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Part 591: Procedures For The Selection, Review, Approval and Funding Of State Projects Under The 1986 Environmental Quality Bond Act

[page 1 of 1]

Contents:

Sec.

§591.1 Purpose

(a) It is the public policy of the State to assure the long-term preservation, enhancement, restoration and improvement of the quality of the State's environment through the acquisition of additional forest preserve lands, and the acquisition, preservation and improvement of certain other environmentally sensitive lands which will preserve aquifer recharge areas, areas of exceptional scenic beauty or exceptional forest character, open space, pine barrens, public access, trailways, unique character, wetlands and wildlife habitats. It is the purpose of this Part to carry out this public policy through the implementation of that portion of the 1986 Environmental Quality Bond Act which is set forth in title 7 of article 52 of the Environmental Conservation Law.

(b) This Part will assure the wise selection of those State projects which will best achieve the above-stated policy goals, by establishing procedures for the selection, approval and execution of such State land acquisition, preservation and improvement projects through the establishment of:

(1) project selection procedures including minimum eligibility requirements for various types of projects;

(2) procedures for priority ranking of eligible projects;

(3) departmental review processes;

(4) guidelines and criteria which the commissioner shall use to approve eligible projects; and

(5) procedures for funding distribution for forest preserve projects and for each type of environmentally sensitive lands project.

§591.2 Definitions

The following terms used in this Part have the meaning indicated, unless the context clearly requires otherwise.

(a) Article 52 means article 52 of the Environmental Conservation Law.

(b) Aquifer means a geologic formation that is capable of yielding significant quantities of water to a well or spring.

(c) Aquifer recharge area project means a State project to acquire areas of the land surface through which water of great volume and high quality generally moves downward to the deeper portions of the underlying groundwater reservoir or to acquire wellhead protection zones.

(d) Bond act means the Environmental Quality Bond Act of 1986.

(e) Canoe area means an area where the watercourses or the number and proximity of lakes and ponds makes possible a remote and unconfined type of water-oriented recreation in an essentially wilderness setting.

(f) Commissioner means the Commissioner of Environmental Conservation or a duly authorized representative.

(g) Conservation easement means an easement, covenant, restriction or other interest in real property, which limits or restricts development, management or use of such real property for the express purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, forest, or natural condition, character, significance or amenities of the real property in a manner consistent with the State's public policy and purpose, whether created under common law or pursuant to the provisions of article 49 of the Environmental Conservation Law. A conservation easement may include affirmative rights of public access and use.

(h) Department means the Department of Environmental Conservation.

(i) Environmentally sensitive lands project means a State project to preserve aquifer recharge areas, areas of exceptional scenic beauty or exceptional forest character, open space, pine barrens, public access, trailways, unique character, wetlands, and wildlife habitats, through the acquisition of land including conservation easements and appropriate management of that which is acquired.

(j) Exceptional forest character project means a State project to acquire forest land which possesses such attributes as maturity of growth, significant population of rare or uncommon forestland plants, scientific harvesting potential, aesthetic appeal or recreational opportunity.

(k) Exceptional scenic beauty project means a State project to acquire land forms, water bodies, geologic formations or vegetation which possess significant scenic qualities or significantly contribute to scenic values. The presence of man-made elements does not exclude the project from the exceptional scenic beauty classification.

(l) Forest preserve project means a State project to acquire lands within the Adirondack and Catskill Parks as additions to the forest preserve or to acquire conservation easements created either under common law or pursuant to title 3 of article 49 of the Environmental Conservation Law within said parks.

(m) Inland waterway access project means a State project to acquire selected lands on major rivers and lakes to provide public access and protect the right of public use of such waters for recreational purposes.

(n) Lands means lands, improvements and structures thereon or rights, franchises, and interests therein, lands under water and riparian rights, and shall also mean any and all interests in lands less than full title, including without limitation, permanent or temporary easements, including conservation easements, rights-of-way, leases, licenses, and any other estate, interest, or right-in-land, legal or equitable.

(o) Local groundwater protection program means strategies, plans and actions developed by appropriate county or local governments including, but not limited to, identification of areas critical for protection of groundwater, use of zoning, site plan review and other regulatory powers for groundwater protection and acquisition of lands in areas critical for groundwater protection.

(p) Open space project means a State project to acquire open or natural land in or near urban or suburban areas necessary to serve the scenic, recreation or other related needs thereof.

(q) Pine barrens project means a State project to acquire natural communities dominated by such biota as pitch pine, jack pine, and scrub oak which may be found associated with a variety of natural resources, and which depend upon the occurrence of periodic fires for their perpetuation.

(r) Primary public water supply aquifer means a highly productive water-bearing formation identified by the department consisting of unconsolidated (nonbedrock) geologic deposits, which:

(1) receives substantial recharge from the overlying land surface; and

(2) is presently utilized as a major source of water for public water supply, including, but not limited to, the following aquifers: Endicott-Johnson City; Ramapo-Mahwah River Valleys; Irondogenesee-Buried Valley; Jamestown, Elmira-Horseheads-Big Flats; Cortland-Homer-Preble; Corning; Fishkill-Sprout Creek; Fulton; South Fallsburgh-Woodbourne; Schenectady; Cohocton River; Tonawanda Creek; Seneca River; Clifton Park-Halfmoon; Olean-Salamanca; Croton-on-Hudson; Owego-Waverly.

(s) Primitive area means an area of land or water that is either:

(1) Essentially wilderness in character but:

(i) contains structures, improvements, or uses that are inconsistent with wilderness, as defined, and whose removal, through a long-term objective, cannot be provided for by a fixed deadline; and/or

(ii) contains, or is contiguous to, private lands that are of a size and influence to prevent wilderness designation; or

(2) of a size and character not meeting wilderness standards, but where the fragility of the resource or other factors require wilderness management.

(t) Principal aquifer means unconsolidated (nonbedrock) geologic deposits identified by the department which:

(1) receive substantial recharge from the overlying land surface;

(2) are known to be highly productive or whose geology suggest a potentially abundant source of water; and

(3) are not presently used as a major source of water for public water supply.

(u) Public access project means a State project to acquire access to lands for public use and includes stream rights and waterway access.

(v) Stream rights project means a State project to acquire public fishing rights on quality streams.

(w) Tidal waterway access project means a State project to acquire a tract of land providing access to salt water resources within the marine and coastal district as defined in section 13-0103 of the Environmental Conservation Law, to ensure continued recreational use by the public.

(x) Trailways project means a State project to acquire recreational trails which are developed, or are to be developed, under guidelines established for the development of a statewide trails system not within the forest preserve. A recreational trail may serve any of a variety of land or water-oriented uses.

(y) Unique character project means a State project to acquire lands of special natural beauty, wilderness character, geological significance, ecological significance, including areas essential for the conservation of threatened and endangered plant species, historical or archaeological significance, and which are suitable for dedication to the State nature and historic preserve, and similar lands within a forest preserve county outside the Adirondack and Catskill Parks.

(z) Waterway access project means either a tidal waterway access project or an inland wateway access project.

(aa) Wellhead protection zone means the area that is necessary to protect public water supply wellheads.

(bb) Wetlands project means a State project to acquire either freshwater wetlands as defined in article 24 of the Environmental Conservation Law or tidal wetlands as defined in article 25 of the Environmental Conservation Law, together with adjacent upland necessary for the management or viability of the wetland.

