News Archives for 2003 and part of 2004
Citizens for a Green North Tonawanda
Thanks to the Tonawanda News for keeping the public well informed!
�Notice of Claim Filed Over Wetlands� by Sean O�Neil
Front Page - Tonawanda News � Thursday, October 02,
2003
Environmental groups have long contended that North Tonawanda has meddled with the Klydel Wetlands. Finally, it looks like legal action is on the horizon.
North Tonawanda may face legal action over alleged violations of
the federal Clean Water Act.
A notice of claim was filed Monday against the city by the Sierra
Club and Citizens for a Green North Tonawanda over �unauthorized discharge of
fill materials� in the Klydel wetlands, about 80 acres of wetlands near Meadow
Drive. The groups claim the city
violated the federal statute, created in 1972 and amended in
1979.
The claim alleges that the city �repeatedly and knowingly
discharged pollutants into wetlands without permits,� as well as �built roads
and filled wetlands in the city after laws protecting wetlands went into
effect.� The city also neglected to tell those seeking building permits for the area that their homes would be built on wetlands, the groups contend.
The fill currently at the site, as well as any more that ends up
there, will exacerbate flooding problems in the area surrounding the wetlands,
the group said. Any additional
development in that area will cause problems similar to those seen in Amherst,
where many homes have sunk due to wetlands
development.
�The damage to home foundations built in wetlands often takes
decades to become evident,� Liz Kaszubski, a North Tonawanda resident and member of the Sierra Club, said.
The Clean Water Act prohibits developing or filling wetlands
without a permit from the US Army Corps of Engineers, and any violation can
result in civil penalties of up to $27,500 per day the fill remains. To date, Kaszubski said, the city has
not responded to her or anyone else over the matter, and the groups felt they
had no other choice than to threaten legal
action.
That may have had an effect at City Hall on Wednesday after city
officials first learned of the action.
City Attorney Henry Wojtaszek said the city is willing to sit down and
work out a resolution with the
groups.
�What I would suggest we do is sit down with the people and have a meeting,� he said, adding that he had just read the notice of claim. �A lot of this happened before I got
here.�
�I�m glad Henry said that,� Kaszubski said after hearing
Wojtaszek�s response. �Basically,
there�s an issue that has to be addressed, and the only way to address it is to
lay it down on the table.�
�The Environmental Protection Agency would be the agency that
decides whether the lawsuit would go forward�, Kaszubski
said.
�That�s not something I get to decide,� she said. �It will be the EPA who guides
us.�
Contact SEAN P. O�NEIL at
716-693-1000, Ext. 117, or at: [email protected]
Our View
Time to
Face the Music
NT may have to heed warnings over Klydel wetlands
Tonawanda News � Lead Editorial on Page 4A � Monday,
October 6, 2003
It�s taken eons to reach this
point, but North Tonawanda might finally pay its dues for what environmental
groups have called a pillaging of the Klydel
wetlands.
The 80-acre site near Meadow
Drive has long been a battlefield where developers and groups like Citizens for
a Green North Tonawanda have fought.
In most cases, developers got the upper hand and activists have ended up with nothing but anger.
But with added help from the
Sierra Club, a notice of claim was filed against the city Sept. 29, meaning the
city might have to start paying attention to warnings the groups have long
issued.
Too bad it took this to make the
city take notice.
Liz Kaszubski, an NT resident,
said the group has taken other avenues in trying to get the city to stop
tampering with the area, but attempts haven�t produced any
results.
She said legal action was the
only way the city finally got the message that the group isn�t
kidding.
If the city did �repeatedly and
knowingly discharge pollutants into wetlands without permits,� as the notice of
claim alleged, we�re embarrassed for North
Tonawanda.
But if the city neglected to tell those seeking building permits that their homes would be built on wetlands, we think the city should be taken to the cleaners.
The land our cities are built on
is certainly important and should be treated as such, but to knowingly dupe the
residents goes against everything government has been set up to
do.
