Part 500: Floodplain Management Regulations Development Permits
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- 500.1 Definitions
- 500.2 Applicability
- 500.3 Community Responsibility
- 500.4 Floodway Designation
- 500.5 Applicability of Uniform Procedures
- 500.6 Development Permit Required; Exceptions
- 500.7 Application for Development Permits
- 500.8 Information Required for Certain Types of Projects
- 500.9 Issuance or Denial of a Development Permit; Permit Term
- 500.10 Mandatory Conditions of a Development Permit
- 500.11 Standards for the Issuance of a Development Permit
- 500.12 Variances
- 500.13 Transfer of a Development Permit
- 500.14 Savings Clause
(a) Act means article 36 of the Environmental Conservation Law as from time to time amended.
(b) Area of shallow flooding means an area within a community with base flood depths from one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable, and where velocity flow may be evident. These areas are shown on maps published by the Federal insurance administrator entitled flood insurance rate map and are on file in the main office and regional headquarters of the department and with the municipal clerk of any community subject to this Part.
(c) Area of special flood hazard means the land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year. These areas are shown on maps published by the Federal insurance administrator entitled flood hazard boundary map or flood insurance rate map and are on file in the main office and regional headquarters of the department and with the municipal clerk of any community subject to this Part.
(d) Base flood means the flood having a one percent chance of being equalled or exceeded in any given year and is commonly known as the 100-year flood.
(e) Base flood level orbase flood elevation means that computed water surface elevation at a given location resulting from a flood having a one percent chance of being equalled or exceeded in any given year.
(f) Breakaway wall means a wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.
(g) Chief permit administrator means an employee of the department designated by the commissioner to act in such capacity.
(h) Chief administrative officer means in the case of a city or village, the mayor thereof, and in the case of a town, the supervisor thereof.
(i) Coastal high hazard area means an area of special flood hazards extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high-velocity wave action from hurricanes or other storms.
(j) Commence a project means the same as start of construction.
(k) Commissioner means the Commissioner of Environmental Conservation or a duly authorized representative.
(l) Community means any city, town or village.
(m) Department means the Department of Environmental Conservation.
(n) Development means any human-made change to improved or unimproved real estate, including but not limited to the construction of buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations.
(o) Development permit means a written permit issued by the commissioner, or by the chief or regional permit administrator allowing the undertaking of a project in an area of special flood hazards.
(p) Effective date of applicability means the date on which the provisions of this Part become applicable in a community.
(q) Erosion means the process of the gradual wearing away of land masses.
(r) Existing manufactured home park or subdivision means a manufactured home park where the construction of facilities for servicing the lot on which the manufactured homes are to be affixed (including the installation of utilities, either final site grading or the pouring of concrete pads, and the construction of streets) was completed before the effective date of this Part.
(s) Expansion to an existing manufactured home park or subdivision means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed, including the installation of utilities, either final site grading or pouring of concrete pads, or the construction of streets.
(t) Federal insurance administrator means the Federal official to whom the director of the Federal emergency management agency has delegated the administration of the National Flood Insurance Program.
(u) Flood or flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from:
(1) the overflow of inland or tidal waters; or
(2) the unusual and rapid accumulation or runoff of surface waters from any source.
(v) Flood boundary and floodway map (FBFM) means a map of the community published by the Federal insurance administrator, as part of a riverine community's flood insurance study. The FBFM delineates a regulatory floodway along water courses studied in detail in the flood insurance study.
(w) Flood hazard boundary map (FHBM) means a map of a community, issued or approved by the Federal insurance administrator, on which the boundaries of the area of special flood hazard have been drawn.
(x) Flood insurance rate map (FIRM) means a map of a community, on which the Federal insurance administrator has delineated the area of special flood hazard and the risk premium zones applicable to such area. The FIRM may show the delineation of the regulatory floodway along water courses studied in detail in the community's flood insurance study.
(y) Flood insurance study means the official report prepared for a community by the Federal emergency management agency, that provides a detailed examination, evaluation, and determination of the area of special flood hazards including corresponding water surface elevations for the base flood and other pertinent flood discharges or flood stages. The report may contain flood profiles and a flood boundary and floodway map (FBFM) for riverine floodplains.
(z) Floodplain means any land susceptible to being inundated by water from any source.
(aa) Floodplain management means the operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works, and floodplain management regulations.
(ab) Floodplain management regulations means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances or local laws such as floodplain ordinances, grading ordinances or erosion control ordinances, and other applications and extensions of the normal police power. The term describes such legally enforceable regulations, in any combination thereof, that provide standards for the control of the use and occupancy of flood-prone areas.
(ac) Floodplain map means a drawing of lands within a watershed, a community or parts thereof showing the area susceptible to flooding from any source.
(ad) Floodproofing means any combination of structural and nonstructural additions, changes, or adjustments to properties and structures designed to reduce or eliminate flood or related damage to lands, water and sanitary facilities, utilities, structures, and their contents.
