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Part 665: Local Government Implementation Of The Freshwater Wetlands Act and Statewide Minimum Land-Use Regulations For Freshwater Wetlands

Contents:

Sec.

§665.1 Purpose

(a) It is the public policy of the State, as reflected in the provisions of the Freshwater Wetlands Act, to provide the opportunity for local protection of freshwater wetlands and the benefits derived from them and to provide the opportunity for local regulation of the use and development of such wetlands to secure those benefits. It is the purpose of this Part to implement that policy by establishing regulations that:

(1) define the procedural requirements for the assumption of local regulatory authority;

(2) define the procedural requirements for the review and issuance of permits by a local government;

(3) establish standards and criteria for local government performance; and

(4) define the relationships between a local government and other jurisdictions.

(b) The option to assume regulatory authority is voluntary. A local government's decision to not assume regulatory authority pursuant to this Part and the act does not diminish or affect that local government's ability or authority to establish its own land-use controls for freshwater wetlands within its jurisdiction.

§665.2 Definitions

(a) Act means the Freshwater Wetlands Act (article 24 and title 23 of article 71 of the Environmental Conservation Law).

(b) Adjacent area means those areas of land or water that are outside a wetland and within 100 feet (approximately 30 meters), measured horizontally, of the boundary of the wetland. However, the department may establish an adjacent area broader than 100 feet (approximately 30 meters) where necessary to protect and preserve a wetland, as set forth in subdivision 24-0701.2 of the act and pursuant to section 664.7 of this Title. A local government may also extend a wetland adjacent area in its jurisdiction where necessary to protect and preserve the wetland. Such an extension shall not become effective until the local government has provided the opportunity for public notice and hearing. The local government shall provide a minimum of 30 days' notice to the public, affected landowners, easement owners and the department of proposed extensions.

(c) Agricultural activity means:

(1) the activity of an individual farmer or other landowner in:

(i) grazing and watering livestock;

(ii) making reasonable use of water resources for agricultural purposes;

(iii) harvesting the natural products of wetlands;

(iv) the selective cutting of trees;

(v) the clear-cutting of vegetation, other than trees, for growing agricultural products;

(vi) constructing winter truck roads of less than five meters (approximately 16 feet) in width for removing timber cut in accordance with subparagraph (iv) of this paragraph, where construction is limited to cutting vegetation and compacting ice and does not alter water flows;

(vii) operating motor vehicles for agricultural purposes;

(viii) draining for growing agricultural products;

(ix) erecting structures, including fences, required to enhance or maintain the agricultural productivity of the land;

(x) using chemicals and fertilizers according to normally accepted agricultural practices, in order to grow crops for human and animal consumption or use, in or adjacent to wetlands, where authorized by other State, Federal or local laws; including application of stabilized sludge as fertilizer when applied at agronomic loading rates in accordance with a valid 6 NYCRR Part 360 or Part 364 landspreading permit; or

(xi) otherwide engaging in the use of wetlands for growing agricultural products such as crops, vegetables, fruits or flowers; but

(2) does not mean:

(i) clear-cutting trees;

(ii) constructing roads that require moving earth or other aggregate or that alters water flow or in any way deviates from subparagraph (1)(vi) of this subdivision;

(iii) filling or deposition of spoil, even for agricultural purposes;

(iv) mining; or

(v) erecting structures not required to enhance or maintain the agricultural productivity of the land.

(d) Applicant means a person who files an application for a permit under a local law or ordinance and who is either the owner of the land on which the proposed regulated activity would be located, a contract vendee, a lessee of the land, the person who would actually control and direct the proposed activity, or the authorized agent of such person.

(e) Aquiculture means cultivating and harvesting products, including fish and vegetation, that are produced naturally in freshwater wetlands, and installing cribs, racks and other in-water structures for cultivating these products; but does not include filling, dredging, peat mining, or the construction of any buildings or any water-regulating structures such as dams.

(f) Boundary of a wetland means the outer limit of the vegetation specified in paragraphs 24-0107.1(a) and (b) of the act and of the lands and waters specified in paragraphs 24-0107.1(c) and (d) of the act.

(g) Classic kettlehole bog means a wetland that is at least 75 meters (approximately 246 feet) in diameter within a closed drainage basin, having a minimal or no surface inlet or outlet. It has complete or virtually complete concentric zones of differing vegetative covertypes. The innermost zone of the bog is open water that is of pH 5.00 or lower and is typically anoxyous and dark brown. Surrounding this is a floating mat of sphagnum mosses, liverwort, and shrubby heath plants; this mat is surrounded in turn by coniferous swamp above deep deposits primarily of partly decayed sphagnum mosses.

