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Part 661: Tidal Wetlands-Land Use Regulations - Page 2

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

Contents:

Sec.

§661.5 Use Guidelines

(a)

(1) Any type of use designated in this section as a use not requiring a permit for the type of area involved is not subject to the permit requirements of this Part.

(2) Any type of use designated in this section as a generally compatible use for the type of area involved is generally compatible with that type of area and with the preservation, protection and enhancement of the present and potential value of tidal wetlands if undertaken in that area. The compatibility of a particular use depends on the particular location, design and probable impact of the proposed use. Generally compatible uses are subject to the permit requirements of this Part.

(3) Any type of use designated in this section as a presumptively incompatible use for the type of area involved shall be presumed not to be compatible with the type of area involved or with the preservation, protection or enhancement of the present and potential values of tidal wetlands if undertaken in that area. Any such use is subject to the permit requirements of this Part.

(4) Any type of use designated in this section as an incompatible use is not compatible with the type of area involved or with the preservation, protection or enhancement of the present and potential values of tidal wetlands if undertaken in that area. Any such use is subject to the permit requirements of this Part.

(i) Nothing in this subdivision shall be deemed to remove any burden of proof imposed on an applicant by section 661.9 of this Part.

(b) The classification of uses in coastal fresh marshes, intertidal marshes, coastal shoals, bars and flats, high marshes or salt meadows, littoral zones, and adjacent areas, shall be as respectively indicated in the following chart:

