Property Rights Foundation of America®
Founded 1994

UNCERTAINTY AS LAW

Basic Injustice of New York Wetlands Regulation

An Address to the Landowners' Rights Assembly
Milton, New York
November 18, 1999

by Carol W. LaGrasse

One of the hallmarks of western civilization, as every young student learns, was the advent of written laws. As all of you know, a benchmark in the twenty-first century B.C. was the code of Hammurabi. The times began to come about when no longer would an individual appear before a ruler or judge who would have no written basis that could be known beforehand on which to base his judgment. Instead, certainty was being put in place for a person appearing before the magistrate.

For the purposes of this talk, I am barely alluding to the history of the development of written law. But we pass forward, through the English heritage, the Magna Carta, the Declaration of Independence, the Constitution and the Bill of Rights, and the incredibly complex codifications of the law in the United States and the constitutions and laws of each State, and find that the common thread of ever greater refinement has been to refine the definition of legal obligations and violations of the rules of law. All of these definitions are written down. And each court ruling, interpreting law and establishing the so-called "common law," is also written down.

But recently, as government has grown bigger and more unwieldy, there has been a trend to allowing what bureaucrats refer to as "desirable flexibility" in the administration of law. Mind you, this flexibility is not for the benefit of the property owner, but for the person in government doing the enforcement of the law. Thus, the individual, whose rights should be maximized and should operate in the greatest possible realm, only narrowed by the strict interpretation of the written law, finds that he cannot obtain written legal definition beforehand for any given situation, and that the expansion of a perverse development, the sort of right to enforce, which can be falsely couched as a right to protect the public or greater good, has become greater and greater.

Regulation of wetlands in the State of New York epitomizes this uncertainty. For wetlands regulation under New York's Department of Environmental Conservation (DEC), uncertainty is law.

Setting aside the failure of the DEC to provide just compensation to owners of designated wetlands, the failure to establish tax relief for owners of designated wetlands in conjunction with the Office of Real Property Tax Services, and the failure to make a means of appeal accessible to the ordinary property owner, we have the classical problem associated with tyrannies of every place and age-whether in office by birth, election, or appointment—, the absence of legal certainty.

Dealing with DEC is like playing roulette.

Stanley Popowsky, the owner of 30 acres in Clifton Park, telephoned me on November 15. He has 450 feet of good frontage on a highway. After owning the land for 40 years, he would like to realize his investment. But when potential buyers go to the town hall and look at the DEC wetlands maps, they are not interested in his land.

After his land was mapped, with approximately one-half of it designated DEC wetlands, he unknowingly played roulette. He contacted DEC. Someone from DEC came out in response to his request to reconsider the wetlands boundaries on the maps. But instead of reducing the acreage of wetlands, DEC added more, including a ditch.

"My land is not a swamp," says Mr. Popowsky, and he wants the government to buy it.

The only way a property owner can establish his right to compensation for a wetlands "taking" is by going through a permit process and having a permit denied. But Mr. Popowsky is 78 years old, and he could find that the lengthy permit process exceeds his vigor to pursue it or his life span. Under what some of us call "the New York rule" established by the highest court in the state, his heirs will not be entitled to takings compensation, because they will have inherited the property with the restrictions in place already.

If mapping is not delineation, what good is it as the procedure established by statute?

Are the maps, established with a public hearing process, just a starting point? Is this law? Or is this uncertainty as law?

For Saratoga County, what were the results of the public hearing process? Were decisions or procedures changed in response to the public's vociferous, respectful, and intelligent complaints? What precise changes were made? Was the public hearing just a ploy to adhere to the statute as a matter of form?

Returning to the DEC roulette:

Edgar Alderson's family moved to the town of Charlton in 1973, where their property included a little 40 by 70-ft. man-made pond, which supplied washing water for the house. The pond had gradually silted with mud from its original 15 - 20 ft. depth to about three feet at the deepest. By 1990 the siltation had reduced the surface area by about one-third, cattails were growing in the shallower parts, and the maximum depth was about a foot and a half.

Ted got an estimate of about $1,600 to excavate the pond, but the contractor advised him that he would need a permit to excavate on or adjacent to a wetland. Otherwise, the State could confiscate the contractor's equipment.

Ted has written a detailed eight page summary of the process that followed. In the fall of 1990, he first called the town building inspector and was told that he could go ahead and dig. Knowing that this was wrong, he called the County. They gave him the Albany number of DEC, and from the Albany office he was referred to the Warrensburg DEC office. There, an official named Bill Muermann told him about an "Applicant's Guide" and application forms, and they mailed these to Ted in October 1990.

The applicant's guide divided pond projects into major and minor ones, with minor ones less than ¼ acre. During the winter and spring, he spent countless days studying and working with maps and an aerial photo, traipsing around his property and even using a CAD program to draw a map of the property showing the pond in relation to the other buildings and property lines and to document how the pond and surrounding land would be affected and the disposal site for the excavated material. He planned to put the excavated material on the bank behind the concrete wall forming one end of the pond and grade it off to blend with the land and the grassy slope to the pond.

Ted sent the application in on July 22, 1991 along with the $10 fee for a minor project.

A response dated August 14, 1991 notified him that his application for a freshwater wetland permit was incomplete because he owed an additional fee of $40, of a total fee of $50 including the $10 already sent. He called Bill Muermann, who explained that DEC had changed the rules. There were no longer any minor projects. The booklet he had sent to Ted was now out of date. Ted sent the additional $40 on August 19, and also sent a letter of protest to Assemblyman Maurice Hinchey that the fee was exorbitant, unfair and probably an example of using fees in lieu of taxes to raise money for government.