(ae) Floodway or regulatory floodway means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot at any point.
(af) Floodway encroachment lines means the boundary lines marking the limits of a floodway in a community, as demarcated on official Federal, State and local floodplain maps.
(ag) Functionally dependent use means a use that cannot be performed unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long-term storage or related manufactured facilities.
(ah) Licensed professional engineer, architect or land surveyor means one who is entitled to use the title professional engineer, architect or land surveyor in accordance with articles 145 and 147 of the Education Law.
(ai) Long-term storage means the collection and placement of any vessels, goods or materials in an area of special flood hazard for more than 180 days.
(aj) Lowest floor means the lowest level, including basement or cellar, of the lowest enclosed area. An unfinished or flood resistant enclosure, used solely for parking vehicles, building access, or storage in an area other than a basement or cellar is not considered a building's lowest floor; provided, that such enclosure is not built in a manner which renders the structure in violation of the applicable nonelevation design requirements of this Part.
(ak) Mean sea level (MSL) means the national geodetic vertical datum (NGVD) of 1929 to which base flood elevations shown on a community's flood insurance rate map are referenced.
(al) Minor improvement means any repair, reconstruction or alteration of an existing structure that does not change the external dimensions of the structure and the cost of which is less than 50 percent of the market value of the structure either:
(1) before the improvement or repair is started; or
(2) if the structure has been damaged and is being restored, before the damage occurred.
(am) Manufactured home means a structure, transportable in one or more sections, that is built on a permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities. The term manufactured home also includes mobile homes, park trailers, travel trailers, recreational vehicles and other similar vehicles placed on a site for greater than 180 consecutive days.
(an) Manufactured home park means a parcel or contiguous parcels of land that contain two or more manufactured home lots available for rent or sale.
(ao) Market value shall mean the highest value of a structure determined by either:
(1) the community's State-determined equalization rate multiplied by the assessed valuation of the structure at the date of application for a development permit;
(2) the declared value of the structure on the current casualty component of a homeowners or other all-risk insurance policy or a policy providing flood damage coverage under the national flood insurance program;
(3) the value determined by an appraisal performed by a competent appraiser in such fashion that the appraisal would be admissible in an action in the court of claims pursuant to section 206.21 of Title 22 NYCRR; or
(4) other proof of value of the structure deemed acceptable to the department.
(ap) Minimize means reduce to the maximum extent practicable, given the size and scope of the proposed development and the reasonable availability of flood hazard data.
(aq) New construction means structures for which the start of construction commenced on or after the effective date of the applicability of this Part within the community.
(ar) 100-year flood means the same as base flood.
(as) Order of applicability means a written order of the commissioner specifying the details of the applicability of this Part within the area of special flood hazards within a community.
(at) Owner means the person who has the right to develop the property.
(au) Party means any person described in section 624.4(k) of this Title, and any community or communities within whose boundary a project that is the subject of a development permit application is located or to be located.
(av) Person means any individual, public or private corporation, agency, department, authority or bureau of a local government, industry, copartnership, association, firm, trust, estate or any other legal entity whatsoever. Person does not include any department, bureau, commission, board or other agency of the State, or a public benefit corporation or public authority at least one of whose members is appointed by the Governor.
(aw) Primary frontal dune means a continuous or nearly continuous mound or ridge of sand with relatively steep seaward and landward slopes immediately landward and adjacent to the beach and subject to erosion and overtopping from high tides and waves during major coastal storms. The inland limit of the primary frontal dune occurs at the point where there is a distinct change from a relatively steep slope to a relatively mild slope.
(ax) Principally above ground means that at least 51 percent of the actual cash value of the structure, less land value, is above ground.
(ay) Program means the National Flood Insurance Program authorized under the Federal National Flood Insurance Act of 1968 (42 USC sections 4001-4128).
(az) Project means any development and includes:
(1) the construction of a new structure;
(2) the installation of any sewer, gas or water main or electrical transmission line or other service line or facility;
(3) the improvement, alteration, repair, reconstruction, or restoration of an existing structure including, but not limited to the cutting, modification, relocation, rearrangement or removal of any wall, floor, roof, beam, support or part thereof that would affect the loading, structural integrity or flood resistance of such structure;
(4) the pouring of slabs, pads or footings;
(5) any permanent framing or assembly of a structure;
(6) the emplacement of pilings or a foundation or the affixing of a manufactured home to a permanent site;
(7) paving, mining, drilling, dredging, clearing, grading, filling or depositing;
(8) excavation for basement footings, piers or a foundation;
(9) the erection of temporary forms;
(10) the installation of pilings under proposed subsurface footings; and
(11) the act of subdivision as defined in subdivision (bg) of this section.
(ba) Regional permit administrator means an employee of the department designated by the commissioner to act in such capacity within the jurisdiction of a regional office of the department.
(bb) Riverine means relating to, formed by, or resembling a river including its tributaries, streams or brooks.