(cc) Wilderness area means an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. A wilderness area is further defined to mean an area of State land or water having a primeval character, without significant improvements or permanent human habitation, which is protected and managed so as to preserve, enhance and restore, where necessary, its natural conditions, and which:

(1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable;

(2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation;

(3) has at least 10,000 acres of land and water or is of sufficient size and character as to make practicable its preservation and use in an unimpaired condition; and

(4) may also contain ecological, geological or other features of scientific, educational, scenic or historical value.

(dd) Wildlife habitat project means a State project to acquire specific areas essential for the conservation of threatened and endangered animal species which require special management considerations or protections for maintenance of such species. Threatened and endangered animal species means any species so defined in section 11-0535 of the Environmental Conservation Law as implemented by Part 182 of this Title.

§591.3 Project Selection

(a) State land projects which meet the minimum eligibility requirements as hereinafter enumerated may be initiated in any of the following three ways:

(a) Department program staff. Staff designated by the commissioner from various program areas within the department will, on a continuing basis, identify, categorize and prioritize proposed State land projects under each of the bond act categories.

(2) Property owner. Land owners who believe that their property may meet eligibility requirements for State acquisition under the bond act, and who desire to sell such property or an interest therein, are encouraged to contact the department.

(3) Public participation. Any person who wishes to participate in the implementation of the bond act may submit recommendations for State land acquisition, preservation or improvement projects to the department.

The ultimate selection decision on any State land project will be made by the commissioner, who is charged by law with this responsibility, regardless of the method of project initiation.

(b) Only certain State land acquisition, preservation and improvement projects can qualify for funding under the bond act. They are referred to as "forest preserve projects" and "environmentally sensitive lands projects," each of which is more clearly defined in section 591.2 of this Part. Of the projects which qualify, there are some, for various reasons, which will not achieve the objectives of preservation, enhancement, restoration and improvement of the quality of the State's environment. In order to meet statutory requirements, as well as these objectives, each State project must meet the minimum eligibility requirements which are enumerated in subdivision (c) of this section for forest preserve projects, and in subdivisions (d) through (m) of this section for each type of environmentally sensitive lands project.

(c) Forest preserve projects.

(1) The proposed project must be located within either the Adirondack or Catskill Park.

(2) The proposed project must be located outside of the boundaries of an incorporated village or city.

(3) The proposed project must be located outside of the Towns of Altona and Dannemora, Clinton County.

(d) Aquifer recharge areas.

(1) The proposed project is part of a local groundwater protection program which includes provision for local participation in funding land acquisition and which has been approved by the commissioner, and adopted and being implemented by the appropriate local government.

(2) A water supply permit pursuant to title 15 of article 15 of the Environmental Conservation Law must have been applied for. Such permit must be approved by the department for the express purpose of taking the land proposed for acquisition prior to the acquisition of the project by the department.

(3) An agreement between the appropriate local government and the commissioner must be executed by the local government and approved by the commissioner and provide for management by the local government of the parcel acquired.

(e) Exceptional forest character.

(1) The proposed project is at least 10 acres in size and contains old growth, defined as long-lived native species where the average age of the dominant trees is at least 150 years. Long-lived native species means any of the following: chestnut oak, swamp white oak, bur oak, chinquapin oak, American basswood, white ash, atlantic white cedar, yellow birch, sweet birch, pignut hickory, bitternut hickory, mockernut hickory, red maple, black cherry, butternut, eastern hemlock, white pine, sugar maple, tulip poplar, American sycamore, shagbark hickory, red oak, white oak, beech, red pine, northern white cedar, black spruce, black walnut, red spruce; or

(2) the proposed project is at least 25 acres in size and is a natural area defined as a physical and biological forest unit in as near a natural condition as possible which exemplifies typical forest vegetation. The unit is maintained in a natural condition by allowing physical and biological processes to operate, usually without direct human intervention; or

(3) the proposed project contains forest plants or a forest community that is rare or unusual. Rare or unusual is defined as having less than 100 existing sites in New York State.

(f) Exceptional scenic beauty:

(1) the proposed project exhibits outstanding arrangement of natural or man-made features (i.e., water features and/or land forms and/or vegetation patterns) that provide positive stimulation, hold interest and command attention of the viewing public; or

(2) the proposed project contributes to the public enjoyment and/or appreciation of any established scenic resource.

(g) Open space. The proposed project consists of open or natural land in or near a urban or suburban area necessary to serve the scenic, recreation or other related needs thereof.

(h) Pine barrens:

(1) the proposed project is an addition to an existing pine barrens area which is owned by the Federal, State or local government, or a qualified not-for-profit conservation organization, and which facilitates the ecologically appropriate management thereof; or

(2) the proposed project is large enough to maintain itself as a pine barrens ecosystem and to permit effective fire or other appropriate management necessary to the maintenance of the ecosystem.

(i) Public access.

(1) Access to public lands:

(i) the proposed project would provide a parcel of land leading to public land which presently has no existing access open to the public; or

(ii) the proposed project would provide a parcel of land leading to a portion of public lands which are presently inaccessible because of physical barriers; or

(iii) the proposed project would permit an environmentally acceptable through route for a foot trail or vehicular access trail where the existing trail now ends; or

(iv) the proposed project would reduce the length of an otherwise circuitous route facilitating public use of existing public lands.

(2) Stream rights:

(i) the proposed project would consolidate or link together existing stream rights; or

(ii) the proposed project is on a stream which supports, or is capable of supporting, viable populations of commercial or sport fish on a year-round basis; or

(iii) the proposed project is on a stream which is subject, or potentially subject, to seasonal "runs" of anadromous commercial or sport fish, whether or not it supports residency of such fish.

(3) Inland waterway access:

(i) the proposed project is of land which is physically contiguous to the waters of a lake, reservoir, or river segment that is navigable in fact by any vessel, whether or not mechanically propelled; and

(ii) the proposed project is physically and environmentally developable.

(4) Tidal waterway access:

(i) the proposed project provides public access to a salt water resource or network of salt water resources that lie within the marine and coastal district as defined in section 13-0103 of the Environmental Conservation Law; and

(ii) the proposed project is physically and environmentally developable.

(j) Trailways:

(1) the proposed project must be legally and physicaly accessible to the public, or be a portion of an identified trailways project which, when completed, will be legally and physically accessible to the public; and

(2) the proposed project must be physically and environmentally developable as a trailway.

(k) Unique character:

(1) the proposed project must be acquired for at least one of the following reasons: special natural beauty; wilderness character; geological significance; ecological significance including areas essential for the conservation of threatened and endangered plant species; historical or archaeological significance; and

(2) the proposed project must be of a character suitable for inclusion in the State Nature and Historical Preserve; and

(3) the proposed project must be located outside the Adirondack and Catskill Parks.

(l) Wetlands:

(1) Freshwater:

(i) the proposed project is a freshwater wetland, with or without associated upland buffer, as defined in article 24 of the Environmental Conservation Law; and

(ii) the proposed project must receive a biological productivity score of eight or more according to the productivity scoring chart, contained in section 591.4(l)(1) of this Part; or

(iii) the proposed project must possess one wetland value characteristic having a score of 8 as enumerated in section 591.4(l)(1) of this Part; or

(iv) the proposed project must possess two substantially nonduplicative wetland value characteristics each having a score of 4 as enumerated in section 591.4(l)(1) of this Part.