ABBREVIATIONS
Area Categories Use Categories
FM--Coastal Fresh Marsh NPN--Uses Not Requiring a Permit
IM--Intertidal Marsh GCp--Generally Compatible Use--Permit Required
SM--Coastal Shoals, Bars and Flats PIp--Presumptively Incompatible Use--Permit Required
LZ--Littoral Zone I--Incompatible Use
HM--High Marsh or Salt Meadow P--Permit Required
AA--Adjacent Area NA--Not Applicable
Uses Area and Use Category
FM, IM, HM SM, LZ AA
1. The continuance of lawfully existing uses (including but not limited to residential, commercial, industrial, agricultural, recreational and public use) and the continuance of all activities normally and directly associated with any such use, where such continuance does not involve expansion or significant alteration of the existing use. NPN NPN NPN
2. Activities of the department of health or of units of local government with respect to public health, when conducted in conformance with section 25-0401 of the Act. NPN NPN NPN
3. Activities subject to the review jurisdiction of the public service commission or the state board on electric generation siting and the environment under article seven or article eight of the public service law, respectively. The standards and restrictions of this Part will be applied by said bodies in determining whether to issue a certificate of environmental compatibility and public need under such articles. NPN NPN NPN
4. Establishing scenic, historic, wildlife and scientific preserves, without any material alteration of the area involved. NPN NPN NPN
5. Boating, hiking, swimming, camping, picnicking and other similar non-motorized forms of outdoor activity. NPN NPN NPN
6. Depositing or removing the natural products of a tidal wetland (or adjacent area) in the process of recreational or commercial fishing, shellfishing, aquaculture, hunting or trapping, including the erection and maintenance of temporary hides or blinds. NPN NPN NPN
7. Conducting educational and research activities not involving any material alteration of the area involved. NPN NPN NPN
8. Establishing walking trails without material alteration of the area involved. NPN NPN NPN
9. Establishing plantings. GCp GCp NPN
10. Establishing recreational moorings. NPN NPN NPN
11. Operation of motor vehicles, including but not limited to air boats and other all-terrain vehicles, for educational or scientific research purposes (provided this item shall not include operation of aircraft or mechanically propelled vessels, other than air boats). GCp GCp NPN
12. Operation of motor vehicles, including but not limited to air boats and other all-terrain vehicles, for other than educational or scientific purposes (provided this item shall not include the use of aircraft or mechanically propelled vessels other than air boats). PIp GCp NPN
13. Operation of aircraft or mechanically propelled vessels other than air boats. NPN NPN NPN
14. Constructing one open pile catwalk and/or dock not greater than four feet in width for any principal building. GCp GCp GCp
15. Constructing open pile catwalks and docks more than four feet in width; or constructing more than one open pile catwalk and/or dock not greater than four feet in width for any principal building. PIp GCp GCp
16. Installing a floating dock(s) totaling less than 200 square feet in area. GCp NPN NPN
17. Installing a floating dock(s) totaling 200 square feet or more in area. PIp GCp GCp
18. Relocation or rearrangement of floating docks, open NPN pile docks, and similar structures within an established marina or boat basin where such activities involve no disturbance of a tidal wetland other than removing or relocating anchors or pilings. PIp NPN NPN
19. Constructing solid fill docks. PIp PIp GCp
20. Permanent or seasonal mooring of any vessel or structure to be used as a single family dwelling, multiple family dwelling, commercial use building, industrial use building or public or semi-public building. PIp GCp GCp
21. Ordinary maintenance and repair (not involving expansion or substantial restoration, reconstruction or modification) of existing functional structures, facilities, or improved areas, including but not limited to bridges, roads, highways, railroad beds, bulkheads, docks, beaches, piers, wharves, pilings, dolphins, buildings, landscaped or paved areas, lawns, and agricultural and mosquito control ditches, including for example, replacing broken boards in docks, repainting structures, redriving pilings, resurfacing paved areas, installing or removing lawful structures on a seasonal basis. NPN NPN NPN
22. In-kind and in-place replacement of existing functional bulkheads and similar structures. GCp GCp GCp
23. Routine beach regrading and cleaning, both above and below mean high water mark. PIp NPN NPN
24. Substantial restoration or reconstruction, of existing functional structures or facilities of any kind, except for those covered by items 22 and 26, (provided, where the installation of a new structure or facility is listed in this subdivision as NPN for a particular type of area, the substantial restoration or reconstruction of such a structure or facility on that area shall be treated in the same manner as the installation of such a new structure or facility). GCp GCp GCp
25. Expansion or substantial modification of existing functional facilities and structures, except for those actions covered by items 26, 33, 34 or 38 (provided where the installation of a new structure or facility is listed in this subdivision as NPN or GCp, the expansion or substantial modification of such a structure or facility shall be treated in the same manner in that area). PIp GCp GCp
26. Substantial restoration, reconstruction, modification NA or expansion of existing functional residential structures which are and will continue to be located 75 feet or more (or 30 feet or more in New York City) from the most landward edge of any tidal wetland. NA NA NPN
27. Dredging. PIp PIp PIp
28. Maintenance dredging. GCp GCp GCp
29. Construction of groins, bulkheads and other shoreline stabilization structures. PIp GCp GCp
30. Filling. PIp PIp GCp
31. Disposal of dredged material. I PIp GCp
32. Construction of berms. PIp PIp GCp
33. Construction or substantial modification of mosquito control ditches. GCp GCp GCp
34. Construction or substantial modification of drainage ditches for other than agricultural or mosquito control purposes. PIp PIp GCp
35. Cultivating and harvesting naturally occurring agricultural and horticultural products, other than activities covered by items 36 and 37 below. NPN NPN NPN
36. Manual harvesting of salt hay. NPN NA NA
37. Harvesting of salt hay by mechanical equipment. GCp NA NA
38. Substantial modification of existing agricultural ditches. GCp GCp GCp
39. New agricultural activities not covered by items 35-38. PIp PIp GCp
40. Connection of electric, gas, sewer, water, telephone or other utilities from an existing distribution utility facility to an existing structure. GCp GCp NPN
41. Installation of underground electric, sewer, water, or other utilities where such installation will involve restoration of existing ground elevation, other than activities covered by item 40. GCp GCp GCp
42. Installation of electric, gas, sewer, water or other utilities, other than activities covered by items 40 or 41. PIp PIp GCp
43. Installation of a dry well, retention basin, filter, open swale or pond. PIp PIp GCp
44. New discharge of any pollutant requiring a SPDES permit pursuant to the environmental conservation law and complying with the requirements for the issuance of such a permit. P P P
45. Installation of a sewage disposal septic tank, PIp cesspool, leach field or seepage pit and discharge of any pollutant into such facilities not requiring a SPDES permit pursuant to article 17 of the environmental conservation law. PIp PIp GCp
46. Construction of single family dwellings and multiple family dwellings. PIp PIp GCp
47. Construction of commercial and industrial use facilities requiring water access and public and semi-public buildings requiring water access; and undertaking commercial and industrial use activities requiring water access. PIp PIp GCp
48. Construction of commercial and industrial use facilities not requiring water access and public or semi-public buildings not requiring water access; and undertaking commercial and industrial use activities not requiring water access. PIp PIp PIp
49. Construction of accessory structures or facilities for any use listed in items 46 and 47, other than accessory structures or facilities covered by item 50 or covered specifically in this list. PIp PIp GCp
50. Construction of accessory structures or facilities for existing residential structures where such accessory structures or facilities are and will continue to be in full compliance with the development restrictions of this Part. NA NA NPN
51. Construction of accessory structure or facilities for any use listed in item 48. PIp PIp PIp
52. Disposal of any chemical, petrochemical or other toxic material, including any pesticide. I I I
53. The use or application of any chemical, petrochemical or other toxic material, including any pesticide, where not authorized by law. I I I
54. The storage of any chemical, petrochemical or other toxic material, including any pesticide, for wholesale purposes or for purposes of distribution to persons other than the ultimate user of such materials. I I PIp
55. The use or application of any chemical, petrochemical or other toxic material, including any pesticide, where otherwise authorized by law, or the storage of any such material for purposes other than wholesaling or distribution to persons other than the ultimate users of such materials. NPN NPN NPN
56. Disposal of solid wastes as defined in section 27-0501 of the environmental conservation law. I I PIp
57. Any type of regulated activity not specifically listed in this chart and any subdivision of land. P P P