(bc) Sand dunes means naturally occurring accumulations of sand in ridges or mounds landward of the beach.
(bd) Site means the entire tract, subdivision, parcel of land in or on which a project is to be undertaken.
(be) Start of construction means the initiation of any phase of a project involving the physical alteration of real property including land preparation such as clearing, grading or filling; installation of infrastructure such as water supply, sewers, streets or walkways; driving of piles; excavation for a basement, footings, piers or foundations, or the erection of temporary forms. The term shall also include the placement or installation on the property of accessory buildings such as garages or sheds, storage trailers, manufactured homes or building materials. Start of construction does not apply to the clearing of trees and brush necessary to conduct topographic or boundary line surveys, test borings or test pits for determining soil profiles and for conducting percolation tests and similar technical investigations to determine the suitability of an area for development. In the case of a project involving the subdivision of land, the term start of construction applies to the construction of any structure or other development on an individual lot or within the streets, roads or rights-of-way servicing the subdivision.
(bf) Structure means an existing or proposed walled and roofed building, including a gas or liquid storage tank, that is or is to be affixed to a permanent site. It shall include, but shall not be limited to, a foundation, a manufactured home, any building being constructed, improved, altered, repaired, reconstructed, or restored. When used in this Part, the term is construed as though followed by the words or part or parts thereof unless the context clearly requires a different meaning.
(bg) Subdivision means the division of any tract of land into two or more parcels where the owner is proposing to develop that land by constructing new streets or highways; installing utility lines such as water, sewer, gas, or electric facilities to serve those parcels; installing new drainage structures such as ditches, culverts, storm sewers and appurtenances; or the installation of any other development as defined in subdivision (n) of this section. The term does not include the process of dividing a tract of land for the sole purpose of selling, leasing, or donating the parcel(s) to other persons provided that no development occurs prior to such transfer.
(bh) Substantial improvement means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either:
(1) before the improvement or repair is started; or
(2) if the structure has been damaged, and is being restored, before the damage occurred. Substantial improvement occurs when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include:
(i) any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or
(ii) any alteration of a structure listed or eligible for listing on the National or State Register of Historic Places where the work is undertaken in a manner designed to maintain the historic character of the structure.
(bi) Variance means an exemption from the terms of a floodplain management regulation.
(bj) Water surface elevation means the heights, in relation to mean sea level, expected to be reached by flood waters of various magnitudes and frequencies at pertinent points on the floodplain.
(a) These regulations are applicable in those communities where the commissioner has issued an order of applicability in accordance with the procedures contained in this section.
(b) The provisions of this Part apply to the area of special flood hazards in a community which:
(1) fails to establish initial eligibility in the program; or
(2) fails to maintain continued eligibility in the program.
(c) Upon notification by the Federal insurance administrator that a community must either initially qualify for or is about to lose eligibility in the program, the department will:
(1) Send a notice to the chief administrative officer and the municipal clerk stating that:
(i) the community may not or has not qualified for the program by the deadline established by the Federal insurance administrator; or
(ii) the community may lose or has lost eligibility in the program on the date established by the Federal insurance administrator; and
(iii) the department will conduct a public information meeting, including details on the date, time, and location, to be held within or in reasonable proximity to the community.
(2) Publish in a newspaper having general circulation in the community and the Environmental Notice Bulletin a notice containing the following statement:
(i) the community may not or has not qualified for or is scheduled to lose or has lost eligibility in the program;
(ii) the department will administer the applicable provisions of this Part subsequent to the commissioner issuing an order of applicability; and
(iii) the date, time and location of a public information meeting that the commissioner may continue day to day and at which interested parties may appear.
(3) Conduct the public information meeting no less than 10 nor more than 30 days after publication of the newspaper notice.
(d) The commissioner will issue an order of applicability subsequent to the public information meeting. The order of applicability must specify:
(1) the reason for implementation of this Part;
(2) the effective date of the provisions of this Part;
(3) a description of the area of special flood hazards within the community subject to the provisions of this Part;
(4) the title and date of the applicable flood insurance study, flood boundary and floodway map, flood insurance rate map or flood hazard boundary map to be used in the administration and enforcement of this Part.
(e) The order of applicability must be:
(1) published in a newspaper having general circulation in the community;
(2) sent to the chief administrative officer of the community by first class mail;
(3) filed with the municipal clerk and the code enforcement officer of the community, accompanied with copies of this part, and applicable program maps and studies;
(4) sent by first class mail to all landowners in possession of a valid permit from the municipality for a project which has not been completed and indicate the necessity for obtaining a permit from the department; and
(5) filed in the central office of the department, regional headquarters of the department, the Department of State, applicable county planning agency, if any, applicable State or county building construction code enforcement officer, if any, and regional offices of the Federal emergency management agency.
(f) After the close of the public information meeting held pursuant to section paragraph (c)(3) of this section, the commissioner will submit, on behalf of the community, an application for eligibility in the program to the Federal insurance administrator. Upon receipt of a notice of eligibility, the commissioner will cause to be published in a newspaper of general circulation in the community a notice to the public of the availability of Federal flood insurance for all insurable properties within the entire community.
