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Part 505: Coastal Erosion Management

(Statutory authority: Environmental Conservation Law, 3-0301, 34-0108)

[Effective March, 1988.]

[page 1 of 1]

Contents:

Sec.

§505.1 Purpose

(a) The purpose of this Part is to implement the provisions of article 34 of the Environmental Conservation Law, the Coastal Erosion Hazard Areas Act*. This Part defines when the department will administer a regulatory program within identified coastal erosion hazard areas and establishes standards for the issuance of coastal erosion management permits by the department. Procedural requirements are also established for local governments that wish to implement a local program, although local implementation is not required until after the department has filed coastal erosion hazard area maps for a municipality. Minimum standards and criteria the department will use in certifying and revoking local programs are also outlined.

(b) Land use, development and other activities are regulated in coastal areas subject to coastal flooding and erosion to minimize or prevent damage or destruction to manmade property, natural protective features, other natural resources, and to protect human life.

(c) New construction or placement of structures is regulated to place them a safe distance from areas of active erosion and the impacts of coastal storms to ensure that these structures are not prematurely destroyed or damaged due to improper siting, as well as to prevent damage to natural protective features and other natural resources.

(d) Public investment in services, facilities or activities which are likely to encourage new permanent development in erosion hazard areas is restricted.

(e) Publicly financed erosion protection structures to minimize erosion damage are to be used only where necessary to protect human life or where the public benefits of such structures clearly outweigh the public expenditures.

(f) The construction of erosion protection structures is regulated in coastal areas subject to serious erosion to assure that, when the construction of erosion protection structures is justified, their construction and operation will minimize or prevent damage or destruction to man-made property, private and public property, natural protective features, and other natural resources.


FOOTNOTE: * Chapter 841 of the Laws of 1981, which enacted ECL article 34, gave it the statutory short title: "The Shoreowner's Protection Act."-ED.

§505.2 Definitions

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

(a)Act means the Coastal Erosion Hazard Areas Act* which has been codified as article 34 of the Environmental Conservation Law, as amended.

(b)Appurtenance means a minor or accessory structure attached to or placed near a principal structure.

(c)Beach means the zone of unconsolidated earth that extends landward, from the mean low-water line, to the seaward toe of a dune or bluff, whichever is most seaward. Where no dune or bluff exists landward of a beach, the landward limit of a beach is 100 feet landward from the place where there is a marked change in material or physiographic form or from the line of permanent vegetation, whichever is most seaward. Shorelands subject to seasonal or more frequent overwash or inundation are considered to be beaches.

(d)Bluff means any bank or cliff with a precipitous or steeply sloped face adjoining a beach or a body of water. The seaward limit of a bluff is the landward limit of its seaward natural protective feature. Where no beach is present the seaward limit of a bluff is mean low water. The landward limit is 25 feet landward of the bluff's receding edge, or in those cases where there is no discernible line of active erosion to identify the receding edge, 25 feet landward of the point of inflection on the top of the bluff. (The point of inflection is that point along the top of the bluff where the trend of the land slope changes to begin its descent to the shoreline.)

(e)Coastal erosion hazard area map means the final map issued by the commissioner which delineates the boundaries of erosion hazard areas subject to regulation under this Part.

(f) Coastal erosion management permit means the written approval required by this Part for the undertaking of any regulated activity within erosion hazard areas as shown on coastal erosion hazard area maps.

(g) Coastal waters means Lakes Erie and Ontario, the St. Lawrence and Niagara Rivers, the Hudson River south of the Federal Dam at Troy, the East River, the Harlem River, the Kill van Kull and Arthur Kill, Long Island Sound and the Atlantic Ocean, their connecting water bodies, bays, harbors, shallows and wetlands.

(h) Coastline means the lands adjacent to the State's coastal waters.

(i)Commissioner means the Commissioner of Environmental Conservation or his duly authorized representative.

(j)Debris line means a linear accumulation of waterborne debris deposited by high waters on a beach.

(k) Department means the Department of Environmental Conservation.

(l) Dune means a ridge or hill of loose, windblown, or artificially placed earth, the principal component of which is sand.

(m) Emergency means a natural or an accidental human-made event which presents an immediate threat to life, health, safety, property or the environment.

(n) Erosion means the loss or displacement of land along the coastline due to the action of waves, currents, tides, wind-driven water, waterborne ice, or other impacts of storms. It also means the loss or displacement of land due to the action of wind, runoff of surface waters, or ground water seepage.

(o) Erosion hazard area means an area of the coastline which is:

(1) a structural hazard area; or

(2) a natural protective feature area.

(p) Erosion protection structure means a structure specifically designed to reduce or prevent erosion, such as a groin, jetty, seawall, revetment, bulkhead, breakwater, or artificial beach nourishment project.

(q) Existing structure means:

(1) for State agency-owned structures and appurtenances, a structure in existence, or one whose construction had commenced, within an erosion hazard area on the date coastal erosion hazard area maps are filed for a local government; or

(2) for structures and appurtenances owned by all other persons, a structure in existence, or one whose construction had commenced, within an erosion hazard area on the effective date of an erosion hazard area local law or ordinance which has been certified by the commissioner pursuant to the act, or on the date the department assumes regulatory responsibility after all appropriate levels of local government have had an opportunity to assume such jurisdiction, whichever is earlier.

Existing structure also includes any structure or appurtenance which was initially constructed outside an erosion hazard area, but as a result of amendments to coastal erosion hazard area maps is located in an erosion hazard area.

(r) Grading means a redistribution of sand or other unconsolidated earth to effect a change in profile.

(s) Local government means a village, town, city or county.