(c) Formerly connected tidal wetlands. For formerly connected tidal wetlands, uses not requiring a permit, generally compatible uses, presumptively incompatible uses and incompatible uses shall be deemed to be the same respectively as the type of wetland which a particular formerly connected tidal wetland most closely resembles.

(d) Uses not specifically listed in subdivision (b). For any regulated activity covered by item 57 in subdivision (b) of this section, the regional permit administrator shall on a case-by-case basis classify such cases as GCp, PIp, or I under subdivision (b) of this section, utilizing the listed items as a guideline for such classification.

§661.6 Development Restrictions

(a) No person shall undertake any new regulated activity on any tidal wetland or on any adjacent area except in compliance with the following development restrictions:

(1) The minimum setback of all principal buildings and all other structures that are in excess of 100 square feet (other than boardwalks, shoreline promenades, docks, bulkheads, piers, wharves, pilings, dolphins, or boathouses and structures typically located on docks, piers or wharves) shall be 75 feet landward from the most landward edge of any tidal wetland. Provided, however, within the boundaries of the city of New York the minimum setback required by this paragraph shall be 30 feet. Further provided, where numerous and substantially all structures which are

(i) of the type proposed by the applicant,

(ii) lawfully existing on August 20, 1977, and

(iii) within 500 feet of the subject property, are located closer to the subject tidal wetland than the minimum setback required by this paragraph, placement of a structure as close as the average setback of these existing structures from the subject tidal wetland shall fulfill the requirements of this paragraph.

(2) The minimum setback of any on-site sewage disposal septic tank, cesspool, leach field or seepage pit shall be 100 feet landward from the most landward edge of any tidal wetland.

(3) For any on-site sewage disposal cesspool, septic tank, leach field or seepage pit, there shall be a minimum of two feet of soil between the bottom of such pool, tank, field or pit and the seasonal high ground water level, rock, hardpan, or other impermeable materials.

(4) Not more than 20 percent of the adjacent area, as such term is defined in this Part, on any lot shall be covered by existing and new structures and other impervious surfaces. Provided, however, this paragraph shall not be deemed to prohibit the coverage of 3,000 square feet or less of adjacent area on any individual lot, lawfully existing on August 20, 1977, by existing and new structures and other impervious surfaces.

(5) The minimum lot area for any principal building constructed within the area regulated by this Part, which minimum lot area shall include any wetland portion and any adjacent area portion of such lot, shall be as follows:

(i) 20,000 square feet where such principal building will be served by a public or community sewage disposal system; and

(ii) 40,000 square feet where such principal building will not be served by a public or community sewage disposal system. Notwithstanding any other provision of this Part, the requirements of this paragraph for buildings to be served by a public or community sewage disposal system shall not be applicable within the boundaries of the city of New York.

