Adirondack Council • Adirondack Mountain Club • American Canoe Association • American Rivers, Mid-Atlantic Region • American Whitewater •The Catskill Center for Conservation and Development • EPL/Environmental Advocates • New York State Conservation Council • New York State League of Conservation Voters • New York Rivers United Parks and Trails New York • Residents’ Committee to Protect the Adirondacks Scenic Hudson • Sierra Club – Atlantic Chapter
By Hand
June 14, 2006
Hon. Alexander B. Grannis
Member, NYS Assembly
712 Legislative Office Building
Albany, NY 12248
Re: In support of A. 10048, Public Navigation Rights
Dear Assemblyman Grannis:
We, the undersigned, are writing in support of A. 10048, titled “Public Passage in Navigable Waterways,” whose primary purpose is codification in a single State statute of the longstanding existing common law public right of navigation. Enactment of A. 10048 will make the law concerning this right much more accessible, understandable and transparent. At present the law concerning this public right is scattered in numerous case law decisions and, without passage of this bill, the right will continue to be difficult to find and difficult to interpret, causing continued confusion and conflict between riparian landowners and waterway users.
We recognize that you were a prime sponsor of this legislation when the bill was active in the 1989 – 1991 period, when it passed the Assembly in 1990, and we appreciate the key role that you have played in re-introducing it at this time. The continuity that you have provided, after action on the earlier legislation was placed on hold in June 1991 at the beginning of the 9-year court case concerning the South Branch of the Moose River, has been critical in moving ahead again towards enactment.
The successful conclusion of the Moose River case in the Court of Appeals, important as it is, did not lessen the need for this legislation.
The same problems of inaccessibility to the law and difficulty in interpreting numerous applicable cases still exists. Also, this is a statewide issue, not limited to the Adirondacks despite the focus there. The fact that conservation easements have been acquired by the State on thousands of acres of timber lands in the Adirondacks providing much new access on navigable rivers in that region, doesn’t mean that a comprehensive statewide solution isn’t needed to the problems already described.
A.10048 June 14, 2006 Pg 2
A. 10048 is written in plain English; it is easy to understand. The bill assures riparian landowners that the public has no right to be on private property other than to make necessary portages incidental to the public right of navigation and then only to the minimum extent required to accomplish those purposes. It also authorizes riparian landowners to establish portage routes on their land along the shores of navigable waterways. It references existing provisions of the General Obligations Law, reassuring landowners that they have no extra responsibility or duty of care, beyond normal, to keep their premises safe for those who are exercising the public right of navigation.
It has been nearly four decades since Paul Jamieson, the dean of Adirondack canoeing, began to call attention to the longstanding existence of these public rights. Later he advocated strongly for the legislation, now numbered A. 10048. It has been 16 years since this legislation was first introduced in 1989. After all of this time and considering the positive findings of the Court of Appeals in the Moose River case, settling the key issue that caused the hiatus in the legislation in those earlier times, it is more than time for this bill to be enacted. It is time for the State of New York to definitively describe, in a single statue and in plain English, and give visibility to this public right, a right that has had a shadowy existence in the labyrinth of the common law for 228 years. Thank you for all that you are doing to ensure passage of this legislation.
Sincerely,
Brian Houseal, Executive Director
Adirondack Council
Neil Woodworth, Executive Director
Adirondack Mountain Club
Pamela S. Dillon, Executive Director
American Canoe Association
Stephanie D. Lindloff, Associate Director, Dam Programs
American Rivers, Mid-Atlantic Region
Mark Singleton, Executive Director
American Whitewater
Tom Alworth, Executive Director
The Catskill Center for Conservation and Development
Robert J. Moore, Executive Director
EPL/Environmental Advocates
Wally John, Legislative Vice-President
New York State Conservation Council
A.10048 June 14, 2006 Pg. 3
Marcia Bystryn, Executive Director
New York State League of Conservation Voters
Bruce Carpenter, Executive Director
New York Rivers United
Robin Dropkin, Executive Director
Parks and Trails New York
Peter Bauer, Executive Director
Residents’ Committee to Protect the Adirondacks
Ned Sullivan, Executive Director
Scenic Hudson
Roger T. Gray and John Nemjo, Co-chairs, Adirondack Committee
Sierra Club – Atlantic Chapter
Friday, June 16, 2006
Wednesday, June 14, 2006
Action Alert: Clean Water Rule Making
New York Rivers United
P.O. Box 1460, Rome, NY 13442
www,newyorkriversunited.org
Tel. (315) 339-2097 Fax (315)339-6028
Email:newyorkriversunited.org
ACTION ALERT
Please HELP To Protect Our Wetlands and Streams From Damaging"“Mitigation" Rule – Send Comments to the EPA and Corps Today
There is simply no comparison: natural wetlands and streams are more ecologically sound and are better for purifying drinking water, protecting against flooding, maintaining water quality, and providing habitat than streams and wetlands constructed to "replace" destroyed natural water resources.