(2) Tidal:

(i) the proposed project is a tidal wetland, with or without associated upland buffer, as defined in article 25 of the Environmental Conservation Law, located either in the marine and coastal district as defined in section 13-0103 of the Environmental Conservation Law or in the Hudson River Valley between the Tappan Zee Bridge and the Federal Dam at Troy; or

(ii) the proposed project is of inventoried tidal wetlands and associated upland buffer.

(m) Wildlife habitat. The proposed project must contain the minimum geographic area necessary, together with associated buffer, vital to the threatened or endangered species' continued use. The project shall be either habitat of year-round resident species or important seasonal habitat of seasonally resident species, such as breeding habitats, wintering habitats in which a species spends an extended amount of time each year, and major concentration areas of documented traditional and current use.

§591.4 Project Ranking Procedure

(a) Funds available for State projects under the 1986 Environmental Quality Bond Act are finite. It is in the best interest of the public for the State, from the pool of eligible projects, to choose those which will best achieve the bond act objectives of long-term preservation, enhancement, restoration and improvement of the State's environment. In order to assure that these objectives are carried out within the limits of available funding, priority ranking systems for eligible projects are established. Priority ranking of various State projects is achieved by identifying the characteristics possessed by a given project which provide natural resource value and help achieve bond act objectives. Then, using the ranking system forest preserve projects contained in subdivision (c) of this section or the ranking system for a given category or subcategory of environmentally sensitive lands project contained in subdivisions (d) through (m) of this section, a rating is assigned to each characteristic indicating that characteristic's relative importance in contributing to program objectives. Unless otherwise indicated, the sum of the ratings is the proposed project's ranking score. It is recognized that a project under any given category of environmentally sensitive lands may meet the minimum eligibility requirements of one or more other categories of environmentally sensitive lands. The acquisition of such a project would protect additional natural resource values, thus providing multiple benefits to the public. Whenever such multiple benefits are identified, an amount equal to 10 per centum of the total achievable rating under the primary category will be added for the first additional category of environmentally sensitive land identified as a multiple benefit, eight per centum for the second additional category, six per centum for the third additional category, four per centum for the fourth additional category and two per centum for the fifth additional category. Each rating system is different and results in a number that has meaning only in relation to the range of possible ratings within that system. The maximum natural resource value rating for each rating system is stated so that the relevance of any particular rating will be clearer.

(b) While there may be natural resource values that are common to several of the rating systems, vulnerability is the only characteristic that is common to and used by all the rating systems. Accordingly, in order to ensure consistency in the use of the term, this subdivision defines vulnerability and establishes the method for determining a vulnerability rating.

(1) Vulnerability is the measure of the degree of urgency for acquisition by the State in order to preserve the resource. Vulnerability is expressed as a "A," "B," "C" or "D" rating for each project that has been determined to meet minimum eligibility requirements, based on the reasonable expectation of substantial adverse impact to the resource and the immediacy of such impact if the project is not acquired by the State. In determining the expectation of impact the following factors, together with such additional factors as may be appropriate, may be considered:

(i) the present condition of the site;

(ii) any announced plans for the site, including their nature, timing, scope and environmental compatibility;

(iii) any pending applications for any form of governmental approval for the use or development of the site;

(iv) the transfer or proposed transfer of ownership of the site including the public offering of the site for sale; and

(v) the relationship of the proposed plans or applications with the overall land use plan or pattern of the affected municipality.

(2) For purposes of defining the immediacy of the expectation, the following time periods will be utilized:

(i) less than two years;

(ii) more than two but less than five years;

(iii) more than five but less than 10 years; or

(iv) beyond 10 years.

(3) The ratings of A, B, C and D are defined based on the determination of the expectation and immediacy of substantial adverse impact as follows:

A--substantial adverse impact is expected to occur within two years;

B--substantial adverse impact is expected to occur; the time of occurrence is beyond two but less than five years;

C--substantial adverse impact is likely to occur; the time of occurrence is beyond five but less than 10 years;

D--substantial adverse impact may occur at some time beyond 10 years.

Once derived by the application of this rating scale, the vulnerability rating will be incorporated into the natural resource value rating of each project meeting minimum eligibility requirements as more fully defined in each of the rating systems set forth in this section. The vulnerability rating is not included within the maximum natural resource value rating score set forth at the beginning of each of the rating systems.

(c) Forest preserve. If a proposed project meets the minimum eligibility requirements set forth in section 591.3(c) of this Part, then it must be assigned to one of the following subcategories according to the primary objective of the acquisition: preserves wild, scenic or recreational river corridors; completes wilderness, primitive or canoe areas; consolidates forest preserve; provides recreational opportunity; preserves ecologically significant areas; preserves scenic areas or views including scenic highway corridors; enhances access to forest preserve. Proposed acquisition projects once so assigned will be rated only against other proposed projects within the same subcategory in accordance with the following:

(1) The proposed project contributes to the preservation of a river corridor designated as wild, scenic or recreational or eligible for inclusion in the wild, scenic or recreational river system pursuant to title 27 of article 15 of the Environmental Conservation Law, and/or provides public access thereto. The maximum natural resource value rating is 75.

(i) for each outstanding natural, scenic or ecological feature present on the proposed project (5 maximum 25);

(ii) the contribution of the proposed project to the improvement of recreational opportunity, considering such factors as:

(a) ease of access (1-10);

(b) provides necessary portage (1-10);

(c) lack of availability of alternate access in vicinity (1-10);

(d) length of river segment to which access is provided or improved (1- 10);

(iii) proposed project possesses significant aesthetic value visible from the river (1-10).

(2) Proposed project is eligible for designation as a wilderness, primitive or canoe area as the same is designated by the Adirondack Park Agency for land within the Adirondack Park or by the Department of Environmental Conservation for land within the Catskill Park, in accordance with the definitions contained in section 591.2 of this Part. The maximum natural resource value rating is 20.

(i) Proposed project contributes to completion of existing wilderness, primitive or canoe area, considering such factors as:

(a) elimination of in-holding (1-10);

(b) extent to which proposed project assists in conforming the boundary to ecological or geographical features (1-10).

(3) Proposed project provides for consolidation of other forest preserve, including wild forest or intensive use. The maximum natural resource value rating is 10.

(i) interior holding surrounded by forest preserve (10);

(ii) bounded on three sides by forest preserve (8);

(iii) adjoins forest preserve on two sides (6);

(iv) adjoins forest preserve on one side (4).

(4) Proposed project will provide new or enhance existing recreational opportunities. The maximum natural resource value rating is 40.

(i) project provides multiple opportunities for a variety of both land-and water-related recreational activities (20);

(ii) project provides multiple opportunities for a variety of either land-or water-related recreational activities (15);

(iii) project provides for a single purpose recreational opportunity of either a land- or water-related activity (10);

(iv) project provides alternate recreational opportunities for an existing recreational area which is currently experiencing high use (20);

(v) project provides recreational opportunity to a geographical area where there is a demand for recreational use but which currently has little or no recreational opportunity (15);

(vi) project provides additional recreational opportunity to an area which is not presently experiencing high use (10).

(5) Proposed project preserves ecologically significant areas. The maximum natural resource value rating is 30. The extent to which the proposed project:

(i) protects threatened or endangered plant or animal species (1-10);

(ii) protects significant habitats (1-10);

(iii) protects rare natural communities (1-10).

