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Freshwater Wetlands Permit Program: Standards for Issuance

Stringent Requirements

As in the Tidal Wetlands Permit Program, gaining permit approval under the Freshwater Wetlands regulations can be very demanding. Most construction projects in or near wetlands will adversely affect wetlands. The regulations do not encourage such development.

Generally applicants are required to:

  1. Examine alternative sites and project designs that avoid and reduce impacts to wetlands;
  2. Develop plans to create or improve wetlands or wetland functions to compensate for unavoidable impacts to wetlands;
  3. Demonstrate overriding economic and social needs for your project that outweigh the environmental costs of impacts on the wetlands.

Given this burden, it is clearly worthwhile to avoid regulated and incompatible activities in or near wetlands.

If you must pursue a permit application, supplying with your initial submittal, all the documentation described in the web page "Application Procedures" will avoid the costs of responding to successive information requests by DEC and will reduce the total review time.

Compatibility

The Freshwater Wetlands regulations assign different levels of "compatibility" for certain projects, depending on the type of project (eg: clear cutting of trees, home construction, filling, disposal of sewage) and how close to the wetland the project occurs (ie. whether you are in the wetland or in the 100 ft. area adjacent to the wetland). The farther away from the wetland and the less permanent the disturbance, the more likely a project is to be compatible with the functions, values and benefits of the regulated wetlands.

Projects considered "usually compatible" are most likely to gain project approval. see regulations :scroll to section 663.5(e) "STANDARDS FOR PERMIT ISSUANCE".

Weighing Project Need Against Wetland Benefit

Projects that are found not compatible with wetland functions, values and benefits or having more than insubstantial impacts on the wetland must meet additional weighing standards contained in the regulations, as follows:

Alternatives

You must demonstrate that your proposal is the only physically or economically feasible alternative for accomplishing your objectives. You must also have no physically or economically feasible alternative on a site that is not a freshwater wetland or its adjacent area.

For example, if your objective is to gain access to a piece of your property to build a house and you plan to build a road through a wetland to get to the property, is this the only option available? Can you build the house on another site where it won't require such access? Are there non-wetland portions of the same property available for the road that do not require crossing a wetland or its adjacent area? Are there any existing access trails requiring less disturbance to upgrade and render them usable? If the access needed is temporary (eg: logging trail) can you make temporary arrangements with a neighbor to gain access through another route around the wetland? Can you use temporary methods of access such as mats or planks laid down?

Remember, the most profitable or least costly alternative is not considered the only feasible alternative under the regulations.

Avoid or Reduce Impacts

The proposed activity must minimize impacts to or loss of the wetland or its adjacent area, including impacts to the functions, values and benefits of these wetlands. This may include an examination of alternative project layouts, designs, and pollution control features for the project.

Using the above access road example, does the proposed route cross the least amount of wetland or adjacent area possible? Is the road the narrowest design necessary to allow reasonable access? Could a bridge span or a series of box culverts be used instead of a solid fill with a culvert pipe for a portion of the route? Have you proposed hay bale barriers along the road or drainage channels and sediment ponds in your design to control direct runoff and erosion?

For a housing project, design options might include fewer numbers of units or clustering of units, rearranging the pattern or layout of parking or shifting the building "footprint" to skirt around wetlands or adjacent areas.

Mitigation

Even after evaluating every reasonable alternative in arriving at final site, design, layout and pollution control measures, you may still be left with some unavoidable impacts or losses to wetlands. If you can't adequately avoid or reduce these impacts you must propose some compensation or restoration for these impacts, sometimes called "mitigation" measures.

For example, to compensate for a loss of 2 acres of cattail marsh you may offer to artificially create 4 acres of cattail marsh nearby through some careful grading, soil and drainage preparation and plantings. This approach anticipates that at least half of the artificially created marsh will survive and "make up for the 2 acres lost due to the project.

Another example may be to enhance some remaining wetland with a small pond to increase biological diversity and productivity. This may be one method of compensating for the loss of some purple loosestrife marsh which was not as diverse or productive. This approach might be desirable where you haven't adequate suitable acreage nearby to replace the acreage lost.

Ultimately, the acceptability of your mitigation plan will depend on how likely it is to effectively replace or enhance the wetland functions, values, and benefits lost due to your proposed project.

If you meet all of the weighing standards discussed above and provide an acceptable mitigation plan that adequately compensates for any unavoidable impacts to the wetland, then a permit may be issued. If your mitigation plan does not completely compensate for all unavoidable impacts and some net loss or impact to the wetland remains, however, then you are faced with the final weighing standard of economic and social need.

Economic and Social Need

The consideration of economic and social need includes both the applicant's needs (such as reasonable access to and use of the property, a safe and healthy place to live, the ability to repair property damage) and the economic and social burdens that a project may impose on the public (such as prompting the need for sewer systems, schools, fire protection, flood protection, contingency plans for contamination). The level of need is weighed against the public burden and the level of net losses or impacts to the wetland. The department must strike a reasonable balance in order to issue a permit. In general, the more important the wetland functions, values and benefits and the greater the potential loss or reduction of these attributes, the greater the amount of economic and social need that the applicant must demonstrate and document to prevail in obtaining a permit.

In Summary

Under the Freshwater Wetlands regulations, as you are required to meet each successive step in the hierarchy of standards for permit issuance, the burden on you increases to document and demonstrate your ability to meet these standards. "Take a hard look" at your project in the context of these standards before pursuing an application. You will better understand what you will need to do to successfully pursue your project.


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