Rebuilding with Resilience

6 The Army Corps of Engineers has permitting authority over discharges of dredge or fill materials into waters of the United States,
including wetlands, under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The State of New York
has also adopted its own program for regulating activities in intertidal areas, the New York Tidal Wetlands, and State laws apply in
addition to Corps permitting requirements. N.Y. Environmental Conservation Law § 25-0101 (McKinney). Almost all activities which
would alter wetlands or adjacent areas (extending up to 300 feet from the wetland boundary, 150 feet within New York City) out extend
out to a water depth of six feet require a permit from the New York State Department of Environmental Conservation (NYDEC).
Under the state’s Tidal Wetlands Act, any construction, reconstruction, or expansion of structures or any movement of earth material
or subdividing of land all require a permit. N.Y. Environmental Conservation Law § 25-0401 (McKinney). And dredging, filling, and
construction of berms in intertidal areas are all considered “presumptively incompatible uses” and, as a result, must overcome that
presumption by demonstrating that the activity will be compatible with the area and will protect, preserve, and enhance tidal wetlands
before NYDEC can issue a permit. The disposal of dredge materials in intertidal marshes is designated an incompatible use that
NYDEC cannot permit. 6 NYCRR 661.9; see also NYDEC, Tidal Wetlands Permit Program: Do I Need a Permit? (2015),
http://www.dec.ny.gov/permits/6359.html.
7 The City of New York, Lower Manhattan Protect and Connect, National Disaster Resilience Competition Phase 2 Application at 53-54
(Oct. 2015), available at: http://www.nyc.gov/html/cdbg/downloads/pdf/NDRCApplication_Exhibits_10%2029%2015_3.pdf.
40 Chapter 2: The Big U | Rebuilding with Resilience GEORGETOWN CLIMATE CENTER