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Wetlands in Danger
ADIRONDACK COMMUNITIES ADVISORY LEAGUE, FWAB #04-01
Appellee
The Adirondack Communities Advisory League (“ACAL”) respectfully submits this brief in support of its appeal of the New York State Department of Environmental Conservation’s (“DEC’s”) denial of ACAL’s request for an upgrade in the classification of wetland WL-2 in the Town of Ava, New York, from Class II to Class I. ACAL’s request establishes that WL-2 meets the criteria for a Class I wetland under 6 N.Y.C.R.R. 664.5(a)(3) and 664.5 (a)(7) on the grounds that it contains threatened plant species and, independently, on the ground that WL-2 has at least 4 or more of the Class II characteristics set forth in the regulations. DEC’s denial of ACAL’s request should be reversed on the grounds that it is (1) based on a DEC’s misinterpretation of the freshwater wetlands regulations, (2) that the regulations are not being uniformly applied across the state, and (3) that the DEC was negligent due to their failure to conduct surveys, investigations, and delineations to determine the true characteristics and attributes of the totality of WL-2. June 17, 2004 FACTUAL BACKGROUND On October 3, 2002, ACAL submitted a written request, supported by an affidavit of an expert wetlands biologist, to upgrade wetlands WL-2 in the Town of Ava, NY from a Class II to a Class I wetland. On October 11, 2002, DEC (through its Region 6 counsel) issued a written denial of the ACAL request. ACAL subsequently filed a notice of appeal with the New York State Freshwater Wetlands Appeals Board (the Board) on October 23, 2002. The Board reversed the [Region 6] DEC decision that the request was insufficient to warrant consideration and remanded the matter to the Commissioner for further proceedings on June 3, 2003. On July 3, 2003 the Oneida-Herkimer Solid Waste Management Authority (OHSWMA) brought an Article 78 action against the Board. On February 26, 2004 Supreme Court Justice Joseph D. McGuire sustained the Board’s order of June 3, 2003. DEC Commissioner Crotty considered ACAL’s request for a reclassification of the wetland, as ordered by the Board. On March 19, 2004, the Commissioner denied ACAL’s reclassification request and concomitantly issued a decision directing the issuance of a permit for a landfill in the wetland.
DEC’S DENIAL OF ACAL’S PETITION TO RECLASSIFY DEC’s denial of ACAL’s petition to reclassify WL-2 as a Class I wetland based on the presence of threatened plant species ignores and violates its own regulations and is arbitrary and capricious and an abuse of discretion. ACAL submitted evidence to DEC, in the form of an affidavit of a wetland biologist, indicating that WL-2 contains threatened plant species. The affidavit is contained in the record. Two threatened plant species exist within the boundaries of WL-2: Spiny Coontail (Ceratophyllum echanatum) and Lesser Bladderwort (Utricularia minor). NYCRR 193.3 captioned Protected Native Plants; effective August 30, 2000 lists these two species as threatened. While the Intervener in this case initially denied the existence in WL-2 of these two plant species and alleged that a bird dropped fragments of the two plants, more recent investigations by the Intervener and the DEC confirm the existence of these two threatened plant species in WL-2. The freshwater wetland regulation provides that a wetland must be designated as Class I if it contains a threatened plant species. Section 664.5(a)(3) provides that a wetland “shall be a Class I wetland if it …contains an endangered or threatened plant species.” Discussion of Regulations: In its denial of ACAL’s petition to reclassify WL-2 from a Class II wetland to a Class I wetland, the DEC argued that in order for plants to be considered endangered or threatened for purposes of wetland classification, those plants must appear on a list promulgated pursuant to part 664.6(c)(4), after public hearing. DEC further claims that part 193.3 can not be used for wetland classification purposes, because that part was developed under a different state regulatory program. However, DEC’s interpretation of subsection 664.6(c)(4) is contrary to its plain language and to simple logic. Subsection 664.6(c)(4) provides that threatened species include species identified as threatened “in regulations.” The language “in additions to this Part after public hearing” is preceded by the words “such as,” which indicates that additions to Part 664 are merely one example of regulations in which threatened species can be identified for this purpose. The Part 193.3 list of threatened plant species is a “regulation” that satisfies the plain language of subsection 664.6(c)(4). Furthermore, the official notice that appeared in the New York State Register October 5,1988 regarding a proposed rule making hearing lists the subject as “Official List of Rare, Threatened, and Endangered Plants” and states the purpose as “To give an official