(t) Local program means a coastal erosion management ordinance or local law, or any other ordinance, local law, zoning regulation, subdivision regulation, site plan approval regulation, or other application of police power a local government may use in carrying out the purposes and policies of the act and meeting the minimum standards of section 505.17 of this Part.

(u) Major addition means an addition which results in a 25-percent or greater increase in the ground area coverage of a structure, other than an erosion protection structure, pier, dock or wharf. The increase will be calculated as the ground area coverage to be added, including any additions previously constructed under a coastal erosion management permit, divided by the ground area coverage of existing structures as defined in subdivision (q) of this section.

(v) Mean low water means the approximate average low-water level for a given body of water at a given location, determined by reference to hydrological information concerning water levels or other appropriate test.

(w) Modification means a change in size, design or function.

(x) Movable structure means a structure designed and constructed to be readily relocated with minimum disruption of intended use. Mobile homes and structures built on skids or piles and not having a permanent foundation are examples of movable structures.

(y) Natural protective feature means a near shore area, beach, bluff, primary dune, secondary dune, or wetland, and the vegetation thereon.

(z) Natural protective feature area means a land and/or water area containing natural protective features, the alteration of which might reduce or destroy the protection afforded other lands against erosion or high water, or lower the reserves of sand or other natural materials available to replenish storm losses through natural processes. All natural protective feature areas are delineated as such on coastal erosion hazard area maps.

(aa) Nearshore area means those lands under water beginning at the mean low-water line and extending in a direction perpendicular to the shoreline to a point where mean low-water depth is 15 feet, or to a horizontal distance of 1,000 feet from the mean low-water line, whichever is greater.

(bb) Normal maintenance means periodic replacement or repair of same-kind structural elements or protective coatings which do not change the size, design or function of a functioning structure. A functioning structure is one which is fully performing as originally designed at the time that normal maintenance is scheduled to begin. Normal maintenance of a structure does not require a coastal erosion management permit.

(cc) Person means any individual, public or private corporation, political subdivision, government agency, public improvement district, partnership, association, firm, trust, estate, or any other legal entity whatsoever.

(dd) Primary dune means the most seaward major dune where there are two or more parallel dune lines within a coastal area. Where there is only one dune present, it is the primary dune. Occasionally one or more relatively small dune forms exist seaward of the primary dune. For the purposes of this Part, such forms will be considered to be part of the primary dune. The seaward limit of a primary dune is the landward limit of its fronting beach. The landward limit of a primary dune is 25 feet landward of its landward toe.

(e) Receding edge means the most landward line of active erosion, or in cases where there is no discernable line of active erosion, it is the most seaward line of permanent vegetation.

(ff) Recession rate means the rate, expressed in feet per year, at which an eroding shoreline moves landward.

(gg) Regional permit administrator means the person designated to process permits in each regional office of the department. The names and addresses of all regional permit administrators are listed in Appendix 1 of Volume A of this Title.

(hh) Regulated activity means the construction, modification, restoration or placement of a structure, or major addition to a structure, or any action or use of land which materially alters the condition of land, including grading, excavating, dumping, mining, dredging, filling, or other disturbance of soil. Regulated activity does not include routine agricultural operations involving cultivation and harvesting, and the implementation of practices recommended in a soil and water conservation plan as defined in section 3(12) of the Soil and Water Conservation Districts Law; provided, however, that agricultural operations and implementation of practices will not be construed to include any activity that involves the construction or placement of a structure. The terms development and activity, when used in this Part, have the same meaning as regulated activity.

(ii) Regulatory agency means the department, another State agency, or a local government having permit or other approval authority over a project.

(jj) Restoration means the reconstruction without modification of a structure, the cost of which equals or exceeds 50 percent of the estimated full replacement cost of the structure at the time of restoration. Modifications, however, may be allowed if they do not exceed preexisting size limits and are intended to mitigate impacts to natural protective features and other natural resources.

(kk) Secondary dune means the major dune immediately landward of the primary dune. The seaward limit of a secondary dune is the landward limit of its fronting primary dune. The landward limit of a secondary dune is 25 feet landward of its landward toe.

(ll) Significant fish and wildlife habitat means those habitats which:

(1) are essential to the survival of a large portion of a particular fish or wildlife population;

(2) support rare or endangered species;

(3) are found at a very low frequency within a geographic area;

(4) support fish or wildlife populations having significant commercial or recreational value; or

(5) would be difficult or impossible to replace.

(mm) State agency means any department, division, bureau, commission, board, public authority, or other agency of the State. Any public benefit corporation, any member of which is appointed by the Governor, is a State agency.

(nn) Structural hazard area means those shorelands, located landward of natural protective features, and having shorelines receding at a long-term average annual recession rate of one foot or more per year. The inland boundary of a structural hazard area is calculated by starting at the landward limit of the fronting natural protective feature and measuring along a line which is perpendicular to the shoreline a horizontal distance landward which is 40 times the long-term average annual recession rate.

(oo) Structure means any object constructed, installed or placed in, on or under land or water, including but not limited to a building; permanent shed; deck; in-ground and aboveground pool; garage; mobile home; road; public service distribution, transmission, or collection system; tank; pier; dock; wharf; groin; jetty; seawall; revetment; bulkhead; or breakwater; or any addition to or alteration of the same.

(pp) Toe means the lowest point on a slope of a dune or bluff.


FOOTNOTE: * Chapter 841 of the Laws of 1981, which enacted ECL article 34, gave it the statutory short title: "The Shoreowner's Protection Act."-ED.