We seriously hope this isn�t the
case.
Klydel lawsuit heating up
In a letter to the attorney for plaintiff Citizens for a Green North Tonawanda and the Sierra Club dated Tuesday, A. Timothy Webster said the two groups had not provided the city with sufficient information on their specific claims regarding dumping and construction at the Klydel Wetlands. (Hit this sidebar for a small sample of the evidence).
Webster also calls on the groups to try and work with the city, rather than sue them.
"Your clients may wish to pursue this matter with the city as potential public actions or improvements in the typical administrative or legislative context, rather than under the threat of a lawsuit," he wrote.
Richard Lippes, the attorney representing Citizens for a Green North Tonawanda and the Sierra Club, said the letter leaves his clients little choice but to move forward on their claim against the city.
"It's very likely we'll file a lawsuit and then go from there," he said. "We had a meeting... and this was the response. It doesn't leave us with much."
The Sierra Club and Citizens for a Green North Tonawanda filed a notice of claim against the city Sept. 29, 2003. In the claim, the groups accused the city of "repeatedly and knowingly discharged pollutants into wetlands without permits."
The two sides have met to find some common ground and avoid a further legal battle. However, those talks seem to have broken down, according to Webster.
"While the city is interested in learning what your clients are seeking, it cannot address these measures in the context of the current threatened litigation in the absence of at least some information indicating any violation of the Clean Water Act occurred, much less by the city of North Tonawanda," Webster wrote.
Lippes thought progress was being made in the case, but Webster's letter seems to have a different tone, he believes.
"The letter was a bit disappointing. They seemed like they were more interested in resolving the matter than the letter indicates," he said. "The time period has passed (for the 60 day notice of claim), so now we can go to court."
Contact Sean P. O'Neil at 693-1000, Ext. 117, or at [email protected]
Check out the Tonawanda News web site at: http://www.tonawanda-news.com/
Time for Improved Wetlands Protection is Now
(Guest column published on the editorial page of the Tonawanda News on June 15, 2004)
Last September, Sierra Club and Citizens for a Green
North Tonawanda sent a �notice of intent to sue� to the U.S. Environmental
Protection Agency citing violations by the city of North Tonawanda involving
federal wetlands. The city
immediately hired expensive
attorneys.
I�d like to discuss the reasons we have decided we
will probably not pursue legal action at this time. It certainly is not because
the City has protected wetlands in this community.
We have determined that rather than our city paying
attorneys in law offices in Buffalo for deeds done in wetlands that cannot be
remedied at this time, the taxpayers� money would be better spent in this
community to actually fix:
Many of these structures are in disrepair because they
were built on hydric (wetland) soils.
The City owns many �paper streets� that have been
developed, or are planned to be developed soon, to accommodate 2,000 new homes
to be built in this community.
Residences, and some streets, have been constructed in wetlands
subsequent to the enactment of federal wetland laws and more homes continue to
be built in wetlands. We have not
yet been able to find a single case in the last two decades where the City
actually contacted the US Army Corps of Engineers concerning federal permits for
construction in wetlands.
Deerwood Golf Course also contains wetland areas with
the �Fawn� course opening in 1998.
The US
Army Corps of Engineers has executed enforcement actions on Daniel Drive,
Kinkead, and Bowen Drive in North Tonawanda.
Consequently, a federal wetland permit was required for a home as
it was being built on Bowen Drive in 1998.
Thereafter, developers have become very good at making all evidence of
wetlands disappear. Citizens must
continue to demand that public officials act responsibly as this City is
developed, or sooner or later, legal complications will
arise.
North Tonawanda shares many of the same soils that are
present in Amherst-- silts and clays that were laid down in ancient Lake
Tonawanda. In discussing many of
these soils, the Niagara County Soil Survey states, "Except for muck and peat, soils formed in
lacustrine (glacial lake) sediments present more engineering problems than any
other soils in the county because of their topographic location and their
low strength and stability."� "Natural drainage and slow permeability are the
two most limiting factors for community development. Sanitary sewers and
adequate drainage systems are generally needed. The soils in this association
are formed in deep lacustrine deposits that normally contain wet, compressible,
unstable layers. Care is needed in constructing foundations and developing a
road base."
