September 12, 2012
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:
- Demolition and removal of existing appurtenant structures;
- Construction of driveways or parking areas limited to 3000 square feet;
- Additions to existing structures;
- Installation of garages, decks, porches, sheds, pools, utility lines and other appurtenant structures;
- 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
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
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
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
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
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.
May 10, 2011
On April 27, 2011, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“ACOE”) issued joint draft guidance seeking to clarify which wetlands can be considered “waters of the United States” protected by the Clean Water Act (“CWA” or the “Act”). The draft guidance interprets the agencies’ jurisdiction under the Act more expansively than existing guidance, which was issued in 2008.
The Clean Water Act applies to “waters of the United States,” a term that has been regulatorily defined by both EPA and ACOE, and which has been extensively litigated – particularly in regard to the extent to which this term encompasses wetlands. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court held that wetlands adjacent to a traditional navigable water were properly considered to be “waters of the United States.” In Solid Waste Agency of Northern Cook County v. ACOE, 531 U.S. 159 (2001), the Court addressed the question of federal jurisdiction over isolated, non-navigable, intrastate ponds, and concluded that such jurisdiction could not be based solely on the presence of migratory birds. In Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”), the Court addressed the question of CWA jurisdiction over wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters located 11-20 miles away from the wetlands. The Court failed to reach a majority on this question. Four justices, led by Justice Scalia, rejected the ACOE’s assertion of jurisdiction, Justice Kennedy concurred in the judgment, and four dissenting justices led by Justice Stevens deferred to the agency’s assertion of jurisdiction. Since Rapanos, courts have applied both the plurality’s view and Justice Kennedy’s approach, which are described in greater detail below.
- The plurality opinion authored by Justice Scalia stated that, in addition to traditional navigable waters, “waters of the United States” are “relatively permanent, standing or flowing bodies of water,” and that “only those wetlands with a continuous surface connection to [such water bodies], so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”
- Justice Kennedy concluded that “waters of the United States” included wetlands that had a significant nexus to traditional navigable waters, and that wetlands could possess such a nexus if they, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 
The Court’s fractured opinion left much confusion in its wake, including over which standard to apply. In a 2008 guidance document aiming to clarify the scope of CWA jurisdiction, EPA and ACOE took the position that regulatory jurisdiction under the CWA exists over a water body if either the plurality’s or Justice Kennedy’s standard is satisfied. The new guidance, which would supersede the 2008 guidance, is the agencies’ most recent attempt to clarify the evolving and elusive definition of “waters of the U.S.” as pronounced by the Supreme Court.
The 2011 Draft Guidance
As compared to the 2008 guidance, the new guidance places a greater emphasis on Justice Kennedy’s “significant nexus” test, providing an extensive description of how the test is to be applied and discussing a broader range of situations where this test would be dispositive. In another departure from existing guidance, the new guidance explicitly describes interstate waters as categorically jurisdictional. Furthermore, the new guidance modifies the agencies’ positions concerning swales, erosional features, and upland-draining ditches characterized by infrequent or low volume flow. While the 2008 guidance states that these bodies are not jurisdictional, the new guidance only excludes them if they are not tributaries or wetlands, and discusses how to determine if they are tributaries or wetlands. Finally, as compared to the 2008 guidance, the new proposed guidance provides a more explicit and extensive list of waters over which the agencies would generally not assert jurisdiction, thus providing greater certainty that activities affecting these waters would not trigger federal jurisdiction.
The following table compares selected key features of the 2008 guidance and the 2011 Draft Guidance:
||2011 Draft Guidance
Agencies Categorically Assert CWA Jurisdiction Over the Following Waters:
- Traditional navigable waters
- Wetlands adjacent to traditional navigable waters
- Non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally (typically three months)
- Wetlands that directly abut such tributaries
- Traditional navigable waters
- Interstate waters
- Wetlands adjacent to either traditional navigable waters or interstate waters
- Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally
- Wetlands that directly abut relatively permanent waters
Agencies Will Assert CWA Jurisdiction Over the Following Waters if a Fact-Specific Analysis Finds a Significant Nexus to a Traditional Navigable Water (or to an interstate water, under the 2011 Guidance only):
- Non-navigable tributaries that are not relatively permanent
- Wetlands adjacent to non-navigable tributaries that are not relatively permanent
- Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary
- Tributaries to traditional navigable waters or interstate waters
- Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
- Waters that fall under the “other waters” category of the regulations, at 33 C.F.R. § 328.3(a)(3). The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.
Agencies Will Not Generally Assert CWA Jurisdiction Over the Following Waters:
- Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow)
- Ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water
- Wet areas that are not tributaries or open waters and do not meet the agencies’ regulatory definition of “wetlands”
- Waters excluded from coverage under the CWA by existing regulations
- Waters that lack a “significant nexus” where one is required for a water body to be protected by the CWA
- Artificially irrigated areas that would revert to upland should irrigation cease
- Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing
- Artificial reflecting pools or swimming pools created by excavating and/or diking dry land
- Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons
- Water-filled depressions created incidental to construction activity
- Groundwater drained through subsurface drainage systems
- Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands
Public Participation and Future Regulations
EPA and ACOE have opened the draft to public comment. Comments are due July 1, 2011 and may be submitted here (click on the “What Do You Think” tab in the middle of the page). While borrowing the notice-and-comment procedures applicable to rulemaking, the Guidance explicitly states that it is “not a rule, and hence is not binding and lacks the force of law.” The agencies have indicated their intent to commence rulemaking after the guidance is finalized. However, the American College of Environmental Lawyers (“ACOEL”) has pointed out that certain aspects of the 2011 Draft Guidance are identified as subject to future rulemaking, but other issues are not, “leav[ing] open the question of how much of the Proposed Guidance ultimately will be covered by a proposed rule.”
 See 33 C.F.R. § 328.3, 40 C.F.R. § 122.2, 40 C.F.R. § 230.3(s).
 Rapanos, 547 U.S. at 739.
 Draft 2011 Guidance 1.
 In particular, the ACOE article notes that Draft 2011 Guidance indicates the agencies’ intent to provide clarification via future rulemaking on (a), CWA jurisdiction over “other waters” defined in 33 C.F.R. § 328.3(a)(3), and (b) whether the existence of an ordinary high water mark alone is sufficient to establish a significant nexus to downstream traditional navigable or interstate waters, without requiring a site-specific analysis.
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