§505.3 Functions of natural protective features Department Regulation of Coastal Erosion Hazard Areas

(a) Natural features such as beaches, bluffs, dunes and nearshore areas, and the vegetation thereon, protect coastal areas and human lives from wind and water erosion and storm-induced high water. Inappropriate activities of man may diminish or eliminate entirely the erosion-buffering function of natural protective features.

(b) The specific functions and protective values of different types of natural protective features may vary. Certain types of natural protective features are intrinsically better suited for certain types of uses, activities, or development than others. The standards and development restrictions of this Part that apply to regulated activities within specific types of natural protective features are based on:

(1) the protective functions that specific types of natural protective features provide; and

(2) the interaction between specific types of natural protective features and physical coastal processes.

(c) Described below are the erosion protection functions of various types of natural protective features and their relationship to physical coastal processes. These descriptions are to be used to guide the review of coastal erosion management permit applications as required in sections 505.5-505.9 of this Part, and in the review of variance requests as required in section 505.13 of this Part.

(1) Beaches buffer shorelands from erosion by absorbing wave energy that otherwise would be expended on the toes of bluffs or dunes. Beaches that are high and wide protect shorelands from erosion more effectively than beaches that are low or narrow. Beaches also act as a reservoir of sand or other unconsolidated material for longshore littoral transport and offshore sandbar and shoal formation.

(2) Bluffs protect shorelands and coastal development by absorbing the often destructive energy of open water. Bluffs are of greatest protective value during times of storm-induced high water. Bluffs are a source of depositional material for beaches and other unconsolidated natural protective features.

(3) Dunes, along with bluffs and beaches, buffer shorelands from the energy of open water. Like bluffs, dunes are of greatest protective value during conditions of storm-induced high water. Because dunes often protect some of the most biologically productive as well as developed coastal areas, their value as protective features is especially great. The two primary functions of dunes are prevention of wave overtopping and storage of sand for coastal processes. High, vegetated dunes provide a greater degree of protection than low, unvegetated ones. The keys to maintaining a stable dune system are the establishment and maintenance of beachgrass or other vegetation on the dunes and assurance of a supply of nourishment sand to the dunes.

(4) Nearshore areas dissipate a substantial amount of wave energy before it is expended on beaches, bluffs or dunes by causing waves to collapse or break. Nearshore areas also function as reservoirs of sand, gravel and other unconsolidated material that is returned to beaches. Sandbars, which are located in nearshore areas, control the orientation of incoming waves and promote the development of ice-cap formations which help to protect shorelines during winter storms. The roots of aquatic vegetation in nearshore areas bind fine-grained silts, clays and organic matter to form a fairly cohesive bottom that resists erosion. Such vegetation also assists in trapping sediments.

§505.4 Applicability

(a) This section enumerates the instances when the department will exercise jurisdiction over the issuance of coastal erosion management permits. With the exception of regulated activities undertaken by State agencies, the department will not assume or exercise such jurisdiction until after all appropriate levels of local government have had an opportunity to assume and exercise such jurisdiction.

(b) State agencies that propose to undertake any regulated activity within an identified erosion hazard area must first obtain a coastal erosion management permit from the department.

(c) The department is the regulatory authority and will process coastal erosion management permit applications for regulated activities within the City of New York when:

(1) New York City fails to submit to the commissioner a local program within six months after the filing of the applicable coastal erosion hazard area maps, or within such time as may be extended by the commissioner pursuant to section 34-0105(3) of the act, and the department meets the public hearing and notification requirements of section 34-0107(2) of the act;

(2) New York City's proposed local program is not approved by the commissioner within six months after the filing of the applicable coastal erosion hazard area maps, or within such time as may be extended by the commissioner pursuant to section 34-0105(3) of the act, and the department meets the public hearing and notification requirements of section 34-0107(2) of the act; or

(3) the commissioner revokes his approval of New York City's local program because of improper administration or enforcement.

(d) The department is the regulatory authority and will process coastal erosion management permit applications for regulated activities within any county outside New York City when:

(1) such a county fails to submit to the commissioner a local program within six months after receipt of notification as required by section 34-0106(1) of the act, or within such time as may be extended by the commissioner pursuant to subdivision (3) of such section, and the department meets the public hearing and notification requirements of section 34-0107(2) of the act; or

(2) such county's proposed local program is not approved by the commissioner within six months after the filing of the applicable coastal erosion hazard area maps, or within such time as may be extended by the commissioner pursuant to section 34-0106(3) of the act, and the department meets the public hearing and notification requirements of section 34-0107(2) of the act; or

(3) the department does not authorize such a county to administer a city, town or village local program which has been revoked because of improper administration or enforcement; or

(4) the commissioner revokes his authorization of a county to administer and enforce a city, town or village local program because of improper administration or enforcement; or

(5) the commissioner revokes his approval of a county local program because of improper administration or enforcement.

§505.5 Coastal erosion management permits; regulatory procedures

(a) Any person proposing to undertake a regulated activity within a designated erosion hazard area must first obtain a coastal erosion management permit.

(b) Coastal erosion management permit applications are available from each regional office of the department. Applications must be made on a form prescribed by the department, and must include the following information:

(1) a description of the proposed activity;

(2) a map drawn to a scale no smaller than 1:24,000, showing the location of the proposed activity; and

(3) additional information the department may require to properly evaluate the proposed activity. Coastal erosion management permit applications are not complete until any required fees are submitted. Completed coastal erosion management permit applications should be submitted to the appropriate regional permit administrator.

(c) Prior to issuing a coastal erosion management permit for a regulated activity undertaken by a State agency within a local government jurisdiction having a local program, the department must first make a finding that the standards, restrictions and requirements of the local program, adopted pursuant to section 34-0108 of the act, have been met.

