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Part 608: Use and Protection Of Waters

(Statutory authority: Environmental Conservation Law, §§ 3-0301[2][m], 15-0501, 15-0503, 15-0505, 17-0303[3])

[Effective 04/28/72]

[Last Amended August 19, 2009]

[page 1 of 1]

Contents:

Sec.

§608.1 Definitions

(a) Banks means that land area immediately adjacent to, and which slopes toward, the bed of a watercourse, and which is necessary to maintainthe integrity of a watercourse.For purposes of this Part, a bank will not be considered to extend more than 50 feet horizontally from the mean high water line; with the following exception: Where a generally uniform slope of 45 degrees (100 percent)or greater adjoins the bed of the watercourse, the bank is extended to the crest of the slope or the first definable break in slope, either a natural or constructed (i.e. road or railroad grade)feature, lying generally parallel to the watercourse.

(b) Bed means that land area of a watercourse covered by water at mean high water.

(c) 'Breach' of a dam shall have the meaning set forth in Part 673 of this Title.

(d) Commissioner means the Commissioner of Environmental Conservation or a duly authorized designee.

(e) 'Construct' means to build. With respect to a dam, 'construct' shall have the meaning set forth in Part 673 of this Title.

(f) 'Dam' shall have the meaning set forth in Part 673 of this Title.

(g) Department means the Department of Environmental Conservation.

(h) Docking facility means any marina, boat basin, marine terminal, and any other areas on navigable waters containing a single structure or a collection of related structures, such as docks, piers, platforms, bulkheads, breakwaters, and pilings, used for the reception, securing, and protection of boats, ships, barges or other water craft.

(i) 'Emergency Action Plan' shall have the meaning set forth in 6 NYCRR Part 673.

(j) 'Engineer', with respect to the requirements of this Part that are applicable to dams, shall have the meaning set forth in 6 NYCRR Part 673.

(k) 'Environmental Conservation Law' or 'ECL' means the New York State Environmental Conservation Law.

(l) 'Erect', as used in ECL article 15 section 0503, with respect to a dam, means to construct a new dam.

(m) Fill means any solid or semi-solid, organic or inorganic material including, but not limited to, earth, clay, silt, sand, gravel, stone, rock, shale, concrete, ashes, cinder, slag, metal, stumps, solid waste as defined in Part360 of this Title, or any other similar material, whether or not enclosed or contained by a structure.

(n) 'Height', with respect to a dam, is the vertical dimension from the downstream toe of a dam at its lowest point to the top of a dam.

(o) Indirect placement of fill means positioning material landward and in close proximity to the mean high water elevation of a waterbody such that the material is introduced into the waterbody by natural erosive forces thereby creating a fill below the mean high water elevation.

(p) 'Local public corporation' means any municipal corporation or district corporation, as is set forth in ECL Article 1 section 0303 subdivision 15, and further defined in the General Construction Law section 66 subdivisions 2 and 3.

(q) 'Maximum impoundment capacity' is the volume of water that is impounded when the water level is at the top of a dam.

(r) Mean low water or mean high water means, respectively, the approximate average low water level or high water level for a given body of water at a given location, that distinguishes between predominantly aquatic and predominantly terrestrial habitat as determined, in order of use, by the following:

(l) available hydrologic data, calculations, and other relevant information concerning water levels (e.g. discharge, storage, tidal, and other recurrent water elevation data)[Note: Mean high water elevations are established, using this method, for certain waterbodies as presented in Section 608.11 of this Part];

(2) vegetative characteristics (e.g., location, presence, absence or destruction of terrestrial or aquatic vegetation);

(3) physical characteristics (e.g., clear natural line impressed on a bank, scouring, shelving, or the presence of sediments, litter or debris); and

(4) other appropriate means that consider the characteristics of the surrounding area.

(s) Mooring means a float, buoy, chain, cable, rope, pile, spar, dolphin or any other device or combination of devices that are anchored or fixed in navigable waters of the state to which a vessel can be made fast.

(t) Mooring area means a collection of individual moorings located within a definable area of navigable waters of the state and under single private ownership or control.

(u) Navigable waters of the state means all lakes, rivers, streams and other bodies of water in the state that are navigable in fact or upon which vessels with a capacity of one or more persons can be operated notwithstanding interruptions to navigation by artificial structures, shallows, rapids or other obstructions, or by seasonal variations in capacity to support navigation.It does not include waters that are surrounded by land held in single private ownership at every point in their total area.

(v) 'Ordinary maintenance', with respect to a dam, means work that does not affect the structural integrity or function of a dam or an aspect of the safety of the dam. Ordinary maintenance is work involved in the routine or regular upkeep of a dam, and includes, by way of example only, activities such as debris removal,
mowing grass, cleaning trash racks, and exercising valves.

