by Whit Gibbons

June 17, 2002

The following question received last week has such universal application that the answer need not be restricted to a particular region of the country. Such problems could, indeed do, arise anywhere.

Q. I am a homeowner in New Windsor, New York. My backyard butts up to a woods owned by a developer. Last year the town had a survey done and from the side of my yard out through the woods to a stream about 1000 yards long they placed markers that say "wetlands." We understand the developer wants to build houses in these woods, so how close can they come to these markers? These woods are abundant in wildlife. What can we do as home owners (about 75 of us oppose this development)? Any suggestions and advice will be greatly appreciated.

A. The question is a tough one in several ways because the laws, restrictions, and regulations (or lack of regulations) for construction and development vary so greatly across states and across communities within states. So, as with many legal situations in which litigants on both sides feel their position is the right one, getting a clear cut answer about what is legally protected and what is not will not be simple and straightforward.

A further confounding situation is a consequence of the unforgivable 5:4 decision issued by the U.S. Supreme Court in January 2001. The ruling is considered by most wetlands biologists to have been based on very poor judgment from a court that is supposed to be looking out for the public's best interests (which I would take to mean environmental interests before a lot of other kinds). Although the legal quagmire associated with the ruling is complicated, the essence is that the court blocked the Army Corps of Engineers from regulating, and therefore protecting, small, isolated wetlands that are not associated with a navigable waterway such as a lake, stream, or river. The interpretations of the decision are still being wrangled over in many states and at various levels, and the environmental consequences have not unfolded entirely. Nonetheless, depending on what kind of wetland is in your woods (and possibly upon who interprets what kind of wetland it is), some areas may no longer be legally protected because they are considered to fall under the Supreme Court's new view of isolated wetlands.

However, not being ahead in a game is certainly no reason to get discouraged or stop trying, so here are some suggestions. I would first start by contacting any federal or state agencies that you can reach (e.g., federal: Fish and Wildlife Service, EPA, U.S. Geological Survey, Army Corps of Engineers; state: Department of Natural Resources or its equivalent) either online or by telephone. Write letters to your local newspapers and shed a lot of light on the issue. If you know others (apparently you know at least 75) who have a similar opinion, encourage them to write also. Likewise, be sure your elected officials at the local, state, and federal levels know of your concerns. In your city, you have a town supervisor, who I assume functions like a mayor. Make certain that your local officials know that a solid segment of their electorate is aware of the issue. This can sometimes be very effective.

Other details are hard to advise about from afar, but the general principles are the same everywhere most people would like to keep their neighborhood streams, woods, and other natural habitats intact, whereas a few would like to make a profit by developing them while they live somewhere else. Most people are interested in progress, and now is the time to make some progress in support of the environment. The first step is to make your community (including newspapers, the public, and members of the local zoning board) aware of a burgeoning problem that could lead to long term environmental destruction in an area, while leading to short term profit for only a few. Bringing an issue into the open is one of the strongest incentives I know of for maintaining our progress in environmental protection.

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