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])
Contents:
Sec.
- 608.1 Definitions
- 608.2 Disturbance of protected streams
- 608.3 Dams and impoundment structures (Specific parts of the regulation have been superceded by an amendment.)
- 608.4 Docks and moorings
- 608.5 Excavation and placement of fill in navigable waters
- 608.6 Permit application procedures
- 608.7 Permit application review
- 608.8 Standards
- 608.9 Water Quality Certifications
- 608.10 Special provisions
- 608.11 Mean high water elevations
§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) Commissioner means the Commissioner of Environmental Conservation.
(d) Dam or impoundment structure means any artificial barrier, together with its appurtenant works, that impounds or will impound waters, and includes but is not limited to earth fills, with or without controllable outlet gates, and roads, bridges or fords that unduly impede the flow of water.
(e) Department means the Department of Environmental Conservation.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n)Person means any individual, firm, copartnership, association or corporation, other than the state or a public corporation.
(o) 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.
(p) 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).
(q) Public corporation means a municipal or district corporation, a city, town, village or school district or a public benefit corporation.
(r) Reconstruction or repair of a dam or impoundment structure means work that may affect structural integrity or function; changing the spillway elevation; modifying the spillway capacity; and breaching or removal of a dam.
(s) 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.
(t)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.
(u) Substantial reconstruction of structures means restoration or rebuilding involving 50 percent or more of an existing fixed structure's surface area.
(v) Watercourse means that area of land within which or upon which the flow of water is ordinarily confined due to existing topography.
(w) 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 and impoundment structures (Specific parts of the regulation have been superceded by an amendment.)
(a) Applicability. This section applies to the construction or alteration of dams or similar structures that permanently or temporarily impound water. Impounded waters may be directly intercepted from overland drainage, or as a result of structure placement in or across watercourses, or may be exclusively or partially diverted or pumped from external sources.The regulation of these structures serves to reduce the threat of flooding, associated environmental damage and threat to life and property caused by the improper impounding of water.Lagoons and storage facilities with impoundment structures used for waste storage, treatment, disposal or the containment of materials, other than water, are not subject to regulation pursuant to this Part.
(b)Permit required. Except as provided in subdivision (c) of this section, no person or public corporation may:
(1) construct, reconstruct or repair any dam or impoundment structure; including any artificial obstruction, temporary or permanent, in or across a natural stream or watercourse; without a permit issued pursuant to this Part.
(c) Exceptions. The requirement of a permit pursuant to subdivision (b) of this section does not apply to the following:
(1) A dam or impoundment structure where:
(i) the area draining into the impoundment does not exceed one square mile;
(ii)the structure does not exceed 10 feet in height above the bed of a watercourse or natural ground level at any point; and
(iii) the quantity of water that the structure impounds does not exceed 1,000,000 gallons.
(2) A dam or impoundment structure creating a farm pond for the purpose of soil conservation, propagation of fish, irrigation, watering of livestock, maintenance of wildlife or general farm use and erected upon lands devoted to farming where:
(i) the impoundment is formed by an earthen embankment with an all-earth vegetated spillway and other accessory structures;
(ii)the height of the earth embankment, does not exceed 15 feet above the bed of watercourse or natural ground level at any point;
(iii) the quantity of water that the structure impounds does not exceed 1,500,000 gallons when the surface of the water is at the level of the spillway;
(iv)the area draining into the farm pond does not exceed 200 acres;
(v) the pond does not comprise more than 10 acres of surface water when full; and
(vi)water is not diverted into the farm pond by an artificial obstruction in or across a natural stream or watercourse.
§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 a form prescribed by the department and must be accompanied by:
(1) a plan of the proposed project; and
(2) a map showing its location;
(3) for dams and impoundment structures:
(i)a supplemental form, prescribed by the department, providing hydrological, hydraulic, and soils information;
(ii)a design report that includes an evaluation of the foundation conditions, the hydrologic investigation of the watershed, the hydraulic design of the spillway and the structural stability analysis of the dam, including calculations, in sufficient detail to accurately define the design of the dam as represented in the construction plans; and
(iii) construction plans that are sufficiently detailed for department evaluation of the safety aspects of the dam:
('a') the design and preparation of plans, estimates and specifications, and the supervision of the construction, reconstruction and repair of all dams or impoundment structures must be done by a New York State licensed professional engineer; or
('b') in the case of farm ponds, by an engineer or conservationist employed by a government agency, cooperating with a soil conservation district.
(4) for docking and mooring facilities:
(i)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
(ii)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.
(5) other information that the department deems necessary to properly review and assess the effects of a proposed project.
(b)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