(w) 'Owner', with respect to a dam, shall have the meaning set forth in 6 NYCRR 673.

(x) Perimeter means a boundary of a docking facility or mooring area consisting of a series of connected imaginary lines on a plan or map, encompassing all related structures such as docks, bulkheads, breakwaters, pilings, piers, platforms or moorings and the travel lanes and berthing areas that function together to create a facility or area at which vessels may be docked or moored.

(y) Person means any individual, firm, copartnership, association or corporation, other than the state or a public corporation.

(z) Platform means a generally horizontal, flat surface located in, on or over a waterbody, on which structures can be constructed or any activities can be conducted.

(aa) Protected stream means any stream or particular portion of a stream for which there has been adopted by the department or any of its predecessors any of the following classifications or standards: AA, AA(t), A, A(t), B, B(t) or C(t). Streams designated (t)(trout) also include those more specifically designated (ts)(trout spawning).

(bb) Public corporation means a municipal or district corporation, a city, town, village or school district or a public benefit corporation.

(cc) 'Removal' of a dam means eliminating a dam to the approximate original topographic contours.

(dd) 'Repair' or 'Reconstruction' of a dam means alterations, changes or modifications to a dam which may affect the structural integrity or function of a dam, or an aspect of the safety of a dam. Repair or reconstruction includes, by way of example only, activities such as changing the spillway elevation or spillway capacity of the dam. Repair or reconstruction does not include ordinary maintenance.

(ee) Single private ownership means the ownership by a person, joint ownership by more than one person or a single non-governmental entity such as an association, corporation, trust or estate.It does not include ownership by any unit of government, including a village, town, county, city or the State or the United States or any subdivision, department, agency or authority thereof or by any public corporation.

(ff) Stream means a watercourse or portion thereof, including the bed and banks thereof.Small ponds or lakes with a surface area at mean low water level of 10 acres or less and located in the course of a stream shall be considered part of a stream and subject to regulation under this Part. A stream does not include a pond or lake having a surface area of greater than 10 acres at mean low water level.

(gg) Substantial reconstruction of structures, other than dams, means restoration or rebuilding involving 50 percent or more of an existing fixed structure's surface area.

(hh) Watercourse means that area of land within which or upon which the flow of water is ordinarily confined due to existing topography.

(ii) Water-dependent use means an activity that can only be conducted on, in, over or adjacent to a waterbody because suchactivityrequires access to water, and involves the use of water as an integral part of the activity.

§608.2 Disturbance of protected streams

(a) Permit required. Except as provided in subdivision (b) of this section, no person or local public corporation may change, modify or disturb any protected stream, its bed or banks, nor remove from its bed or banks sand, gravel or other material, without a permit issued pursuant to this Part.

(b) Exceptions. The requirement of a permit pursuant to subdivision (a) of this section does not apply to the following:

(1) a local public corporation that has entered into a written memorandum of understanding with the department establishing the plan of operation that will be followed in conducting any activity described in subdivision (a) of this section that will afford proper protection to the public beneficial uses of protected streams and navigable waters of the state; or

(2) any person actively cultivating land devoted to agriculture, whether or not such land is along a protected stream, provided that this exception shall be limited to agricultural activities consisting only of the crossing and recrossing of a protected stream by livestock or wheeled farming equipment normally used for traditional agricultural purposes or of withdrawing irrigation water in a manner which does not otherwise alter the stream.

§608.3 Dams

(a) Permit Required. Except as provided in subdivision (a) (3) of this section, no person or local public corporation may construct, reconstruct, repair, breach, or remove any dam without a permit issued pursuant to this Part.

(b) Exceptions. The requirement of a permit pursuant to subdivision (a) of this section does not apply to the following:

(1) The construction, reconstruction, repair, breach or removal of a dam that has a height less than 15 feet, and a maximum impoundment capacity less than three million gallons;

(2) The construction, reconstruction, repair, breach or removal of a dam with a height equal to or less than six feet, regardless of its maximum impoundment capacity, or a dam with a maximum impoundment capacity equal to or less than one million gallons, regardless of its height; and

(3) The ordinary maintenance of a dam.

(c) The permit requirements for dams, as well as design criteria, are dependent upon the dam's Hazard Classification, as determined by the department in accordance with Part 673.5.

