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Part 661: Tidal Wetlands-Land Use Regulations - Page 1

(Statutory authority: Environmental Conservation Law, §§ 1-0101, 3-0301, 25-0302)

Contents:

Sec.

§661.1 Purpose of this Part

It is the public policy of the State, as set forth in the Tidal Wetlands Act, to preserve and protect tidal wetlands, and to prevent their despoliation and destruction, giving due consideration to the reasonable economic and social development of the State. It is the purpose of this Part to implement that policy by establishing regulations that allow only those uses of tidal wetlands and areas adjacent thereto that are compatible with the preservation, protection and enhancement of the present and potential values of tidal wetlands (including but not limited to their value for marine food production, wildlife habitat, flood and hurricane and storm control, recreation, cleansing ecosystems, absorption of silt and organic material, education and research, and open space and aesthetic appreciation), that will protect the public health and welfare, and that will be consistent with the reasonable economic and social development of the State.

§661.2 Findings

(a) Tidal wetlands constitute one of the most vital and productive areas of the natural world and collectively have many values. These values include, but are not limited to, marine food production, wildlife habitat, flood and storm and hurricane control, recreation, cleansing ecosystems, sedimentation control, education and research, and open space and aesthetic appreciation, as set forth in the legislative findings contained in section 1 of chapter 790 of the Laws of 1973. Therefore, the protection and preservation of tidal wetlands are essential.

(b) Several ecological zones exist in tidal wetlands. These several zones are as follows: coastal fresh marsh; intertidal marsh; coastal shoals, bars and flats; littoral zone; high marsh or salt meadow; and formerly connected tidal wetlands. In addition, adjacent areas, which are important to the protection of tidal wetlands values, adjoin these tidal wetlands zones.

(c) These tidal wetlands zones collectively serve all of the tidal wetland values set forth in chapter 790 of the Laws of 1973. However, because of their different natural characteristics, each zone may serve any particular value to a greater or lesser degree than other zones. The varied natural characteristics of the several tidal wetlands zones, including their functions, contour, biota, tidal action, water quality and in particular their respective contributions to the marine food chain, cause certain zones to be relatively more sensitive to the adverse impacts caused by land used and development. Similarly, these varied natural characteristics make it important to more stringently protect and preserve certain tidal wetlands zones relative to other zones. However, any ranking of the value of different tidal wetland zones is general in nature, and specific exceptions to such a ranking do occur.

(d) Intertidal marsh and coastal fresh marsh tidal wetlands are the most biologically productive of all tidal wetlands areas. Furthermore, since they receive twice-daily tidal flushing, the products of vegetative photosynthetic activity and decomposition in these zones are readily transported to adjacent waters for use in the estuarine food chain. Their intertidal location also makes them among the most effective wetland zones for flood and hurricane and storm protection. Both their intertidal location and their highly productive nature makes them among the most effective wetland zones for cleansing ecosystems and for absorbing silt and organic material. Because of these high values and their sensitive location at the land and water interface, intertidal and coastal fresh marshes must be the most stringently protected and preserved tidal wetlands zones. Even small portions of these zones are critically important resources. Consequently, only very limited types of land use and development are compatible with the values of these areas.

(e) Coastal shoals, bars, and flats and littoral zones include areas of extreme variability in their contributions to marine food production and other tidal wetland values, and each such area requires a specific assessment of tidal wetland values. Some coastal shoals, bars and flats and some littoral zones are areas of extremely high biological productivity and are nearly or equally as important in this respect as intertidal marshes and coastal fresh marshes. Other areas are of little biological significance. Even in these relatively unproductive areas, however, values other than marine food production are often present, and these areas often have the potential to become more biologically productive in the future. Because of their location at the land-water interface, coastal shoals, bars and flats and littoral zones play an important role in flood and hurricane and storm control, although they are less important in this regard than coastal fresh marshes, intertidal marshes and high marshes or salt meadows. Similarly, because of their location at the land-water interface and because of their generally high levels of productivity, these areas have an important function in cleansing ecosystems and absorbing silt and organic materials, but they are also less critical in these ways than coastal fresh marshes, intertidal marshes and high marshes or salt meadows. Where tidal wetlands values, particularly biologic productivity, are high, only limited types of land use and development are compatible with the values of these areas. Where tidal wetland values are relatively lower, more extensive and intensive uses may be compatible with the wetland values of these areas.