(6) Proposed project preserves scenic areas or views, including scenic highway corridors. The maximum natural resource value rating is 182.

(i) Proposed project exhibits outstanding arrangement of natural or man-made features (i.e., water features and/or land forms and/or vegetation patterns) that provides positive stimulation, holds interest and command attention of viewing public (30-50).

(ii) Proposed project contributes to the public enjoyment and/or appreciation of any established scenic resource (5-14).

(iii) Proposed project shows public use, or evidence of attempts of public use (5-14).

(iv) Number of viewers served by the acquisition:

(a) substantial (15);

(b) moderate (10);

(c) minimal (5);

(v) The prior established formal status of the proposed project:

(a) national natural landmark (15);

(b) river designated as national or State wild, scenic or recreational (15);

(c) site, area, lake, reservoir designated or eligible for designation as scenic pursuant to Environmental Conservation Law, article 49 (15);

(d) listed on or eligible for inclusion in National or State Register of Historic Places and management would not be inconsistent with article 14 of the New York State Constitution (15);

(e) an established or designated interstate or intercounty foot trail or one proposed for establishment or designation (15).

(vi) Published recognition of scenic values in scholarly works, professional journals, or popular publications (5-14).

(7) Proposed project provides or enhances access to inaccessible or poorly accessible portions of forest preserve. The maximum natural resource value rating is 10.

(i) The proposed project would provide parcel of land leading to forest preserve which presently has no existing access open to the public (10).

(ii) The proposed project would provide parcel of land leading to forest preserve to which existing access is poor because of physiographic barriers (8).

(iii) The proposed project would reduce the length of circuitous route necessary for public use of existing forest preserve (1-6).

(8) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating for each project ranked under any of the seven subcategories contained in this paragraph by adding to the natural resource value rating an amount determined as follows:

Vulnerability rating Amount to be added to natural resource value rating
A 25% of the natural resource value
B 20% of the natural resource value
C 10% of the natural resource value
D 5% of the natural resource value

(9) It is recognized that any particular forest preserve project which has been assigned to one of the subcategories numbered 1 - 7 above, may also achieve the objectives of one or more of the other subcategories. The acquisition of such a project would protect additional natural resource values thus providing multiple benefits to the public. Whenever such multiple benefits are identified, an amount equal to 10 per centum of the total achievable rating under the primary forest preserve subcategory will be added for the first additional subcategory identified as a multiple benefit, eight per centum for the second additional category, six per centum for the third additional category, four per centum for the fourth additional category and two per centum for the fifth additional category.

(d) Aquifer recharge areas. The maximum natural resource value rating is 40.

(1) Type of aquifer protected:

(i) recharge area for primary public water supply aquifer (20);

(ii) deep flow recharge area on Long Island (20);

(iii) recharge area for principal aquifer (15); or

(iv) recharge area for municipal water supply (10).

(2) Recharge area within the well-head protection zone. (That surface and subsurface area surrounding a well or wellfield supplying a public water system, through which contaminants are reasonably likely to move toward and reach such water well or wellfield. This area must be designated by the department.)

(i) completes acquisition of entire zone (20);

(ii) for each 5 percent of a well-head protection zone acquired, assign 1 point up to the maximum of 20 points for the entire zone (1).

(3) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 10
B 5
C 3
D 1

(e) Exceptional forest character. The maximum natural resource value rating is 30.

(1) Average age of dominant trees:

(i) over 250 years (10);

(ii) over 200 but less than 250 years (5);

(iii) over 150 but less than 200 years (3).

(2) Rarity of the species or community:

(i) extirpated or never previously found (10);

(ii) five or fewer existing sites (5);

(iii) between 6 and 20 existing sites (4);

(iv) between 21 and 99 existing sites (3).

(3) Extent of human intervention:

(i) the proposed project exemplifies typical vegetation and there is no known human intervention (10);

(ii) the proposed project exemplifies typical vegetation and any prior known human intervention is no longer evident (5).

(4) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural resource value an amount determined as follows:

Vulnerability rating Amount to be added
A 10
B 7
C 5
D 3

(f) Exceptional scenic beauty. The maximum natural resource value rating is 167.

(1) Proposed project exhibits outstanding arrangement of natural or man-made features (i.e., water features and/or land forms and/or vegetation patterns) that provide positive stimulation, hold interest and command attention of viewing public (30-50).

(2) Proposed project contributes to the public enjoyment and/or appreciation of any established scenic resource (5-14).

(3) Proposed project shows public use, or evidence of attempts of public use (5-14).

(4) Number of viewers served by the proposed project:

(i) substantial (15);

(ii) moderate (10);

(iii) minimal (5).

(5) Proposed project has prior established formal status:

(i) national natural landmark (15);

(ii) river designated as national or State wild, scenic or recreational (15);

(iii) site, area, lake, reservoir designated or eligible for designation as scenic pursuant to Environmental Conservation Law, article 49 (15);

(iv) property on or eligible for inclusion in National or State Register of Historic Places (15).

(6) Proposed project has published recognition of scenic values in scholarly works, professional journals, or popular publications (5-14).

(7) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating for each project by adding to the natural resource value rating an amount determined as follows:

Vulnerability rating Amount to be added to natural resource value rating
A 20% of the natural resource value
B 15% of the natural resource value
C 10% of the natural resource value
D 5% of the natural resource value

(g) Open space. The maximum natural resource value rating is 160.

(1) The proposed project provides greenbelt and/or recreational land around urban and suburban areas, and/or buffer along resources of natural, scenic or recreational values, such as wetlands, rivers, streams, ridges and parkways which are publicly owned or owned by a qualified nonprofit conservation or historic preservation organization and protected in perpetuity for the public benefit. Assign a rating of 5-25 in increments of 5 (5-25).

(2) The proposed project is within an area identified as an open space area to be maintained as such in any open space plan or resource inventory prepared by a governmental agency or nonprofit conservation or planning organization (50).

(3) The proposed project is within a resource management area designated under article 49 of the Environmental Conservation Law (50).

(4) Multiple use/benefit potential. In addition to the above, acquisition would provide:

(i) protection for important plant and animal communities (5);

(ii) aesthetic/scenic resources (5);

(iii) recreation potential (5);

(iv) historic or cultural significance (5);

(v) scientific or experimental value (5);

(vi) enhancement of tourism (5);

(vii) environmental education (5).

(5) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 10
B 9
C 8
D 1

(h) Pine barrens. The maximum natural resource value rating is 74.