Despite the poor track record of the mitigation program to date, in March of this year the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) jointly proposed a rule revising the standards governing compensatory mitigation for aquatic resources that allows for vastly greater flexibility in meeting mitigation requirements. By making it easier to compensate for destroying ecologically crucial streams and wetlands, this proposal will effectively promote, not discourage continued destruction.
The public can comment on this rule until June 30. Please weigh in yourself by sending a letter to the EPA by email to: ow-docket@epamail.epa.gov, or by US mail to: USEPA Docket Center, Attention Docket Number EPA-HQ-OW-2006-0020, 1200 Pennsylvania Ave NW, Washington, D.C. 20460.
Below is a sample letter that can be used:
SAMPLE LETTER:
To the EPA and Army Corps Water Docket:
I am writing in opposition to the recently proposed compensatory mitigation rule (Docket No. EPA-HW-OW-2006-0020). Our nation’s wetlands and streams provide habitat for a variety of species, improve water quality, and protect communities by reducing flooding. The proposed rule would weaken protections for these waters by sanctioning uncertain mitigation practices, effectively encouraging the increased destruction of these important water resources.
Your agencies have a long-standing and accepted sequence to deal with impacts to streams and wetlands: adverse impacts should be avoided whenever possible, unavoidable impacts should be minimized as much as possible, and only then should mitigation be considered. The proposed rule undermines this critical sequence with its overwhelming focus on mitigation.
This rule promotes an “anything goes” approach with no scientific backing. Under this proposal completely filling in streams could be “mitigated” by creating a wetland twenty miles away, or destroying wetlands could be “mitigated” by preserving upland buffer areas that are not even wet—this approach does nothing to protect our nation’s waters
The proposal puts too much discretion in the hands of each Corps’ district engineer to approve almost anything as mitigation, fails to address the fact that many aquatic systems cannot be recreated at all, and blatantly promotes the mitigation banking industry, taking into account the economic needs of this industry over the needs of the watershed in certain circumstances.
This rule fails entirely to further the national goal of “no net loss” of wetlands in any way and also fails to promote the health of our essential wetlands and streams. This rule needs to be significantly rewritten to treat mitigation as a last resort and to ensure that the best science is used to protect and enhance our nation’s streams and wetlands. If those principles cannot be fully integrated into the proposal, then this rule should be withdrawn.
Sincerely,
Your Name
Address
City, State Zip Code
MORE BACKGROUND:
MAIN PROBLEMS WITH THE PROPOSED RULEMAKING
• The proposal ignores the fact that compensatory mitigation should be the last resort. While the rule does include some brief language requiring avoidance and minimization of impacts before mitigation is considered, the language is not as comprehensive as current guidelines. Further, the proposed rule undermines the bedrock principle of “avoid and minimize first” by encouraging reliance on unproven and inadequate compensatory mitigation practices.
• The proposal authorizes an “anything goes” approach to mitigation. The new rule purports to embrace a “watershed approach” – aligning wetland and stream mitigation with the needs of the watershed. But the rule actually punts on any real watershed approach to guiding mitigation. It does not require creation of watershed plans to guide mitigation, and doesn’t even require existing plans to be used. Instead, the Corps will simply take the word of the project applicant as to how their project benefits the watershed, even if a rarer type of wetland is replaced with a more common and easily restored type, or even if mitigation occurs far from the impact site.
• The proposal leaves far too much to the discretion of the district engineer. The rule language suggests much, but requires little. In setting requirements for mitigation, the word “may” is used 18 times and “should” is used 38 times instead of non-discretionary words such as “must” or “shall,” allowing enormous discretion to the District Engineers to waive requirements. Here are just three examples:
- ... overall compensatory mitigation project should be provided long-term protection...
- The real estate instrument for the long-term protection of the compensatory mitigation site should restrict or prohibit incompatible uses (e.g., clear cutting)...
- ... the district engineer should apply a higher mitigation ratio if the requirements are to be met through the use of preservation credits.
- The district engineer could even allow destruction of a stream to be “mitigated” by creating or preserving a wetland and/or its upland buffer many miles away.
