Keep the Lake a Lake NOT a WetlandsChautauqua Lake Wetlands Regulation Risk

Summer 2024 Update

The Goal of “Keep the Lake a Lake” is to exempt New York State Freshwater inland lakes, and specifically Chautauqua Lake,  from being regulated as wetlands.

This issue is NOT ABOUT THE VALUE OF WETLANDS,  it is about regulation of a LAKE as wetlands and the inevitable consequences.  Protection of wetlands that are part of the lands upstream or adjacent to the lake is critical but the application of wetlands regulation to the lake itself does not provide wetlands  benefits and is counterproductive due to the significant barriers to lake management best practices and the resulting harm to lake stakeholders.

In early 2024, the NYS DEC publicly declared its intent to regulate portions of Chautauqua Lake as wetlands.  They have confirmed this intent on June 2 at the Chautauqua Lake Symposium  and clarified it in a published FAQ that has been sent to all individuals who submitted letters objecting to the application of this regulation to the lake itself.  The DEC has also provided a new Chautauqua Lake Watershed page with a form for users to subscribe to DEC updates specific to Chautauqua Lake.

The wetlands definition is broadly written to allow for classification based not only on the presence of typical wetlands characteristics and plants, but on the presence of submerged aquatic vegetation of ANY kind in a contiguous area of 12.4 acres or more (which will be reduced to 7.4 in 2028).

On January 1, 2025, the current NYS Freshwater Wetlands Maps will no longer limit DEC regulatory jurisdiction to wetlands depicted on regulatory maps. Instead, maps will become informational, and any “wetlands” that meet the applicable definition and criteria will be regulated by DEC and subject to Article 24 permitting.

The DEC states that they are not creating any new wetlands, but merely extending regulatory coverage to areas that meet the existing definition of wetlands (areas of lakes containing >12.4 acres of submergent vegetation).  Basically, they are saying it’s already a wetlands (even though it’s also a lake).

As is stands, the NYS DEC can potentially classify ALL of the near shore areas of Chautauqua Lake  – or ANY FRESHWATER LAKE – as wetlands.

What is the consequence?

“Almost any activity which may adversely impact the natural values of the wetlands, or their adjacent areas is regulated” – NYS DEC Website

• Weed harvesting and use of aquatic herbicides are not allowed in “Wetlands” unless an additional permit is acquired from the NYSDEC. This is a difficult permit which has not been granted for herbicides or harvesting in Chautauqua Lake.   The DEC has stated an intent to develop general permits to streamline this process, but this is not a legal commitment and there is a real risk that no weed management may be allowed in areas the NYSDEC Region 9 designates as “wetlands” or in adjacent buffer zones.
• Lakeside properties within the required 100 ft (or greater) buffer zones will be subject to regulation as well.   The DEC has stated that ordinary use and maintenance of existing and structures will be exempt, but any new construction, expansion, excavation, or fill would require a wetlands permit.  It is not clear what the requirement will be for maintenance of a break wall or shoreline.
• NYSDEC Region 9 management and staff focused their earlier comments on the Lake’s South Basin, but have since clarified that it will apply to any areas that meet the requirement of >12.4 areas containing submergent vegetation.  This is likely to mean the near-shore area surrounding the entire lake.
• Property values have already been impacted by the uncertainties and potential impacts from the impending regulation. 

While one can appreciate the assurances from current DEC leaders that there will be no significant changes to the management of the lake or to home owners use of their property,  this represents a loss of existing rights and introduces significant uncertainties for all lake stakeholders.

Key concerns have not been addressed:

1. If there is no intended change to the management of Chautauqua Lake as a lake, then why designate a lake as wetlands?  What is the benefit?  (most wetlands benefits do not apply in a lake)
2. The approach described amounts to a plea to ”just trust us – of course we will do the right thing.“ There is nothing that would prevent DEC from taking a completely different approach when it comes time to issue the Article 24 Wetlands permit.
3. If DEC’s intent is for the Wetlands program to not create new regulatory burdens for managing invasive weeds in the lake, then the rules should explicitly carve out Lake Chautauqua and similarly situated lakes. In the alternative, the rules should create a right to a permit by rule (including a general permit), provided that certain conditions exist that match what we are facing at Lake Chautauqua, including that we need to preserve our ability to manage invasive, aquatic weeds.

Next Steps:

Senator George Borello and Assemblyman Andy Goodell have proposed a bill  (S.9799) in the NYS legislature to provide this relief, however the timing will require swift bipartisan support to pass in time to prevent the DEC from applying the regulation per their stated intent.

In parallel, the CLP will be 1) preparing legal strategies to fight the application of this regulation to our lake, 2) supporting the legislative effort through communications and outreach, and 3) continuing to attempt to influence the DEC to exempt lakes from this regulation.

Per the DEC Region 9 director, comments from the public regarding wetland rule and definition of wetland should still continue to be submitted throughout the process in 2024.

NYS wetland reg info:  https://dec.ny.gov/nature/waterbodies/wetlands/freshwater-wetlands-program#:~:text=The%20public%20are%20invited%20to,NYCRR%20Part%20664%2C%20Freshwater%20Wetlands.&text=Written%20comments%20on%20this%20Advanced,of%20business%20February%2020%2C%202024.