(d) Article 70 of the Environmental Conservation Law and Part 621 of this Title govern the department's procedures for the issuance, modification, renewal, suspension and revocation of coastal erosion management permits under this Part.

(e) All regulated activities are subject to the review procedures required by the State Environmental Quality Review Act (SEQR), article 8 of the Environmental Conservation Law. The applicant may be required to submit information necessary for compliance with SEQR in addition to information required under this Part.

(f) A coastal erosion management permit may be issued with such terms and conditions as are necessary to ensure compliance with the policies and provisions of the act and of this Part.

(g) A coastal erosion management permit issued pursuant to this Part does not relieve such permit applicant from the responsibility of obtaining other permits or approvals as may be necessary, nor does it convey any rights or interest in real property.

(h) Where more than one regulatory agency has jurisdiction over an activity regulated by this Part, the application review process and hearing process must be consolidated and coordinated as required by sections 34-0105(6), 34-0106(9) and 34-0107(6) of the act, upon request of the applicant.

§505.6 Standards for issuance of coastal erosion management

A coastal erosion management permit will be issued only if the commissioner finds that the proposed regulated activity:

(a) is reasonable and necessary, considering reasonable alternatives to the proposed activity and the extent to which the proposed activity requires a shoreline location;

(b) will not be likely to cause a measurable increase in erosion at the proposed site or at other locations; and

(c) prevents, if possible, or minimizes adverse effects on:

(1) natural protective features and their functions and protective values as described in section 505.3 of this Part;

(2) existing erosion protection structures; and

(3) or natural resources, including, but not limited to significant fish and wildlife habitats and shellfish beds.

§505.7 Restrictions on regulated activities within structural hazard areas

(a) Movable structures may be constructed or placed within a structural hazard area only if a coastal erosion management permit has been granted. Coastal erosion management permit requirements include the following:

(1) No permanent foundation is attached to the movable structure and any temporary foundations are removed at the time the structure is moved. Below-grade footings will be allowed if satisfactory provision is made for their removal.

(2) No movable structure may be placed closer to the landward limit of a bluff than 25 feet.

(3) No movable structure may be placed or constructed so that, according to accepted engineering practice, its weight places an excessive ground loading on a bluff.

(4) A plan for the landward relocation of a movable structure, when threatened by shoreline recession, must be included with each coastal erosion management permit application.

(5) Movable structures, which have been located within an erosion hazard area pursuant to a coastal erosion management permit, must be removed before the receding edge recedes to within 10 feet of the most seaward point of the movable structure.

(6) Debris from structural damage which may occur as a result of sudden, unanticipated bluff-edge failure or erosion must be removed within 60 days of the damaging event.

(7) The last owner of record, as shown on the latest assessment roll, of real property upon which a movable structure is placed is responsible for removing that structure and its foundation, unless the last owner of record and the owner of the structure, if the structure is not owned by the last owner of record, have made an agreement providing otherwise in a form acceptable to the department.

(b) The construction or placement of a nonmovable structure, or nonmovable major addition to an existing structure, is prohibited within structural hazard areas.

(c) A coastal erosion management permit is required for the installation of public service distribution, transmission or collection systems for gas, electricity, water or wastewater. Systems installed to serve coastline development along mainland shorelines must be located landward of the shoreline structures being served.

(d) Any grading, excavating, or other soil disturbance conducted within a structural hazard area must not direct surface water runoff over a bluff face.

§505.8 Restrictions on regulated activities within natural protective feature areas

(a) Nearshore areas. The following restrictions and requirements apply to regulated activities in nearshore areas:

(1) Excavating, grading, mining or dredging which diminishes the erosion protection afforded by nearshore areas is prohibited. However, coastal erosion management permits for dredging may be issued for constructing or maintaining navigation channels, bypassing sand around natural and man-made obstructions, or artificial beach nourishment.

(2) All development is prohibited in nearshore areas unless specifically allowed by this subdivision.

(3) The normal maintenance of structures may be undertaken without a coastal erosion management permit.

(4) Clean sand, or gravel of an equivalent or slightly larger grain size, is the only material which may be deposited within nearshore areas. Any deposition will require a coastal erosion management permit.

(5) A coastal erosion management permit is required for new construction, modification or restoration of docks, piers, wharves, groins, jetties, seawalls, bulkheads, breakwaters, revetments and artificial beach nourishment. Docks, piers, wharves or structures built on floats, columns, open timber, piles or similar open-work supports having a top surface area of 200 square feet or less, or docks, piers, wharves or other structures built on floats and removed in the fall of each year, are expected from this permit requirement.

(b) Beaches. The following restrictions and requirements apply to regulated activities on beaches:

(1) Excavating, grading or mining which diminishes the erosion protection afforded by beaches is prohibited.

(2) All development is prohibited on beaches unless specifically allowed by this subdivision.

(3) The normal maintenance of structures may be undertaken without a coastal erosion management permit.

(4) The restoration of existing structures that are damaged or destroyed by events not related to coastal flooding and erosion may be undertaken without a coastal erosion management permit.

(5) Nonmajor additions to existing structures that are damaged or destroyed by events not related to coastal flooding and erosion may be undertaken without a coastal erosion management permit.

(6) The following restrictions apply to the use of motor vehicles on beaches:

(i) motor vehicles must operate seaward of the upper debris lines at all times. On those beaches where no debris line exists, motor vehicles must operate seaward of the toe of the primary dune; and

(ii) motor vehicles must not travel on vegetation.

(7) A coastal erosion management permit for deposition of material on beaches will be issued only for expansion or stabilization of beaches; clean sand, or gravel of an equivalent or slightly larger grain size, must be used.

