Goodell, Borrello take wetlands case to state DEC commissioner

Submitted photo The photo shows the strait on Chautauqua Lake.

Chautauqua County officials warn proposed changes to wetlands regulations could exceed the state DEC’s statutory authority.

Sen. George Borrello, R-Sunset Bay, and Assemblyman Andy Goodell, R-Jamestown, sent a joint letter in June to Sean Mahar, interim state DEC commissioner, expressing their concerns about how the proposed wetlands regulations could affect Chautauqua Lake. Specifically, they asked that the proposed DEC regulations not designate lakes as wetlands because such a designation would conflict with both existing statutory language and decades of precedent.

Mahar’s response, received by Goodell and Borrello on September 3, is not encouraging.

Mahar said much of the southern basin of Chautauqua Lake will be considered a DEC-regulated wetland because the area contains more than 12.4 acres of continuous submerged vegetation. Before the new regulations, wetlands had to be mapped before they could be regulated by the DEC.

“In Chautauqua Lake, much of the southern basin, and other bays and shallows, which support more than 12.4 acres of continuous submerged vegetation, have served as wetlands for many decades.” Mahar wrote in his response to Goodell and Borrello.

This is not what regional legislators wanted to hear.

FIGHT FOR SOUTH BASIN

In a Sept. 9 response, Borrello and Goodell reiterated their call for navigable waters to be exempt from DEC’s Article 24 regulations. They argue that state environmental law defines freshwater wetlands as “land and submerged lands commonly referred to as marshes, fens, bogs, fens, peatlands and flats” that support designated plant species. Another section of the environmental law says freshwater wetlands include land and water substantially surrounded by designated plant species.

In other words, according to Borrello and Goodell, the state legislature did not intend to classify the lakes as wetlands. They called for a sentence in the proposed regulations that reads: “Navigable waters within an inland lake are not considered wetlands.” This formulation was also proposed by Andrew Molitor, a Republican candidate for state Assembly, in his commentary to DEC.

“Navigable lakes, however, would never be commonly called ‘marshes, fens, backwaters, bogs and flats’, and waters ‘substantially surrounded’ by aquatic plants would not be navigable” Written by Goodell and Borrello.

The lake’s south basin was raised as a special area of concern by Jim Wehrfritz, a longtime advocate for Lake Chautauqua and leader of the newly formed Chautauqua Lake Property Owners Association, and Ellen Barnes, a member of the Lakewood Village board, earlier this year. While Borrello said earlier this year that the proposed regulations should not affect Lake Chautauqua, including the south basin, Mahar’s response this week makes clear that lawmakers have serious concerns about the idea that much of the south basin would be considered a wetland subject to DEC’s heightened Article 24 regulations.

“We acknowledge that prior DEC maps designated small portions of the Chautauqua Lake shoreline east of Prendergast Point, south of Tom’s Point, and north of Loomis Bay as wetlands.” Written by Borrello and Goodell. “We do not oppose the continuation of these relatively small, previously designated wetlands. We do strongly oppose the suggestion that ‘a significant portion of the South Basin and other bays and shallows with over 12.4 acres of continuous submerged vegetation have been functioning as wetlands for decades. DEC has an extensive presence on Chautauqua Lake, operates a fish hatchery and other facilities, and has reviewed and approved numerous permits for decades. There is no reason to believe that DEC has simply ignored these extensive purported wetlands for 50-60 years.’

Promised to streamline permitting process

Mahar reiterated something DEC Region 9 officials said earlier this year. A simplified permit would be created for Chautauqua Lake and, by extension, for use on other lakes that are home to wetlands under proposed regulations and the review of new Article 24 areas.

Mahar said a meeting has been scheduled for Oct. 3 in Mayville to discuss community input on the new permit. Two representatives from each of the major stakeholder groups, a representative from the borough, and representatives from Goodell’s and Borrello’s offices will be invited.

“The meeting will include small group discussions to generate ideas for activities that DEC could include in a general permit covering the Chautauqua Lake regulated areas.” Mahar wrote. “Thanks to this approach, lake residents will benefit from a streamlined process.”

The meeting was scheduled before the end of the public comment period on the proposed wetlands regulations and before changes to the proposed regulations were made.

DEC POWER EXTENSION

In addition to management of the southern portion of the Chautauqua Lake watershed, Borrello and Goodell shared with Mahar their concerns about how the proposed regulations could expand DEC’s authority to the rest of the Chautauqua Lake watershed and watersheds within the county.

Goodell and Borrello said they are concerned that the proposed regulations would change the definition of Class 1 wetlands, which can be regulated regardless of size, to include all wetlands adjacent to fresh surface water.

“Lake Chautauqua, Lake Cassadaga, Lake Findley, Lake Erie and Bear Lake are Class A lakes, meaning the new regulations will expand DEC’s jurisdiction over affected areas of submerged vegetation, regardless of size.” Written by Goodell and Borrello. “To avoid this situation (and consistent with your letter and long-standing prior regulations), DEC should continue its current definition of Class A wetlands as lands ‘adjacent to or contiguous with a reservoir or other body of water that is primarily used for the public water supply or is hydraulically connected to an aquifer that is primarily used for the public water supply.’”

Mahar did not address the issue, originally raised in the lawmakers’ June 18 letter.

U.S. Rep. Nick Langworthy, D-23, says DEC’s wetland designation is “gross abuse of authority” and despises the fact that these decisions are made without the involvement of residents or elected officials.

“I don’t want people who are not elected or accountable to anyone to make laws for this (region and) country,” he said. “It’s more dangerous to legislate than to legislate. At least you have the court of public opinion and you have to have debate and a process that people go through.”

Last year, Langworthy secured $2 million in federal funding for the North Chautauqua Lake Sewer District to make needed improvements. He also understands the important role water plays in the region’s economy.

“I believe the health of this lake… is closely linked to the economic future of the county.” he said. “Helping strengthen Chautauqua Lake is something I am committed to.

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