’s 2022 revisions to the Freshwater Wetlands Act.

Riverkeeper Inc., Save the Sound and other members of the Save New York State Wetlands Coalition, including Catskill Mountainkeeper, Chautauqua-Conewango Consortium – a group comprised largely of Chautauqua County residents, Buffalo Niagara Waterkeeper, Sierra Club, Scenic Hudson, Seatuck Environmental Association, Natural Areas Conservancy, the New York State Ornithological Society, and Environmental Advocates NY. The groups’ combined amicus curie brief filed at the end of July asks the state Supreme Court to dismiss the lawsuits filed by the CLPOA, CLP, village of Kiryas Joel and Business Council of New York State.

“This Amicus Brief provides the Court with analysis not presented in DEC’s Memorandum of Law or accompanying affidavits of how the Part 664 Amendments represent a reasonable and science-based approach to fulfill the State’s duty to protect freshwater wetlands and the communities and ecosystems that depend on them. Thus, good cause exists for the Court to grant the motion and consider the analysis and arguments presented in the Amicus Brief because amici’s status as a coalition of groups representing a wide range of interests and constituencies gives them an interest in ensuring that DEC’s Part 664 Amendments that fully comply with the Freshwater Wetlands Act be upheld,” wrote Drew Gamils, Riverkeeper Inc. senior attorney.

The groups’ 28-page brief argues that the state’s previous freshwater wetlands regulations were inadequate, particularly starting with a 2009 analysis paid for in part with federal dollars that identified more than 50,000 acres of land in the Genesee Valley, Wallkill and Oswego Onondaga watersheds that hadn’t been accounted for on official state maps that were eligible for state protection. The environmental organizations said political pressure from land developers and the cost for the DEC to update the freshwater wetland maps led the wetlands protection efforts to stall out. The groups’ lobbying efforts led to the 2022 legislative amendments to expand protections for unmapped wetlands and allow the DEC to regulate smaller wetlands of unusual importance.

“The 2022 legislative amendments to Article 24 corrected these deficiencies, expanding protection to unmapped wetlands and enabling DEC to regulate smaller wetlands of ‘unusual importance.’ These legislative amendments removed the jurisdictional barriers created by the existing, outdated wetlands maps, and allowed DEC to immediately protect and regulate wetlands if they met the basic scientific definition of these critical habitat areas,” the amicus brief written by attorney Todd Ommen of White Plains representing all of the groups. “These reforms are not a blanket prohibition on development, but a rational and moderate permitting framework that prioritizes the protection of the most ecologically significant wetlands, including those that reduce flooding, safeguard drinking water, and protect rare species. By modernizing its wetlands program, New York has ensured that vital habitats will not slip through the cracks left by federal rollbacks while still allowing needed development, such as the creation of additional affordable housing, to proceed. Amici support DEC’s regulations because they rest on a strong scientific record and decades of ecological research that demonstrate a critical need to protect wetlands and fragile ecosystems like vernal pools. DEC has reasonably applied these regulations to different regions of the state, including Chautauqua Lake and urban areas. Any concerns that such regulations will prohibit development and promote suburban sprawl are speculative and unsupported.”

ARGUMENTS

The environmental groups argue that the DEC regulations aren’t arbitrary and capricious, as the CLPAO and CLP argue in their suits. The groups argue the DEC began protecting a 100-foot buffer adjacent to regulated wetlands in the 1980s and was allowed to extend a wetland’s adjacent area beyond 100 feet to protect and preserve a wetland. The definition of an adjacent area was not changed in the 2022 regulations, the environmental groups argue, while the main change in the 2022 regulations limits the DEC to extend regulated adjacent areas to include nutrient poor wetlands identified by the DEC and vernal pools known to be productive for amphibian breeding. Those protections are supported by scientific evidence, the groups argue, while also arguing the DEC’s process for designating vernal pools and regulated adjacent areas is reasonable.

“In most cases, more than 100 feet of regulated buffer area is necessary to adequately protect vernal pools. Dozens of peer-reviewed papers emanating from numerous field studies have found that many vernal pool amphibian species (including spotted salamanders, wood frogs, and others) utilize upland habitats for significant parts of the year and regularly move well beyond 100 feet from a vernal pool. (R. 0668; 1906; 2009-10; 2071-73; 2075). DEC’s Part 664 Amendments acknowledge that in order to protect these amphibian populations, it is not adequate to only safeguard the vernal pool and a narrow buffer surrounding it; rather, a larger regulated adjacent area may be necessary to enable essential species behaviors.

Long-term persistence of vernal pool amphibian populations depends on the availability of sufficient adjacent upland habitat for development and overwintering use. If a 100-foot buffer were the only distance used to protect vernal pools, it is almost a certainty that over time, virtually all of these amphibian populations would become locally extirpated due to roadkill, adverse habitat changes and uses associated with residential and commercial development, and fragmentation and modification of the surrounding forest environments.”

CHAUTAUQUA LAKE

Chautauqua Lake is discussed at length in the brief. The environmental groups has always met the definition of a wetland due to its submerged vegetation – a definition the groups say the 2022 amendments to the Freshwater Wetlands Act didn’t change. The act has also always included a reference to six-foot water depth, which means shallow areas of freshwater lakes could satisfy the definition of freshwater wetlands. That includes watermilfoil, starry stonewort and curly-leaf pondweed that the groups say have created wetland conditions along the entire shoreline of Chautauqua Lake.

“Proposed amicus Chautauqua-Conewango Consortium notes that although these plants are invasive and may cause some harm to the lake, the presence of the plant life throughout the lake also provides oxygen to the water, helps to increase water quality, and provides habitat for local fish species,” the amicus brief states. “The previous wetland maps used to locate wetland areas were incomplete, inadequate, and failed to capture wetland areas of Chautauqua Lake. The survey conducted for Chautauqua Lake Partnership as part of the Management Plan exemplifies the extent of the milfoil cover, thereby meeting the express terms of the definition of wetland even before the amendments to the Act and Part 664.”

The environmental groups also echo the DEC’s argument that neither Ellery, Busti, Ellicott nor the Chautauqua Lake Association were denied permits for lake maintenance this year, with permits granted around 30 days from the date they were requested. Landowners’ issues raised in the four lawsuits seeking to annul the 2022 Freshwater Wetlands Regulations could be solved by the Freshwater Wetlands General Permit finalized in June that authorizes repair, replacement or removal of existing structures, construction or modification of residential, commercial, industrial or public structures, temporary installation of access roads, cutting trees and vegetation, drilling test wells and routine beach maintenance.

“Therefore, despite the requirement for a second permit under the Part 664 Amendments, the permits were timely granted at no or minimal additional cost. There was no delay or increased burden caused by the regulatory changes, and any concerns raised by the landowners are addressed by the comprehensive list of activities contained in the General Permit, which has no fee for the individual user. Thus, the parties are not harmed by regulatory changes,” Ommen wrote.