(h) Classification means the designation placed upon a mapped wetland by the department pursuant to a classification system promulgated in Part 664 of this Title. That system establishes four separate classes that rank wetlands according to their ability to perform wetland functions and provide wetland benefits, as required by section 24-0903 of the act. Upon the adoption of an official map, these classifications are the basis for freshwater wetlands regulation regardless of the governmental entity asserting jurisdiction pursuant to the act.

(i) Clear-cutting means any cutting of trees over six inches in diameter at breast height over any 10-year cutting cycle where the average residual basal area of such trees after such cutting is less than 30 square feet per acre, measured within the area harvested; provided, however, that where regeneration is assured by stand conditions such that after such cutting, the average residual basal area of trees at least one inch in diameter at breast height is at least 30 square feet per acre, measured within the area harvested, a clearcut will not be deemed to have taken place unless the average residual basal area of trees over six inches in diameter at breast height is less than 10 square feet per acre, similarly measured.

(j) Commercial use facility means any facility or building larger than 20 square meters (approximately 215 square feet) used for retail, wholesale or rental purposes, including storage, sale of goods or services, tourist accommodations, or provisions of recreational facilities for a fee.

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

(l) Department means the Department of Environmental Conservation.

(m) Dredging means excavating or removing sediment, soil, mud, sand, shells, gravel, or other aggregate, except for small samples.

(n) Filling means depositing any soil, stones, sand, gravel, mud, rubbish or fill of any kind.

(o) Freshwater wetlands or wetlands means lands and waters of the State that meet the definition provided in subdivision 24-0107.1 of the act and have an area of at least 12.4 acres (approximately 5 hectares) or, if smaller, have unusual local importance as determined by the commissioner pursuant to subdivision 24-0301.1 of the act.

(p) Industrial use facility means any building or facility associated with the manufacturing, production, processing, or assembly of goods or materials or the production of power.

(q) Letter of permission means a written notification by a local government to a person, issued in response to a written request to conduct an activity in a wetland or its adjacent area, indicating that the proposed activity meets the description and standards identified in the minimum land-use regulations for that activity. No freshwater wetlands permit is required for the proposed activity. These activities have been determined by the commissioner as being compatible with freshwater wetlands and not having a significant adverse impact on wetlands or their functions and benefits.

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

(s) Map means an official freshwater wetlands map promulgated by the commissioner pursuant to subdivision 24-0301.5 of the act, or such a map that has been amended or adjusted pursuant to section 664.7 of this Title, on which are indicated the approximate location of the actual boundaries of regulated wetlands.

(t) Mining means removing or extracting stone, coal, salt, ore, talc, granite, petroleum products, peat, soil, mud, shells, sand, gravel, or other materials, including constructing or modifying mine-tailing piles and mine drainage.

(u) Permit means the written approval, issued by a local government, or the commissioner, where required for conducting a regulated activity in a wetland or adjacent area.

(v) Person means any corporation, firm, partnership, association, trust, estate, one or more individuals, or any unit of Federal, State or local government or any agency or subdivision thereof, including any State department, bureau, commission, board, or other agency, public authority or public benefit corporation.

(w) Pollution means the presence in the environment of human-induced conditions or contaminants in quantities or characteristics which are or may be injurious to human, plant, or animal life or to property.

(x) Regulated activity means any form of draining, dredging, excavation or mining, either directly or indirectly; any form of dumping or filling, either directly or indirectly; erecting any structures, constructing roads, driving pilings, or placing any other obstructions whether or not changing the ebb and flow of the water; any form of pollution, including but not limited to installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquefied wastes into or so as to drain into a wetland; or any other activity which substantially impairs any of the several functions or benefits of wetlands which are set forth in section 24-0105 of the act. These activities are subject to regulation whether or not they occur upon the wetland itself, if they impinge upon or otherwise substantially affect the wetland and are located within the adjacent area.

(1) The depositing or removal of the natural products of freshwater wetlands by recreational or commercial fishing, shellfishing, aquiculture, hunting or trapping are not regulated under the act or this Part.

(2) Agricultural activities, as defined in subdivision (c) of this section, are not regulated under the act or this Part. However, land altered by an agricultural activity after its original designation as a wetland upon an official map is still protected under the act, this Part, and other appropriate Parts pursuant to the act, so thay any other activities on that land subsequent to the original designation are subject to the provisions of this Part.

(3) Public health activities, orders and regulations of the New York State Department of Health are not regulated under the act or this Part, provided copies of all such orders or regulations affecting wetlands are filed with the Department of Environmental Conservation in advance.