(g) Whenever the Federal insurance administration notifies the commissioner of any change in the boundary of the area of special flood hazard, the commissioner will amend the previously issued order of applicability to incorporate such change. Such amendment will be issued in accordance with the procedures set forth in subdivision (e) of this section. The commissioner may hold another public information meeting prior to amending the order of applicability if the changes significantly increase the area of special flood hazard.
(h) For a community, subject to this Part, to qualify for the program based on local floodplain management regulations, the following must be submitted to the department:
(1) a resolution reaffirming the intent of the original resolution of the community to apply for initial eligibility in the program; or
(2) a resolution affirming intent to participate in the program and meeting the eligibility requirements of the Federal insurance administrator;
(3) a completed Federal application form for program eligibility; and
(4) a draft of the local floodplain management regulations meeting the minimum Federal requirements of the program.
(i) The department will review and approve or return for correction to the community the local floodplain management regulation submitted in accordance with section subdivision (h) of this section within 30 days of its receipt. When the community adopts the final corrected local floodplain management regulation it must return two certified copies to the department. The department will submit such local regulation, resolution and application forms to the Federal insurance administrator for approval. Upon receipt of approval, the commissioner will withdraw the order of applicability by publishing and filing a notice as specified in subdivision (e) of this section.
§500.3 Community Responsibility
Whenever the commissioner has issued an order of applicability pursuant to section 500.2(d) of this Part, the community must:
(a) continuously display a Part 500 applicability placard provided by the department in areas maintained for public notices in the municipal building;
(b) maintain copies of the order of applicability, this Part and applicable maps showing the area of special flood hazards provided by the department for inspection by the general public;
(c) maintain and distribute upon request to the general public copies of permit application forms provided by the department;
(d) provide every applicant for a local building permit, zoning change, variance or other approval, subdivision approval, or other local construction or land use approval a copy of a notice, furnished by the department, explaining the existence of the area of special flood hazards and the requirements for obtaining a department permit prior to conducting development activities in such areas;
(e) participate in a joint annual inspection of the areas of special flood hazards within the community with representatives of the department and the Federal emergency management agency; and
(f) provide any reasonable information required for the department to comply with the annual or biennial reporting requirements of the Federal insurance administration including but not limited to:
(1) any change in the community's boundaries;
(2) any significant natural change in topography caused by land erosion, subsidence, sedimentation or seismic activity in or near the area of special flood hazards;
(3) any significant human-made change in topography such as construction of levees, dams, bridges, highways, extensive excavation or filling and paving in or near the area of special flood hazards; and
(4) information on any flooding occurrences causing damage to any buildings, bridges, culverts or other portions of the community's infrastructure.
(g) provide the department with a copy of each permit application, permit, variance application, variance, and all supporting documents for any project authorized under local floodplain management regulations within the community where construction of such project has not been completed; and
(h) provide the department with a copy of all documents relating to violations of local floodplain management regulations that have not been completely resolved.
§500.4 Floodway Designation
(a) When the Federal insurance administrator has provided floodway data through publication of a flood insurance study and a flood insurance rate map or a flood boundary and floodway map and where the commissioner has issued an order of applicability, the commissioner will designate the floodway and floodway encroachment lines for such community.
(b) At least 10 but no more than 30 days prior to the effective date of a new or revised flood insurance rate map or flood boundary and floodway map published by the Federal insurance administrator, the commissioner will cause to be published in a newspaper having general circulation in the community, a notice containing the following:
(1) a general description of the floodway and floodway encroachment lines applicable within the community:
(2) locations where the community's flood insurance rate map or flood boundary and floodway map may be inspected by interested persons; and
(3) effective date of the flood insurance rate map or flood boundary and floodway map and of the regulations applicable for floodways.
(c) An application for a development permit for any project proposed within a floodway must be supported by an engineering report certified by a licensed professional engineer that the project will meet the standards of section 500.11(d) of this Part. The engineering report must be developed using hydrologic and hydraulic procedures consistent with those in the flood insurance study for the riverine area encompassing the proposed project site.
§500.5 Applicability of Uniform Procedures
Except to the extent that they are otherwise supplemented by the provisions of this Part, the provisions of Part 621 of this Title apply to applications for development permits, requests for variances, modifications, suspensions and revocations of permits and variances under this Part with respect to completeness, time periods for department action, minor projects, public notice, hearings and other procedural elements.
§500.6 Development Permit Required; Exceptions
(a) No person may, on or after the effective date of applicability and during the period of applicability of the provisions of this Part to a community, commence a project within an area of special flood hazards of the community unless such person has first obtained a development permit for such project from the department.
