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January 29, 2014

DEC Proposes Draft General Permit for Bulkhead Repair on Long Island

By: Vicki S. Treanor — Filed under: Clean Water Act, Compliance, Natural Disasters, New York Environmental Law, Wetlands — Posted at 6:12 pm

The New York State Department of Environmental Conservation (“DEC”) has proposed a draft general permit for bulkhead repairs on parts of the south shore of Long Island.

Where: General Permit No. GP-1-13-001 (the “General Permit”) would be available for use on the south shore of Long Island west of the Robert Moses Causeway to the Queens County border, excluding areas of vegetated tidal wetlands, any ocean shore, the ocean front of Long Beach Island, and all of the Jones Beach State Park and Robert Moses State Park barrier islands.

What:   The General Permit would authorize

  • The removal and replacement of a functional and lawfully existing bulkhead in the same location as an existing bulkhead, up to 18 inches higher in elevation than the existing bulkhead.
  • A limited amount of maintenance dredging associated with replacement of the bulkhead.

The General Permit would obviate the need for individual permits under the following programs:

  • Tidal Wetlands (Environmental Conservation Law (“ECL”) Article 25)
  • Excavation and Fill in Navigable Waters (ECL Article 15, Title 5)
  • Water Quality Certification (Clean Water Act § 401)

Official information about the General Permit is available on DEC’s website, here, here and here.

How:   An applicant must submit to DEC a Request for Authorization Form containing a project location map, project plans, a survey depicting the bulkhead, recent color photographs of the site, and permission for DEC to inspect the property.  The applicant must receive written confirmation of authorization before undertaking any work pursuant to the General Permit.

Why:   According to DEC, the General Permit is a continuation of the emergency general permit for storm repair work issued in the wake of Superstorm Sandy in order to expedite recovery. That permit was originally issued in October 2012 and replaced in July 2013.  The current permit is effective until October 31, 2014.

When:   DEC is accepting written comments on its proposal until January 31, 2014. Comments may be sent to

Stuart Fox
NYS Department of Environmental Conservation
Division of Environmental Permits
625 Broadway, 4th Floor
Albany, NY 12233

SPR will keep abreast of future developments concerning this permit.

For more information about bulkhead permitting and/or Sandy recovery efforts, please contact Michael Bogin or David Yudelson.

September 12, 2012

NYSDEC Issues Draft Freshwater Wetlands General Permit Authorizing Construction Activities in Adjacent Areas

By: Maggie Macdonald — Filed under: New York Environmental Law, Wetlands — Posted at 10:38 pm

The New York State Department of Environmental Conservation (“NYSDEC”) has issued a Draft General Permit for Freshwater Wetland Adjacent Areas (“Draft Permit”) authorizing construction activities in adjacent areas that previously required an individual permit.  Authorizing these activities under a general permit rather than through the individual permitting process will benefit applicants by significantly expediting the application and approval process.

The Draft Permit will allow the following activities in previously-disturbed adjacent areas more than 50 feet from the boundary of NYSDEC-regulated Freshwater Wetlands:

  1. Demolition and removal of existing appurtenant structures;
  2. Construction of driveways or parking areas limited to 3000 square feet;
  3. Additions to existing structures;
  4. Installation of garages, decks, porches, sheds, pools, utility lines and other appurtenant structures;
  5. In-kind, in-place replacement of existing appurtenant structures, roads and associated utilities.

Applicants must comply with a number of conditions when undertaking work pursuant to the Draft Permit, including erosion control measures, requirements for the use of clean fill, and requirements that all necessary precautions be taken to preclude contamination of any wetland or waterway by environmentally deleterious materials associated with the project.  The Draft Permit specifically states that it does not cover a number of activities, including: any wetland disturbance; any disturbance within 50 feet of the wetland boundary; any disturbance of greater than 0.25 acres; construction of septic systems; storage of hazardous liquids; demolition of an existing primary structure; or activities directly affecting listed historic buildings or districts.

Once the NYSDEC issues the final permit, an applicant may obtain authorization to start a project by submitting a Request for Authorization along with site location maps, sketch drawings showing all details and measurements of proposed work, 3 color photographs depicting the site of the proposed activity, and a Permission to Inspect Property Form.  The NYSDEC will review permit applications and work may commence once the applicant receives the Project Authorization signed by NYSDEC.

For more information on NYSDEC wetlands permitting contact Michael Bogin or Maggie Macdonald.

August 9, 2012

New York State Enacts New Seagrass Protections

By: Adam Stolorow — Filed under: New York City Environmental Law, New York Environmental Law, Wetlands — Posted at 10:58 am

Governor Cuomo has signed into law new legislation designed to protect New York State’s seagrass beds.  The law requires the Department of Environmental Conservation (“DEC”) to designate seagrass management areas and to regulate marine and coastal activities that threaten those areas, although it is uncertain whether the Seagrass Protection Act will result in requirements for a new “seagrass permit.” 