(f) Some areas possess the physical characteristics of littoral zones or coastal shoals, bars or flats but do not function biologically as tidal wetlands. Such areas have generally been heavily impacted by pollution, sedimentation or other artificial disturbance, exhibit little primary productivity, and are populated by few benthic organisms. Such areas require identification on a case-by- case basis and when so identified should no longer be treated as tidal wetlands under this Part.

(g) High marsh or salt meadow tidal wetlands constitute an extensive zone of the salt marshes that receives only occasional tidal flooding coincident with extreme lunar tides and occasional storms. Since their photosynthetic productivity is lower than coastal fresh marshes and intertidal marshes and since flushing of the biological products of the high marsh or salt meadow to the estuary is less efficient than in coastal fresh marshes and intertidal marshes, salt meadows or high marshes, while critically important for marine food production, are slightly less important in this regard than coastal fresh marshes or intertidal marshes. Because of their size and location salt meadows or high marshes are as important for absorption of silt and organic material and flood and hurricane and storm control as coastal fresh marshes and intertidal marshes. Furthermore, because they are located generally in such a way that they are the first tidal wetland area to receive run-off and other materials from the land, they have an important role in cleansing ecosystems, but their value in this respect is generally slightly less than in coastal fresh marshes and intertidal marshes because of the lower level of direct tidal influence in high marshes or salt meadows. Because these wetlands are usually located adjacent to intertidal marshes and because their values are similar, these wetland areas must be stringently protected and preserved. Even small portions of these areas are critically important resources, although slightly less so than intertidal marshes and coastal fresh marshes. Consequently, only very limited types of land use and development are compatible with the value of these areas.

(h) All of the above-described tidal wetland zones may occur behind shifting natural barriers that are breached by intermittent tidal inlets which allow tidal action to affect such wetlands.

(i) Formerly connected tidal wetlands are lowland areas whose connections to tidal waters are restricted by road fills, dikes, or other man-made facilities. The nature and value of these tidal wetland areas are widely variable and are a function of the extent of the tidal restriction and the time which has passed since the restriction occurred. Therefore, a case-by-case analysis of these wetlands is required. Each of these tidal wetland areas closely resembles another type of wetland zone. Those uses compatible with the type of wetland zone which a particular formerly connected tidal wetland most closely resembles will be generally compatible with that formerly connected wetland.

(j) Adjacent areas make insignificant contributions to marine food production. Tidal wetland values for cleansing ecosystems, flood and hurricane and storm control, and absorbing silt and organic material may be served to varying degrees by these areas, but these values are not as critically served in adjacent areas as in the tidal wetland zones. The most important function of adjacent areas is to serve as buffers to protect the character, quality and values of tidal wetlands that adjoin or lie near these areas. Consequently, a wide variety of uses may be compatible with these areas, provided such uses do not adversely affect adjacent and nearby tidal wetlands.

(k) All of the tidal wetland zones and adjacent areas generally serve to an approximately equal degree the wildlife habitat, recreation, education and research, and open space and aesthetic appreciation values of tidal wetlands. Variations do occur in the values served from, for example, a particular intertidal marsh to another or from a particular high marsh or salt meadow to another. Furthermore, one type of tidal wetland or an adjacent area may serve a particular wildlife habitat, recreation, education and research, or open space and aesthetic appreciation value. These variations depend on a wide variety of factors, including the particular value sought to be served, the quality and diversity of the natural resources of a particular area, the size and location of the area, the natural features and land uses surrounding the particular area, and the time of year. Generally, tidal wetlands and adjacent areas are the habitat for a large number of wildlife species, provide large expanses for a variety of recreational purposes, offer conditions useful for many education and research purposes and satisfy a broad spectrum of aesthetic appreciation and open space needs.

(l) The productivity and variability of tidal wetlands and their location in a constantly changing environment mean that whatever the present existing values of a particular tidal wetland are, the ability of that wetland to serve these values generally continues provided it is allowed to function in a substantially natural and undisturbed state. Furthermore certain human-induced modifications of tidal wetlands can increase tidal wetland values when carefully designed and undertaken. Consequently, land use and development in or near tidal wetlands must be compatible with the present and potential values of tidal wetlands.

(m) Tidal wetlands are located at the critical interface between land and tidal waters, and the amount of this land-water boundary is limited. Certain types of land use and development require access to tidal waters, while others do not. Given the critical values served by tidal wetlands, the limited extent of the land-water boundary, and the many types of land use and development that require water access and should be located where they will not substantially impair tidal wetland values, land use and development that does not require water access generally should not be located in tidal wetlands or adjacent areas.