• The rule fails to address the fact that many aquatic systems cannot be recreated. There is no scientific data showing that the functions of headwater streams, and wetlands such as bogs and fens, can be reproduced. The rule purports to provide for replacement of the services of these systems, when it would really offer only poor substitutes that do not replace the functions of these streams and wetlands.
• The rule’s blatant promotion of the mitigation banking industry is inappropriate. The rule sets up a strong preference for the use of mitigation banks over other forms of mitigation. The rule goes so far as to eliminate the main competition of mitigation banks – “in-lieu-fee mitigation” entirely (instead of simply developing equivalent standards) and takes into account the economic needs of this industry over the needs of the watershed in certain circumstances. This is despite the fact that the only study to look at the success of mitigation banks compared to other forms of mitigation found it to be no better at replacing wetlands lost to development.
• The rule fails to provide essential improvements in monitoring and enforcement. The proposed rule leaves to the discretion of the district engineer whether monitoring should measure success in achieving functions and for how long. Effective measurement of success over a minimum of 5 years, and longer when necessary, should be mandatory. Also, required enforcement measures should be articulated in the rule.
• The rule allows for preservation of existing wetlands and streams -- and even the preservation of dry uplands -- as "mitigation" for the destruction of other wetlands or streams.
The rule allows for nearly unlimited use of preservation of existing wetlands, buffers and even uplands as mitigation. While all can enhance mitigation sites, preservation of existing water resources does not replace the functions or acreage of those that are destroyed. Why would a developer even bother with risky restoration projects when they could simply buy up existing wetlands and put an easement on them? There isn’t even any hard requirement that higher mitigation ratios be required for such “mitigation.” The rule should limit the use of preservation practices to augmenting restoration and replacement projects that achieve, on their own, at least an acre replacement for ever
NEW YORK RIVERS UNITED PROVIDES THIS INFORMATION IN CONJUCTION WITH THE CLEAN WATER NETWORK, WHICH NYRU IS A MEMBER OF. WE THANK THEM FOR THEIR ASSIISTANCE.
New York Rivers United
DEDICATED TO CONSERVE, PROTECT AND RESTORE NEW YORK'S RIVERS
P.O. Box 1460, Rome, NY 13442
www,newyorkriversunited.org
Tel. (315) 339-2097 Fax (315)339-6028
Email:newyorkriversunited.org
ACTION ALERT
Please HELP To Protect Our Wetlands and Streams From Damaging"“Mitigation" Rule – Send Comments to the EPA and Corps Today
There is simply no comparison: natural wetlands and streams are more ecologically sound and are better for purifying drinking water, protecting against flooding, maintaining water quality, and providing habitat than streams and wetlands constructed to "replace" destroyed natural water resources.
Despite the poor track record of the mitigation program to date, in March of this year the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) jointly proposed a rule revising the standards governing compensatory mitigation for aquatic resources that allows for vastly greater flexibility in meeting mitigation requirements. By making it easier to compensate for destroying ecologically crucial streams and wetlands, this proposal will effectively promote, not discourage continued destruction.
The public can comment on this rule until June 30. Please weigh in yourself by sending a letter to the EPA by email to: ow-docket@epamail.epa.gov, or by US mail to: USEPA Docket Center, Attention Docket Number EPA-HQ-OW-2006-0020, 1200 Pennsylvania Ave NW, Washington, D.C. 20460.
Below is a sample letter that can be used:
SAMPLE LETTER:
To the EPA and Army Corps Water Docket:
I am writing in opposition to the recently proposed compensatory mitigation rule (Docket No. EPA-HW-OW-2006-0020). Our nation’s wetlands and streams provide habitat for a variety of species, improve water quality, and protect communities by reducing flooding. The proposed rule would weaken protections for these waters by sanctioning uncertain mitigation practices, effectively encouraging the increased destruction of these important water resources.
Your agencies have a long-standing and accepted sequence to deal with impacts to streams and wetlands: adverse impacts should be avoided whenever possible, unavoidable impacts should be minimized as much as possible, and only then should mitigation be considered. The proposed rule undermines this critical sequence with its overwhelming focus on mitigation.
This rule promotes an “anything goes” approach with no scientific backing. Under this proposal completely filling in streams could be “mitigated” by creating a wetland twenty miles away, or destroying wetlands could be “mitigated” by preserving upland buffer areas that are not even wet—this approach does nothing to protect our nation’s waters
The proposal puts too much discretion in the hands of each Corps’ district engineer to approve almost anything as mitigation, fails to address the fact that many aquatic systems cannot be recreated at all, and blatantly promotes the mitigation banking industry, taking into account the economic needs of this industry over the needs of the watershed in certain circumstances.