(y) Selective cutting of timber means any cutting of trees within the boundaries of a freshwater wetland which is not "clear-cutting" as defined in subdivision (i) of this section, or which results in a cut area less than three acres in size.

§665.3 Applicability

(a) This Part provides the framework for local government administration of a freshwater wetlands regulatory protection program in those areas of the State where the commissioner has promulgated an official map and a local government, rather than the department, is the regulatory authority.

(b) Permit applications must be filed with and processed by the department in accordance with the department's freshwater wetlands permit regulations (Part 663 of this Title) for those areas of the State where the commissioner has promulgated an official map and:

(1) a local government has not assumed regulatory authority pursuant to section 24-0501 of the act and this Part;

(2) a county has transferred regulatory authority to the department pursuant to section 24-0503 of the act and section 665.4(k) of this Part; or

(3) the commissioner has superseded local authority and retained jurisdiction pursuant to section 24-0503 of the act and section 665.12 of this Part.

(c) For those areas of the State where the commissioner has not promulgated an official map, permit applications must be filed with and processed by the department in accordance with the department's interim freshwater wetlands permit regulations (Part 662 of this Title).

(d) A local government, upon the implementation of a local freshwater wetlands protection program pursuant to title 5 of the act and this Part, becomes the regulatory authority for all freshwater wetlands wholly or partially within its jurisdiction, except for wetlands and their adjacent areas exempted from local implementation in accordance with section 24-0505 of the act. These wetlands will be shown on the official map and will be Class I wetlands as described in the department's freshwater wetlands maps and classification regulations (Part 664 of this Title).

(e) If the department reclassifies a wetland under local jurisdiction to Class I, the local government retains jurisdiction for any permit application received prior to the reclassification and must apply the Class I standards of this Part.

(f) Notwithstanding the exemption of Class I wetlands from local implementation described in subdivision (d) of this section, the commissioner may delegate the department's regulatory authority for those wetlands to a local government pursuant to paragraph 3-0301.2(p) of the Environmental Conservation Law and in accordance with section 665.9 of this Part.

(g) This Part and the act do not apply to land uses, improvements or developments for which final approval was adopted prior to September 1, 1975, from the local governmental authority or authorities having jurisdiction over such land use. However, expansion or significant modification of the existing use, or the introduction of sewage effluent, runoff of pesticides, or disposal of toxic substances into wetlands or adjacent areas are regulated activities under this Part. The term final approval is defined in section 24-1305 of the Act. A local government's chief legal officer may issue an opinion to a person wishing to rely on such final approval so long as the opinion is consistent with the act and general law.

(h) This Part is not applicable to wetlands or portions of wetlands within the Adirondack Park. Those wetlands or portions of wetlands are regulated by the Adirondack Park Agency and Adirondack Park local governments, pursuant to title 8 of the act.

(i) No provision of this Part shall be deemed to remove from local government any authority pertaining to the regulation of freshwater wetlands under the County, City, General Municipal, Municipal Home Rule, Town, Village or any other Law.

§665.4 Assumption of Regulatory Authority

(a) A local government must adopt a local freshwater wetlands protection law or ordinance pursuant to section 24-0501 of the act and this Part in order to assume regulatory authority within its jurisdiction. The local law or ordinance must:

(1) be applicable to all freshwater wetlands wholly or partially within the local government's jurisdiction;

(2) be no less protective of freshwater wetlands, and no less effective in its administrative and judicial review, than the act; and

(3) not regulate activities exempted from regulation by section 24-0701 of the act as set forth in section 665.2(x)(1)-(3) of this Part.

(b) A local government may adopt a local law or ordinance by reference to the procedures and concepts set forth in the act and this Part with exceptions, additions and modifications to the act noted. Such adoption, once effected, must include subsequent statutory amendments to the act, subject to exception, addition or modification by the local government.

(c) Pursuant to section 24-0507 of the act, a local government may elect to extend regulatory control to smaller wetland areas than those identified on the final freshwater wetlands maps as defined in section 665.2(m) of this Part. A local government may also institute, through its local law or ordinance, higher standards for permit issuance than those set out in section 665.7 of this Part.

(d) If a city, town or village does not adopt a local law or ordinance by the date the official applicable freshwater wetlands may is filed by the department, regulatory authority is transferred to the county until the city, town or village assumes regulatory authority pursuant to the act and this Part. If a county does not adopt a local law or ordinance within 90 days of the date the official applicable freshwater wetlands map is filed by the department, regulatory authority is retained by the department until the county assumes regulatory authority pursuant to the act and this Part. The department will remain as the regulatory authority in those areas of the State where no local government has assumed authority and during the time in which a local government is in the process of assuming pursuant to this section.