(1) Quality - for each of the determinants of quality listed assign a value on a scale of 1 - 5, 5 being the highest:

(i) vegetation as indicated by the lack of disturbance, easy recognition and lack of invading species (1 - 5);

(ii) diversity as measured by the extent to which the proposed acquisition contributes to the protection of the various pine barrens regions, ecosystems and vegetation types (1 - 5);

(iii) ability to burn as evidenced by past history and as determined by geographical and management considerations (1 - 5);

(iv) contributions to the enhancement of regional pine barrens protection as measured by the degree to which the proposed project provides adequate additional area or adequate buffer to an existing pine barrens areas (1 - 5);

(v) uniqueness of the area as determined by the proposed project being the only example of such a pine barrens in the country, or in the State, or being the best example within a pine barrens region, or of a pine barrens vegetation type (1 - 5);

(2) Benefits - for each benefit listed assign a value on a scale of 1 - 7, 7 being the highest:

(i) protection of prime groundwater zones (1 - 7);

(ii) protection of one or more pine barrens vegetation types or ecosystems (1 - 7);

(iii) protection of one or more endangered, threatened, rare, or disappearing pine barrens animal or plant species dependent on pine barrens areas for survival; or protection of other wildlife that are present (1 - 7);

(iv) protection of unique pine barrens landscapes or scenic vistas (1 -7);

(v) protection of pine barrens lands adjacent to the proposed project through the completion of a contiguous preserve, making other pine barrens lands easier to burn or manage, protection of surface and ground waters which flow into other pine barrens areas or increasing the total area of a pine barrens preserve above the threshold acreage needed for survival (1 - 7);

(vi) protection of pine barrens lands, including/and adjacent to hiking trails available to the public (1 - 7);

(vii) protection of pine barrens lands in coordination with other levels of government (Federal or local) or with private conservation agencies (1 - 7).

(3) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 25
B 15
C 10
D 5

(i) Public access.

(1) Access to public lands. The maximum natural resource value rating is 255.

(i) New access:

(a) proposed project would provide parcel of land leading to public land which presently has no existing access open to the public (100); or

(b) the proposed project would provide parcel of land leading to part of public land area which presently is inaccessible because of physical barriers (75).

(ii) Improved access:

(a) the proposed project would permit an environmentally acceptable through route for a foot trail or vehicular access trail where existing trail now ends (25); or

(b) the proposed project would reduce the length of circuitous route necessary for public use of existing public lands:

(1) by three miles or more (20);

(2) by one to three miles (15);

(3) by less than one mile (10);

(4) would not reduce route (0).

(iii) Acreage size factor: The proposed project would create or improve accessibility to public land holdings of:

(a) 500 acres or more (20);

(b) 101 to 499 acres (10);

(c) 100 acres or less (5).

(iv) Management:

(a) the proposed project is consistent with recommendations contained in an approved unit management plan (15);

(b) existing vehicular access trail or foot trail or parcel(s) to be acquired meets department specifications (15);

(c) existing vehicular access trail or foot trail on parcel(s) to be acquired can be economically upgraded to meet department specifications (10);

(d) the proposed project would result in a common boundary between parcels of public lands where existing connection is only a common corner (10);

(e) the proposed project would reduce the length of public land boundary to maintain and patrol by:

(1) three miles or more (10);

(2) one to three miles (8);

(3) less than one mile (6);

(4) would not reduce boundary (0).

(f) the proposed project would connect two parcels of public land that are not presently connected (10).

(v) Special factors: The proposed project contains, or would provide improved public access to existing public lands that contain:

(a) unusual flora or fauna (5);

(b) recreational fishing stream or spawning area (5);

(c) wild, scenic and recreational river (5);

(d) frontage on lake, pond or river that provides recreational opportunity (5);

(e) regulated wetland (5);

(f) significant fish or wildlife habitat (5);

(g) area of public land with existing high-intensity use (5).

(vi) Proximity to population centers project is within 25 miles of a population center of:

(a) 100,000 inhabitants or more (5);

(b) 50,000 inhabitants or more (3);

(c) 10,000 inhabitants or more (2).

(vii) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 10
B 8
C 6
D 4

(2) Stream rights. The maximum natural resource value rating is 83.

(i) Stream quality. Stream quality reflects the overall condition of selected stream characteristics, including water quality; stability of flow; summer water temperatures; streambank stability and cover; number and quality of spawning and nursery grounds for important sport fishes. It also reflects stream productivity or the capacity of the stream to grow a harvestable crop of fish:

(a) very high (34);

(b) high (17);

(c) average (8);

(d) low (1).

(ii) Stream width. Special consideration is given to stream width because of its direct relationship to the capacity of the stream to provide fishing grounds, absorb fishing pressure, and the total productive area per mile of stream:

(a) greater than 20 feet (8);

(b) 10 to 20 feet (4);

(c) less than 10 feet (1).

(iii) Fishing quality. Consideration is given to the following factors:

(a) uniqueness of the fishery, including use by anadromous fishes;

(b) species composition and desirability for sport fishing or as food fishes;

(c) abundance and size of fishes;

(d) relative intensity of fishing pressure and its effect on fishing quality;

(e) aesthetic factors, including scenic aspects of adjacent lands, degree of pollution, historical or traditional aspects associated with the fishery;

(f) relative rarity of this type of sport fishing in the region:

(1) very high (33);

(2) high (17);

(3) medium (8);

(4) low (1).

(iv) Accessibility. Consider the following factors under accessibility:

(a) proximity to human population centers;

(b) distance that fishable sections lie from the nearest public road;

(c) parking convenience:

(1) very accessible (8);

(2) moderately accessible (4);

(3) access difficult (1).

(v) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 17
B 11
C 6
D 1

(vi) Outstanding streams. Following calculation of the natural resource value rating and the vulnerability rating of all eligible streams on the basis of the rating system set forth in paragraph (2) of this subdivision, a range of point totals from 5 to 100 will result. Streams achieving a 100- point total will be classed outstanding as a group, and will be further evaluated for the assignment of bonus points according to the following additional criteria:

(a) Stream supports substantial recognized multispecies salmon run providing an extended fishing season for trophy class fish. Add 10 points.

(b) Stream meets above criteria and currently provides in excess of 150,000 angler trips per year and/or currently receives unacceptably high use per unit area of public water. Add 20 points.

(c) Outstanding streams will thus receive ratings of 100 to 130.

(vii) In applying this ranking system, the proposed project will be assigned to one of the following classifications:

(a) coldwater streams which are defined as those where trout (salmonids) predominate; or

(b) warmwater streams which are defined as those where nontrout, commercial or sport fish predominate; or

(c) tributaries of the Hudson River which are defined as any tributary of the Hudson River, south of the Federal dam at Troy, upstream to the first barrier impassable to fish.Proposed acquisition projects once so classified will be evaluated using the priority rating system only against other proposed projects within the same classification.

(3) Inland waterway access. The maximum natural resource value rating is 88.

(i) Fishing quality. Consideration should be given to the following factors:

(a) uniqueness of the fishery, including use by anadromous fishes;

(b) abundance and size of fishes;

(c) relative intensity of fishing pressure and its effect on fishing quality;

(d) aesthetic factors, including scenic aspects of adjacent lands, degree of pollution, historical or traditional aspects associated with the fishery;

(e) relative rarity of this type of sport fishing in the region:

(1) outstanding or unique (45);

(2) high (22);

(3) medium (11);

(4) low (2).

(ii) Surface acreage/linear mileage accessed has a direct bearing on use capacity. As a general policy in determining ideal access sites per unit of water, use one site per 300 acres or 10 miles.

(a) over 300 acres/10 miles (11);

(b) 100 to 300 acres/5 to 10 miles (7);

(c) 10 to 99 acres/2 to 5 miles (2).

(iii) Proximity to centers of population. Consider the use opportunity to an access site based on its nearness to major population centers.

(a) within 50 miles of population center of 100,000 or more (11);

(b) within 50 miles of population center of 50,000 to 100,000 (8);

(c) within 50 miles of population center of 25,000 to 50,000 (5);

(d) more than 50 miles from a population center of 25,000 or less (2).

