INTRODUCTION

Once good comprehensive planning and wetland inventory is in place local governments have several options available to formally protect wetlands and watersheds.  Several are outlined below. When wetlands are regulated at the local level the ACOE  or the NYS Department of Environmental Conservation needn’t permit wetland projects unless they have already been approved locally. Local control over local resources and land values is retained.

According to the NYS Department of State Local Government Handbook, “With respect to freshwater wetlands, three regulatory possibilities are present:

1) All wetlands that are smaller than 12.4 acres and that are not deemed of ‘unusual importance,’ are subject to the exclusive jurisdiction of the municipalities where the wetlands are located (ECL §24-0507).

2) Under ECL, §24-0501, a local government may enact a Freshwater Wetlands Protection Law to fully assume jurisdiction over all freshwater wetlands within its jurisdiction from DEC, provided its law is no less protective of wetlands than Article 24 of the ECL and provided that DEC certifies that the municipality is capable of administering the Act. There is also a limited opportunity for counties to assume wetlands jurisdiction if the local government declines.

3) Under ECL, § 24-0509, local governments can now adopt freshwater wetland regulations applying to wetlands already mapped and under the jurisdiction of DEC, provided that the local regulations are more protective of wetlands than the state regulations in effect. No pre-certification by DEC is required.”

SEQRA, Wetlands, and Watersheds

An option that is available to all towns, villages and cities in NY is the State Environmental Quality Review Act (SEQRA).  Communities can use the SEQRA process to protect important wetlands and other waters by identifying them as Critical Environmental Areas, or CEAs.  Under SEQRA, any Type I or Unlisted activities that might impact the environmental characteristics of a designated CEA are a relevent area of environmental concern and must be evaluated in the determination of significance prepared pursuant to Section 617.7 of this Part.

Wetlands on a site are a SEQRA concern in evaluating the significance of environmental impacts.  In order for the lead agency to determine whether the impacts to the wetlands are significant or not, they may wish to have a copy of any permit applications submitted to the ACOE or NYSDEC.  In making the determination of significance, the lead agency should review the type of permit application made to the ACOE and/or NYSDEC (is it a nationwide or individual permit); the type and area of wetlands being impacted (are they high quality or low quality); and the type and nature of compensatory wetland mitigation being proposed (is it in-kind or out-of-kind, does the mitigation replace lost functions and values and lost wetland acreage onsite or at another location). 

Local communities shouldn’t be concerned about making a determination of significance before the federal or state agency issues a wetland permit.  An Applicant cannot receive a wetlands permit from a federal or state agency without a determination of significance from the local municipality due to the Uniform Procedures Act [UPA]. Under the UPA, the NYSDEC cannot issue a determination of completeness on the wetlands permit application until the lead agency has either issued a negative declaration or has accepted a complete draft Environmental Impact Statement.  Given that most of the ACOE’s permits require a Section 401 Water Quality Certificate from the NYSDEC, the wetland regulatory review process is on hold until the lead agency makes the determination under SEQRA first.

Wetlands may also be indirectly regulated through subdivision and site plan review laws that can include wording on avoiding inappropriate building areas of a site, including wetlands.

Local Zoning
Another way that communities can protect wetlands and water quality is to create a Comprehensive or Master Plan.  Under this Plan a community may develop and adopt local regulations for storm water control; ordinances for sediment and erosion control; building and sanitary codes; floodplain regulation; timber harvesting guidelines or other vegetation removal standards. 

Monitoring Activities
Local governments have a vital role in monitoring activities near or in wetlands within their municipal boundaries and should have access to all related project plans and permit requirements to facilitate monitoring.  Monitoring project development periodically will increase compliance and provide additional influence over local wetland management.

For more information reference the enclosed materials or the resources listed below.

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RESOURCES

Publications:

• Common Questions Brochure: Resource Protection Options for NY Communities -Planning and Zoning Techniques. Association of State Wetland Managers, Inc. 2001.
• Protecting Wetlands, Managing Watersheds: Local Government Case Studies. International City/County Management Association, 1999.
• “Wetlands and Waterways” Chapter 81 of the Code of the Town of Brookhaven, NY.
• “Freshwater Wetlands and Stream Protection” Chapter 124 of the Code of the Town of Clifton Park, NY.
• “Wetlands and Watercourse Ordinance.” Chapter 227 of the Code of the Village of Croton-on-Hudson. 
• “Model Ordinance for Wetland, Waterbody, and Watercourse Protection.” Dutchess County Environmental Management Council.
• “Freshwater Wetlands Protection Law of Monroe County.” Chapter 377 of the Code of the County of Monroe.

• Creating the Community You Want: Municipal Options for Land Use Control.  NYS DOS, Division of Local Government Services, 1998. 

Relevant Websites:     

NYS Dept. of State Division of Local Government Services                          www.dos.state.ny.us/lgss/localgovt.html
Local Government Environmental Assistance Network                                 www.lgean.org
Wetlands Permit Info - Town of Yorktown Dept. of Building and Zoning  http://yorktownny.virtualtownhall.net/Public_Documents/YorktownNY_Building/index
SEQRA in NYS                                                                                                      www.dec.state.ny.us/website/dcs/seqr/index.html
NYS Conference of Mayors and Municipal Officials                                      www.nycom.org/ 
New York Planning Federation                                                                           www.nypf.org
The Association of Towns of the State of New York                                     www.nytowns.org/
National Association of Counties                                                                      www.naco.org/
Lincoln Land Institute: “A Methodology for Valuing                                    www.lincolninst.edu/workpap/wpap6.html
                               Town Conservation Land”
Smart Growth Network                                                                                         www.smartgrowth.org
American Planning Association                                                                         www.planning.org
EPA Programs and Research for Smart Growth                                               www.epa.gov/livability
Open Space Model Ordinance. Center for Watershed Protection. http://www.stormwatercenter.net/Model%20Ordinances/open_space_model_ordinance.htm

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Wetland and Watershed Protection Toolkit: Guidance Materials
for Local Governments in New York State
February, 2002
Preface | Importance of Wetlands | Establishing a Wetland and Watershed Program
Federal and State Regulatory Programs | Local Government Methods of Wetland Protection
Non-Regulatory Methods of Wetland Protection
Outreach and Information Campaigns Technical and Financial Assistance
Special Topics | NYS Directory | Bibliography | Glossary | UPDATES

Although preparation of this “Wetland and Watershed Protection Toolkit for New York” was funded by the United States Environmental Protection Agency, Wetlands Division under Grant Assistance Agreement # X992998-99-0, the views represented in this product should not be interpreted to be those of the US Environmental Protection Agency.