(n) While tidal wetlands and adjacent areas contain distinct zones, as set forth in these findings, these areas are essentially an integrated natural system. The resources in one area utilize and depend on the resources in other areas. The tidal wetland benefits produced in one area benefit nearby areas, and the negative impacts imposed on the natural values of one area are transferred to other nearby tidal wetland areas. Consequently, land use and development occurring in any particular tidal wetland or adjacent area may cause impacts on nearby areas and should be compatible with the values of the particular area on which it is located as well as with the values of nearby tidal wetlands.

§661.3 Applicability

This Part shall apply to any tidal wetland, the final bounds of which have been established by an order of the commissioner pursuant to section 25-0201 of the Act and to any adjacent area. Any such order shall become effective on the date it is filed in the office of the clerk of the county in which such wetland is located. These regulations shall be applicable in the following areas: Suffolk County, Nassau County, all boroughs of the City of New York, Westchester County and Rockland County.

§661.4 Definitions

The following terms when used in this Part shall have the following meanings:

(a) Act shall mean the Tidal Wetlands Act (article 25 of the Environmental Conservation Law as from time to time amended).

(b)

(1) Adjacent area shall mean any land immediately adjacent to a tidal wetland within whichever of the following limits is closest to the most landward tidal wetland boundary, as such most landward tidal wetlands boundary is shown on an inventory map (see explanatory figures 1-6):

(i) 300 feet landward of said most landward boundary of a tidal wetland, provided, however, that within the boundaries of the City of New York this distance shall be 150 feet (see figure 1); or

(ii) to the seaward edge of the closest lawfully and presently existing (i.e., as of August 20, 1977), functional and substantial fabricated structure (including, but not limited to, paved streets and highways, railroads, bulkheads and sea walls, and rip-rap walls) which lies generally parallel to said most tidal wetland landward boundary and which is a minimum of 100 feet in length as measured generally parallel to such most landward boundary, but not including individual buildings (see figure 2); or

(iii) to the elevation contour of 10 feet above mean sea level, except when such contour crosses the seaward face of a bluff or cliff, or crosses a hill on which the slope equals or exceeds the natural angle of repose of the soil, then to the topographic crest of such bluff, cliff, or hill (see figures 3 and 4). Pending the determination by the commissioner in a particular case, the most recent, as of the effective date of this Part, topographical maps published by the United States geological survey, Department of the Interior, having a scale of 1:24,000, shall be rebuttable presumptive evidence of such 10 foot elevation.

(2) Adjacent area shall not include any area lying landward of an imaginary line drawn between the seaward edges of two existing (i.e., as of August 20, 1977) substantial fabricated structures which constitute the landward limit of an adjacent area, as provided in subparagraph (ii) of this subdivision, where the area landward of such imaginary line does not have located thereon any such fabricated structures and where such imaginary line is less than 100 feet in length, as measured generally parallel to the most landward limit of the tidal wetland involved (see figure 5).

(3) Where land lies within the boundaries of an adjacent area described by subparagraph (i) or subparagraph (iii) of this subdivision but appears to be excluded from an adjacent area by subparagraph (ii) of this subdivision or paragraph (2) of this subdivision, such land shall be deemed to be part of an adjacent area (see figure 6). Provided, however, that in such instances of overlap between the various provisions of this subdivision the regional permit administrator may in his discretion determine that said land is not an adjacent area for the purposes of this Part if factors are present which in his opinion justify treating such land as non-adjacent area in light of the provisions in subparagraph (ii) or paragraph (2) of this subdivision.

(4) The construction of a new substantial man-made structure described in subparagraph (ii) of this subdivision after August 20, 1977 shall not be deemed to limit the extent of an adjacent area.

(5) Adjacent area shall also include any extended adjacent area identified during the moratorium period, as established by section 25-0202 of the Act, pursuant to the provisions of subdivision (c) of section 660.1 of this Title.

Diagram of adjacent area configurations 62K gif

(c) Applicant shall mean a person who files an application for a permit issued by the department pursuant to this Part and who is either the owner of the land on which the proposed regulated activity will be located, a contract vendee of such owner, a lessee of such owner, or the person who will actually control and direct the undertaking of the proposed activity.

(d) Aquaculture shall mean the cultivation and harvesting of products that naturally are produced in the marine environment, including fish, shellfish, crustaceans and seaweed, and the installation of cribs, racks and in-water structures for cultivating such products, but shall not mean the construction of any building, any filling or dredging or the construction of any water regulating structures.

(e) Chief administrative officer shall mean in the case of a city or a village, the mayor thereof, in the case of a town, the supervisor thereof, and, in the case of a county not wholly within a city, the county executive or county legislative body.