(b) The continuation of work under permits issued pursuant to local floodplain management regulations for projects that have not been completed on the effective date of the commissioner's order of applicability must only be continued upon receipt of a development permit issued pursuant to this Part. Owners of such projects must submit an application for a development permit, pursuant to this Part, to authorize:
(1) start of construction for any project that has not been commenced under the local regulations; or
(2) completion of any project started prior to the effective date of the commissioner's order of applicability.
(c) Permit applications submitted pursuant to subdivision (b) of this section will be reviewed by the department to determine substantial compliance with the provisions of this Part. Projects permitted under local regulations, but now subject to this Part, may be approved for completion without additional standards or conditions if modification of the project to conform to this Part would create unnecessary hardships or practical difficulties. Each permit application will be reviewed on a case-by-case basis to determine needed or appropriate modifications.
(d) In the case of a proposed project to restore an existing structure that has been damaged by any peril, where the cost of such restoration for all damages sustained:
(1) is equal to, or exceeds 50 percent of the predamage market value of such structure, an application for a development permit must be treated as an application for a new structure in accordance with section 500.8(a)(1) of this Part, and both the restoration project and the undamaged portion of the structure will be subject to the applicable conditions and standards of sections 500.10 and 500.11 of this Part; or
(2) is less than 50 percent of the predamage market value of such structure and does not involve any expansion of floor area or interior volume or repositioning of the structure with respect to the direction of flood flows, an application for a development permit will be treated as an application for minor improvements in accordance with section 500.8(a)(5) of this Part.
(e) In the case of a proposed project to make minor improvements to a building or other structure, an application for a development permit will be treated in accordance with provisions of section 500.8(a)(5) of this Part.
(f) In the case of a proposed project to expand an existing structure by either increasing the floor area or height of the structure where the costs of such changes are more than 50 percent of the market value of the structure before the improvement, an application for a development permit must be treated as an application for a new structure in accordance with section 500.8(a)(1) and (2) of this Part and the expanded portion of the structure will be subject to the applicable conditions and standards of sections 500.10 and 500.11 of this Part.
§500.7 Application for Development Permits
(a) An application for a development permit must be submitted to the regional permit administrator on application forms provided by the department. The application must describe the location, type and extent of the proposed project and be accompanied by such other information or plans required or specified in section 500.8 of this Part and Part 621 of this Title. A development permit application may be submitted by the owner of the project or on behalf of the owner by another person if accompanied by a signed statement from the owner stating that the applicant has been authorized to make such application. The application must contain the full name(s) of the owner(s) and if submitted by other than the owner, the full name of the applicant(s) and, the names of the principal officers thereof if the applicant is a corporation or the partners if the applicant is a general partnership, or the general partners if the applicant is a limited partnership.
(b) The department will maintain a file for inspection of all development permit applications, permits, variance petitions, variance decisions, plans and engineering analyses received, engineering certifications, topographic data and certified elevations of building floor levels.
§500.8 Information Required for Certain Types of Projects
(a) An application for a development permit must include:
(1) For a project involving a new structure, the substantial improvement of an existing structure, an addition to or expansion of the floor area of an existing structure, or a minor improvement to an existing structure, where such improvement or alterations involve any changes affecting the structural integrity or flood resistance of such structure:
(i) architectural plans containing:
(a) elevation views of all external faces of the proposed structure;
(b) specifications of the type of proposed finishing materials and their resistance to flood damage;
(c) in feet above mean sea level, the elevation of the lowest floor, including basement, or the elevation to which the structure is to be floodproofed; and
(d) general site grading plans, indicating site drainage, the location of watercourses, if any, and proposed significant changes to the existing topography of the project site; and
(ii) structural plans containing sectional views indicating all major structural elements, foundations and anchorage systems; and
(iii) mechanical plans and sectional views indicating the location and elevation in feet above mean sea level of all permanent mechanical and electrical equipment, and clearly showing how incoming and outgoing service and utility lines are designed and located to minimize damage from and disruption of service by flooding.
(2) For a manufactured home, a description of the anchorage system meeting the requirements set forth in section 500.11(b)(1) of this Part. However, if the manufactured home does not contain such anchoring points, a description of a structural modification plan capable of meeting such requirements must be provided.
(3) For a project which includes the subdivision of lands:
(i) the applicable plans and information as specified in this subdivision;
(ii) profiles of the center lines of all utilities and other service facilities proposed for the project;
(iii) cross-sections and profiles of all vehicular thoroughfares; and
(iv) lot layout or site design plans.
(4) For a project to construct, erect or place any structure, dam or obstruction, or to deposit any fill or to excavate within a floodway:
(i) the applicable plans and information specified in this subdivision; and
(ii) the written certification by a licensed professional engineer that the project will comply with the requirements of section 500.11(d) of this Part. Such certification must be accompanied by sufficient hydraulic analysis and supporting data to permit a determination that the project will not result in any increase in flood levels within the community during the occurrence of the base flood discharge or that any such effect is compensated for by acceptable floodway improvements, except in the case of a new dam where all areas affected by ponding and backwater as a result of the dam will either be owned or controlled through appropriate easements by the project owner.