(e) A copy of the local law or ordinance must be forwarded to the department within 30 days of its adoption, along with a statement that it was adopted pursuant to section 24-0501 of the act and the date of adoption. Within 30 days of receipt of a properly submitted local law or ordinance, the department will review it for compliance with the act as presented in subdivision (a) of this section and then notify the local government in writing of its findings.

(1) If a local law or ordinance is in compliance and meets the conditions stated in the act and this Part, the commissioner will certify to the local government in his written findings that it has satisfied the requirements for this Part of assumption of regulatory authority.

(2) If a local law or ordinance is not in compliance, the commissioner will notify the local government in his written findings that it has not met the conditions stated in the act and this Part. He will also identify those areas of concern, as practicable, to assist the local government in bringing its local law or ordinance into compliance. The local government must then bring its law into compliance and resubmit it to the commissioner, pursuant to this subdivision, along with a statement indicating the necessary changes made in the law. The commissioner will then process the loal law pursuant to this subdivision.

(f) A local law or ordinance pursuant to the act cannot be implemented until applicable freshwater wetland maps have been filed by the department.

(g) Subsequent amendments of a local law or ordinance must be forwarded to the department and acted upon in accordance with the procedures outlined in subdivision (e) of this section.

(h) At the time a local government submits its local law or ordinance pursuant to subdivision (e) of this section, the chief executive officer of a local government must report to the department that it has or will obtain within 90 days of the submission to the department of the local law or ordinance, the technical and administrative capability to administer the act, in accordance with the standards and criteria presented in section 665.5 of this Part. The report must describe the local government's capability in sufficient detail to enable the department to assess compliance with the standards in section 665.5 of this Part. At a minimum, the report must:

(1) describe the permit administration and technical review processes to be undertaken;

(2) designate the person(s) who will serve as the local government's permit officer and will provide technical review of permit applications and evaluation of regulated activities; and

(3) describe the qualifications of those person(s) and their relationship to the local government.

(i) Within 60 days of receipt of the report submitted pursuant to subdivision (h) of this section, the department will assess the technical and administrative capability of the local government to administer the act and notify the local government in writing of its findings.

(1) When the commissioner has determined that the local government possesses the necessary technical and administrative capability pursuant to the act and this Part, and that the local law or ordinance has been approved pursuant to paragraph (e)(1) of this section, the commissioner will notify by certified mail the chief executive officer of that local government that it has met all the requirements of the act and this Part and that regulatory authority is transferred to that local government effective immediately upon receipt of said notification.

(2) When the commissioner has determined that the local government does not possess the necessary technical or administrative capability pursuant to the act and this Part, the commissioner will notify the local government in his written findings, that it has not met the standards of conditions stated in the act and this Part. He will also identify those areas of concern, as practicable, to assist the local government in meeting its capability requirements. The local government must then acquire the necessary technical or administrative capability and resubmit its new report to the commissioner pursuant to subdivision (h) of this section, along with a statement indicating the necessary changes made. The commissioner will then process the capability report pursuant to this subdivision.

(j) A local government may not assume jurisdiction until it has been certified by the department as to its capability and its local law or ordinance, pursuant to this section. Until such a time that a local government receives notification of regulatory authority pursuant to paragraph (i)(1) of this section, the next level of local government which has assumed regulatory authority pursuant to the act and this Part, or the department, will be the regulatory authority.

(k) As set out in section 665.12 of this Part, whenever the commissioner finds that a local government lacks or has lost the administrative or technical capability to effectively administer the act, he or she may supersede the local government and order, by certified mail sent to the chief executive officer of the local government involved, that its regulatory authority be transferred to the county or to the department to the extent necessary to carry out the purposes of the act. A local government will be afforded an opportunity for a hearing before its jurisdiction is superseded.

(l) A local government may certify in writing that it does not want to assume or retain regulatory authority or that it does not possess the technical capacity or the procedures to effectively carry out the requirements of the act and transfer its jurisdiction to the county or to the department, as the case may be, in accordance with section 24-0503 of the act. A village, town or city making such certification must send it by certified mail to the chief executive officer of the county; a county making such certification must send it by certified mail to the commissioner.

(m) In accordance with the procedures outlined in subdivisions (e) and (i) of this section, the department must be notified of changes in the capability of a local government which would impair its ability to effectively implement the act and the provisions of this Part.

(n) Any local government that defaults or transfers its jurisdiction or has its jurisdiction superseded, may recover its authority by adopting a local law or ordinance and/or certifying as to its technical and administrative capability, as the case may be, pursuant to subdivision 24-0501.6 of the act and the provisions of this Part.