(6) Notwithstanding the minimum lot size provisions contained in paragraph (5) of this subdivision, the clustering of principal buildings utilized for residential purposes, including multiple family dwellings, shall be permitted at the request of an applicant for a permit under this Part in order to encourage the maintenance of undeveloped areas in or adjoining tidal wetlands. Provided, such clustering procedure shall in no case result in more principal buildings on the area regulated by this Part than would be permitted by the application of the minimum lot size criteria in paragraph (5) of this subdivision.

(7) The minimum setback of all hard surface driveways, roads and parking lots and similar impervious surfaces exceeding 500 square feet in size on the property involved, overhead utility line poles and railroads, shall be 75 feet from any tidal wetland. Provided, within the boundaries of the city of New York the minimum setback required by this paragraph shall be 30 feet. Further provided, this provision shall not be applicable to any portion of a regulated activity that involves a crossing or direct access to a tidal wetland on the subject property.

(8) Any substantial increase in surface water runoff to tidal waters classified SA, as defined in section 701.5 of this Title, or to any other surface waters which are within 1,000 feet of any SA waters and are adjacent or tributary to such SA waters, shall be prevented from directly running into any such waters by the utilization of sufficient runoff control measures, including but not limited to the installation of dry wells, retention basins, filters, open swales or ponds. Any such dry well, retention basin, filter, open swale or pond to be constructed in order to prevent direct surface water runoff to said SA and other surface waters shall be designed and constructed to handle the water runoff produced on the project site by a five-year storm.

(b) The minimum lot size or average lot size provisions contained in paragraphs (5) and (6) of subdivision (a) of this section shall not be applicable to any vacant lot in a subdivision lawfully in existence on August 20, 1977, or in a subdivision which received all required State, regional and local approvals prior to August 20, 1977, for the purposes of placing one single family dwelling on such lot. Furthermore, such provisions shall not be applicable to any single vacant lot which was on record on August 20, 1977 for the purpose of placing one single family dwelling thereon, provided such lot does not adjoin other lots in the same ownership, except that all such lots in the same ownership may be treated together as one lot.

§661.7 Uses not Requiring a Permit

(a) Any use, where otherwise legally permitted, listed in section 661.5 of this Part as a use not requiring a permit (NPN) for a particular tidal wetland zone or for an adjacent area, may be undertaken in such tidal wetland zone or adjacent area without a permit under this Part, provided such activity does not involve a regulated activity.

(b) Any alteration of a tidal wetland or adjacent area with respect to which a moratorium permit has been issued pursuant to Part 660 of this Title, or with respect to which a permit pursuant to Part 608 of this Title shall have been issued prior to September 1, 1973, may be undertaken or continued pursuant to the terms of such permit without a permit under this Part; provided, however, that any such alteration that is defined in this Part as a regulated activity, shall be treated for all purposes as a new activity under the provisions of this Part as of August 20, 1977, if such activity has not been substantially commenced as of that date. The department may extend the exemption herein provided for an alteration covered by a moratorium permit or Part 608 permit beyond August 20, 1977, if in the department's judgment the pertinent natural or man-made conditions which existed at and adjacent to the site at the time such permit was issued have not substantially changed and the site is still suitable for the permitted activity. Notwithstanding the foregoing, no alteration of a tidal wetland zone or adjacent area authorized by a permit pursuant to Part 660 or 608 of this Title that is treated as an incompatible use for such zone or area under section 661.5 of this Part shall be undertaken or continued in that zone or area after August 20, 1977, except in compliance with the provisions of this Part.

§661.8 Permit Requirements

No person shall conduct a new regulated activity on or after August 20, 1977 on any tidal wetland or any adjacent area unless such person has first obtained a permit pursuant to this Part. Regulated activities for each type of tidal wetland zone and for adjacent areas include, but are not limited to, all types of uses specifically listed in section 661.5 of this Part as generally compatible use--permit required (GCp), presumptively in compatible use (PIp), and incompatible use (I) for the type of area involved.

