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Wetlands Strategy Finalized by New York City

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Wetlands Strategy Finalized by New York City G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 248—NO. 18 THURSDAY, JULY 26, 2012 STATE ENVIRONMENTAL REGULATION Expert Analysis Wetlands Strategy Finalized by New York City ew York City has just re-leased what very Waterfront Revitalization Program (WRP),16 which well may be the last major environmental is the city’s regulatory program for balancing regulatory action of the Bloomberg potentially competing interests such as economic administration: the final New York City development, natural resources protection, and Wetlands Strategy.1 The Strategy was public access on the shoreline, to designate Nissued pursuant to New York City Local Law 31 By additional sites of ecological importance, and to of 2009, which called for the creation of a plan to Charlotte A. offer greater protection to those sites.17 Biblow “conserve, protect, enhance, stabilize, restore, and Mitigation expand wetlands and associated buffer areas.”2 The Strategy is intended as a comprehensive effort There are five distinct steps in the Strategy to meet those goals. relating to mitigation of damage to the city’s The City’s Wetlands wetlands, beginning with working with state The City’s Goals and federal regulators, to evaluating changes to Much of New York City’s natural waterfront the mitigation policy and providing guidelines.18 consists of wetlands, generally considered as The city sets forth dual goals in the Strategy. According to the Strategy, the city will seek to including swamps, marshes, bogs, and similar First, there should be no further net loss of create a “clear mitigation policy” based on existing areas.3 Wetlands serve a number of important wetlands. Second, there should be improvement scientific information that includes guidance on environmental purposes, such as helping to of the quality of the city’s remaining wetlands and requirements for types of mitigation, ecological improve water quality and control floods by maximization of their “ecological functions” to the criteria and assessment of impacts, amounts of trapping pollutants and capturing stormwater greatest extent possible.11 Toward that end, the compensation and replacement ratios, financial runoff. Wetlands also provide habitats for local Strategy addresses four distinct areas: protection, guarantees, monitoring and maintenance, and and migratory birds, fish, and other wildlife.4 mitigation, restoration, and assessment.12 geographic service area.19 The Strategy also New York City estimates that only 1 percent of Protection of Wetlands provides for the city to seek “creative approaches” its historic freshwater wetlands and 10 percent of to enhance wetlands functions, such as debris its historic tidal wetlands currently exist.5 Existing The Strategy sets forth several steps relating removal and hazardous material remediation, that maps indicate that the city currently has between to the protection of wetlands. First, the Strategy are suited to the city’s urban conditions.20 approximately 5,600 acres to a little over 10,000 says that the city will increase its protection of Another interesting mitigation idea in the acres of coastal wetlands.6 About 2,000 acres of vulnerable wetlands, including by transferring Strategy is to create a wetlands mitigation banking freshwater wetlands remain from the 224,000 acres more city-owned wetlands to the city’s Department or in-lieu fee mechanism for public projects. These that historically existed in New York City.7 of Parks and Recreation (DPR) and Department are methods of undertaking restoration projects The city’s tidal wetlands are concentrated of Environmental Protection (DEP).13 In fact, the that can provide “credits” to multiple projects in Brooklyn (principally around Jamaica Bay), that require mitigation.21 Queens (principally around Jamaica Bay and its Mitigation banking allows permit applicants north shore along the East River and Long Island About 2,000 acres of freshwater for projects of all sizes to purchase “credits” from Sound), northwest Staten Island, and the Bronx a restored, established, enhanced, or preserved (along the north side of the upper East River).8 The wetlands remain from the 224,000 wetland, stream, or other aquatic resource. Based Arthur Kill watershed contains some of the most acres that historically existed in New on a wetlands assessment, a mitigation bank productive wetland habitats in the city.9 The city’s York City. assigns habitat/ecological value to those resources freshwater wetlands are primarily found in some in the form of credits that can be sold by the bank of its large parks (principally Van Cortlandt Park to permit applicants to offset losses of natural in the Bronx, Alley Pond Park and Forest Park in Strategy specifically provides for the transfer of resources due to dredge and fill activities. Bank Queens, and the Greenbelt Park System in Staten 10 city-owned wetlands parcels to the DPR and