Seagrass beds provide habitat and food for fish, shellfish and waterfowl, and help to stabilize bottom sediments, among other ecological benefits. A 2009 report from the New York State Seagrass Task Force found that seagrass acreage in the state had declined from an estimated 200,000 acres in 1930 to less than 22,000 acres in 2009, located primarily within the South Shore Estuary Reserve along the southern coast of Long Island.  Seagrass beds are threatened by nutrient loading (excess nitrogen from fertilizer runoff that impairs water quality), persistent algal blooms, and fishing and shellfishing gear.

The new law, which will take effect in December 2012, instructs DEC to designate seagrass management areas and to develop management plans for those areas in consultation with local governments, recreational boating interests, fishermen, property owners and other affected stakeholders. 

Seagrass habitat overlaps to some extent with tidal wetlands in New York (over which DEC has jurisdiction and regulates through its Tidal Wetlands Permit Program); however, existing laws and regulations do not give DEC the authority to specifically restrict activities that may negatively affect seagrass. The Seagrass Protection Act gives new jurisdiction to DEC to regulate activities both on land and in water, including the authority to adopt rules and regulations to regulate coastal and marine activities that threaten seagrass beds or seagrass restoration efforts.

Similar legislation was passed in 2010 and vetoed by Governor Paterson.  The 2010 version of the act contained specific restrictions on the application of phosphorous-containing fertilizer in Nassau and Suffolk Counties that are not contained in the 2012 law.

For more information on the potential impact of the new law, please contact Michael Bogin or Chris Amato.

May 29, 2012

New York City Releases New Wetlands Strategy

By: Maggie Macdonald — Filed under: New York City Environmental Law, Wetlands — Posted at 10:43 am

On May 20, Mayor Bloomberg announced a new wetlands strategy for New York City, building on the PlaNYC’s goals of improving water quality, increasing opportunities for recreation along waterways and waterfronts, and restoring natural environments along coastal areas.

The New York City Wetlands Strategy (“Wetlands Strategy”) had originally contemplated creating a local ordinance and establishing an enforcement regime on the local level to protect vulnerable wetlands from development and fill.  However, given the relatively small amount of privately-owned wetlands in the City and the significant cost of establishing such a regulatory scheme, the City instead opted to pursue other avenues to protect wetlands.

Notable among the City’s initiatives is the plan to work with the New York State Department of Environmental Conservation and the U.S. Army Corps of Engineers to revise state and federal mitigation guidance to take into account unique circumstances associated with New York City wetlands.  The goal of these revisions will be to increase transparency for mitigation policies and provide guidance specific to New York City, where on-site mitigation is often not feasible.  For example, the Wetlands Strategy suggests creative mitigation approaches suited to the City’s geography, such as debris removal and hazardous material remediation.

In tandem with proposed revisions to mitigation guidance, the Wetlands Strategy includes a proposal for a banking or “in-lieu of” fee mechanism to increase the flexibility of mitigation required for public projects. The in-lieu of fee system would allow permit applicants to designate an approved third party to undertake a mitigation project. In a banking system, credits are created where a public or private entity restores, enhances or preserves natural resources with the oversight of an inter-agency review team.  These mitigation credits may then be used for projects within a given region or service area.

The Wetlands Strategy also includes initiatives to improve wetlands mapping and monitoring to determine the current extent of NYC wetlands and the potential and ongoing impact of sea level rise on these resources.

For more information on tidal and freshwater wetlands regulation and enforcement in New York, contact Michael Bogin or Maggie Macdonald.

April 12, 2012

New York State Freshwater Wetlands Appeals Board Eliminated

By: SPR — Filed under: New York Environmental Law, Wetlands — Posted at 1:19 pm

The recently-enacted 2012-2013 New York State Budget has eliminated one of the State’s longstanding administrative institutions: the Freshwater Wetlands Appeals Board (“FWAB”).  The FWAB was established in 1976 to provide a specialized forum for the expeditious review of Department of Environmental Conservation (“DEC”) decisions involving freshwater wetlands, as an alternative to Article 78 proceedings under the Civil Practice Law and Rules.  The Budget Bill repeals the FWAB’s enabling legislation but authorizes the FWAB to decide its pending cases.  No new cases can be heard.

For more information, contact Michael Bogin, who also serves as a member of the FWAB.

March 22, 2012

Supreme Court expands judicial review over EPA compliance orders

In a unanimous decision that could herald major changes in federal and state environmental enforcement, yesterday the Supreme Court upheld a property owner’s right to challenge the basis for a Clean Water Act compliance order alleging unlawful filling of wetlands, before the Environmental Protection Agency (“EPA”) had filed suit to enforce it.  Previously, EPA and every Circuit Court to consider the issue had denied pre-enforcement review of such orders, requiring landowners to apply for a fill permit in order to challenge EPA’s assertion of jurisdiction or risk substantial penalties for violating EPA’s directives.

