PRESERVING OUR WETLANDS
Lack of federal, state oversight leaves towns no option but to make own rules
Water: Extent of buffer zones is issue
Story by DAN SHAPLEY
Photo by KARL RABE
Photo by KARL RABE
Picture a nameless little pond, just under one acre in size, set back in the woods.
Wildlife like frogs, turtles and ducks might live there. During heavy rain, it might accumulate water that would otherwise flood nearby basements or roads.
In Poughkeepsie, the owner of that pond would need a permit — and good reason — to drain or fill the wetland.
In Pawling, he would have to preserve a 100-foot buffer of undisturbed plants and trees around a similar pond.
Landowners in many other local towns could do whatever they please to a pond that size.
In the absence of federal or state laws protecting many small wetlands, six local towns have passed laws in an attempt to fill the gap.
Five more have drafted laws and five others are in the process of drafting their own. Others have some zoning restrictions governing wetlands, or plan to increase protections as they update their master plans and zoning codes.
No two laws are identical.
Scrutiny varies across region
The patchwork of protection means many small wetlands can be filled, drained or encroached upon with varying degrees of scrutiny from local officials charged with looking out for the common good. Because water doesn't stop flowing at municipal boundaries, upstream towns may be jeopardizing the water quality of communities downstream.
It also means landowners and developers seeking to alter their properties face a dizzying variety of local ordinances from one town to the next.
Landowners have challenged several local laws, claiming they infringed on their rights to make decisions about — and maximize profit on — their properties.
In Woodstock, for instance, Wittenberg Sportsman's Club successfully challenged a wetlands protection law, prompting the town to rewrite it.
"We're looking at filling in regulatory gaps," said Dara Trahan, a planning specialist for the Woodstock planning board. "We've lost many of our wetlands that were supposedly national inventory wetlands. Nobody said boo. ... We've been approving lots that are 50 percent wetlands. Our hands are kind of tied."
Calls to the hunting club were not returned.
Studies list advantages
Wetlands are ponds, swamps, bogs, fens and other areas where water accumulates. Studies have documented the way they limit flooding, cleanse some pollutants, replenish groundwater supplies and provide habitat for a variety of wildlife.
Since the Clean Water Act of 1972, the federal government has recognized their importance, and set up a system to protect wetlands across the nation. Many states, including New York, enacted laws that increased protection further.
A 2001 Supreme Court decision narrowed the federal government's jurisdiction over small wetlands, restricting the Army Corps of Engineers' oversight to wetlands connected to navigable bodies of water. The decision removed protection for as many as two thirds of the wetlands in central Dutchess County, according to a Fish and Wildlife inventory.
A 2006 Supreme Court decision further confused the interpretation of federal jurisdiction over small wetlands. The Army Corps of Engineers rarely denies a permit for draining or filling a small wetland, but it often requires changes to a project to limit the impact.
Since 1975, New York has regulated wetlands of at least 12.4 acres — one hectare — and a 100-foot buffer surrounding them.
Stuck in Senate
The Assembly passed a bill expanding protection to smaller wetlands this year. It had the support of Gov. George Pataki, but the Senate leadership refused to bring it up for a vote.
Environmentalists and, increasingly, waterfowl hunters, have lobbied to increase protection. New York has lost an estimated 60 percent of its original wetlands — a figure that is similar to the national percentage.
The loss of any one wetland may affect little, but the loss of many across the landscape can degrade the quality of groundwater, streams, creeks and even the Hudson River.
The loss of wetlands, as well as the increased runoff from new roads, driveways and rooftops, has likely contributed to a measurable decline in the water quality of formerly pristine Hudson Valley streams in recent years.
The loss of consistent wetlands protections has come at a time when development is fast consuming open land in the Hudson Valley, and local officials say developers increasingly want to build on land with wetlands and steep slopes.
"We see that more and more in our towns because the developable land — at least the prime developable land — is taken," said Mike Appolonia, a councilman in the Town of Clinton, which drafted a wetlands protection law this summer.
"We're getting now to the types of lands, particularly in Clinton, which are really undesirable and yet desirable from the standpoint of someone who wants a house on it."
Of the nearly 80,000 people who moved into the Hudson Valley between 2000 and 2005, 75 percent moved into relatively rural areas outside established cities and villages.
In Dutchess County, the second-fastest growing county in the Hudson Valley behind Orange County, 94 percent of the population growth is dispersed in its more rural areas.
That suburban sprawl may con-sume wetlands, farms and other open spaces, but the market for new houses has only recently slackened slightly after five years of explosive growth. People want to buy the houses developers are building.
Stringent laws sought
Others see restrictive, rigid laws as the only way to preserve wetlands.
In the woods behind Doreen Tignanelli's house in the Town of Poughkeepsie is a 0.9-acre pond and a larger state-regulated wetland on the 56-acre former Girl Scout camp, Forest Glen Nature Sanctuary.
The landowner, Harold Buchner, who did not return phone calls last week, has plans to build as many as 39 homes on his property.
Poughkeepsie's 2003 wetlands protection law struck a compromise between the desires of environmentalists and builders. A graduated system requires a greater buffer around larger wetlands, and smaller buffers around smaller wetlands. At less than an acre, the pond in Forest Glen requires no buffer.
Tignanelli, member of the town's conservation advisory council, said that compromise ignored scientific evidence that buffers are needed to sustain many species. Studies have shown, for instance, that frogs need substantial forests surrounding the ponds where they breed in order to survive.
"It's one of the few remaining spots in the Town of Poughkeepsie that's a refuge for wildlife. It's a sanctuary," she said. "The buffer sizes are not adequate."
'You have to draw a distinction between regulating and confiscating
land. If something is proposed in the buffer, the applicant would have
to have a pretty good reason to encroach into the buffer to get that
'The interesting part is, the (state and federal) laws that are on the
books right now, if you abide by them and go through the appropriate
method of determining what the wetland is, they work.'
'We have a big property rights advocacy in this town, so we're not
pushing the envelope right now. We're pushing education.'
'We have golf courses in town, so we have to be careful to understand
their need for pesticides. They, on the other hand, have to understand
our needs to protect water.'
East Fishkill supervisor
'If everybody likes this law, I've done a lousy job.'
Milan conservation advisory council
'It's a process, and if you don't have an environmental community group,
like a conservation advisory council, it's hard to create a wetlands law
out of the blue.'
Sawkill Watershed Alliance
'The town of Red Hook, which has been a model in other areas of open
space preservation, needs to step up to the plate, and resolve itself to
address these smaller bodies of water, and the unequivocal reality that
they are becoming more and more polluted as development marches on.'
Red Hook Farmland and Open Space Committee
'You're looking at three — federal, local and state — three separate
agencies. There's no one-stop shopping, one-stop permitting. That's a
Builders Association of the Hudson Valley
'We have the Great Swamp, so we recognize the role wetlands play. ...
We've tried to build in water protection generally into our code.'