(5) In the case of a project involving only minor improvements to an existing structure, where such improvements or alterations do not involve any changes affecting the structural integrity or flood resistance of such structure, submission of plans, descriptions or other information indicating the nature and extent of the proposed work.
(6) In the case of a project to undertake any other development, including but not limited to mining, dredging, paving, excavation and fill:
(i) a topographic survey showing existing and proposed ground contours at a scale acceptable to the department, and the locations of all existing and proposed temporary or permanent structures associated with the project. Such surveys must indicate all elevations in relation to mean sea level; and
(ii) detailed plans for all projects involving the temporary or permanent placement of dams, dikes, bridges or culverts.
(b) A licensed professional engineer, architect or land surveyor must certify that the appropriate plans and documents specified in section 500.8(a)(1) through (4) and (6) of this Part will meet the applicable standards of section 500.11 of this Part. Projects where such certification is required include, but are not limited to, the following:
(1) new or substantially improved structures utilizing floodproofing;
(2) structures requiring anchorage systems including those required for manufactured homes in section 500.11(b)(1) of this Part;
(3) floodproofing of utilities and sanitary facilities;
(4) use of columns or pilings for support of structures;
(5) any development proposed within a designated floodway; and
(6) enclosures of structures below the base flood elevation that do not meet the minimum criteria specified in section 500.11(c)(4) of this Part.
(c) The plans specified in subdivision (a) of this section:
(1) may be composites, purchased plans, shop drawings or sketches, provided that they are clear and complete enough for the commissioner to make a determination pursuant to section 500.11 of this Part;
(2) must be of suitable scale;
(3) must be reproduced on such durable material as the department may require;
(4) if prepared by or under the supervision of a licensed architect or engineer, must include the registration number, seal, signature and address of such licensed architect or engineer; and
(5) may be one set of plans if:
(i) they are to be used for structures of the same construction;
(ii) such structures are to be located on adjoining lots under the same ownership; and
(iii) the development permit applications for such structures are submitted simultaneously.
§500.9 Issuance or Denial of a Development Permit; Permit Term
(a) A development permit may be issued or denied by the commissioner, applying the standards contained in section 500.11 of this Part. A permit may be issued subject to such written conditions or limitations as may be necessary to assure that the proposed project is consistent with the purposes and findings of article 36 of the Environmental Conservation Law and the provisions of this Part.
(b) Any development permit issued pursuant to this Part is valid for a designated period from the date of issuance unless terminated earlier by any of the following:
(1) completion of the project; or
(2) revocation of the permit for any cause specified in Part 621 of this Title.
§500.10 Mandatory Conditions of a Development Permit
The issuance of a development permit will be conditioned upon the consent of the development permit holder to:
(a) submit to the regional permit administrator, prior to the commencement of the project, the name and address of the person(s) who will perform the project;
(b) comply with the conditions contained in the development permit;
(c) obtain any and all other necessary approvals or permits from the department or any other State agency, any political subdivision, and any Federal agency including any permit required under section 404 of the Federal Water Pollution Control Act amendments of 1972 (33 USC 1334);
(d) notify, in riverine situations, prior to any alteration or relocation of a watercourse, any affected adjacent communities and submit proof of such notification to the Federal insurance administrator and the department;
(e) assure that the flood carrying capacity within the altered or relocated portion of any watercourse is maintained; and
(f) immediately cease and desist the continuation of the project upon receipt of a revocation of permit notice issued pursuant to Part 621 of this Title stating that such project is being or has been performed in a manner inconsistent with the terms of the development permit, the provisions of this Part or the Act.
§500.11 Standards for the Issuance of a Development Permit
(a) This section sets forth the criteria the commissioner will use in the review of permit applications. In applying these criteria in conjunction with any available 100-year flood data, the commissioner will be guided by the purposes of the program as more specifically set forth in section 36-0101 of the Environmental Conservation Law. A development permit will be issued only after determining the project is designed to meet the appropriate standards and criteria of this section.
(b) In all areas of special flood hazards the following standards are required:
(1) All new construction and substantial improvements, including the installation or substantial improvement of a manufactured home, must be adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. Methods of anchoring manufactured homes may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable State and local anchoring requirements for resisting wind forces.
(2) All new construction and substantial improvements must be constructed with materials and utility equipment resistant to flood damage.
(3) All new construction and substantial improvements including the installation of manufactured homes must be constructed or installed using methods and practices that minimize flood damage.
(4) Electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities must be designed or located to prevent water from entering or accumulating within the components during conditions of flooding.
(5) All new and replacement water supply systems must be designed to minimize or eliminate infiltration of floodwaters into the system.
(6) New and replacement sanitary sewage systems must be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into floodwaters.
(7) Onsite waste disposal systems must be located to avoid impairment to them or contamination from them during flooding.