(8) Beach grooming or clean-up operations do not require a coastal erosion management permit.

(9) A coastal erosion management permit is required for new construction, modification or restoration of docks, piers, wharves, boardwalks, groins, jetties, seawalls, bulkheads, breakwaters, revetments, and artificial beach nourishment. Docks, piers, wharves or structures built on floats, columns, open timber, piles or similar open-work supports having a top surface area of 200 square feet or less, or docks, piers, wharves or other structures built on floats and removed in the fall of each year, are excepted from this permit requirement.

(10) Active bird nesting and breeding areas must not be disturbed unless such disturbance is pursuant to a specific wildlife management activity approved in writing by the department.

(c) Bluffs. The following restrictions and requirements apply to regulated activities on bluffs.

(1) Excavating, grading or mining of bluffs is prohibited, except where:

(i) the minor alteration of a bluff is done in accordance with conditions stated in a coastal erosion management permit issued for the construction of an erosion protection structure; or

(ii) a bluff cut is made in a direction perpendicular to the shoreline to provide shoreline access. The ramp slope of bluff cuts must not be steeper than 1:6 and the side slopes must not be steeper than 1:3, if not terraced or otherwise structurally stabilized. Side slopes and other disturbed nonroadway areas must be stabilized with vegetation or other approved physical means, and completed roadways must be stabilized and drainage provided for, all in accordance with terms and conditions of a coastal erosion management permit.

(2) Vehicular traffic is prohibited on bluffs.

(3) All development is prohibited on bluffs unless specifically allowed by this subdivision.

(4) The normal maintenance of structures may be undertaken without a coastal erosion management permit.

(5) The restoration of existing structures that are damaged or destroyed by events not related to coastal flooding and erosion may be undertaken without a coastal erosion management permit.

(6) Nonmajor additions to existing structures may be allowed on bluffs pursuant to a coastal erosion management permit.

(7) A coastal erosion management permit is required for new construction, modification or restoration of erosion protection structures, walkways or stairways. Elevated walkways or stairways constructed solely for pedestrian use and built by or for an individual property owner for the limited purpose of providing noncommercial access to the beach are excepted from this permit requirement.

(8) Active bird nesting and breeding areas must not be disturbed unless such disturbance is pursuant to a specific wildlife management activity approved in writing by the department.

(9) Any grading, excavating, or other soil disturbance conducted on a bluff must not direct surface water runoff over a bluff face.

(d) Primary dunes. The following restrictions and requirements apply to regulated activities on primary dunes:

(1) Excavating, grading or mining of primary dunes is prohibited.

(2) Vehicular traffic is prohibited on primary dunes, except in those areas designated by the department for dune crossing.

(3) Nonmajor additions to existing structures are allowed on primary dunes pursuant to a coastal erosion management permit and subject to permit conditions concerning the location, design and potential impacts of the structure on the primary dune.

(4) Foot traffic which causes sufficient damage to primary dunes to diminish the erosion protection afforded by them is prohibited. Pedestrian passage across primary dunes must utilize elevated walkways and stairways, or other specially designed dune-crossing structures approved by the department.

(5) All development is prohibited on primary dunes unless specifically allowed by this subdivision.

(6) The normal maintenance of structures may be undertaken without a coastal erosion management permit.

(7) The restoration of existing structures that are damaged or destroyed by events not related to coastal flooding and erosion may be undertaken without a coastal erosion management permit.

(8) A coastal erosion management permit is required for new construction, modification or restoration of stone revetments or other erosion-protection structures compatible with primary dunes. Such erosion-protection structures will only be allowed at the seaward toe of primary dunes and must not interfere with the exchange of sand between primary dunes and their fronting beaches.

(9) A coastal erosion management permit is required for new construction, modification or restoration of elevated walkways or stairways. Elevated walkways or stairways constructed solely for pedestrian use and built by or for an individual property owner for the limited purpose of providing noncommercial access to the beach are excepted from this permit requirement.

(10) Clean sand obtained from excavation, dredging or beach grading may be deposited on a primary dune, or on an area formerly a primary dune, to increase its size or restore it. Such deposition must be vegetatively stabilized using native species tolerant to salt spray and sand burial, e.g., American beach grass. Such deposition requires a coastal erosion management permit.

(11) Vegetative planting and sand fencing, to stabilize or entrap sand in order to maintain or increase the height and width of dunes, does not require a coastal erosion management permit. Vegetative plantings must be of native species tolerant to salt spray and sand burial, e.g., American beach grass.

(12) Active bird nesting and breeding areas must not be disturbed unless such disturbance is pursuant to a specific wildlife management activity approved in writing by the department.

(e) Secondary dunes. The following restrictions and requirements apply to regulated activities in areas identified on coastal erosion hazard area maps as secondary dunes:

(1) Secondary dunes must not be excavated, graded or mined such that the erosion protection afforded by them is diminished.

(2) Clean sand obtained from excavation, dredging, or beach grading may be deposited on a secondary dune, or an area formerly a secondary dune, to increase its size or restore it. Such deposition must be vegetatively stabilized using native species tolerant to salt spray and sand burial, e.g., American beach grass. Such deposition requires a coastal erosion management permit.

(3) The normal maintenance of structures may be undertaken without a coastal erosion management permit.

(4) The construction, modification, or restoration of a structure, or major addition to an existing structure, requires a coastal erosion management permit. Permit requirements include:

(i) a new structure, or the restoration of or major addition to an existing structure, must be built on adequately anchored pilings such that at least three feet of open space exists between the lowest, horizontal structural members, e. g., floor joists, and the surface of the secondary dune; and

(ii) the space below the lowest horizontal structural members must be left open and free of obstructions.