credits can be disseminated for projects within Island and along its south shore).10 nine city-owned wetlands parcels to the DEP (for a delineated geographic region, or service area. inclusion in the Staten Island Bluebelt system) by Assigning credits and standardizing mitigation Dec. 31, 2013.14 ratios (for example, one acre of wetland impact The city also is planning to acquire “vulnerable” could require three acres of restoration) make privately owned sites, in particular, privately the process more predictable.22 CHARLOttE A. BIBLOW is a partner in the environmental, owned small freshwater wetlands parcels As the Strategy explains, “In-lieu fee mitigation land use and municipal law and litigation departments that are not protected by state or federal involves permit applicants designating an approved 15 of Farrell Fritz. She can be reached at cbiblow@farrellfritz. regulations. Additionally, the Strategy provides third-party organization to undertake wetland 23 com.w for the Department of City Planning to update the creation, restoration, and/or enhancement.” The THURSDAY, JULY 26, 2012 third-party organization, usually a governmental determine data needs and seek funding to conduct than every fourth year thereafter. It certainly will agency or non-profit entity, will have in place an horizontal marsh migration analyses.31 be interesting to study that report to determine to agreement with appropriate regulatory agencies Moreover, the city will assess the conditions and what extent the city will have been able to stabilize to use the fees from the applicants for mitigation, functions of wetlands to set appropriate priorities and restore the city’s wetlands and obtain the often complex wetlands restoration projects.24 and improve management and protection efforts. funding needed for the various steps contemplated Restoration As provided by the Strategy, it also will implement by the Strategy. tidal rapid assessments on city properties to help It is costly to restore wetlands, which can require better characterize conditions and impacts.32 ••••••••••••••••••••••••••••• fill removal, re-grading, clean soil placement, Finally, the city will develop a research agenda 1. Available at http://www.nyc.gov/html/planyc2030/ to address wetlands challenges, including downloads/pdf/nyc_wetlands_strategy.pdf. native plant installation, erosion control, and 2. New York City Administrative Code §24-528(c)(1). invasive plant management. Recent projects in undertaking scientific research to understand the 3. Wetlands are areas “inundated or saturated by the city have had an average restoration cost causes of habitat degradation and to facilitate surface or groundwater at a frequency and duration 25 sufficient to support vegetation typically adapted for of nearly $500,000 per acre. Despite that, the a coordinated approach toward corrective life in saturated soil conditions.” Strategy, supra, at 9. Strategy provides for a rather significant amount actions. The Strategy provides that the city will 4. Id., supra, at 9. of wetlands restoration. continue to work with state, federal, academic, 5. New York City Wetlands Policy Paper, “New York City Wetlands: Regulatory Gaps and Other Threats,” January 2009, In particular, the Strategy says that, by the end and environmental parties throughout the region (“Wetlands Policy”), at 4, available at http://www.nyc.gov/ of 2013, the city will work with state and federal to develop and implement a research agenda to html/om/pdf/2009/pr050-09.pdf. regulators to complete investments of nearly $48 address wetlands challenges.33 6. Strategy, supra, at 3. 7. Wetlands Policy, supra, at 9. million at 16 sites to restore and enhance nearly Conclusion 8. Strategy, supra, at 10. 122 acres of wetlands and adjacent habitat, 9. Wetlands Policy, supra, at 11. 10. Strategy, supra, at 11. including projects at Meadow Lake, Yellow Bar, The Strategy is not the city’s first words on 11. Id., at 3. Black Wall, and Rulers Bar in Queens; Paerdegat its wetlands. The WRP, originally adopted in 12. Id., at 3-5, 22-39. Basin and Calvert Vaux Park in Brooklyn; Inwood 1982 and then revised in 1999, explicitly called, 13. Id., at 4, 22-23. 14. Id., at 40. Park in Manhattan; Freshkills Park, Pralls Island, in Policy 4, for the city to prevent the net loss 15. Id., at 4, 23-24. Crescent Beach, and Brookfield Landfill in of wetlands. Then, in 2007, the city released 16. http://www.nyc.gov/html/dcp/html/wrp/wrp.shtml. Staten Island; and Pugsley Creek, Soundview the Jamaica Bay Watershed Protection Plan to 17. Strategy, supra, at 4, 25. 18. Id., at 25-26. Park, Tallapoosa, Turtle Cove, and further evaluate the current and future threats to the bay 19. Id. upstream along the Bronx River in the Bronx.26 and establish strategies to address water quality, 20. Id. With a combination of public and private restoration ecology, stormwater management, and 21. Id., at 26. 22. Id., at 26-27. resources, the city also intends to create a natural public education and outreach. In that same year, 23.
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