This rule fails entirely to further the national goal of “no net loss” of wetlands in any way and also fails to promote the health of our essential wetlands and streams. This rule needs to be significantly rewritten to treat mitigation as a last resort and to ensure that the best science is used to protect and enhance our nation’s streams and wetlands. If those principles cannot be fully integrated into the proposal, then this rule should be withdrawn.
Sincerely,
Your Name
Address
City, State Zip Code
MORE BACKGROUND:
MAIN PROBLEMS WITH THE PROPOSED RULEMAKING
• The proposal ignores the fact that compensatory mitigation should be the last resort. While the rule does include some brief language requiring avoidance and minimization of impacts before mitigation is considered, the language is not as comprehensive as current guidelines. Further, the proposed rule undermines the bedrock principle of “avoid and minimize first” by encouraging reliance on unproven and inadequate compensatory mitigation practices.
• The proposal authorizes an “anything goes” approach to mitigation. The new rule purports to embrace a “watershed approach” – aligning wetland and stream mitigation with the needs of the watershed. But the rule actually punts on any real watershed approach to guiding mitigation. It does not require creation of watershed plans to guide mitigation, and doesn’t even require existing plans to be used. Instead, the Corps will simply take the word of the project applicant as to how their project benefits the watershed, even if a rarer type of wetland is replaced with a more common and easily restored type, or even if mitigation occurs far from the impact site.
• The proposal leaves far too much to the discretion of the district engineer. The rule language suggests much, but requires little. In setting requirements for mitigation, the word “may” is used 18 times and “should” is used 38 times instead of non-discretionary words such as “must” or “shall,” allowing enormous discretion to the District Engineers to waive requirements. Here are just three examples:
- ... overall compensatory mitigation project should be provided long-term protection...
- The real estate instrument for the long-term protection of the compensatory mitigation site should restrict or prohibit incompatible uses (e.g., clear cutting)...
- ... the district engineer should apply a higher mitigation ratio if the requirements are to be met through the use of preservation credits.
- The district engineer could even allow destruction of a stream to be “mitigated” by creating or preserving a wetland and/or its upland buffer many miles away.
• The rule fails to address the fact that many aquatic systems cannot be recreated. There is no scientific data showing that the functions of headwater streams, and wetlands such as bogs and fens, can be reproduced. The rule purports to provide for replacement of the services of these systems, when it would really offer only poor substitutes that do not replace the functions of these streams and wetlands.
• The rule’s blatant promotion of the mitigation banking industry is inappropriate. The rule sets up a strong preference for the use of mitigation banks over other forms of mitigation. The rule goes so far as to eliminate the main competition of mitigation banks – “in-lieu-fee mitigation” entirely (instead of simply developing equivalent standards) and takes into account the economic needs of this industry over the needs of the watershed in certain circumstances. This is despite the fact that the only study to look at the success of mitigation banks compared to other forms of mitigation found it to be no better at replacing wetlands lost to development.
• The rule fails to provide essential improvements in monitoring and enforcement. The proposed rule leaves to the discretion of the district engineer whether monitoring should measure success in achieving functions and for how long. Effective measurement of success over a minimum of 5 years, and longer when necessary, should be mandatory. Also, required enforcement measures should be articulated in the rule.
• The rule allows for preservation of existing wetlands and streams -- and even the preservation of dry uplands -- as "mitigation" for the destruction of other wetlands or streams.
The rule allows for nearly unlimited use of preservation of existing wetlands, buffers and even uplands as mitigation. While all can enhance mitigation sites, preservation of existing water resources does not replace the functions or acreage of those that are destroyed. Why would a developer even bother with risky restoration projects when they could simply buy up existing wetlands and put an easement on them? There isn’t even any hard requirement that higher mitigation ratios be required for such “mitigation.” The rule should limit the use of preservation practices to augmenting restoration and replacement projects that achieve, on their own, at least an acre replacement for ever
NEW YORK RIVERS UNITED PROVIDES THIS INFORMATION IN CONJUCTION WITH THE CLEAN WATER NETWORK, WHICH NYRU IS A MEMBER OF. WE THANK THEM FOR THEIR ASSIISTANCE.
New York Rivers United
DEDICATED TO CONSERVE, PROTECT AND RESTORE NEW YORK'S RIVERS
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