New York State, with its extensive coastline along the Atlantic Ocean, Long Island Sound, and the Great Lakes, as well as its numerous rivers and estuaries, is a hub for marine construction and coastal development. From maintaining vital navigation channels through dredging to building essential infrastructure like docks and seawalls, these projects are crucial for economic activity, recreation, and coastal resilience. However, they also carry the potential for significant environmental impact. Navigating the complex web of federal and state environmental regulations is paramount for any project to proceed smoothly and responsibly.
The Regulatory Landscape: A Dual Approach
Marine construction projects in New York are subject to a dual regulatory framework, involving both federal and state agencies. This layered approach ensures comprehensive environmental protection.
Federal Oversight: The U.S. Army Corps of Engineers (USACE) and EPA
The U.S. Army Corps of Engineers (USACE) is a primary federal agency involved in regulating activities in “waters of the United States.” For dredging and marine construction, key federal authorities include:
Section 10 of the Rivers and Harbors Act of 1899: This act requires a USACE permit for any work or structures in, over, or under navigable waters of the United States. This directly applies to dock construction, piers, bulkheads, and other structures.
Section 404 of the Clean Water Act (CWA): This section regulates the discharge of dredged or fill material into waters of the United States, including wetlands. Most dredging projects, which involve the removal and often disposal of sediment, fall under this regulation.
Section 103 of the Marine Protection, Research, and Sanctuaries Act: USACE also regulates the transport and disposal of dredged material at designated ocean sites under this act.
The Environmental Protection Agency (EPA) plays a crucial role in overseeing dredged material management, especially concerning ocean disposal sites. For instance, the EPA has designated and placed restrictions on the use of dredged material disposal sites in Long Island Sound, promoting alternatives like beneficial use (e.g., beach nourishment).
New York State Oversight: The NYS Department of Environmental Conservation (NYSDEC) and Department of State (NYSDOS)
The New York State Department of Environmental Conservation (NYSDEC) is the lead state agency for environmental permitting in New York. Several NYSDEC permits are commonly required for dredging and coastal development projects:
Protection of Waters Permit (ECL Article 15, Title 5): This permit is required for activities that involve disturbance to the bed or banks of protected streams, or dredging and filling in navigable waters.
Tidal Wetlands Permit (ECL Article 25): New York’s Tidal Wetlands Act establishes a permitting program for activities that may substantially impair or alter the natural condition of a tidal wetland. This includes any form of draining, dredging, excavation, filling, or erection of structures within or immediately adjacent to inventoried tidal wetlands.
Freshwater Wetlands Permit (ECL Article 24): Similar to tidal wetlands, activities impacting mapped freshwater wetlands require this permit.
Coastal Erosion Management Permit (ECL Article 34): For projects within a coastal erosion hazard area along Lake Erie, Lake Ontario, the Atlantic Ocean, and Long Island Sound, this permit is essential for construction, modification of structures, grading, excavating, dumping, or filling that may disturb the land.
Section 401 Water Quality Certification: When a federal permit (e.g., from USACE) is needed for a project that may result in a discharge to waters of the state, NYSDEC must issue a Section 401 Water Quality Certification, ensuring compliance with state water quality standards.
Beneficial Use Determinations (BUDs): For projects proposing to use dredged material for beneficial purposes like beach nourishment or restoration projects, a BUD from NYSDEC is often required.
Sediment Assessment and Management: NYSDEC’s Sediment Assessment and Management Program evaluates sediment quality for in-water work, often requiring a Sediment Sampling and Analysis Plan (SSAP) for dredging projects.
The New York State Department of State (NYSDOS) also plays a role, particularly through the Coastal Zone Management Program (CZMP). Projects exceeding certain thresholds (e.g., dredging projects over 25 cubic yards) often require a NYSDOS Coastal Zone consistency review to ensure alignment with the state’s coastal policies.
Key Environmental Laws Affecting Marine Construction
Beyond specific permits, several overarching environmental laws significantly influence marine construction projects in New York:
New York State Environmental Quality Review Act (SEQRA): Similar to NEPA at the federal level, SEQRA requires state and local agencies to consider the environmental impacts of their actions. Most dredging and coastal development projects will trigger a SEQRA review, which can range from a negative declaration to a full Environmental Impact Statement (EIS).
State Historic Preservation Act (SHPA): NYSDEC must evaluate whether a project may impact historical structures or archaeological sites. This may require a Structural Archaeological Assessment Form (SAAF) or a cultural resource survey.
New York State Navigation Law: This law governs various aspects of waterway use, including activities like the placement of floating objects.
New York Public Lands Law: Use of state-owned underwater lands for marine construction projects typically requires a lease, easement, or permit from the New York State Office of General Services.
Tidal Wetlands Act (ECL Article 25): As mentioned above, this act is a cornerstone for protecting the state’s vital tidal wetlands, which are critical for coastal ecosystems and storm protection.
Seagrass Protection Act: Enacted in 2012, this act requires NYSDEC to designate seagrass management areas and regulate activities that threaten them, emphasizing the protection of these important marine habitats.
Navigating the Permitting Process: Best Practices
Successful navigation of these regulations requires a proactive and informed approach:
- Early Engagement: Contacting the relevant agencies (NYSDEC, USACE) early in the project planning phase is crucial. Pre-application meetings can clarify requirements and identify potential challenges.
- Comprehensive Planning: Develop a detailed project description, including justifications, alternative approaches to avoid and minimize impacts, and mitigation plans for unavoidable impacts.
- Sediment Analysis: For dredging, a thorough sediment sampling and analysis plan is often required to determine the nature of the material and appropriate disposal or beneficial use options.
- Joint Application: New York State and the USACE often utilize a joint application form, streamlining the process for applicants.
- Environmental Review: Be prepared for a comprehensive environmental review process under SEQRA, which may involve public notice and comment periods.
- Coordination: Ensure coordination with all relevant state and federal agencies, as well as local authorities (e.g., Town Conservation Boards, NYC Department of Small Business Services for waterfront permits in NYC).
Dredging and coastal development are vital for New York’s economy and resilience, but they demand a deep understanding of environmental regulations. The layered approach of federal and state laws, coupled with stringent permitting requirements, reflects a commitment to protecting the state’s valuable marine and coastal resources.
By proactively engaging with regulatory agencies, meticulously planning projects, and adhering to environmental best practices, developers can successfully navigate the permitting process and contribute to sustainable coastal management in New York State.
John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608-1346.
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Resources:
Environmental Permits: https://dec.ny.gov/regulatory/permits-licenses/environmental-permits
Waterways, Coastlines & Wetlands Permits: https://dec.ny.gov/regulatory/permits-licenses/waterways-coastlines-wetlands
Coastal Erosion Management Permits: https://dec.ny.gov/regulatory/permits-licenses/waterways-coastlines-wetlands/coastal-erosion-management-permit-program/regulated-activities-uses
Sediment Assessment and Management: https://dec.ny.gov/environmental-protection/water/water-quality/sediment-assessment-management
Designing a Dredging Sediment Sampling and Analysis Plan: https://dec.ny.gov/regulatory/permits-licenses/environmental-permits/regional-environmental-permits-information/region-2/designing-a-dredging-sediment-sampling-and-analysis-plan
Getting Started (Permits): https://www.nan.usace.army.mil/Missions/Regulatory-TEST/Getting-Started/
Obtain a Permit: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Obtain-a-Permit/
Coastal Management Program: https://dos.ny.gov/coastal-management
Dredged Material Management in Long Island Sound: https://www.epa.gov/marine-protection-permitting/dredged-material-management-long-island-sound