(f) Chief permit administrator shall mean any employee of the department who is designated by the commissioner to act in such capacity.

(g) Commercial use shall mean any use involving the sale, rental or distribution of facilities (including but not limited to tourist accommodations and storage facilities), goods, services or commodities, either retail or wholesale, or the provision of recreational facilities for a fee.

(h) Commercial use building shall mean any building in excess of 100 square feet associated with a commercial use.

(i) Commissioner shall mean the Commissioner of Environmental Conservation or his duly authorized representative.

(j) Department shall mean the Department of Environmental Conservation.

(k) Dredging shall mean the excavation or removal of sediment, soil, mud, sand, shells, gravel or other aggregate from any tidal wetland or adjacent area for the direct or indirect purpose of establishing or increasing water depth, increasing the surface or cross-sectional area of a waterway, or obtaining such sediment, soil, mud, sand, gravel, shells or other aggregate. Provided however, such term shall not include acquiring samples of sediment, soil, mud, sand, shells, gravel or other aggregate; acquiring the natural products of tidal wetlands by recreational or commercial fishing, shellfishing, aquaculture, hunting or trapping where otherwise legally permitted; or maintenance dredging as defined in subdivision (r) of this section.

(l) In existence or existing shall mean, with respect to any land use and development (except a subdivision), that such land use and development has been lawfully substantially commenced or completed, and with respect to any subdivision of land, or portion thereof, shall mean that such subdivision, or portion, has been lawfully substantially commenced or completed and that substantial expenditures have been made for structures or improvements directly related thereto.

(m) Industrial use shall mean any manufacturing, production or assembly of goods or materials and any mineral extraction operation.

(n) Industrial use building shall mean any building in excess of 100 square feet associated with an industrial use.

(o) Inventory map shall mean a final tidal wetlands boundary map established by the commissioner pursuant to subdivision (4) of section 25-0201 of the Act depicting the boundary lines of tidal wetlands and filed in the office of the county clerk in the county in which such wetlands are located.

(p) Land use and development or use shall mean any construction or other activity which materially changes the use or appearance of land or a structure or the intensity of use of land or a structure, including but not limited to any regulated activity.

(q) Lawfully shall mean in full compliance with all applicable statutes, rules and regulations.

(r) Maintenance dredging means excavation to restore the depth of underwater lands to elevations which are demonstrated to the reasonable satisfaction of the department to have been lawfully in existence within 20 years preceding the date of the application.

(s) Mineral extraction shall mean any extraction (not including the taking of specimens, dredging, or maintenance dredging) from any tidal wetland or adjacent area of stone, coal, salt, ore, talc, granite, petroleum products, sand and gravel or other materials, including the construction, alteration or maintenance of mine roads, mine tailing piles or dumps and mine drainage.

(t) Multiple family dwelling shall mean any apartment, town house, condominium or similar building, including the conversion of an existing single-family dwelling to a structure designed for occupancy in separate living quarters by more than one family.
(u) Municipality shall mean a village, town or city or a county in the case of a county not wholly included within a city.

(v) Permit shall mean that form of departmental approval required by this Part for the carrying on of a regulated activity.

(w) Person shall mean any individual, public or private corporation, political subdivision, government agency, department or bureau of the State, bi-state authority, municipality, industry, co-partnership, association, firm, trust, estate or any other legal entity whatsoever.

(x) Pollutant shall mean any form of pollution.

(y) Pollution shall mean the presence in the environment of conditions or contaminants in quantities or characteristics which are or may be injurious to human, plant, or marine life, wildlife, or other animal life, or to property, or which unreasonably interfere with the comfortable enjoyment of life and property throughout such tidal wetlands as may be affected thereby.

(z) Principal building shall mean any one of the following: single-family dwelling; each two units of a multiple-family dwelling; any other type of building, including but not limited to any commercial or industrial use building or public or semi-public building, that exceeds 1,000 square feet in area and each additional 1,000 square feet of floor space of such a building in excess of 3,000 square feet. In addition, each commercial or industrial use building or public or semi-public building less than 1,000 square feet in area shall count as one-quarter of a principal building.

(aa) Project shall mean any action which may result in direct or indirect physical impact on a tidal wetland, including, but not limited to, any regulated activity.

(bb) Public or community sewage disposal system shall mean any sewage disposal system for which the discharge to such system has been authorized by a SPDES permit issued pursuant to article 17 of the Environmental Conservation Law.