(5) Exceptions.

(i) The provision contained in paragraph (4) of this subdivision that requires obtaining a coastal erosion management permit for the construction, modification, or restoration of a structure or major addition to an existing structure, does not apply to elevated walkways or stairways constructed solely for pedestrian use and built by or for an individual property owner for the limited purpose of providing noncommercial access to the beach.

(ii) The restoration of existing structures that are damaged or destroyed by events not related to coastal flooding and erosion may be undertaken without a coastal erosion management permit.

(6) Nonmajor additions to existing structures are allowed on secondary dunes pursuant to a coastal erosion management permit.

(7) Vegetative planting and sand fencing, to stabilize or entrap sand to maintain or increase the height and width of dunes, does not require a coastal erosion management permit. Vegetative plantings must be of native species tolerant to salt spray and sand burial, such as American beach grass.

§505.9 Erosion protection structures

Construction of erosion protection structures is expensive, often only partially effective over time, and may even be harmful to adjacent or nearby properties. In some areas of the coastline, major erosion protection structures of great length would be required to effectively reduce future damages due to erosion. However, in those instances where properly designed and constructed erosion protection structures will be likely to minimize or prevent damage or destruction to manmade property, private and public property, natural protective features, and other natural resources, construction of erosion protection structures may be allowed. In such cases, the construction, modification or restoration of erosion protection structures is subject to the following requirements:

(a) A coastal erosion management permit is required for construction, modification or restoration of erosion protection structures, including the modification or restoration of erosion protection structures that were constructed without a coastal erosion management permit. Normal maintenance of an erosion protection structure does not require a coastal erosion management permit.

(b) All erosion protection structures must be designed and constructed according to generally accepted engineering principles which have demonstrated success or, where sufficient data is not currently available, a likelihood of success in controlling long-term erosion. The protective measures must have a reasonable probability of controlling erosion on the immediate site for at least 30 years.

(c) A long-term maintenance program must be included with every permit application for construction, modification or restoration of an erosion protection structure. That program must include specifications for normal maintenance of degradable materials and the periodic replacement of removable materials.

(d) All materials used in such structures must be durable and capable of withstanding inundation, wave impacts, weathering, and other effects of storm conditions. Individual component materials may have a working life of less than 30 years only when a maintenance program ensures that they will be regularly maintained and replaced as necessary to attain the required 30 years of erosion protection.

(e) The construction, modification or restoration of erosion protection structures must:

(1) not be likely to cause any measurable increase in erosion at the development site or other locations; and

(2) minimize, and if possible prevent, adverse effects to natural protective features, existing erosion protection structures, and natural resources such as significant fish and wildlife habitats.

§505.10 Appeal of erosion hazard area designation

(a) Any person who owns real property within a designated erosion hazard area may appeal that designation.

(b) Erosion hazard area designation appeals may be made after the coastal erosion hazard area map(s) including the subject lands has been filed with the clerk(s) of each local government within the boundaries of which the subject lands are located.

(c) Any person wishing to make an appeal pursuant to this section must complete an erosion hazard area designation appeal application and submit it to the department. Appeal applications are available at department regional offices and the Bureau of Flood Protection at the central office in Albany. Appeal applications are not complete until the applicant provides all necessary information and any required fees.

(d) The commissioner will decide such appeal within 30 days after receipt of a complete appeal application, and, if necessary, will adjust the erosion hazard area boundaries accordingly.

(e) The sole acceptable basis for an erosion hazard area designation appeal is technical information indicating that:

(1) the long-term average annual rate of shoreline recession was incorrectly established; or

(2) the subject area was erroneously identified as a natural protective feature area.

§505.11 (Reserved)

§505.12 Bond

The department may require a bond or other form of financial security if it determines that a person submitting an application for a coastal erosion management permit has a record of noncompliance with the terms or conditions of permits issued by the department. Such bond or security must be in an amount, with such surety and conditions as are satisfactory to the department, so as to ensure compliance with the terms and conditions stated in the coastal erosion management permit.

§505.13 Variances

(a) When an applicant can demonstrate that the strict application of the restrictions or requirements of sections 505.7-505.9 of this Part will cause practical difficulty or unnecessary hardship, any such restriction or requirement may be varied or modified, provided that the following criteria are met:

(1) no reasonable, prudent, alternative site is available;

(2) all responsible means and measures to mitigate adverse impacts on natural systems and the functions and protective values described in section 505.3 of this Part have been incorporated into the project design and will be implemented at the developer's expense;

(3) the development will be reasonably safe from flood and erosion damage;

(4) the variance requested is the minimum necessary to overcome the practical difficulty or hardship which was the basis for requesting it; and

(5) where public funds are utilized, the public benefits clearly outweigh the long-term adverse effects for any proposed activities and development.

(b) Any person wishing to make a request for a variance must do so in writing. The variance request must specify the standard, restriction or requirement to be varied and how the requested variance meets the criteria established in subdivision (a) of this section. The burden of demonstrating that the requested variance meets these criteria rests entirely with the applicant.

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

§505.14 Fees

(a) Applications for coastal erosion management permits and erosion hazard area designation appeals must be accompanied by a money order or personal check made payable to the Department of Environmental Conservation in the amount specified in subdivision (c) of this section.

(b) If an application is withdrawn before it is determined complete, the fee will be returned to the applicant upon request.

(c) Fees for review of applications.

(1) Appeal of erosion hazardarea designation, $50.

(2) Construction or placement of structures other than erosion protection structures, docks, piers and wharves, $40.

(3) Excavation, grading, mining or filling:

(i) projects not exceeding 100 cubic yards, $25.

