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Part 661: Tidal Wetlands-Land Use Regulations - Page 3

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

Contents:

Sec.

§661.11 Variances

(a) Where there are practical difficulties in the way of carrying out any of the provisions of section 661.6 of this Part or where in the department's judgment the strict application of the provisions of section 661.6 of this Part would be contrary to the purposes of this Part, the department shall have authority in connection with its review of an application for a permit under this Part to vary or modify the application of any provisions in such a manner that the spirit and intent of the pertinent provisions shall be observed, that public safety and welfare are secured and substantial justice done and that action pursuant to the variance will not have an undue adverse impact on the present or potential value of any 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. Any person wishing to make application for a variance shall do so in writing in conjunction with his application for a permit under this Part and shall specify the proposed variance, which elements of section 661.6, Development Restrictions, relief is sought from, the minimum relief that is necessary, the practical difficulties claimed, a discussion of alternate site possibilities, a discussion of change of project objective possibilities and a discussion of environmental impact reduction or mitigation measures to be employed. The burden of showing that a variance to such provisions should be granted shall rest entirely on the applicant.

(b) The regional permit administrator may treat an application for a permit under this Part as a request for a variance and may request from the applicant the information required by this section.

§661.12 Application for a Permit

(a)

(1) An application for a permit shall be filed by the applicant with the regional permit administrator on a form prescribed by the department. Such application shall set forth the purpose, character and extent of the proposed regulated activity and shall set forth with particularity the reasons the applicant seeks a permit. The application shall include a detailed description of the regulated activity; a map showing the area of tidal wetland or adjacent area directly affected, with the location of the proposed regulated activity thereon; a statement as to feasible alternatives to the proposed activity on a site that is not a tidal wetland or adjacent area or by means that do not affect tidal wetlands; a statement identifying the owner of the subject property and, where applicable, written permission of said owner for the applicant to seek permission for, and to carry out, the proposed activity; a description of the planned use of the subject property once the proposed regulated activity is completed; a plan at 1" = 50' scale with a two-foot contour interval and a representation of both the tidal wetlands landward boundary and the mean high water line; a statement of the methods to be employed to eliminate or mitigate environmental impacts; clearly labeled photographs of the site; a variance request when applicable; and such additional information as the regional permit administrator deems sufficient to enable the department to make the findings and determinations required under this Part.

(2) The application shall be accompanied by a list of the names of the owners of record of lands adjacent to the tidal wetland or adjacent area upon which the regulated activity is to be undertaken and the names of known claimants of water rights, of whom the applicant has notice, which relate to any land within, or within 300 feet of the boundary of, the property on which the proposed regulated activity is located.

(3) An application shall not be deemed to be received until the regional permit administrator determines that all such information, including any additional information requested, has been supplied in a complete and satisfactory form.

(4) The department shall mail a copy of the application to the chief administrative officer, or his designee, of each municipality in which the affected tidal wetland or adjacent area, or portion thereof, is located.

(5) The department shall make the application, including all documents and maps associated with it, available for public inspection at the regional office within whose jurisdiction the affected tidal wetland or adjacent area is located and at such other locations as may be designated in the notice of hearing. The department may require the applicant to provide a reasonable number of copies of the application, including associated documents and maps, for this purpose.

(b) The regional permit administrator may, on request of the applicant or on his own motion, treat the application as a request for a determination that the proposed project is an action which does not require a permit under this Part.

§661.13 Duration of Permits

(a) The date of expiration of any permit issued pursuant to this Part shall be not more than 10 years from the date such permit was issued.

(b) The expiration date of any permit issued pursuant to this Part may be extended by the chief permit administrator for good cause shown upon a written request to him filed prior to the expiration date. Any such extension may not exceed one year in duration.

(c) In accordance with section 661.10(c) of this Part any permit issued pursuant to this Part may authorize the undertaking of a regulated activity on a periodic basis, but the duration of any such permit shall not exceed the period of time allowed by subdivisions (a) and (b) of this section.

§661.14 Determination that Lands do not Involve Littoral Zone or Coastal Shoals, Bars or Flats

The commissioner may amend an inventory map pursuant to the procedures set forth in section 661.17 of this Part where he determines that certain lands under tidal waters, while possessing the physical characteristics of littoral zone or coastal shoals, bars or flats, are not littoral zone or coastal shoals, bars or flats or any other type of tidal wetlands because such lands do not function biologically as tidal wetlands, exhibit little primary productivity and are populated by few benthic organisms, due to such factors as pollution, sedimentation or other physical disturbances. The commissioner may take such action on his own motion or at the request of any person. Such a request shall set forth the specific boundaries of the proposed amendment and the necessary information on which a decision on the request may be made.

§661.15 Inventory map - Maintenance and Amendments

(a) The commissioner shall supervise the maintenance of each inventory map, and all such maps shall be available at the appropriate regional office of the department for public inspection and examination.

