Summary information for Sierra Club et al vs. NYSDEC concerning the Klydel Wetland:
A front page article published in the Tonawanda News on May 25, 2000, made the petitioners [Sierra Club, Buffalo Audubon Society, Citizens for a Green North Tonawanda, Niagara Frontier Wildlife Habitat Council, Croton Watershed Clean Water Coalition, Adirondack Mountain Club, and Great Lakes United] aware that NYSDEC had significantly altered the boundary surrounding the Klydel Wetland (Freshwater Wetland TE/TW-15) without proper public notice. An appeal of this decision was made pursuant to regulations under 6 NYCRR Part 663.8, 664.8, and 665.14.
The petitioners asserted associational standing to bring this proceeding. The organizations who had appealed have members who use and enjoy the Klydel wetland, including the values created by keeping the Klydel Wetland in its natural state. Some of these wetland values, in brief, as indicated in Article 24-0105(7) are: (a) flood and storm control by hydrologic absorption and storage capacity, (b) wildlife habitat, (c) protection of subsurface water resources, (d) recreation by providing areas for hiking, bird watching, photography, and other uses, (e) pollution treatment by serving as biological and chemical oxidation basins, (g) education and scientific research , (h) open space and aesthetic appreciation, and (i) sources of nutrients in freshwater food cycles and nursery grounds. Please note that a state-listed species of special concern, the Cooper�s Hawk, successfully bred in 2001 in proximity to the site in question. On April 12, 2002, the New York State Freshwater Wetlands Appeals Board heard oral arguments in the Klydel Wetland case in North Tonawanda City Hall for Sierra Club et al vs. the New York State Department of Environmental Conservation. In April 2002, the NYS Freshwater Wetlands Appeals Board was made aware of purchase negotiations between the landowner and the Western New York Land Conservancy (a land trust organization that was not party to this appeal).
New York Governor George Pataki had announced in May 2002 that a grant had been made to purchase properties in the Klydel Wetland for permanent protection. The governor's press release announcement can be found at:
A split decision was made in July 2002 by the Appeals Board. The Sierra Club vs. NYSDEC appeal had actually become moot the moment the Western New York Land Conservancy purchased the property that was the point of contention in June 2002. The NYS Freshwater Wetlands Appeals Board decided to make a ruling the following month-- even though they were notified with proof that the property was being protected (and therefore a ruling was no longer needed).
The legislation that created the NYS Freshwater Wetlands Appeals Board limits its actions to agreeing with NYSDEC decisions unless those appealing can prove that decisions made by the Department of Environmental Conservation were both arbitrary and capricious. If this wetland was not already protected, yet another appeal would have been filed, this time in a court of law.
The NYS Freshwater Wetland Appeals Board needs to add an expert soil scientist and a wetland ecologist/biologist to adequately determine wetland boundaries and to more fairly hear appeals. These highly expert scientists should be sent by New York State directly on-site to any wetland under appeal.
The US Army Corps of Engineers brought in national experts from Mississippi to verify federal wetland delineations in the Klydel Wetland. In a similar fashion, the NYS Freshwater Wetland Appeals Board should have brought in scientific experts that could have ascertained that state laws were being applied correctly. The NYS Appeals Board member that dissented in the Board's ruling for the Klydel Wetland case was greatly concerned that different criteria are being applied to wetland delineations in different parts of New York State.
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