Excessive drainage is also not good for soils that
contract and/or expand when they are too wet or too
dry.
The US Army
Corps of Engineers has not yet completed their study of Amherst but the New York
State Attorney General calculated that a total of
$4.7 million in damages was reported for the first 501 homes that were damaged
by unstable soils. More than double
that amount of homes is now known to have problems. In public comments submitted to the US
EPA by the State of New York it was acknowledged that, �Considering that there are 33,000 homes
in Amherst, and a large portion of damages have yet to be reported or may happen
in the future, there is the potential for a much larger cost to residents. If the problem continues to worsen,
property values may suffer and create an even greater strain on the community.
Protection of
wetlands in Amherst is necessary to prevent greater damage.�
Justice NeMoyer just ruled for a second time that
Amherst residents could not sue the town for damages. Therefore, Sierra Club�s efforts are
focused on winning passage of legislation to strengthen New York�s wetlands
laws. We are asking the governor to
support A.7905-A/S.4480-A, the �Clean Water Protection/Flooding Prevention
Act�.
New York is the
only state in the Northeast that imposes a size threshold for wetland
jurisdiction � all other states identify wetlands based on scientific criteria,
not size, and thus regulate activities impacting smaller �isolated�
wetlands. This new legislation lowers the size threshold for state jurisdiction
from 12.4 acres to one acre.
The Assembly
version of this legislation was passed on April 19, 2004. The
Senate version, S.4480-A, moved through the Senate Environmental Conservation
Committee on June 2, 2004 and currently enjoys strong bi-partisan support.
The New York
State legislative session may end this month. Those who favor
improved protection of wetlands should contact either Governor Pataki or your
local state senator to support this legislation.
Citizens for a Green North Tonawanda will continue to
post more details about wetland development in North Tonawanda at: http://www.geocities.com/ntgreencitizen/index.html.
Liz
Kaszubski
North
Tonawanda
NYS Wetlands Chair, Sierra
Club
US EPA and Army Corps Issue Wetlands Decision - Press Release - 12/16/2003
President Bush, the
Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps)
today reiterated the Administration's commitment to the goal of "no net loss" of wetlands in the United States. EPA and the Corps announced that they would not issue a new rule on federal regulatory jurisdiction over isolated wetlands.
"Across the Federal Government, the Bush Administration has reaffirmed
and bolstered protections for wetlands, which are vital for water quality, the
health of our streams and wildlife habitat," said EPA Administrator Mike
Leavitt. Assistant Secretary of the Army John Paul Woodley Jr. added, "We will
continue our efforts to ensure that the Corps' regulatory program is as
effective, efficient and responsive as it can be."
The Supreme Court's
2001 decision in the case of Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers (commonly referred to as to "SWANCC") overturned the
Corps' assertion of federal jurisdiction over certain isolated wetlands based on the presence of migratory birds. EPA and the Corps responded by issuing revised guidance to their field offices. At the same time, the Agencies reaffirmed federal jurisdiction over the majority of wetlands not impacted by the decision.
After soliciting public comment to determine if further regulatory
clarification was needed, the EPA and the Corps have decided to preserve the
federal government's authority to protect our wetlands. The agencies will
continue to monitor implementation of this important program to ensure its
effectiveness.
View our latest news and archives of 2004 news, 2002 news, 2001 news, 2000 news, 1999 news, 1998 news, and 1997 news.
Read more about these issues on our US Supreme Court decision page.
Saving green space can save taxpayers money. Check out articles about saving open space.
Learn why homes should never be built in hydric (wetland) soils in the incredible sinking suburb of Amherst.
Learn about some homes that were built in hydric (wetland) soils in North Tonawanda.
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