(8) All subdivision proposals and other proposed developments, including manufactured home parks or subdivisions must:
(i) minimize flood damage within the area of special flood hazards;
(ii) have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize or eliminate flood damage; and
(iii) have adequate drainage provided to reduce exposure to flood hazards.
(9) Base flood elevation data must be developed by the applicant for subdivision proposals and other proposed developments, including proposals for manufactured home parks and subdivisions, greater than either 50 lots or 5 acres, unless such data has been provided by the Federal insurance administrator or is available to the department from some other source. The base flood elevation data so developed must be used to assure that all new construction or substantial improvement of:
(i) residential structures or the installation of manufactured homes in a new or expanded section of a manufactured home park or subdivision meets the requirements of paragraph (c)(1) of this section; or
(ii) nonresidential structures meet the requirements of paragraph (c)(2) of this section.
(c) In all areas of special flood hazards, including areas of shallow flooding, where base flood elevation data has been developed or provided, the following standards are required:
(1) New construction and substantial improvements of any residential structure must have the lowest floor, including basement or cellar, elevated to or above the base flood elevation.
(2) New construction and substantial improvements of any commercial, industrial or other nonresidential structure must either:
(i) have the lowest floor, including basement or cellar, elevated to or above the base flood elevation; or
(ii) together with attendant utility and sanitary facilities, be floodproofed so that the structure is watertight below the base flood level with walls substantially impermeable to the passage of water. All structural components located below the base flood level must be capable of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy.
(3) All new, replacement or substantially improved manufactured homes located or proposed for locations in the following situations must be elevated on a permanent foundation so that the lowest floor is at or above the base flood elevation:
(i) outside of an existing manufactured home park or subdivision;
(ii) within an expansion to an existing manufactured home park or subdivision; or
(iii) within an existing manufactured home park or subdivision that is being substantially improved and the repair, reconstruction or improvement of the streets, utilities and pads equals or exceeds 50 percent of the value of the streets, utilities and pads before the repair, reconstruction or improvement has commenced.
(4) If a structure designed for any use is to be elevated above grade, enclosed areas below the base flood elevation must be designed to automatically allow for the entry and exit of floodwaters for the purpose of equalizing hydrostatic flood forces on exterior walls. Designs for meeting this requirement must either be certified by a licensed professional engineer or architect or meet the following criteria:
(i) a minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding;
(ii) the bottom of all such openings shall be no higher than one foot above grade; and
(iii) openings may be equipped with louvers, valves, screens or other coverings or devices provided they permit the automatic entry and exit of floodwaters.
(5) If the structure is to be floodproofed:
(i) a licensed professional engineer or architect must develop or review structural design, specifications, and plans for the construction, and must certify that the design and methods of construction are in accordance with accepted standards of practice to meet the floodproofing requirements of subparagraph (2)(ii) of this subdivision; and
(ii) a licensed professional engineer or licensed land surveyor must certify the specific elevation, in relation to mean sea level, to which the structure is floodproofed.
(6) In riverine floodplains, until a regulatory floodway has been designated, an application for a development permit for all new construction, substantial improvements or other development including the placement of fill must include a report, certified by a licensed professional engineer, demonstrating that the cumulative effect of the proposed project, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point.
(7) In an area of shallow flooding identified on a flood insurance rate map where no base flood elevations have been determined:
(i) all new construction and substantial improvements of residential structures must have the lowest floor, including basement or cellar, elevated above the highest adjacent grade at least as high as the depth number specified in feet on the flood insurance rate map or at least two feet if no depth number is specified; or
(ii) all new construction and substantial improvements of nonresidential structures must have the lowest floor, including basement or cellar, either:
(a) elevated to the level specified in subparagraph (i) of this paragraph; or
(b) together with attendant utility and sanitary facilities, be completely floodproofed to such level, to meet the floodproofing standard specified in subparagraph (2)(ii) of this subdivision.
(iii) adequate drainage paths around structures on slopes must be provided to guide floodwaters around and away from proposed structures.
(8) In an area of shallow flooding identified on a flood insurance rate map where base flood elevations have been determined, adequate drainage paths around structures on slopes must be provided to guide floodwaters around and away from proposed structures.
(9) The department will maintain a copy of all certifications of floodproofing required under the provisions of this section.
(d) In all areas of special flood hazard where base flood elevation data has been developed and a floodway has been designated for a particular site, all encroachments including fill, new construction, substantial improvements, and other development are prohibited within the boundary limits of the floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge. Such analyses must be certified by a licensed professional engineer.
(e) In all areas of special flood hazard where base flood elevation data has been developed and a coastal high hazard area has been designated, the following standards are required:
(1) All buildings or structures must be located landward of the level of mean high tide.
(2) All new construction or substantial improvements must be elevated on pilings or columns so that the bottom of the lowest horizontal structural member of the lowest floor, excluding the pilings or columns, is elevated to or above the base flood level so as to not impede the flow of water.
(3) The pilings or column foundation and structure attached thereto must be adequately anchored to resist flotation, collapse and lateral movement due to the effects of wind and high velocity water loads acting simultaneously on all building components. Wind and water loading values must each have a one percent chance of being equalled or exceeded in any given year.