(ii) projects greater than 100 cubic yards, $50.

(4) Dredging:

(i) projects not exceeding 100 cubic yards, $25.

(ii) projects greater than 100 cubic yards, $50.

(5) Construction or modification of docks, piers or wharves:

(i) docks, piers or wharves on piles, $35.

(ii) docks, piers or wharves on fill, $50.

(iii) all other docks, piers or wharves, $25.

(6) Construction or modification of erosion protection structures:

(i) structures not exceeding 100 linear feet, $50.

(ii) structures greater than 100 linear feet, $100.

(7) All projects or activities not listed in paragraphs (1) through (6) of this subdivision, $50.

(d) When an owner of real property appeals the designation of that real property as an erosion hazard area pursuant to section 505.10 of this Part and such appeal results in an amendment to a coastal erosion hazard area map, the erosion hazard area designation appeals fee will be refunded without interest.

§505.15 Severability

The provisions of this Part are severable. If any clause, sentence, paragraph, subdivision or part is adjudged invalid by a court of competent jurisdiction, the effect of such order or judgment is confined to the controversy in which it was rendered. Such order or judgment does not affect or invalidate any other provisions of this Part or their application to other persons and circumstances.

§505.16 Submission of local programs

(a) Local governments may regulate erosion hazard areas within their jurisdictions by adopting a local program that has been certified by the commissioner as meeting the minimum standards of section 505.17 of this Part. Pursuant to section 34-0105 of the act, cities, towns (outside the area of any incorporated village) and villages have the first opportunity to adopt a local program after the coastal erosion hazard area maps for their jurisdiction have been filed with their city, town or village clerk. If a city, town (outside the area of any incorporated village) or village does not submit a local program to the commissioner for certification, or the commissioner does not certify a local program within the time limits specified in section 34-0105(1) or (3) of the act, the county containing such city, town or village may submit a local program to the commissioner. If a county's local program is certified by the commissioner as meeting the minimum standards of section 505.17 of this Part within the time limits specified in section 34-0106(1) or (3) of the act, such county has the responsibility and authority to regulate erosion hazard areas within all cities, towns (outside the area of any incorporated village) and villages within the county which have failed to submit a local program or have failed to get certification of a proposed local program within the time limits of section 34-0105(1) and (3) of the act. Sections 34-0105 and 34-0106 of the act establish the procedural steps local governments must follow in assuming local jurisdiction over erosion hazard areas.

(b) Submission of a local program to the commissioner for certification must be on a form provided by the department and must include:

(1) a certified copy of the erosion management local law or ordinance and all other local laws, ordinances, zoning regulations, subdivision and site plan approval regulations, or any other applications of police power that are elements of the local program;

(2) a map or other identification of the erosion hazard area subject to regulation;

(3) identification of the person(s) who will administer the program and their address, telephone number, current title, educational background, relevant work experience, location of employment, and their relationship to the local government (e.g., paid or volunteer, full-time or part-time, permanent or temporary);

(4) description of the local government's administrative capacity to administer its local program including a step-by-step discussion of how a local permit application will be processed. Such discussion must describe, in chronological order, what individual or office receives a local permit application and what individual or office maintains records after the activity for which the permit is issued is completed, and each step between. The function of each step should be described;

(5) an identification of what person or office will have the responsibility for enforcement; and

(6) a resolution that the local government will enforce the purposes and policies of the act and the minimum standards of section 505.17 of this Part; that it will conduct compliance inspections to assure that the terms and conditions of local permits are adhered to; that it will investigate all reports of violations; that it will prosecute violations of its local program and terms and conditions of local permits; and that the local program was subject to public notice and review as required by the local government.

(c) When a local government submits a local program to the commissioner for certification, and such local program was implemented prior to the filing of the applicable coastal erosion hazard area maps, such submission need only include the information required by paragraphs (b)(1) and (2) of this section. If the commissioner determines that the local program needs substantial revision to meet the minimum standards of section 505.17 of this Part, subsequent submissions must meet all informational requirements of subdivision (b) of this section.

(d) An application for certification of a local program is not complete until all information necessary for its proper evaluation is received.

(e) The commissioner must either certify or disapprove the proposed local program within 30 working days of receipt of a complete application. If the commissioner disapproves a local program, he will notify the local government in writing of the reasons for disapproval and the modification that is necessary for certification. The commissioner will issue findings as part of his decision to either certify or disapprove a proposed local program.

(f) In an instance where the commissioner disapproves a proposed local program he may, at his discretion, extend the initial six-month period local governments have to adopt a local program. Such extension will be a reasonable time period to make the modification that is necessary for approval but may not exceed six months. During such extended time period a local government may adopt and resubmit a new or modified local program to the commissioner for approval. In resubmitting a modified local program, a local government need only resubmit information that is additional to, or changed from, the initial submission. Such resubmission of a new or modified local program is subject to the same informational requirements as specified in this section.

§505.17 Minimum standards for certification of local programs

(a) Local programs submitted by local governments to the commissioner for certification pursuant to sections 34-0105(1) and 34-0106(1) of the act must meet, at a minimum, the standards, restrictions and requirements set forth in sections 505.5 through 505.9, 505.12 and 505.13 of this Part. This Part does not prohibit any local government from adopting and enforcing a local program that regulates actions or uses of land more stringently than this Part.

(b) Whenever terms relating to the commissioner or department are used in the sections listed in subdivision (a) of this section, local governments should substitute for those terms the title of the local official or agency performing the equivalent function.

§505.18 Amendments to approved local programs

(a) Any amendment to a certified local program that relates to the minimum standards of section 505.17 of this Part must be in conformance with such minimum standards and is subject to certification by the commissioner.