Next Ted was notified in a letter dated August 21 that he needed to publish in the Schenectady Gazette once during the week of August 28, the "Notice of Complete Application" which was enclosed,—at his own expense, of course. This cost $27. No comments were produced, except for inquiries by contractors seeking to perform the job.

DEC telephoned and in time a Forest Ranger came to inspect the project site. Ted told him about his intention to do the work in August or September when the lawn would be drier and not as liable to be dug up by the heavy equipment. He showed the ranger where the nearest neighbors along the stream were a full half mile away. The ranger recited some of the requirements such as the need to divert the brook around the pond during the excavation or erect a cloth barrier across the outlet to catch the silt. The ranger was unfazed by Ted's logic that the yearly discharge of silt during spring runoff would exceed any amount Ted could send downstream during the low water flow of August.

Finally, on October 15, 1991, DEC mailed a permit to Ted. But the language in the letter was daunting and even threatening. "Any failure to comply with these terms may be treated as a violation of Environmental Conservation Law," was one of several points.

The permit conditions were even more ominous. One of the most confusing was that equipment operation in the wetland was prohibited. Not knowing the wetland boundary, since DEC had not delineated it yet, Ted had no way of knowing whether the work was feasible at all, as equipment had to be able to access the pond.

And the permit stated, "Once work has begun in the wetland or adjacent area, the work must be completed in two weeks from start to final stabilization." But Ted planned to allow the muck to drain for two weeks after excavation before it would be firm enough to be graded. And what about rain?

And there was the requirement that the area had to be seeded within 24 hours after raw earth is exposed. How could he grade and seed the mucky mess?

And staked hay bales were to be set with posts driven a minimum of two feet into the ground, but the stony, glacial till there would make driving the stakes for fully 25 to 40 bales of hay impossible.

Then there was the requirement for the filter fabric fence attached to vertical stakes and weighted at the bottom to protect turbidity from reaching the water body fed from the outlet. But this was in the middle of the summer on a tiny tributary of a tributary of a river some distance away.

Expecting to do the work the next summer, Ted was busy contacting a few contractors, when he received a telephone call from John Connell of the Department of the Army, Corps of Engineers. Shortly, he received a letter from the Corps of Engineers addressed to "Mr. Edgar Anderson" containing an application for a permit which requested much of the same information he had previously provided to the State DEC. Obviously, DEC had forwarded notice of his project to the Corps of Engineers. But the application required much more information as well, additional technical information of a biological, structural and hydrological nature, and information about property owners on the other side of the waterway. He was "advised not to undertake any activity in connection with the proposed work in waters of the United States until the required Department of the Army authorization has been obtained."

"Most upsetting was the tone of these official communications, filled with dire warnings about failing to abide by all of their regulations," Ted later wrote. "There was no kind word of advice as to how I might achieve the intent of protection of wetlands but lots of threats if by any happenstance I might fail to meet the letter of each of their dictums despite conscientious effort on my part."

He decided to give up the project. He wrote a letter to both the DEC and the Corps of Engineers informing them that, "I was abandoning my project due to the bureaucratic morass I was required to wade through, the arbitrary and costly conditions attached to the permit, their confrontational manner throughout and my unwillingness to subject self to the risks of inadvertently violating any of their regulations."

Bill Muermann of the DEC replied first. One of his comments was that "For years I have been verbally chastising our own Department for adding too much unnecessary cost to the productive section of our society, for requiring too much technical information from an applicant while we cannot and will not make even a simple determination or decision."

Mr. Muermann's April 1992 letter continued, "It is my belief that if we bureaucrats do not simplify and reform our own procedures from within, that someday productive people will say, 'enough is enough' and who knows what that will result in."

On April 23, 1992, John Connell of the Corps of Engineers called, dismayed that Ted had decided to abandon the project. After a long discussion, Mr. Connell asked if the project would affect less than a quarter of an acre. Ted said, "yes," Mr. Connell then said that in that case he could grant the permit over the phone. Ted suggested that he put that in writing in a letter.

On September 21, 1993, 17 months after Mr. Connell's verbal approval, Ted got the written approval from George Neives of the Corps of Engineers, and other material. The letter referred to "a request for Department of the Army authorization for the discharge of fill material into waters of the United States for maintenance of a pond on the Mourning Kill, a tributary of the Hudson." The letter went on to say that "care should be taken so that construction materials, including debris, do not enter any waterway to become drift or pollution hazards."

In 1994, Ted attended a seminar on law at Union College. The speaker was Deborah Volberg, Deputy Counsel and Director of the Division of Legal Affairs for the DEC. She seemed anxious to make DEC less of a bureaucracy and more of a service to the people. Ted told the story of his efforts to re-excavate the pond. Ted later recalled that she assured him that one of her goals in office was to clean up both the adversarial approach to regulation and the needless over-regulation on small projects such as his. She agreed with Ted that when one level of government is empowered to grant a permit it should already reflect all requirements of any higher branch of government.

The pond is still unexcavated, and as Ted puts it, filling with cattails and weeds and turning gradually into a swamp. It can no longer support any fish bigger than minnows, and not many of them.

Ted came to understand that to deal with the regulations of DEC or the Corps of Engineers, he would be playing roulette. Rather than deal with this uncertainty, he quit.

Those are Stanley Popowsky's and Edgar Alderson's stories. We are not dealing tonight with the problems of the Corps of Engineers, except in the relationship with DEC. The purpose of telling these tales is to illustrate the uncertain situation we face with DEC and to help to focus the important discussions to follow. Property owners should know with certainty and be able to exercise their rights, whether in the notice, mapping, appeal, delineation, or permit stages of wetlands regulation.

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