§665.5 Standards for Technical and Administrative Capability

(a) Standards for technical capability.

(1) A local government's freshwater wetlands protection program must be no less protective than the policy and procedures contained in the act and this Part. Permit applications must be reviewed by a person(s) with training and experience adequate to:

(i) consider the effects of specific proposals on the functioning and benefits of the specific wetland(s) affected as specified in subdivision 24- 0105.7 of the act;

(ii) determine whether the proposed use is consistent with applicable minimum land-use regulations weighed against standards for permit issuance applied to a wetland's classification pursuant to section 665.7 of this Part;

(iii) assess an applicant's proposals to enhance, mitigate or compensate for existing wetlands benefits;

(iv) prepare and/or grant, deny or condition a permit; and

(v) enter his/her findings and supporting rationale in the public record.

(2) Suitable qualifications include either a bachelor degree in wildlife management, fisheries management, forestry, ecology, hydrology or a closely related field; an associate degree in one of the above fields and two years' full-time experience in work closely associated with wetlands protection; and any other training and experience which assures a technical knowledge of wetlands and their functions and benefits sufficient to perform the tasks identified in paragraph (1) of this subdivision.

(b) Standards for administrative capability. A local government must have the administrative capability to effectively and efficiently implement a local freshwater wetlands protection program. It must:

(1) make adequate provision for public scrutiny and participation in the permitting process;

(2) comply with all procedural requirements contained in section 24-0703 of the act;

(3) follow a clearly identifiable step-by-step process by which action will be taken on permit applications;

(4) ensure that records will be subsequently maintained and compliance will be monitored and enforced; and

(5) establish reasonable time frames within which action will be taken and decisions rendered consistent with sections 24-0703 and 24-0705 of the act.

§665.6 Regulatory Procedures

(a) Upon assumption of local regulatory authority and the filing of applicable official maps by the department, a local government must regulate all regulated activities not otherwise specifically exempted under section 24- 0701 of the act that are to be conducted on Class II-IV wetlands or adjacent areas within its jurisdiction and on Class I wetlands where authority has been delegated by the department.

(b) A local government, in establishing procedures for the receipt and processing of permit applications, must comply with the requirements set out in section 24-0703 of the act:

(1) Any person proposing to conduct or cause to be conducted a regulated activity upon any freshwater wetland must file an application for a permit, or request in writing a letter of permission, when appropriate, with the clerk of the local government having regulatory authority. The local government will review the application or request in accordance with the act, this Part, and all other applicable laws and rules. Such application or request must include a detailed description of the proposed activity and a map showing the area of freshwater wetland directly affected, with the location of the proposed activity thereon. The clerk will cause notice of such application to be mailed to all local governments where the proposed activity or any part of it is located.

(2) No sooner than 30 days and not later than 60 days after the receipt by a local government of an application, and after notice of application has been published by the applicant in two newspapers having a general circulation in the area, the local government will hold a public hearing on such application at a suitable location in the local government where the affected wetland is situated unless no notice of objection has been filed and the local government finds the activity to be of such a minor nature as not to affect or endanger the balance of systems within the wetlands, and has been determined to be compatible pursuant to section 665.7 of this Part, in which case the local government may, in the exercise of discretion, dispense with such hearing. Where the local government finds that a hearing is not necessary, a decision setting forth reasons therefor shall be prepared, shall be a matter of public record and shall be mailed to all local governments where the proposed work or any part of it is located, and to all persons who filed a statement with the local government following the publication of such notice of application. All owners of record of the adjacent land and the local governments where the proposed activity is located shall be notified by certified mail of the hearing not less than 15 days prior to the date set for such hearing. The local government shall cause notice of such hearing to be published in two newspapers having a general circulation in the area where the affected freshwater wetlands are located. All applications and maps and documents relating thereto shall be open to public inspection at the office of the clerk of the local government in which the wetland is situated. At such hearing any person or persons filing a request for a hearing or a timely notice of appearance may appear and be heard.

(3) The applicant shall have the burden of demonstrating that the proposed activity will be in accord with the policies and provisions of the act and this Part. To the greatest extent practicable, such hearing shall be incorporated with any public hearing required by the Town, Village, General City, General Municipal or Environmental Conservation Law in connection with approvals or permits otherwise required before commencement of regulated activities on lands containing such wetlands.

