Property Rights Foundation of America®
Founded 1994

by Carol W. LaGrasse, New York Property Rights Clearinghouse, Vol. 3, No. 2 (Apr. 1996)

New York's Natural Heritage Program
DEC and The Nature Conservancy appraise endangered, threatened and rare species on government and private land

Imagine an encumbrance on your property that is not on file at the county seat but is instead secretly kept by government, exempt from freedom of information law, and only accessible to law enforcement agencies or to you in the course of processing a building permit.

You cannot find out about this encumbrance on land when you are considering purchase, yet it can be used by government to stop use of your land as surely as any easement, mapped wetland, flood area map or minimum lot size.

This encumbrance is the record of special wildlife species and their habitats being accumulated by DEC and a private not-for-profit land trust, The Nature Conservancy (TNC) under a joint program that is in place in New York and every other state of the Union under similar arrangements between TNC and each state environmental agency.

Since a dot is noted for each "occurrence" of rare animals, plants or communities, "biodiversity" seems apparent visually on a state map in the open space plan.

TNC is the largest environmental organization in the United States, headquartered in Arlington, Virginia, with 1994 assets of just over one billion dollars. In 1994, TNC received $237,779,000 from sales of land to government, while expending $76,046,000 for this purpose.

Enforcement data
A major purpose of the Natural Heritage data, which is subsequently computerized, is for the use of DEC's regional staff for its permit reviews, according to the Natural Heritage Program contract between DEC and TNC. The computerized data could also become available for citizen lawsuits if TNC breached its confidence.

Privacy and taxpayer implications
Under the Natural Heritage program, the not-for-profit land trust assays both government and private land for its environmental attributes. On a confidential basis, the land trust also acquires environmentally significant private land for resale to the state. The program has never been examined by the public or the Legislature for potential conflict of interest and negative effects on taxpayers and private property owners.

Exemption from Sunshine Law
Environmental Conservation law provides that the DEC commissioner may, "Notwithstanding the provisions... of the public officers law, deny access to inspection of records which identify locations of habitats of species designated endangered..., protected... or any other species or unique combination of species of flora or fauna..."

The Natural Heritage Program was designed by TNC and similar laws exempting it from Sunshine rules enacted in every state. Both TNC and DEC have complete access to the data for each of their purposes.

Recent mapping projects
Since 1991, part of TNC's New York Natural Heritage program work for DEC has been the 7-year, $360,000 contract to map DEC's Wildlife Management Areas, such as the Tivoli Bay Wildlife Management Area, a 1,722-acre estuarine area of tidal and fresh water along the Hudson River in Dutchess County.

DEC intends to survey all 200,000 acres of its management areas by 1998. About 60 percent of TNC's Natural Heritage work in New York is for DEC. Other New York clients have included Niagara Mohawk, The New York State Museum, the New York Power Authority, the State Parks Office and the Albany Pine Barrens Commission.

Sources of enforcement data
If it is recorded somewhere that a naturalist in the early nineteenth century observed certain species in a general area, when a permit applicant approaches DEC, the applicant may have to deal with historic information in the Natural Heritage data bank by generating expensive professional field surveys to update the record.

A former member of the Natural Heritage staff is now coordinating an urban survey of every plant species in the 50-mile radius from Central Park. It is funded in part with $1.2 million from the Brooklyn Botanical Garden.

Species may be tallied because they are globally rare or rare specifically in New York. Many environmentalists feel that it is important to protect a species locally, whether or not the species is rare elsewhere. The ultimate goal of the Natural Heritage Program is to identify the locations of all of the species as well as all natural communities in New York. -CWL

 Natural Heritage Monopoly
A Unique program, a one-of-a-kind organization

The 1995 contract between DEC and TNC seems to explain why only TNC can conduct the Natural Heritage research for DEC:

"The Natural Heritage Program of the Nature Conservancy is the only nationwide database of rare plants, animals and natural communities in existence and is the only organization capable of providing such services to New York."

But the uniqueness of TNC's capacity to conduct the Natural Heritage program is not fully borne out by the TNC proposal submitted in 1991, where a list of 30 potential biological consultants is given to augment the core biological staff of TNC, in addition to experts for aerial photo and computer GIS database work.

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