(iv) Existing access. Whether local government or private but open to the public access sites are present and usable should be considered in establishing priority:

(a) none available (11);

(b) inadequate or undeveloped (7);

(c) developed site(s) (2).

(v) Other factors. Consideration should be given to other factors which have a bearing on decisions for need and priority of waterway access acquisition.

(a) Site developability; both physical and environmental.

(b) Importance of public access to long-range fisheries management plans.

(c) Consideration of all forms of public use interests served, including but not limited to fishing, hunting, trapping, boating, travel, camping and canoeing:

(1) high (10);

(2) average (4);

(3) low (1).

(vi) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 12
B 5
C 2
D 1

(4) Tidal waterway access. The maximum natural resource value rating is 70.

(i) Population served - the number of people within a radius of 50 miles:

(a) 100,000 + (25);

(b) 25,000 - 100,000 (15);

(c) less than 25,000 (10).

(ii) Need for access to previously inaccessible areas:

(a) no access open to all New York State residents within 30 miles (25);

(b) no access open to all New York State residents within 20 miles (15);

(c) no access open to all New York State residents within 10 miles (10).

(iii) Other environmental benefits - for each of the following benefits provided:

(a) environmental education (5);

(b) flood plain control (5);

(c) nursery grounds for fish-shellfish (5);

(d) waterfowl habitat (5).

(iv) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 25
B 10
C 2
D 1

(j) Trailways. The maximum natural resource value rating is 25.

(1) Population served - the number of people within a radius of 50 miles:

(a) 100,000 + (10);

(b) 25,000 - 100,000 (7);

(c) less than 25,000 (3).

(2) Acquisition connects other trails to establish interconnecting series of recreation ways. (5).

(3) Acquisition utilizes existing corridors, such as abandoned railroad right-of-ways, canal towpaths, utility lines (5).

(4) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 5
B 4
C 3
D 1

(k) Unique character. The maximum natural resource value rating is 175.

(1) Relative uniqueness - exceptional and/or rare example of special natural beauty, wilderness character, geological significance, ecological significance, historical or archaeological significance.

(i) One of a kind in the country (60); or

(ii) One of a kind in the Northeast (40); or

(iii) One of a kind in the State (30); or

(iv) One of a kind in a region appropriate to the resource being rated (20); or

(v) Best of a kind in a county (10).

(2) Diversity values - for each of the following values other than the primary one, special natural beauty; wilderness character; geological significance; ecological significance, historical or archaeological significance possessed by a proposed project, add additional points as follows:

(i) special natural beauty (0-10);

(ii) wilderness character (0-10);

(iii) geological significance (0-10);

(iv) ecological significance (0-10);

(v) historical or archaeological significance (0-10).

(3) Specific values - evaluate each proposed project for its primary value only according to the rating system for that value set forth below.

(i) Special natural beauty.

(a) Additional consideration should be given for each example of outstanding arrangements of natural features such as water features and/or landforms and/or vegetation patterns that provide positive stimulation, hold interest and command the attention of the viewing public up to a maximum of 15 (5).

(b) Additional consideration should be given for each instance of published recognition of the natural beauty of the project, contribution to an established scenic resource, and/or evidence of public use or attempts at public use to a maximum of 15 (5).

(ii) Wilderness character.

(a) Additional consideration should be given for each example of outstanding natural, ecological or scenic features up to a maximum of 15 (5).

(b) The degree to which the project exemplifies wilderness characteristics on a scale of 1-15.

(iii) Geological significance.

(a) Additional consideration should be given for each distinct type of paleontological relic which has been recorded on the property to a maximum of 15 (5).

(b) Additional consideration should be given for each type of distinct type of physical geological feature recorded on the property to a maximum of 15 (5).

(iv) Ecological significance.

(a) Additional consideration should be given for each animal or plant species which has been recorded on the property and which is listed on the Federal, international and/or New York State rosters of threatened or endangered species to a maximum of 15 (5).

(b) Additional consideration should be given for each example of a specific ecotype which can be identified on the property and which is classified as a fragile or endangered habitat or natural community (e.g., wetland, mountain top) or which is distinguishable for its archetypical nature to a maximum of 15 (5).

(v) Historical significance.

(a) Additional consideration should be given for each distinct type of historical/archaeological object, feature or culture which has been recorded on the property to a maximum of 15 (5).

(b) Additional consideration should be given for each distinct historical/archaeological or cultural significance characteristic which has been associated with the property to a maximum of 15 (5).

(4) Miscellaneous values.

(i) property (or part thereof) has been designated as a National Natural Landmark (NNL) (15).

(ii) property (or part thereof) has been designated as a National Historic Landmark (NHL) (15).

(iii) property (or part thereof) has been included in the National or State Register of Historic Places, or is deemed eligible for such listing (exclusive of NHL designation) (10).

(iv) property has received a high priority ranking within the New York State Natural Heritage Program (exclusive of NNL designation) (10).

(v) property is adjacent to, near, or visually accessible from a State Historic Site, National Historic Site, or a site, park, recreation area or nature preserve owned by a public or not-for-profit entity (5).

(5) Accessibility factors:

(i) Surrounded entirely by water or by privately owned lands and with no public right- of-way (5); or

(ii) accessible only on foot or horseback; no motorized vehicles can approach nearer than five miles (4); or

(iii) accessible only on foot or horseback; no motorized vehicles can approach nearer than one mile (3); or

(iv) motorized vehicles can enter property, but only by using unpaved roads; minimal or no prepared parking areas (2); or

(v) access by paved roads; minimal or no prepared parking areas (1); or

(vi) access by paved roads; prepared parking areas available (0).

(6) Recreational factors:

(i) prospective recreational uses are in harmony with te area's unique values (5); or

(ii) susceptible to light nonmotorized recreational use which nevertheless may conflict with the area's unique values (4); or

(iii) susceptible to moderate recreational use which may conflict with the area's unique values (3); or

(iv) in 20 years, susceptible to heavy recreational use (2); or

(v) after acquisition, susceptible to heavy recreational use which is inimical to the area's unique values (1); or

(vi) currently subject to heavy recreational use which is inimical to the area's unique values (0).

(7) Management factors:

(i) management of the preserve would be assumed by an interested municipality or not- for-profit or educational organization on a permanent basis (5); or

(ii) management of the preserve would be assumed by an interested municipality or not- for-profit or educational organization on an annual basis (4); or

(iii) management of the preserve would be assumed by a State agency and is expected to cost a minimum amount per annum (2); or

(iv) management of the preserve would be assumed by a State agency and is expected to cost a substantial amount per annum in labor and materials, which may include frequent patrolling of the premises or repairs/depreciation on one or more structures (1).

(8) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 25
B 15
C 5
D 3

(k) Wetlands

(1) Freshwater. The maximum natural resource value rating is 12.