(c) Where a local government is the regulatory authority for a wetland and its adjacent area associated with a major international or interstate river or lake, it must consult with the department before taking any regulatory action pursuant to the act concerning that wetland or its adjacent area. Those rivers and lakes are the Hudson, Delaware, Susquehanna, Niagara and St. Lawrence Rivers and Lakes Erie, Ontario and Champlain, and are considered to extend in tributaries to the first barrier impassable to fish or the first bridge, whichever is further downstream. A wetland is associated with such a river or lake when it is contiguous to the body of water or, if separated, the separation is only a narrow strip of land, such as a barrier beach or railroad bed.

(d) Where a local government or other political subdivision of the State is the applicant for a permit pursuant to the act, the department shall serve as the regulatory authority. A local government may not process its own application or that of another local government or political subdivision of the State.

(e) Where a regulated wetland lies within two or more jurisdictions, whether that be two or more local governments or the department and local government(s):

(1) the agency receiving the permit application must immediately provide copies to the other entities sharing jurisdiction;

(2) the agency within whose jurisdiction the proposed activity will occur will process the application in consultation with the other entities in order to achieve a mutually satisfactory determination; and

(3) disagreements over the proposed determination may be arbitrated by the department pursuant to the policies and standards of the act and this Part.

(f) A person who has obtained an interim permit from the department pursuant to Part 662 of this Title prior to the date a local government assumes regulatory authority is not required to obtain an additional permit. The commissioner must forward to the local government a copy of the interim permit. If an application for an interim permit has been submitted to the department and a decision has not been made at the time a local government assumes regulatory authority, the department retains regulatory authority over that application. The commissioner must consult with the local government prior to making a decision on the application.

§665.7 Standards for Issuance of Permits

(a) All persons proposing to conduct activities on wetlands or adjacent areas that have not been specifically exempted from regulation under section 24-0701 of the act or section 665.2(x)(1)-(3) of this Part must obtain either a permit or a letter of permission.

(b) The permit applicant or a person requesting a letter of permission has the burden of establishing that the applicable standards of this section will be met.

(c) In granting, denying or modifying a permit, a local government must apply the standards for permit issuance contained in this section in conjunction with the classification of the subject wetland as indicated by the official map filed by the department. In applying these standards, the local government must consider the effects of the proposed activity regardless of political boundaries. In granting a letter of permission, a local government must determine that the proposed activity complies with the limits of the activities as stated in subdivision (g) of this section.

(d) As shown in the chart in subdivision (e) of this section, a determination of compatibility and a weighing of need against benefits lost are the criteria for decisionmaking. The three tests for compatibility must be used for all activities listed in the minimum land-use regulations of subdivision (g) of this section that carry a compatibility category of "C" or "N" as defined in subdivision (g) of this section. Activities and land uses not listed in the minimum land-use regulations also must be evaluated using the three-part compatibility test. Activities designated as "LP" in subdivision (g) of this section have been determined under the minimum land-use regulations to be compatible and no further compatibility or weighing analysis need be performed before issuance of a letter of permission as defined in section 665.2 of this Part. Activities identified as "E" are exempt and do not require either a permit or letter of permission. Exempt activities are included in subdivision (g) of this section to assist local governments in determining regulatory procedures.

(1) When the three tests of compatibility given in the chart in subdivision (e) of this section are met, no other weighing standards need apply, regardless of the wetland's classification, and a permit, with or without conditions, may be issued for the proposed activity. In conjunction with the three-part test, the statewide minimum land-use regulations contained in subdivision (g) of this section or a local variance from them that has been duly adopted according to the provisions of section 665.8 of this Part are the basis for determinations of compatibility.

(2) If the proposed activity cannot meet all three tests of compatibility or if it is identified as "X," incompatible, then, for a permit to be issued, the activity must meet each of the weighing standards listed in the chart in subdivision (e) of this section for the classification of the wetland that would be affected by the proposed activity.

(3) If a local government determines that a written request for a letter of permission exceeds the thresholds identified in the items listed in subdivision (g) of this section, a letter of permission may not be issued. Instead, the proposed action must be tested for compatibility using the three-part test in subdivision (e) of this section and a permit application must be processed pursuant to the act and this Part. If there is a question or doubt as to whether any proposed activity being reviewed for compatibility with the three-part test in subdivision (e) of this section meets any of the three parts of the test, the action must be treated as incompatible and the activity weighed according to the standards identified in subdivision (e) of this section.

(e) Standards for permit issuance.

(1) Compatibility. These three tests are to be used to determine the compatibility of all activities identified as "C" or "N" in subdivision (g) of this section for any action not listed in subdivision (g). If all three of the following tests of compatibility are met, no other weighing standards need be met, regardless of the wetland class. A permit, with or without conditions, may be issued for a proposed activity on a wetland of any class or in a wetland's adjacent area if it is determined that the activity (i) would be compatible with preservation, protection and conservation of the wetland and its benefits, and (ii) would result in no more than insubstantial degradation to, or loss or, any part of the wetland, and (iii) would be compatible with the public health and welfare.