§608.4 Docks and moorings

(a) Applicability. This section applies to the construction, reconstruction or repair of docks, piers, wharfs, platforms, breakwaters and the installation of moorings, in, on or above the navigable waters of the state lying above underwater lands not owned by the state.Use of state-owned lands under water generally requires a lease, easement, permit or other interest from the Commissioner of the New York State Office of General Services, pursuant to regulations implementing the Public Lands Law.The department will review any application for a lease, easement, permit or other interest submitted to the Office of General Services, except lawful facilities in existence on June 17, 1992, utilizing the criteria set forth in this Part, includingconsideration of the degree to which the activity is water-dependent.The Office of General Services will incorporate as conditions on any lease, easement, permit or other interest, any specific recommendations made by the department.

(b) Permit required. Except as provided in subdivision (c) of this section, no person or public corporation may:

(1) construct, reconstruct, modify, repair or change the use of any dock, pier, wharf, platform, breakwater or other structure in, on or above the navigable waters of the state; or

(2) install or modify any mooring area; without a permit issued pursuant to this Part.

(c) Exceptions.A permit pursuant to Subdivision (b) of this Section is not required for the following:

(1) docks, piers, wharfs, platforms, moorings and other structures placed on, in or above state-owned lands under water for which lease or other appropriate conveyance of interest authorizing the use and occupancy of such lands has been obtained from the Commissioner of General Services;

(2) a docking facility providing dockage for five or fewer boats and encompassing within its perimeter an area of less than 4,000 square feet;

(3) a mooring area providing mooring for fewer that 10 boats;

(4) temporary anchoring where a boat is not attached to an in-place or fixed mooring device;

(5) seasonal replacement or reinstallation of floating docks and other structures exceeding the criteria in
Paragraph (2) of this Subdivision, legally existing prior to May 4, 1993, or for which a permit has been obtained under this Part;

(6) the relocation, replacement, and/or rearrangement of floating docks, ramps, walkways and anchoring devices within the established perimeter of a docking facility or mooring area; and

(7) ordinary maintenance and repair of structures such as repainting, redriving piles or replacing boards in docks.Maintenance and repair does not include substantial reconstruction of structures.

(d) The department may issue permits that authorize the permittee to reconfigure, rearrange or change the dimensions of floating structures, fixed structures supported by piles or open supports, and moorings, within an approved perimeter, provided such changes are within the limits of authorized activities regarding numbers of boats, surface area of structures and approved uses of the facility.

§608.5 Excavation and placement of fill in navigable waters

(a) Permit required. No person, local public corporation or interstate authority may excavate from or place fill, either directly or indirectly, in any of the navigable waters of the state or in marshes, estuaries, tidal marshes and wetlands that are adjacent to and contiguous at any point to any of the navigable waters of the state, and that are inundated at mean high water level or tide, without a permit issued pursuant to this Part.

§608.6 Permit application procedures

(a) An application for a permit under this Part must be submitted to the appropriate Regional Permit Administrator. Applications must be made on forms prescribed by the department and must be accompanied by:

(1) a plan of the proposed project;

(2) a map showing its location; and

(3) other information that the department deems necessary to properly review and assess the effects of a proposed project.

(b) In addition to the requirements of subdivision 608.6(a) herein, all permit applications with respect to dams shall meet the following requirements:

(1) Such permit applications shall include:

(i) hydrological, hydraulic, and soils information, as required on a form prescribed by the department;

(ii) an Engineering Design Report sufficiently detailed for department evaluation of the safety aspects of the proposed dam, or the proposed activities concerning an existing dam, that shall include:

('a') a narrative description of the proposed project;

('b') the proposed Hazard Classification of the dam as a result of the proposed activities or project;

('c') a hydrologic investigation of the watershed and an assessment of the hydraulic adequacy of the dam;

('d') an evaluation of the foundation and surrounding conditions, and materials involved in the structure of the dam, in sufficient detail to accurately define the design of the dam and assess its safety, including its structural stability;

('e') structural and hydraulic design studies, calculations and procedures, which shall, at a minimum, be consistent with generally accepted sound engineering practice in the field of dam design and safety; and

('f') a description of any proposed permanent instrument installations in the dam;

(iii) construction plans and specifications that are sufficiently detailed for department evaluation of the safety aspects of the dam; and

(iv) any other information the department deems necessary.

(2) The Engineering Design Report and the construction plans and specifications that are submitted with a permit application in accordance with subdivisions 608.6(b)(1)(i) and 608.6(b)(1)(ii) of this Part shall be prepared, stamped and sealed by an engineer.

(3) In response to a request by a permit applicant concerning a Class "A" dam, the department may in its discretion accept, in lieu of the Engineering Design Report and the construction plans and specifications identified in subdivisions 608.6(b)(1)(i) and 608.6(b)(1)(ii) of this Part, a certification from an engineer that the proposed dam, or the proposed activities with respect to an existing dam, are, at a minimum, consistent with generally accepted sound engineering practice in the field of dam design and safety.