recognition of rare, threatened, endangered, and exploitably vulnerable plants for environmental and natural resources planning purposes.” Additionally, the NYS DEC world wide web page concerning NY Native Protected Plants Program explains that “The Protected Native Plants Program was created in 1989 as a result of the adoption of the protected native plants regulation (6 NYCRR 193.3). This regulation established four lists of protected plants: endangered, threatened, rare, and exploitably vulnerable.” The program description goes on to say “Other environmental laws relate to the lists, including the State Wetland Classification System and….the Forest Tax Law program.” Based on the plain language and common sense interpretation of Part 664.6(c)(4); and considering the official notice that appeared in the October 5,1988 State Register which listed the subject as “Official List of Rare, Threatened, and Endangered Plants”, and stated the purpose as “To give an official recognition of rare, threatened, endangered, and exploitably vulnerable plants for environmental and natural resources planning purposes”; and considering that the NY Native Protected Plants Program web site clearly states as of 6/17/2004 that “Other environmental laws relate to the lists, including the State Wetland Classification System …program”; the Part 193.3 listing of endangered and threatened plant species is not only the applicable and appropriate regulation/listing of threatened plant species to use in this classification action, but also it is the only regulation listing threatened plant species available to the DEC or the appellant to use in this reclassification action. The DEC’s restrictive interpretation of Part 664.6(c)(4) appears to be fairly recent and possibly tailored to the circumstances of this particular request for a reclassification of WL-2. An internal memorandum from Patricia Riexinger to Mark Craig, both of DEC’s Division of Fish, Wildlife & Martine Resources, Bureau of Habitat, states that the presence of threatened plant species cannot be used as a criteria for classifying or reclassifying wetlands because DEC has not promulgated a list of threatened plant species or held public hearing regarding these species specifically pursuant to Part 664. This memorandum appears to be intentionally thwarting and appears to be attempting to re-write Part 664 which specifically states that a wetland shall be classified as a Class I wetland if it contains an endangered or threatened plant species. If the DEC interpretation were both long standing and correct, it is reasonable to expect that additions would have been made to Part 664 to list endangered, threatened, and vulnerable plant species during the 20 plus years that Part 664 has been in effect. No such additions have been made. If the DEC interpretation were the intended interpretation, it is also reasonable to expect that additions would have been made to Part 664 during the year and a half since the Riexinger memorandum was written. Again, there have been no such additions. DEC apparently contends that there are no threatened plants for purposes of wetland classification. This contention is simply not logical. The regulation clearly states that a wetland containing an endangered or threatened plant species shall be a Class I wetland and; therefore, the framers of the regulation infer that certain plants existing only in wetlands were endangered or threatened and would become extirpated from the state or region of the state if the wetlands containing those rare plant species were not protected. By maintaining their recent interpretation and position, DEC has, in effect, attempted to re-write the regulation by preventing the reclassification process of a wetland based on the existence of a threatened plant species. DEC endangers the existence of these threatened plant species by not affording appropriate wetland protection for them. At the time Part 664 was adopted, Part 193.3 was not specifically referred to in subsection 664.6(c)(4) for the designation of endangered and threatened plant species, because, at the time, DEC had not yet promulgated a list of threatened plant species. The logical interpretation of subsection 664.6(c)(4) is that endangered and threatened species includes all plants designated as endangered or threatened in Part 193.3. The fact that no additions have been made to Part 664 in the past 14+ years that Part 193 has been published substantiates the appellant’s interpretation that Part 193.3 is the intended list of threatened plant species for all environmental and natural resources purposes. In their denial, DEC attempts to use the lists maintained and published by the Natural Heritage Program to determine whether the Spiny Coontail and Lesser Bladderwort are Accordingly, DEC’s denial of ACAL’s petition to classify WL-2 as a Class I wetland based on the presence of threatened plant species was arbitrary and capricious and an abuse of discretion.