(2) Weighing. These weighing standards must be applied to all activities identified as "X" in subdivision (g) of this section, and to all those activities listed as "C" or "N" in subdivision (g) or not listed in subdivision (g) which do not meet the three tests of compatibility listed in paragraph (1) of this subdivision. If the proposed activity is listed as "X" or cannot meet the three tests for compatibility, then a permit shall be issued only if the proposed activity meets each of the standards below for the clases of wetland affected:

Class I Wetlands1,2,3 Class II Wetlands1,2,3 Class III Wetlands1,2,3 Class IV Wetlands1,2,4
Class I wetlands provide the most critical of the State's wetland benefits, reduction of which is acceptable only in the most unusual circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefit(s) of the Class I wetland. Class II wetlands provide important wetland benefits, the loss of which is acceptable only in very limited circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the benefit(s)of the Class II wetland. Class III wetlands supply wetland benefits, the loss of which is acceptable only after the exercise of discernment. A permit shall be issued only if it is determined that the proposed activity satisfies an economic or social need that outweighs the loss of or detriment to the benefit(s) of the Class III wetland. Class IV wetlands provide some wildlife and open space benefits and may provide other benefits cited in the act. Therefore, wanton or uncontrolled degradation or loss of Class IV wetlands is unacceptable. A permit shall be issued for a proposed activity in a Class IV wetland only if it is determined that the activity would be the only practicable alternative which could accomplish the applicant's objectives.
1 The proposed activity must be compatible with the public health and welfare.
2 The proposed activity must be the only practicable alternative which could accomplish the applicant's objectives and must have no practicable alternative on a site that is not a freshwater wetland or adjacent area.
3 The proposed activity must minimize degradation to, or loss of, any part of the wetland or its adjacent area and must minimize any adverse impacts on the functions and benefits which that wetland provides.
4 The proposed activity must make a reasonable effort to minimize degradation to, or loss of, any part of the wetland or its adjacent area.

(f) Interpretation of some terms used in subdivision (e) of this section.

(1) Public health and welfare. These concerns include:

(i) consistency of the proposed activity with physical health, if necessary as judged by health professionals; and

(ii) consistency with related Federal, State and local laws, regulations and policies.If a proposed activity is inconsistent with physical health, or with any related laws, regulations and government policies, this would weigh against issuing a permit under the act until such conditions were met that would make the proposed activity consistent with these provisions.

(2) Only practicable alternative. A proposed activity is the only practicable alternative if no other is physically or economically feasible. This does not, however, mean that the most profitable or least costly alternative is the only feasible one nor that the least profitable or most costly alternative is the only feasible one.

(3) Economic and social need. When the economic and social need for the proposed activity is considered, the economic and social burden that would be imposed on the public shall be considered. The public economic and social burden may include: associated services, such as sewer systems, schools, and fire and police protection, necessitated by the proposed activity; prevention of contamination, flood, or other damage to the proposed development on the wetland by methods such as channelization, alteration of land, alteration of water flow, draining, or construction of dams, dikes, or levees; and/or services and repairs, such as medical care, pumping, cleaning, dredging, and emergency assistance as a result of contamination, flooding, or other damage to the proposed development on the wetland. Nothing in this section precludes the consideration of any issue which must be addressed under the State Environmental Quality Review Act (article 8 of the Environmental Conservation Law).

(4) Specific Class I standards.

(i) ". . . reduction of which is acceptable only in unusual circumstances." Permits for the vast majority of activities that could not avoid reducing a benefit provided by a Class I wetland would not be approved. The word reduction means that this applies not just to the loss of any benefit, but to the partial loss or reduction of a benefit.

(ii) ". . . satisfied a compelling economic or social need. . ." The word compelling implies that the proposed activity carries with it not merely a sense of desirability or urgency, but of actual necessity; that the proposed activity must be done; that is it unavoidable.

(iii) ". . . clearly and substantially outweighs. . ." Clearly means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate. Substantially carries this further, in that not only must the need clearly outweigh the loss or detriment, but the margin of outweighing itself must be large or significant.

(5) Specific Class II standards.

(i) ". . .loss of which is acceptable only in limited circumstances." Permits for most activities that could not avoid causing a loss of or detriment to a benefit provided by a Class II wetland would not be approved.