(i) Wetland value characteristics. Determine the wetland value characteristics rating, to a maximum of 12, according to the following:

(a) supports animal species in abundance or diversity unusual for the State or the major region of the State in which it is found (8);

(b) is tributary to a body of water which could subject a substantially developed area to significant damage from flooding should the wetlands be modified, filled or drained (8);

(c) is adjacent or contiguous to a reservoir or other body of water that is used primarily for public water supply (8);

(d) has exceptional recreational potential, especially in view of its proximity to major centers of population (8);

(e) is or contains a rare wetland, natural community, such as, but not limited to, the following: classic kettlehole bog, inland salt marsh, rich fen, patterned peatland, or Atlantic white cedar swamp (8);

(f) is an emergent marsh in which purple loosestrife and/or reed (phragmites) constitute less than two thirds of the covertype (4);

(g) contains two or more of the following wetland structural groups: emergent herbaceous covertypes, or emergent or wet meadow vegetation constituting at least 25 percent of the area of the wetland; woody covertypes, of deciduous swamp, coniferous swamp or shrub swamp constituting at least 25 percent of the area of the wetland; water covertypes, of submergent vegetation, floating vegetation or wetland open water constituting at least 15 percent of the area of the wetland (4);

(h) is contiguous to a tidal wetland (4);

(i) is associated with permanent open water outside the wetland (4);

(j) is adjacent or contiguous to streams classified C(t) or higher under article 15 of the Environmental Conservation Law (4);

(k) is resident habitat of an animal species vulnerable in the State (4);

(l) supports animal species in abundance or diversity unusual for the county in which it is found (4);

(m) is tributary to a body of water which could subject a lightly developed area, an area used for growing crops for harvest, or an area planned for development by a local planning authority, to significant damage from flooding or from additional flooding should the wetland be modified, filled or drained (4);

(n) acts in a tertiary treatment capacity for a sewage disposal system (4);

(o) is within or near an urbanized area (4);

(p) is one of the three largest wetlands within a city, town, or New York City borough (4);

(q) contains an upland island (1);

(r) has a total alkalinity of at least 50 parts per million (1);

(s) is adjacent to fertile upland (1);

(t) is resident habitat of an animal species vulnerable in the major region of the State in which it is found, or it is traditional migration habitat of an animal species vulnerable in the State or in the major region of the State in which it is found (1);

(u) contains a plant species vulnerable in the major region of the State in which it is found (1);

(v) is part of a surface water system with permanent open water and receives significant pollution of a type amenable to amelioration by wetlands (1);

(w) is visible from an interstate highway, a parkway, a designated scenic highway or a passenger railroad, and serves a valuable aesthetic or open space function (1);

(x) is one of the three largest wetlands of the same covertype within a town (1);

(y) is in a town in which wetland acreage is less than one percent of the total acreage (1).

(ii) Biological productivity.

(a) Determine the biological productivity rating by averaging the score for each of the eight indices according to the following chart:

Freshwater Wetland Wildlife Productivity Scoring Chart Characteristics
Soil Suitability (SCS) Hydrology Vegetation and Structure Wildlife
Score Wetland food and cover plants Shallow diked or excavated impoundments Wetland Wildlife Water supply to refill from lowest to highest % open water in growing season Robustness, variety and interspersion Onsite presence of plant species important to wildlife Variety and abundance of wildlife observed onsite, historically
12 1 1 1 Plentiful all seasons most years 40-60 Rich growth; emergents, submergents, and water well interspersed High High
10 2 2 2 Adequate all seasons most seasons 40-60 Moderate growth, variety, interspersion
8 2 2 2 Adequate all seasons some years 40-60 Moderate growth, variety, interspersion Med. Med.
6 3 3 3 Seasonally inadequate some years 70 or 30 Moderate growth, variety, interspersion
4 3 3 3 Seasonally inadequate most years 70 or 30 Poor growth, variety
2 4 4 4 Unreliable 80 or 20 Monotype Low Low

(b) Reduce the average that results by an amount up to 25 percent to reflect the degradation, if any, not accounted for in the table.

(iii) The rating derived from the vulnerability scale contained in subdivision (b) of this section is equated to a value determined as follows:

Vulnerability rating Value
A 1 2/3
B 1 1/2
C 1 1/4
D 1

This value is utilized in the computation of the overall rating as set forth in subparagraph (l)(1)(iv) of this section.

(iv) Overall rating. The higher of the ratings determined under the wetland value characteristics table or the biological productivity table is multiplied by the vulnerability rating to determine the proposed project's overall rating.

(2) Tidal - the maximum natural resource value rating is 106.

(i) proposed project meets either of the minimum eligibility requirements set forth in section 591.3 of this Part, for tidal wetlands (50);

(ii) proposed project supports and contributes to the productivity of the marine or estuarine ecosystem (10);

(iii) proposed project is accessible and amenable to management for the enhancement or continued viability of wetland characteristics (5);

(iv) proposed project is accessible for public use (5);

(v) proposed project is potentially accessible for public use (2.5);

(vi) proposed project includes habitat for rare, threatened or endangered species or rare natural communities, or has potential, through restoration, to provide such habitat or communities (5);

(vii) proposed project is in proximity to recreational or commercial marine or estuarine finfish or crustacea harvest areas (5);

(viii) proposed project is in proximity to commercially valuable shellfishing area (5);

(ix) proposed project is contiguous to other Federal, State, local government, or qualified not-for-profit conservation organization preserves (5);

(x) total acreage of proposed project, including contiguous preserves owned by Federal, State, local government or a qualified not-for-profit conservation organization, is greater than 75 acres (5);

(xi) diversity of habitat types within the proposed project:

(a) intertidal marsh (2.5);

(b) fresh coastal marsh (2.5);

(c) high marsh (2.5);

(d) shoals, bars and flats (2.5);

(e) formerly connected marsh (1.0).

(xii) The rating derived from the vulnerability scale contained in subdivision (b) of this section is integrated into the natural resource value rating by adding to the natural value an amount determined as follows:

Vulnerability rating Amount to be added
A 25
B 10
C 2
D 1

(m) Wildlife habitat. The maximum natural resource value rating is 189.

(1) Species listing. Determine the species listing rating by determining whether the proposed project provides habitat for a species that is:

(i) State and Federal endangered (12);

(ii) State endangered and Federal threatened (10);

(iii) State endangered or Federal threatened (8);

(iv) State and Federal threatened (6);

(v) State threatened (4).If an area has more than one species listed, the score of the species with the highest score will be listed in the total. Half of the score for the species with the next highest score will be added to the first. One fourth of the next will be added. Up to three species will be counted.

(2) Habitat value. Determine the habitat value rating according to the following table using the lowest possible rating based on the presence of any one of the following:

(i) the habitat is permanent, not subject to adverse forces, or adverse forces are easy to control, if the proposed project is acquired (5);

(ii) the species is not mobile, or if it is mobile, it is extremely tenacious in continuing to use a site, so that its use may be considered permanent; past long-term use of the proposed site is well documented (5);

(iii) the habitat is irreplaceable or the cost of replacement is clearly prohibitive (5);

(iv) alternative sites are not available (5);

(v) the habitat may be subject to adverse forces which are controllable with some expense and difficulty if proposed project is acquired (4);

(vi) the species is mobile but is known to continue habitual residence and migration behavior for a time span of decades (4);

(vii) replacement is difficult and expensive at best; ability to replace is not certain (4);

(viii) alternative sites are extremely rare (4);

(ix) the habitat may be subject to adverse forces which are controllable with major expense and difficulty if the proposed project is acquired (3);

(x) the species is mobile but generally uses the same site and can be expected to use the site for at least a decade (3);

(xi) replacement is reasonably likely with significant expense (3);

(xii) alternative sites are rare (3);

(xiii) the habitat may be subject to adverse forces whose control is uncertain if the proposed project is acquired (2);

(xiv) the species is mobile, is known to return to sites, but not with long-term regularity, and is not dependent on them (2);

(xv) replacement is relatively easy. Will be replaced through independent processes within 10 years (2);

(xvi) alternative sites are limited but identifiable (2);

(xvii) the habitat will be subject to adverse forces whose control is doubtful if the proposed project is acquired (1);

(xviii) the species is mobile and does not usually use the same site for more than a few years (1);

(xix) replacement is easy. Will be replaced through independent processes within five years (1);

(xx) alternative sites are readily accessible (1).

