Chautauqua County's state representatives are warning that 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, had sent a joint letter in June to Sean Mahar, interim state DEC commissioner, expressing their concerns with the way proposed wetlands regulations could affect Chautauqua Lake. They specifically asked that the proposed DEC regulations not designate lakes as wetlands because that designation would be inconsistent with both existing statutory language and decades of precedent.
Mahar's response, received by Goodell and Borrello on Sept. 3, is not promising.
Mahar said much of the south basin of Chautauqua Lake will be considered a wetland regulated by the DEC because there are more than 12.4 contiguous acres of submerged vegetation in the area. Before the new regulations, wetlands had to be included on a map before they could be regulated by the DEC.
"In Chautauqua Lake, much of the south basin and other bays and shoals with more than 12.4 contiguous acres of submergent vegetation have been functioning as wetland for many decades," Mahar wrote in his response to Goodell and Borrello.
That wasn't what the region's lawmakers wanted to hear.
FIGHT OVER SOUTH BASIN
In a reply dated Sept. 9, Borrello and Goodell reiterated their call to exempt navigable waters from Article 24 regulation by the DEC. They say state Environmental Conservation Law defines freshwater wetlands as lands and submerged lands commonly called marshes, swamps, sloughs, bogs and flats" that support designated plant species. Another paragraph in the Environmental Conservation Law says freshwater wetlands include land and water substantially enclosed by designated plant species.
In other words, the state Legislature didn't intend for lakes to be classified as wetlands, according to Borrello and Goodell. They called on the proposed regulations to include a sentence saying, "Navigable waters in an inland lake shall not be considered wetlands." The language has also been proposed by Andrew Molitor, Republican candidate for the state Assembly, in his comments to the DEC.
"Navigable lakes, however, would never be commonly called 'marshes, swamps, sloughs, bogs and flats' and waters 'substantially enclosed' by aquatic plants would not be navigable," Goodell and Borrello wrote.
The south basin of the lake was raised as a particular area of concern by Jim Wehrfritz, a longtime Chautauqua Lake advocate and leader of the newly former Chautauqua Lake Property Owners Association, and Ellen Barnes, a Lakewood Village Board member, earlier this year. While Borrello earlier this year said the proposed regulations should have no effect on Chautauqua Lake, including the south basin, this week's response to Mahar makes clear the lawmakers have serious concerns with the idea that much of the south basin will be considered a wetland subject to increased Article 24 regulation by the DEC.
"We acknowledge that prior DEC maps designated as wetlands small portions of the Chautauqua Lake shoreline to the east of Prendergast Point, south of Tom's Point and north of Loomis Bay," Borrello and Goodell wrote. "We do not object to the continuation of those relatively small, previously designated wetlands. We strongly object, however, to the suggestion that 'much of the south basin and other bays and shoals with more than 12.4 contiguous acres of submerged vegetation have been functioning as wetlands for decades. The DEC has had an extensive presence on Chautauqua Lake, operates a fish hatchery and other facilities, and has been reviewing and approving numerous permits for decades. There is no reason to believe that the DEC simply overlooked these extensive alleged wetlands for 50-60 years."
STREAMLINED PERMITTING PROMISED
Mahar did repeat something DEC Region 9 officials said earlier this year. A streamlined permit will be created for Chautauqua Lake and, by extension, for use on other lakes that find themselves home to wetlands under the proposed regulations and the review of new areas under Article 24.
Mahar said a meeting has been scheduled for Oct. 3 in Mayville to get local input on the new permit, with two representatives from each of the major stakeholder groups, municipal representatives and representatives from Goodell's and Borrello's respective offices invited.
"AThe meeting will include small group discussions designed to solicit ideas for activities that DEC could include in a general permit covering regulated areas of Chautauqua Lake," Mahar wrote. "This approach will provide a streamlined process for lake residents."
The meeting was scheduled before the end of the public comment period for the proposed wetlands regulations and before changes could be made to the proposed regulations.
EXPANSION OF DEC AUTHORITY
In addition to how the south basin of Chautauqua Lake will be managed, Borrello and Goodell raised their concerns with Mahar about the way the proposed regulations could expand the DEC's authority throughout the rest of the Chautauqua Lake watershed and watersheds throughout the county.
Goodell and Borrello said they are concerned the proposed regulations change the definition of a class 1 wetland that can be regulated regardless of size to include any wetland that is contiguous to fresh surface waters.
"Chautauqua Lake, Cassadaga Lake, Findley Lake, Lake Erie and Bear Lake are all Class A lakes, which means that the new regulations would extend DEC jurisdiction over affected areas of submerged vegetation regardless of size," Goodell and Borrello wrote. "To avoid that situation (and consistent with your letter and longstanding prior regulations), the DEC should continue the current definition of a class A wetland as those 'adjacent or contiguous to a reservoir or other body of water that is used primarily for public water supply or is hydraulically connected to an aquifer which is used for public water supply.'"
That concern, originally raised in the lawmakers' June 18 letter, wasn't addressed by Mahar.
U.S. Rep. Nick Langworthy, District 23, says the DEC's wetland designation is a "gross over-reach" and he despises the fact that these decisions are made with no input from residents or elected officials.
"I don't want people who are not elected or accountable to anyone making the laws for this (region and) country," he said. "This rulemaking is more dangerous than lawmaking. At least you have a court of public opinion and you have to have a debate and a process people go through."
Last year, Langworthy secured $2 million in federal funding for the North Chautauqua Lake Sewer District for needed improvements. He also understands the importance the water plays in the region's economy.
"I believe the health of that lake … is tied to the county's economic future," he said. "Helping make Chautauqua Lake stronger is something I'm dedicated to.