§661.9 Standards for Issuance of Permits

(a) Burden of proof. The applicant shall have the burden of establishing that the applicable standards of this section will be met.

(b) Standards for permits on any tidal wetland.

(1) Overall standards. The department shall issue a permit for a proposed regulated activity on any tidal wetland only if it is determined that the proposed activity:

(i) is compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 661.2 of this Part, taking into account the social and economic benefits which may be derived from the proposed activity;

(ii) is compatible with the public health and welfare;

(iii) is reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity and the degree to which the activity requires water access or is water dependent;

(iv) complies with the development restrictions contained in section 661.6 of this Part; and

(v) complies with the use guidelines contained in section 661.5 of this Part. If a proposed regulated activity is a presumptively incompatible use under such section, there shall be a presumption that the proposed regulated activity may not be undertaken in the subject area because it is not compatible with the area involved or with the preservation, protection or enhancement of the present or potential values of tidal wetlands if undertaken in that area. The applicant shall have the burden of overcoming such presumption and demonstrating that the proposed activity will be compatible with the area involved and with the preservation, protection and enhancement of the present and potential values of tidal wetlands. If a use is a type of use listed as an incompatible use in the use guidelines for the area involved, it shall not be undertaken on that area.

(2) Formerly connected tidal wetland. In addition to the standards contained in paragraph (1) of this subdivision, the department shall issue a permit for a regulated activity on a formerly connected tidal wetland only if it is determined that the proposed activity will be consistent with the possible future restoration of any portion of the tidal wetland adjoining or surrounding the project site to its original condition.

(c) Standards for permits on adjacent areas. The department shall issue a permit for a proposed regulated activity on an adjacent area only if it is determined that the proposed regulated activity:

(1) is compatible with the public health and welfare;

(2) complies with the development restrictions contained in section 661.6 of this Part;

(3) will not have an undue adverse impact on the present or potential value of any adjacent or nearby tidal wetland for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research or open space and aesthetic appreciation, taking into account the social and economic benefits which may be derived from the proposed activity; and

(4) complies with the use guidelines contained in section 661.5 of this Part. If a proposed activity is a presumptively incompatible use for adjacent areas under such section, there shall be a presumption that the proposed activity may not be undertaken on the adjacent area because it is not compatible with the preservation, protection, or enhancement of the present and potential values of tidal wetlands if undertaken in that area. The applicant shall have the burden of overcoming such presumption and demonstrating that the proposed regulated activity will be compatible with the preservation, protection and enhancement of the present and potential values of tidal wetlands. If a use is a type of use listed as an incompatible use, it shall not be undertaken on such adjacent area.

(d) Notice of acquisition. Written notice by the department to an applicant proposing a regulated activity, or written notice to the department from the State or any agency or subdivision thereof, that the State or any such agency or subdivision is in the process of acquiring the tidal wetland or adjacent area on which the proposed regulated activity would be located by negotiation or condemnation shall be sufficient basis for denial of a permit for such regulated activity. Such notice may be provided at any time prior to the department's decision to issue or deny a permit for a regulated activity.

(e) In determining whether the standards contained in subdivisions (b) and (c) of this section will be fulfilled by a proposed regulated activity, the department may in its discretion consider any proposal made by the applicant in his application to enhance the existing values served by a wetland on or in the vicinity of the site of the proposed regulated activity or to create and sustain new wetland values in or in the vicinity of the site of the proposed regulated activity, provided such proposal relates to an area that is or will be regulated under this Part.

(f) In any case in which an activity is specified as a use not requiring a permit (NPN) under section 661.5 of this Part but requires a permit pursuant to title 5 of article 15 of the Environmental Conservation Law, the standards of this Part will be applied in the department's review of such activity under article 15.

§661.10 Existing Land use and Development

(a) No provision of this Part shall be deemed to prohibit or require the removal of any land use and development, including any structure, lawfully in existence on August 20, 1977.

(b) The development restrictions in section 661.6 of this Part shall not be deemed to require a variance for the repair, restoration or rebuilding, in whole or in part, of any structure or facility lawfully in existence, although such repair, restoration or rebuilding activities may be subject to the permit requirements of this Part; provided, no such repair, restoration, or rebuilding shall increase any existing non-compliance with the provisions of that section.