(3) Habitat proportion. Determine the habitat proportion rating for each proposed project, or for all proposed acquisition projects relating to a given species, according to the following table:

(i) 40 percent or more of a species' population or habitat in the State is contained on the area (1.8);

(ii) 20 to 39 percent of a species' population or habitat in the State is contained on the area (1.6);

(iii) 10 to 19 percent of a species' population or habitat in the State is contained on the area (1.4);

(iv) 5 to 9 percent of a species' population or habitat in the State is contained on the area (1.2);

(v) 1 to 4 percent of a species' population or habitat in the State is contained on the area (1.0).If 50 percent or more of a species' population or habitat is in protected ownerships by the Federal, State or local government or a qualified not-for-profit conservation organization, reduce the habitat proportion rating by using 1.0.

(4) Habitat vulnerability. The rating derived from the vulnerability scale contained in subdivision (b) of this section is equated to a value determined as follows:

Vulnerability rating Value
A 2
B 1.8
C 1.4
D 1.0

This value is utilized in the computation of the overall rating as set forth in paragraph (m)(5) of this section.

(5) Overall rating. Multiply the ratings for habitat value, habitat proportion and habitat vulnerability together yielding the habitat score. Multiply the habitat score by the rating for the species listing to determine the proposed project's overall rating. If any two ratings are equal or without significant difference in terms of resource protection, taxonomic distinctness will be used to break ties. A species will take precedence over a subspecies. The only species in a genus will take precedence over a species with other species in its genus. The only species in a family will take precedence over the only species in a genus. This method will be employed to the highest level necessary in order to provide a meaningful distinction.

§591.5 Departmental Review Process

(a) Whichever of the methods of State land project initiation set forth in section 591.3 of this Part is involved, the first step in the review process is the investigation of all potential projects by the regional office of the department within which the project is located or by the Division of Marine and Coastal Resources for tidal wetlands and tidal waterway access projects located within the marine and coastal district. That investigation must include a determination of whether or not the project meets the minimum eligibility requirements set forth under section 591.3 of this Part and is consistent with identified regional acquisition objectives. Such investigation, when appropriate, will be coordinated with any program personnel who may have an interest in the project. Upon completion of this investigation, if the proposed project meets the minimum eligibility requirements, a project file shall be prepared and forwarded with the regional recommendation to central office program.

(b) The central office program will review each project file and recommend statewide projects for the program area to the commissioner based on all relevant factors, including the extent to which the project furthers identified statewide acquisition objectives.

§591.6 Guidelines for Final Project Approval

(a) Upon receipt of a project file, the commissioner shall carefully review the project file for purposes of making a final determination to approve or disapprove a project. In making the final determination the commissioner may take into account, in addition to the natural resource value and the vulnerability of the project, the following:

(1) the availability of the project for acquisition by purchase, gift or partial gift;

(2) the extent to which the project's location contributes to the geographical balance of the availability of the diversity of natural resource values;

(3) the compatibility of the project with State, regional and local environmental plans, policies, goals and objectives;

(4) the availability of additional fiscal resources and post-acquisition management and operational support;

(5) the fiscal and economic benefits and burdens resulting from the proposed acquisition;

(6) the cost in relation to the natural resource value of the proposed project;

(7) the social, cultural and educational values, benefits and potential of the proposed project;

(8) the extent to which the project encompasses agricultural lands; and

(9) such other factors as the commissioner may deem appropriate.

(b) Upon completion of the final review process, the commissioner shall return the project file, noting approval or disapproval, to the appropriate central office program. The central office program shall return disapproved project files to the region or the Division of Marine and Coastal Resources. Approved project files for land acquisition projects shall be forwarded to the Bureau of Real Property.

§591.7 Acquisition of Approved Projects

(a) Upon receipt of an approved project file, the Bureau of Real Property shall initiate the acquisition process in accordance with the applicable provisions of the Environmental Conservation Law and other applicable laws. Approval of a project does not authorize the use of the eminent domain power. Use of the eminent domain power must be separately approved on a project-by-project basis in accordance with the requirements and procedures of the Eminent Domain Procedure Law.

(b) Whenever the commissioner determines that an approved project should, because of the necessity for expeditious acquisition or for other appropriate reasons, be acquired for the department by a designee, such as a qualified conservation organization or a municipal government, then the department may permit the acquisition by such designee and the subsequent acquisition by the department from the designee.

§591.8 Advisory Committee

(a) The department can benefit from having periodic reviews of these regulations and its implementation of title 7 of article 52 by knowledgeable and concerned citizens from various part of the State. Accordingly, the commissioner is authorized to appoint an advisory committee of such citizens to be known as the Title 7 -Article 52 Implementation Advisory Committee.

(b) The committee shall be composed of at least one knowledgeable and concerned citizen not employed by the department from each of five of the department's regions and such additional number of citizens as the commissioner shall determine. The members of the committee shall be appointed by and serve at the pleasure of the commissioner and shall meet at least annually to review these regulations, the implementation thereof, and such other matters as the commissioner may determine are appropriate for its consideration. The committee shall give the commissioner the benefit of its views and advice on all matters brought before it by the commissioner and make such recommendations to him on such matters as it deems appropriate, provided that nothing herein contained shall be construed to vest in the committee any approval power over any individual acquisition or any proposed change to these regulations or the implementation thereof.

(c) The commissioner may appoint such subcommittee as necessary or appropriate to provide opportunities for comment concerning and recommendations regarding the implementation of the regulations within any geographic area of the State. Such subcommittees may include nonmembers of the committee and shall perform such functions as the committee may determine are necessary or appropriate in aiding the committee to a fuller understanding of the specific concerns of any particular geographic area.

§591.9 Funding Distribution

(a) Article 52 requires that these regulations include provisions for funding distribution for forest preserve projects and for each type of environmentally sensitive lands projects. Funds made available to the department for forest preserve projects will be used for the acquisition of such projects in accordance with the project selection process outlined in sections 591.3 through 591.6 of this Part.

(b) The funds made available to the department for environmentally sensitive lands projects will be distributed as follows:

(1) 55 percent will be allocated to the following project categories:

(i) aquifer recharge areas;

(ii) pine barrens;

(iii) wetlands; and

(iv) wildlife habitat.

(2) 35 percent will be allocated to the following project categories:

(i) exceptional forest character;

(ii) exceptional scenic beauty;

(iii) unique character; and

(iv) open space.

(3) 10 percent will be allocated to the following project categories:

(i) public access to public lands;

(ii) stream rights;

(iii) waterway access; and

(iv) trailways.

(4) Of the allocation to each group of environmentally sensitive lands projects identified above, a minimum of five percent of that allocation shall be expended on each constituent category type, with the balance of the allocation being distributed by the commissioner equitably among the project categories in that group, on the basis of need and acquisition opportunity.