(4) In addition to the requirements in subdivisions 608.6(b)(1) and (b)(2) of this Part, the department may require the permit applicant of a Class "B" or "C" dam to submit the deliverables required by 6 NYCRR Part 673 for owners of dams that have been assigned a Hazard Classification of Class "B" or "C", including an Emergency Action Plan, or otherwise demonstrate that the proposed dam or proposed activities with respect to an existing dam, will comply with 6 NYCRR Part 673.

(c) In addition to the requirements of subdivision 608.6(a) of this Part, all permit applications for docking and mooring facilities shall include:

(1) a supplemental form, prescribed by the department, providing information about the type, size, and use of structures, including docks, piers, wharfs, platforms, breakwaters, moorings and associated docking facility and mooring area amenities; and

(2) a plan, drawn to scale, depicting structures, and where appropriate, delineated perimeters that include a reference point tied to a permanent structure or significant natural feature.

(d) The procedures of Part 621 of this Title govern the processing and review of permit applications under this Part and the modification, renewal, suspension and revocation of permits issued pursuant to this Part.

§608.7 Permit application review

(a) The department will review applications, plans, and other supporting information submitted and may:

(1) grant a permit approving the manner and extent to which alterations are proposed to be made to water resources of the state;

(2) grant a permit with conditions as necessary to protect the health, safety, or welfare of the people of the state, and its natural resources; or

(3) deny a permit.

(b) The department's review will determine if proposed alterations to water resources of the state are consistent with standards contained in section 608.8 of this Part, considering issues such as:

(1) the environmental impacts of a proposal, including effects on:

(i) aquatic, wetland and terrestrial habitats; unique and significant habitats; rare, threatened and endangered species habitats;

(ii) water quality, including such criteria as temperature, dissolved oxygen, suspended solids;

(iii) hydrology, including such criteria as water velocity, depth, discharge volume, flooding potential; and

(iv) water course and waterbody integrity, including such criteria as erosion, turbidity, and sedimentation.

(2) the adequacy of design and construction techniques for structures;

(3) operational and maintenance characteristics;

(4) the safe commercial and recreational use of water resources;

(5) the water dependent nature of a use;

(6) the safeguarding of life and property; and

(7) natural resource management objectives and values.

§608.8 Standards

The basis for the issuance or modification of a permit will be a determination that the proposal is in the public interest, in that:

(a) the proposal is reasonable and necessary;

(b) the proposal will not endanger the health, safety or welfare of the people of the State of New York; and

(c) the proposal will not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the state, including soil, forests, water, fish, shellfish, crustaceans and aquatic and land-related environment.

§608.9 Water Quality Certifications

(a) Water quality certifications required by Section 401 of the Federal Water Pollution Control Act, Title 33 United States Code 1341(see subdivision (c)of this Section). Any applicant for a federal license or permit to conduct any activity, including but not limited to the construction or operation of facilities that may result in any discharge into navigable waters as defined in Section 502 of the Federal Water Pollution Control Act (33 USC 1362), must apply for and obtain a water quality certification from the department.The applicant must demonstrate compliance with Sections 301-303, 306 and 307 of the Federal Water Pollution Control Act, as implemented by the following provisions:

(1) effluent limitations and water quality-related effluent limitations set forth in Section 754.1 of this Title;

(2) water quality standards and thermal discharge criteria set forth in Parts 701, 702, 703 and 704 of this Title;

(3) standards of performance for new sources set forth in Section 754.1 of this Title;

(4) effluent limitations, effluent prohibitions and pretreatment standards set forth in Section 754.1 of this Title;

(5) prohibited discharges set forth in Section 751.2 of this Title; and

(6) state statutes, regulations and criteria otherwise applicable to such activities.

(b) The department may issue statewide water quality certifications for certain types or sizes of activities that it deems to have an insignificant effect on water quality.Projects meeting criteria so established will not require individual water quality certifications.

(c) The Federal Water Pollution Control Act (33 USC 1251 et seq.), as amended effective October 1, 1984, is available from theSuperintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.This document was filed with the New York State Department of State on November 5, 1984 and is available for inspection and copying at the New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233.

§608.10 Special provisions

(a) Projects requiring more than one permit under this Part. The provisions of one section of this Part do not affect or replace the provisions of other applicable sections of this Part requiring a permit. The department will require the submission of only one permit application if it is determined that the proposed project requires a permit pursuant to more than one section of this Part.