In its denial of ACAL’s petition to classify WL-2 as a Class I wetland, DEC did not consider whether other wetlands governed by the same regulation were uniformly classified using the criteria of threatened or vulnerable plant species. In Erie County, the Wagner Road Wetland, designated as AR-15, was classified as a Class I wetland on the basis of containing 4 or more Class II characteristics. This case is almost identical to WL-2 located in Oneida County. The wetland adjoins or is contiguous to a C(t) or higher stream; it is hydraulically connected to an aquifer; it is 1 of the 3 largest wetlands in the township, and it contains and supports vulnerable plant species of state wide significance. Legislative and regulatory intent. Standards are being applied quite differently in the WL-2 case than in other parts of the state. One of the stated reasons for establishing the Freshwater Wetlands Act is to protect wetlands a uniform statewide manner in order to assure the public is afforded the many benefits wetlands provide. The Act itself states the preference for uniformity: “ Freshwater wetlands conservation is a matter of state concern since a wetland in one region is affected by acts on rivers, streams and wetlands of other regions. The natural systems affecting freshwater wetlands overlap many localities. While many local governments individually have enacted ordinances to conserve freshwater wetlands and to reduce flood hazards and losses, effective freshwater wetlands management requires uniformity in laws to eliminate inconsistent or conflicting local laws. One By failing to apply the same standards uniformly across the state, the DEC is failing to comply with the intent and the requirements of the Act. Failure to apply the standards set by precedent elsewhere will cause irreparable damage to the wetlands rather than their protection and enhancement, will cause hardship for landowners, and will cause harm to the surrounding community of people. Accordingly, DEC’s failure to apply standards uniformly across the state is arbitrary and capricious and is an abuse of discretion. Discussion of negligence and dereliction of duty: DEC has failed to act with due diligence with regard to properly assessing the characteristics and attributes of this very large and diverse wetlands. With all the controversy surrounding the proposed development within WL-2, DEC has failed to conduct a survey for endangered plants and animals within WL-2. In cross examination during the adjudicatory hearing for a proposed landfill to be constructed within a portion of WL-2, Mr. Craig of the DEC testified that he had never conducted a survey for endangered plants in WL-2 and he was not aware that anyone had. [Exhibit B to appellant’s brief dated 9 December 2002 in FWAB #02-05]. Furthermore, in an internal memorandum, dated July 29, 1994 from Robert Senior of the DEC to John Kenna also of the DEC, Mr. Senior stated at paragraph 17: “The Paluck property impacts a Class 2 wetland. The possibility of having the Class 2 wetlands upgraded to a Class 1 exists. This would involve a much more difficult wetland permit.” At paragraph 11 he stated: “The wetlands were defined by the use of wetland maps, aerial photographs and finally walking the site. During each phase of the wetland delineation, the total wetland acreage continued to expand.” By walking the site, Mr. Senior was referring to the proposed landfill site. The characteristics of the wetlands as defined by maps and aerial photographs weren’t the characteristics encountered on the ground, yet according to Mr. Craig’s testimony, the DEC did not undertake a serious effort to conduct a survey for threatened plants on the proposed landfill site, even though Mr. Craig believed that the possibility of having the Class 2 designation upgraded to Class I existed. In a letter from John Paige of the DEC to Alex Stempien, an Ava resident, Mr. Paige indicated that WL-2 might possess the characteristics to qualify for Class I classification based on 4 or more Class II attributes. His letter stated that WL-2 might meet the criteria of containing 2 or more wetland structural groups. If the structural group criteria were met, WL-2 would likely qualify as a Class I wetland. There is proof that the DEC was aware in 1994 that the characteristics of the wetland were very different than what had previously been defined. It has been shown that at least two DEC personnel believed the wetland might qualify for a reclassification. ACAL’s wetlands biologist conducted a brief survey of the wetlands off the proposed landfill site and concluded that the wetlands probably did contain two or more structural groups in the right proportions to qualify for Class I under the 4 or more class II criteria (see original affidavit). There is evidence that although DEC initially disavowed the presence of 2 threatened plant species in WL-2, their presence was confirmed a few months later. Despite these facts, the DEC has made no attempt to conduct an inventory of the characteristics, diversity, and attributes of the entirety of WL-2. Based on the testimony of Mr. Craig, the opinion of Mr. Paige that WL -2 might qualify as a Class I wetland, the memorandum from Mr. Senior to Mr. Kenna, et al, it is irresponsible of the DEC that no serious attempt has been made DEC to inventory and delineate the entirety of WL-2 to determine the proper classification. Because of the DEC’s failure to conduct due diligence surveys of WL-2, they have been negligent and irresponsible in their duties to properly classify and protect WL-2. The DEC’s denial of ACAL’s petition to upgrade the wetland was based in part on willful neglect for failing to properly determine the true and complete attributes and characteristics of the entire wetland, and accordingly the denial of the requested upgrade was an abuse of discretion. RELIEF REQUESTED
3. The Board should require the DEC to conduct a complete and impartial delineation of WL-2 and conduct a species and diversity inventory of the entire wetland to ensure the wetland is mapped correctly and to ensure that all the wetland attributes and characteristics are correctly recorded so that this wetland is properly classified and protected in the future.
Respectfully submitted, Ned R Ross |
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