The significance of the Supreme Court’s ruling in Sackett v. EPA is likely to extend beyond the Clean Water Act, however, as administrative agencies frequently issue interim decisions – similar to the EPA’s compliance order in Sackett – while claiming that such actions are either non-final or statutorily precluded from pre-enforcement review.  Writing for the Court, Justice Scalia found that the order “has all the hallmarks of … finality” and “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”  Similar reasoning could apply to other federal environmental statutes as well, aside from the federal Superfund law which is “uniquely designed” in its express preclusion of certain pre-enforcement review.

Sackett arose out of an Idaho couple’s filling of part of a residential lot, which the EPA later determined to be regulated wetlands.  EPA issued a compliance order directing the landowners to remove the fill and implement a Restoration Work Plan, and threatening penalties of up to $75,000 per day of non-compliance.

The landowners sued, arguing that EPA had incorrectly classified their property as a wetland and its compliance order was arbitrary and capricious as a result.  Both the District Court and the 9th Circuit Court of Appeals dismissed their challenge for lack of jurisdiction, holding that the Clean Water Act precluded pre-enforcement review of compliance orders, and that such limitation did not violate the Due Process Clause because the landowners could still apply for a wetlands fill permit from the U.S. Army Corps of Engineers (“Army Corps”) or ignore the order and challenge EPA’s wetlands determination in defense of an EPA civil enforcement action.  

The Supreme Court reversed.  As a threshold matter, the Court ruled that the compliance order was “final agency action” subject to challenge under the Administrative Procedure Act (“APA”), because it determined the landowners’ legal obligations and marked EPA’s final determination as to the scope of its jurisdiction.  The Court rejected the argument that the landowners were required to apply for and challenge the denial of a wetlands fill permit, instead holding: “The remedy for denial of action that might be sought from one agency does not ordinarily provide an ‘adequate remedy’ for action already taken by another agency.”

Finally, the Court found that the Clean Water Act does not limit the courts’ pre-enforcement jurisdiction, finding no evidence in the statutory text or legislative history to overcome the APA presumption of judicial review.  It thus did not determine whether denial of review would have violated the landowners’ Due Process rights, but a concurrence from Justice Alito suggests that he would have upheld the Sacketts’ constitutional argument that without the opportunity for judicial review they would have been deprived of property rights without due process.    

In addition to the compliance orders at issue in Sackett, the Supreme Court’s reasoning may expand judicial review over a broad range of interim administrative decisions.  For instance, federal and state agencies often issue “jurisdictional determinations” defining the boundaries of regulated wetlands, limiting the use of such property where no alleged violation has yet occurred.  Future litigation will likely determine whether such determinations can be challenged under the APA and its state counterparts, as well as whether Clean Air Act Administrative Compliance Orders – which EPA has historically interpreted as not subject to pre-enforcement review – are affected by the Supreme Court’s ruling.

For more information on the Sackett decision and judicial review of agency actions, contact Daniel Riesel.

July 11, 2011

Supreme Court to Consider Pre-Enforcement Judicial Review of Clean Water Act Orders

By: Mark Lebel — Filed under: Administrative Law, Clean Water Act, Constitutional Issues, Enforcement, Wetlands — Posted at 1:04 pm

On June 28, the Supreme Court granted a petition to review a Ninth Circuit decision holding, as other circuits have also held, that administrative compliance orders issued by the Environmental Protection Agency (“EPA”) under the Clean Water Act are not judicially reviewable until EPA brings an enforcement action in federal court. 

The petitioners in this case, Sackett v. EPA, sought judicial review after EPA issued an order applying to property that the agency had determined was within its wetlands jurisdiction.  The EPA order prevented the petitioners from building a house and also directed the petitioners to restore the land to its original condition or face heavy penalties. 

The Supreme Court granted review on two critical questions: (1) whether pre-enforcement judicial review of administrative compliance orders is available under the Administrative Procedure Act, and (2) if not, whether the unavailability of such review violates the due process clause of the Fifth Amendment.  

EPA argued that Supreme Court review was unnecessary because the four other circuit courts which have considered this same issue have all agreed that the absence of pre-enforcement review of orders under the Clean Water Act is authorized and permissible.  The Supreme Court appears to have accepted the petitioner’s view that the inability to immediately challenge EPA orders is an issue of significant nationwide importance.

It remains to be seen whether the Supreme Court’s decision in this case will be confined to matters arising under the Clean Water Act.  The Supreme Court recently declined to review a decision by the D.C. Circuit upholding the absence of pre-enforcement judicial review under the Superfund law. 

Mark Lebel is a Summer Associate at Sive, Paget & Riesel, P.C.

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