(b) Emergency authorization. The department may issue an emergency authorization for activities requiring a permit under the provisions of this Part pursuant to the provisions of Article 70, Section 70-0116 of the Environmental Conservation Law.

§608.11 Mean high water elevations

(a) Mean high water elevations are established for the waters listed in the following table (expressed in feet above mean sea level).

Waters Index Number Watershed Drainage Basin Waterbody U.S.G.S. Gaging Station Number Mean High Water Elevation
Allegheny River Drainage Basin
P 122 Chautauqua Lake 03013946 1309.40{a}
Black River Drainage Basin
O-19-40-P 493 Stillwater Reservoir 04256500 1679.30{c}
O-19-81-18-P 782a First Lake 04253400 1707.26{a}
O-19-81-18-P782d-10P Sixth Lake 04253300 1786.10{a}
Chemung River Drainage Basin
PA 3-57-5 Arkport Reservoir 01521000 1304.00{c}
PA 3-57-5-47-P 29c Almond Lake 01523000 1300.00{c}
PA 3-58-15-P 47 Waneta and Lamoka Lakes 1099.00{c}
Delaware River Drainage Basin
D-1-P 58b Neversink Reservoir 01435900 1440.00{c}
D-10-P 79a Rio Reservoir 820.00{c}
D-10-12, P 96a Mongaup Falls Reservior 940.00{c}
D-10-15-P 100 Cliff Lake 01433200 1072.00{c}
D-10-15-P 100a Toronto Reservior 01433100 1220.00{c}
D-10-P 108a Swinging Bridge Reservior 01433000 1071.20{c}
D-70-P 358a Pepacton Reservior 01416900 1280.00{c}
Genesee River Drainage Basin
Ont. 117-27-34-11-P 43 Canadice Lake 04228950 1097.20{c}
Ont. 117-27-P 57 Honeoye Lake 04228845 804.50{c}
Ont. 117-40 P 67 Conesus Lake 04227980 819.40{c}
Ont. 117-P 110a Mount Morris Dam Reservior 04224000 760.00{c}
Ont. 117-136-P 146 Rushford Lake 04221990 1440.00{c}
Lake Champlain Drainage Basin
C Lake Champlain 04294500 99.80{a}
C Richelieu River 04295000 99.80{a}
C-25-26-35-5-P 254 Lake Placid 04273900 1858.94{a}
C-101-P Lake George 04278000 320.20{d}
Lake Erie-Niagara River Drainage Basin
E Lake Erie 573.40{b}
Lake Ontario Drainage Basin
Ont. O Lake Ontario 247.30{b}
Lower Hudson River Drainage Basin
H-139-14-P 815a Roundout Reservior 01366400 840.00{c}
H-171-P 848 Ashokan Reservior West 01363400 591.18{a}
H-171-P 848 Ashokan Reservior East 01363400 587.10{c}
Mohawk River Drainage Basin
H-240-82- P 630 a,b Blenheim Gilboa Reservior 900.00{c}
H-240-82-P 638a Schoharie Reservior 01350100 1130.70{a}
H-240-180-P 799 Hinckley Reservior 01343900 1226.41{c}
H-240-P 1059 Delta Reservior 01335900 551.50{a}
Oswego River Drainage Basin
P 154 Onondaga Reservior 04238500 504.50{c}
Ont. 66-12-29-P 193 Skaneateles Lake 04236000 863.77{a}
Ont. 66-12-43-P 212 Owasco Lake 04235396 713.90{a}
Ont. 66-12-52-P 286 Canadaigua Lake 04234500 689.40{a}
Ont. 66-12-P 296 Cayuga Lake 04233500 383.50{a}
Ont. 66-12-P 369 Seneca Lake 04232400 445.90{a}
Ont. 66-12-P 369-115 Keuka Lake 04232450 715.30{a}
-P 388
St. Lawrence River Drainage Basin
SL-1 Carry Falls Reservior 04266700 1386.00{c}
SL-25-P 309 Cranberry Lake 04260990 1486.43{a}
Susquehanna River Drainage Basin
SR-44-14-27-P 35 Whitney Point Lake 01511000 1010.00{c}
SR-155-P 262 East Sidney Lake 01499500 1203.00{c}
SR-204-P 392 Canadarago Lake 01496450 1282.03{a}
Upper Hudson River Drainage Basin
H-369-P 127 Great Sacandaga Lake 01321000 771.00{c}
H-461-P 597 Indian Lake 01314500 1651.74{a}

Footnote:

{a} - 1929 National Geodetic Vertical Datum

{b} - Corps of Engineers determinations based on 1985 International Great Lakes Datum

{c} - Spillway or Flashboard Crest Elevation

{d} - 1912 National Geodetic Vertical Datum