In New York the value of state-regulated wetlands is designated by assigning each wetland to one of four classes, with Class I wetlands the most valuable and Class IV wetlands the least valuable. The regulations include a detailed list of characteristics used to determine the class of each wetland. Wetland class is important because permitting standards vary by class, with more stringent standards applying to higher-class wetlands.

    One of the "special features" used to classify wetlands is the presence of a vulnerable plant or animal species. There are minor differences in the wording of the regulations in this regard, but vulnerable species play a role in determining which wetlands are Class II or Class III. Plus, if a wetland has four or more Class II characteristics, including the presence of a vulnerable species, it then meets the threshold for being a Class I wetland. The presence of both a vulnerable plant and a vulnerable animal would meet two of the four characteristics needed for Class I status.

    This begs the obvious question: Which plants and animals are considered to be vulnerable species? A definition of vulnerable species is provided at 6 NYCRR 664.6 (c)(5).

    The definition suffers from several subjective phrases, such as "is likely", "small numbers", "could be", "low tolerance", and "is restricted". Applying a definition loaded with so many subjective phrases could certainly generate legitimate disagreement among biologists. For that reason the regulations direct the NYSDEC to identify which species meet the definition, hold a public hearing, and then add the list to Part 664.

    Here is the problem: There is no list of vulnerable species. The NYSDEC never developed a list of vulnerable species, never held a public hearing, and never amended Part 664 to include a list of vulnerable species. Determining if a species meets the vulnerable species definition is thus left to department personnel or, if challenged, to the courts. It was exactly this kind of arbitrary and contentious situation that the language in the regulations tried to avoid.

    A somewhat similar quirk exists in the definition of endangered or threatened species, another characteristic used to classify wetlands. Part 664 defines endangered and threatened species to include all federally-listed endangered and threatened plants and animals, as well as all state-listed animals. But regarding state-listed plants, the regulation states: "…or in additions to this Part after public hearing, in the case of plants". Again, the NYSDEC never amended Part 664 to include the list of state endangered or threatened plants. At least a list of such plants actually exists. It was simply never incorporated into Part 664.

    While these matters may appear to be trivial oversights, they can become serious legal issues when dealing with a controversial project. So far, there is no indication that a remedy is in the works.

TES, Inc. 23 County Route 6, Suite A, Phoenix, NY 13135.  Tel: 315.695.7228  Fax: 315.695.3277

 © Copyright Terrestrial Environmental Specialists, Inc. 2007.   

Web Design by: J. G. Bocsor, D. M. Matzke