(b) Local governments must notify the commissioner in writing of all proposed amendments to certified local programs before they may be adopted. Within 15 days after receipt of such written notification, the commissioner will advise a local government whether such amendment is subject to his approval, and if so, whether such amendment conforms to the minimum standards of section 505.17 of this Part.

(c) Once a local government receives written notification from the commissioner that the proposed amendment conforms to the requisite minimum standards, it may submit such proposed amendment to the commissioner for certification. Included with the submission must be documentation evidencing that the amendment was subject to public notice and review as required by the local government. The commissioner will either certify or disapprove the amendment within 30 working days of its receipt. If the commissioner disapproves an amendment, he will notify the local government in writing of the reasons for disapproval and the modification that is necessary for certification. The commissioner will issue findings as part of his decision to either certify or disapprove a proposed amendment.

§505.19 Department monitoring of local programs

(a) The commissioner will monitor the administration of certified local programs. On a form provided by the department, local governments must annually submit to the department information regarding:

(1) the number of coastal erosion management permit applications received;

(2) the number of coastal erosion management permits issued;

(3) the number of variances granted;

(4) violations of the local program or of the terms and conditions of coastal erosion management permits; and

(5) other information the commissioner may require to monitor the performance of a local program or to assess the need for technical assistance.

(b) Local governments must provide to the commissioner information on specific coastal erosion management permits and coastal erosion management permit applications as requested.

§505.20 Revocation of local programs

(a) Pursuant to section 34-0105(5) of the act, the commissioner may revoke his certification of a local program if he determines that:

(1) an element of the certification application is substantively inaccurate;

(2) a local government fails to notify the commissioner of an amendment to a local program;

(3) a local government fails to notify the commissioner of a substantive administrative change to its local program;

(4) the local program is amended to be less protective than the minimum standards of section 505.17 of this Part;

(5) the technical capability of a local government is lacking as evidenced by:

(i) misinterpretation of coastal erosion hazard area maps;

(ii) the terms or conditions of coastal erosion management permits demonstrate a fundamental misunderstanding of coastal processes; or

(iii) ignorance or misinterpretation of the applicable erosion management local law or ordinance;

(6) the administrative capacity of a local government is lacking as evidenced by:

(i) failure to follow the step-by-step local permit processing procedure;

(ii) failure to enforce violations of its erosion management local law or ordinance, or the terms or conditions of coastal erosion management permits;

(iii) failure to conduct compliance inspections;

(iv) failure to investigate reports of violations; or

(v) loss of services of the person(s) providing the technical expertise to implement the local program; or

(7) the local government otherwise fails to carry out the purposes and policies of the act.

(b) If the commissioner determines that grounds may exist for revocation of his certification of a local program, he will notify the local government, in writing, of the specific issue that is the basis for improper administration or enforcement of the local program. The local government has 15 days to respond, in writing, to the issue identified by the commissioner. Such response should explain the circumstances surrounding the alleged improper administration or enforcement of the local program and what corrective measures will be taken, if any. If the commissioner is not reasonably satisfied that the corrective measures will result in the proper administration and enforcement of the local program, a public hearing will be held on the pertinent issue. Within 15 days after the close of the public hearing, the commissioner will notify the local government of his decision whether to revoke his certification of the local program.

(c) If the commissioner revokes his certification of a local program, the provisions of section 34-0106(7) or 34-0107(3) of the act will apply.

§505.21 Appeals revisions

(a) When an appeal of an erosion hazard area designation is granted by the commissioner pursuant to section 505.10 of this Part, the erosion hazard area boundaries will be adjusted accordingly. Such revision will be made and dated on the appropriate coastal erosion hazard area map(s).

(b) A copy of the revised map(s) will be filed in the office(s) of the clerk(s) of the local government(s) within which the revised erosion hazard area is located. Upon receipt by the clerk, a revised map will supersede the most recent previous map filed for that same shoreline segment. The chief executive officer(s) of the local government(s) involved will be notified of the filing of the revised map(s) at the same time.

(c) A copy of the revised map(s) will be made available at no cost to the person making the appeal and will be transmitted with the notification of granting of the appeal. Similarly, a copy of the revised map(s) will be made available to the owner of each property affected by the revision at no cost. Additional copies of the revised map(s) will be provided at no cost to local and regional public entities which generally maintain such maps on file.

§505.22 Remapping revisions

(a) Pursuant to section 34-0104(4) of the act, the commissioner must review the boundaries of each erosion hazard area 10 years from the date of its final identification and each 10 years thereafter.

(b) Pursuant to section 34-0104(4) of the act, the commissioner must also review the boundaries of erosion hazard areas after the occurrence of a major man-made or natural event or a major coastal storm. Coastal erosion hazard area maps will be revised if topographical changes or addition or loss of structural protection justify adjustment of the erosion hazard area boundary by 25 feet or more. Revised coastal erosion hazard area maps may not take effect until at least 12 months have elapsed from the occurrence of such event or such storm.

(c) In structural hazard areas, if shoreline recession has occurred at a rate sufficient to cause the receding edge to come within 25 feet of the erosion hazard area boundary in less than eight years from the most recent date of final identification of the erosion hazard area, a new recession rate analysis will be performed and the coastal erosion hazard area map will be revised accordingly without the 12-month delay specified in subdivision (b) of this section.

(d) In all cases of remapping revisions described in this section, the department must follow the procedures set forth in section 34-0104(2)-(4) of the act. The landowner notification process will be limited to only the owners of those properties affected by the proposed changes in the erosion hazard area by being added to or removed from the erosion hazard area or by a shift in the erosion hazard area boundary on a previously identified property.