(cc) Public or semi-public building shall mean any municipal building, library building, school or college building, hospital building, building used as a place of worship, museum building, research center building, rehabilitation center building or any similar building.

(dd) Regional permit administrator shall mean an employee of the department designated by the commissioner to act in such capacity within the jurisdiction of a regional office of the department.

(ee)

(1) Regulated activity shall mean:

(i) any form of draining, dredging, excavation or removal, either directly or indirectly, of soil, mud, sand, shells, gravel or other aggregate;

(ii) any form of dumping, filling or depositing, either directly or indirectly, of any soil, stones, sand, gravel, mud, rubbish or fill of any kind;

(iii) the erection of any structures or construction of any facilities or roads, the driving of any pilings or placing of any other obstructions, whether or not changing the ebb and flow of the tide;

(iv) any form of pollution;

(v) any portion of a subdivision of land located in any tidal wetland or adjacent area;

(vi) any other new activity within a tidal wetland or on an adjacent area which directly or indirectly may substantially alter or impair the natural condition or function of any tidal wetland.

(2) Regulated activity shall include, but not be limited to, any activity listed in subdivision (b) of section 661.5 of this Part as a generally compatible use--permit required (GCp), presumptively incompatible use--permit required (PIp), incompatible use (I) or permit required (P) for the applicable area. Regulated activity shall not include any activity listed in section 661.5 of this Part as a use not requiring a permit (NPN) for the applicable area.

(ff) Single-family dwelling shall mean any detached building containing one dwelling unit including any mobile home.

(gg) Subdivision of land or subdivision shall mean any division of land into two or more lots, parcels or sites, whether adjoining or not, for the purpose of sale, lease, license or any form of separate ownership or occupancy (including any grading, road construction, installation of utilities or other improvements or any other land use and development preparatory or incidental to any such division) by any person or by any other person controlled by, under common control with or controlling such person or by any group of persons acting in concert as part of a common scheme or plan. Subdivision of land shall not include the lease of land for hunting and fishing and other open space recreation uses and shall not include the division of land by bona fide gift, devise or inheritance by and from natural persons.

(hh) Tidal wetlands or wetland shall mean any lands delineated as tidal wetlands on an inventory map and shall comprise the following classifications as delineated on such map:

(1) Coastal fresh marsh. The tidal wetland zone, designated FM on an inventory map, found primarily in the upper tidal limits of riverine systems where significant fresh water inflow dominates the tidal zone. Species normally associated with this zone include narrow leaved cattail, Typha angustifolia the tall brackish water cordgrasses, Spartina pectinata and/or S. cynosuroides; and the more typically emergent fresh water species such as arrow arum, Peltandra; pickerel weed, Pondederia; and cutgrass, Leersia.

(2) Intertidal marsh. The vegetated tidal wetland zone, designated IM on an inventory map, lying generally between average high and low tidal elevation. The predominant vegetation in this zone is low marsh cordgrass, Spartina alterniflora.

(3) Coastal shoals, bars and flats. The tidal wetland zone, designated SM on an inventory map, that

(i) at high tide is covered by water,

(ii) at low tide is exposed or is covered by water to a maximum depth of approximately one foot, and

(iii) is not vegetated by low marsh cordgrass, Spartina alterniflora, except as otherwise determined in a specific case as provided in section 661.16 of this Part.

(4) Littoral zone. The tidal wetlands zone, designated LZ on an inventory map, that includes all lands under tidal waters which are not included in any other category, except as otherwise determined in a specific case as provided in section 661.16 of this Part. Provided, there shall be no littoral zone under waters deeper than six feet at mean low water. Pending determination by the commissioner in a particular case, the most recent, as of the effective date of this Part, national ocean survey maps published by the national ocean survey, national oceanic and atmospheric administration shall be rebuttable presumptive evidence of such six foot depth.

(5) High marsh or salt meadow. The normal uppermost tidal wetland zone, designated HM on an inventory map, usually dominated by salt meadow grass, Spartina patens; and spike grass, Distichlis spicata. This zone is periodically flooded by spring and storm tides and is often vegetated by low vigor, Spartina alterniflora and Seaside lavender, Limonium carolinianum. Upper limits of this zone often include black grass, Juncus Gerardi; chairmaker's rush, Scirpus sp; marsh elder, Iva frutescens; and groundsel bush, Baccharis halimifolia.

(6) Formerly connected tidal wetlands. The tidal wetlands zone, designated FC on an inventory map, in which normal tidal flow is restricted by man-made causes. Typical tidal wetland plant species may exist in such areas although they may be infiltrated with common reed, Phragmites sp.