(4) A licensed professional engineer must develop or review the structural design, specifications and plans for the construction, and must submit to the department a written certification that the design and methods of construction to be used are in accordance with accepted standards of practice for meeting the provisions of paragraphs (2) and (3) of this subdivision.
(5) No fill material may be used for structural support of any new structure or substantial improvement of an existing structure.
(6) The space below the lowest floor of all new construction or any existing building that is being substantially altered, repaired or improved after the effective date of this Part must be either kept free of obstructions or enclosed with nonsupporting breakaway walls, open wood latticework, or insect screening intended to collapse under wind and water loads without causing collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system.
(7) A breakaway wall must have a design safe loading resistance of not less than 10 and no more than 20 pounds per square foot. Use of breakaway walls exceeding a design safe loading resistance of 20 pounds per square foot are permitted only if a licensed professional engineer or architect certifies in writing to the department that the designs proposed meet the following conditions:
(i) breakaway wall collapse must result from a water load less than that which would occur during the base flood; and
(ii) the elevated portion of the building and supporting foundation system will not be subject to collapse, displacement, or other structural damage due to the effects of wind and water loads acting simultaneously on all structural or nonstructural building components. Maximum wind and water loading values to be used in this determination must each have one percent chance of being equalled or exceeded in any given year.
(8) The enclosed space below the lowest floor can be used only for parking of vehicles, building access or storage. Use of this space for human habitation is expressly prohibited. The construction of stairs and stairwells is subject to the design requirements for breakaway walls in paragraph (f)(7) of this section.
(9) Sand dunes must not be altered in a manner that would increase potential flood damage. Any disturbance of sand and/or earthen material must be conducted in strict compliance with State or local coastal erosion hazard area regulations.
(10) The applicant for a development permit for all new construction or substantial improvements must submit in writing to the department the following:
(i) a statement certifying whether or not the structure contains a basement; and
(ii) the elevation in relation to mean sea level of the bottom of the lowest structural member of the lowest floor of the structure. The elevation must be certified by a licensed professional engineer or land surveyor.
(11) The department will maintain a record of all information required under paragraph (10) of this subdivision.
(f) The burden of proof in meeting the requirements of this section will be on the applicant.
§ 500.12 Variances
(a) Persons seeking a variance from the provisions of this Part must submit a written request to the regional permit administrator. Such request will be treated as an application for a development permit modification for purposes of the procedures specified in this Part and in Part 621 of this Title. The variance request must:
(1) state the name and address of the applicant;
(2) describe the location and scope of the proposed project;
(3) indicate the basis for the applicant's claim of unnecessary hardships or practical difficulties in complying with any provisions of this Part. Insufficient lot size does not constitute an unnecessary hardship or a practical difficulty; and
(4) be accompanied by such information as the regional permit administrator deems necessary for the request for the variance to be considered complete as prescribed in Part 621 of this Title.
(b) A variance will be granted if the department determines that:
(1) the applicant has shown good and sufficient cause;
(2) failure to grant the variance would result in exceptional hardship to the applicant;
(3) granting the variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of the public relative to the goals and objectives of the National Flood Insurance Program or conflict with local laws or ordinances;
(4) the terms of the variance, if granted, would be the minimum necessary to afford relief considering the flood hazard; and
(5) if the proposed project is located within a designated regulatory floodway, the applicant has provided an engineering report certified by a licensed professional engineer which demonstrates through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment will not result in any increase in flood levels within the community during the occurrence of the base flood discharge.
(c) The department may grant a variance for the reconstruction, rehabilitation or restoration of structures or contributing structures listed or eligible for listing on the National or State Register of Historic Places without regard to the procedures set forth in this section provided that such reconstruction, rehabilitation or restoration complies with all applicable Federal or State standards for listing in such registry.
(d) The department may grant a variance for new construction or substantial improvement and for other development necessary for the conduct of a functionally dependent use provided that:
(1) the provisions of paragraphs (b)(1) through (5) of this section have been met; and
(2) the structure or other development is protected by methods that minimize flood damage during the base flood and create no additional threats to public safety.
(e) In granting a variance to construct a structure below the base flood level pursuant to subdivision (b) of this section, the regional permit administrator will, in addition, notify the applicant in writing, that:
(1) such construction will result in increased premium rates for flood insurance; and
(2) construction below the base flood level increases risks to life and property.
(f) A record of all variance actions, including justification for their issuance, and a record of the notification required in subdivision (e) of this section will be maintained by the department.
§500.13 Transfer of a Development Permit
A development permit is only transferable with the consent of the department. Application for such consent will be treated as a permit modification.
§500.14 Savings Clause
All development permits issued prior to and in force on the effective date of this Part under any predecessor Part, will remain in full force and effect as if issued under this Part. Any subsequent modification of such permit will be governed by the provisions of this Part.