(b) Upon request of any person or upon his own initiative, the commissioner may amend any inventory map or maps under the following circumstances and in the following manner:

(1) after public hearing, any amendment to add a new tidal wetland to an inventory map, to significantly expand or detract from the boundaries of a tidal wetland shown on such map, to delete a wetland from such map or to alter the classification of a wetland shown on such map as may be necessary to conform such maps to actual onsite conditions; or
(2) notwithstanding paragraph (1) of this subdivision, any amendment as may be necessary to reflect such natural changes as have occurred since the effective date of the inventory map, as originally established or as amended, through erosion, accretion or otherwise or to reflect such other changes as have occurred since such effective date as a result of granting permits under this Part; any amendment to clarify the boundaries of any tidal wetland shown on an inventory map, to correct any minor errors on the map or to affect other technical changes on the map; or any amendment to effect minor changes pursuant to section 661.16 of this Part, without a public hearing unless the commissioner determines that a public hearing is appropriate.

(c) Any public hearing held pursuant to subdivision (b) of this section shall provide any person an opportunity to support, oppose or make a statement of interest in the proposed amendment of an inventory map and shall be held in the following manner:

(1) The department shall prepare a proposed amended inventory map for each area in which the commissioner is considering amending an inventory map. Such map shall be made available for public inspection at the appropriate regional offices of the department at the time the hearing notice provided for in paragraph (2) of this subdivision is given.

(2) The commissioner shall give notice of such hearing to each owner of record of all lands designated on the proposed amended inventory map as a new tidal wetland which may be added or a tidal wetland whose boundaries may be amended and also to the chief administrative officer, or his designee, of each municipality within whose boundary any such wetland or portion thereof is located, by mail not less than 30 days prior to the date set for such hearing. The commissioner shall also cause notice of such hearing to be published at least once, not more than 30 days nor fewer than 10 days before the date set for such hearing, in at least two newspapers having a general circulation in the area where such wetland is located.

(d) After considering any facts which may be deemed pertinent and the testimony given at the public hearing, if a hearing is held, and after considering the rights of affected property owners and the policy and purposes of the act, the commissioner shall establish by order the final bounds of each tidal wetland that will be added or whose boundary will be amended on an inventory map. A copy of the order, together with a copy of the inventory map depicting such final boundary lines, shall be filed in the office of the clerk of the county in which is located all or any portion of such wetland. The commissioner shall simultaneously give notice of such order to each owner of all lands designated in the order as a tidal wetland which has been added or whose boundary has been amended by mailing a copy of such order to such owner. The commissioner shall also simultaneously give notice of such order by mail to the chief administrative officer, or his designee, of each municipality within whose boundary any such wetland or portion thereof is located. The commissioner shall also cause a notice of such order to be published in at least two newspapers having a general circulation in the area where any such wetland is located.
(e) All actions taken pursuant to this section shall conform to the requirements of Section 202 of the State Administrative Procedure Act.

§661.16 Measurement

Any measurement required in this Part shall be measured horizontally unless otherwise specified.

§661.17 Tax Assessment

As soon as practicable following August 20, 1977 the department shall file with the tax assessment office of each municipality in which any tidal wetlands are located a copy of the provisions of this Part, a copy of each inventory map that includes any area within the boundaries of such municipality, and a copy of the following notice:

"Section 25-0302(2) of article 25 of the Environmental Conservation Law, which article is known as the Tidal Wetlands Act, requires that the placing of any tidal wetlands under a land use regulation which restricts its use be deemed a limitation on the use of such wetlands for the purpose of property tax valuation in the same manner as if an easement or right had been acquired under the general municipal law and that assessment be based on present use under the restricting regulation. The enclosed land use regulations were promulgated by the Department of Environmental Conservation pursuant to section 25-0302(1) of the Tidal Wetlands Act."

As soon as practicable following any amendment to the provisions of this Part, the department shall file a copy of such amended provisions with the tax assessment office in each municipality in which any tidal wetlands are located. As soon as practicable following any amendment to an inventory map, the department shall file a copy of such amended map with the tax assessment office of each municipality within whose boundaries the amended map applies.

§661.18 Jurisdictional Inquiries

(a) If a person is uncertain whether a proposed activity is subject to the provisions of this Part, he may request the regional permit administrator to make a determination as to whether the permit provisions of this Part apply to such activity.

(b) If a person desires the determination requested in subdivision (a) of this section to be made in writing, such request shall be made in writing and shall contain all information deemed necessary and appropriate by the regional permit administrator to make such determination. Within 15 days after receipt by said administrator of such written request and all such information, he shall notify such person by letter whether his activity is subject to the permit provisions of this Part.

§661.19 Judicial Review

Any person aggrieved by the issuance, denial, suspension, or revocation of a permit may within 30 days from the date of the commissioner's order seek judicial review pursuant to article 78 of the Civil Practice Law and Rules in the Supreme Court for the county in which the tidal wetlands or adjacent areas affected are located.