(ii) ". . . satisfies a pressing economic or social need. . ." Pressing should suggest that for the need to outweigh the loss of or detriment to a benefit of a Class II wetland, it must be urgent and intense, though it does not have to be necessary or unavoidable.

(iii) ". . . clearly outweighs. . ." means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate, although there does not have to be a large or significant margin between the need and the loss.

(6) Specific Class III standards.

(i) ". . . loss of which is acceptable only after the exercise of caution and discernment." This means that permits could be issued for activities that could not avoid loss of or detriment to a benefit provided by a Class III wetland, but only after careful evaluation.

(ii) ". . . satisfied an economic or social need. . ." The need for the activity is real and undeniable, though it does not have to be necessary, unavoidable, urgent or intense.

(iii) ". . . outweighs. . ." means that the need for the activity must outweigh the loss of or detriment to a benefit, but the balance in favor of the activity does not have to be beyond serious debate.

(7) Class IV standards. Permit issuance cannot be indiscriminate or unexamined for Class IV wetlands and still require consideration of loss of wetland values.

(g) The commissioner is charged pursuant to section 24-0903 of the act with the identification of compatible uses of each class of wetlands in the form of minimum land-use regulations. The chart included in this subdivision serves as statewide minimum land-use regulations for use by local governments or the department as appropriate, subject to local variance in accordance with section 665.8 of this Part. These land-use regulations, in conjunction with the standards for permit issuance, are the basis for determinations of compatibility. The following categories are used in the statewide minimum land-use regulations:

(1) "LP" means that a letter of permission will be issued for the proposed activity. These are activities which are neither specifically exempted from the regulation nor identified for regulation according to section 24-0701 of the act, but which the commissioner has determined will not have a significant adverse impact on freshwater wetlands.

(2) "C" means that a regulated activity may be compatible with a wetland and its functions and benefits, although in some circumstances the proposed action may be incompatible.

(3) "N" means that a regulated activity is usually incompatible with a wetland and its functions or benefits, although in some cases the proposed action may be insignificant enough to be compatible.

(4) "X" means that a regulated activity is incompatible with a wetland and its functions and benefits.

(5) "E" means that an activity is exempted in section 24-0701 of the act, or is not regulated by the act because the activity will not substantially impair any of the functions or benefits of freshwater wetlands. Exempt actions are not regulated, but are included in the tables in subdivision (g) of this section to assist permit application reviewers in determining regulatory requirements.

(g) Statewide minimum land-use regulations--determinations of compatibility. The statewide minimum land-use regulations establish the compatibility categories to be used in conjunction with the different types of land-use activities to be conducted upon freshwater wetlands or adjacent areas. For activities and land uses not shown on this chart, a local government or the department, as appropriate, must first make a determination that the activity is a regulated activity as defined in the act and section 665.2 of this Part. If the activity is regulated, then an independent determination of compatibility using the three tests for compatibility contained in the standards for permit issuance in subdivision (e) of this section must be used.

Area categories

FWW - Freshwater Wetland
AA - Adjacent Area

Compatibility categories

LP - Compatible; letter of permission issued
C - Usually compatible
N - Usually incompatible
X - Incompatible
E - Exempt

Exempt Activities

The following activities either have been exempted from regulation by the act or are not regulated because they will not substantially impair any of the functions and benefits of freshwater wetlands.

Exempt Activities
Items Activities Compatibility by Area
FWW AA
1. Continuing lawfully existing uses and continuing all activities normally and directly associated with any such use, except for those activities covered by items 38, 39, 40 and 41, where such continuance does not involve expansion or significant alteration of the existing use and does not affect additional wetland area. E E
2. Establishing scenic, historic, wildlife, and scientific preserves, where no significant impairment of the wetland or its benefits is involved. E E
3. Boating, hiking, swimming, camping, picnicking and other similar nonmotorized forms of outdoor activity, where no significant impairment of the wetland or its benefits is involved. E E
4. Depositing or removing the natural products of wetlands in the process of recreational or commercial fishing, shellfishing, aquiculture, hunting or trapping,including the erection and maintenance of temporary hides or blinds. E E
5. Conducting educational and scientific research activities where no significant impairment of the wetland or its benefits is involved. E E
6. Establishing walking trails, where no significant impairment of the wetland or its benefits is involved. E E
7. Establishing an individual recreational mooring. E E
8. Gathering fuelwood, except as covered items 22, 23 and 24. E E
9. Conducting an agricultural activity as defined in the act or section 665.2 of this Part. E E

Existing Structures and Facilities

Normally, maintenance, repair or restoration of existing facilities will not cause adverse impacts on wetlands. This is not always true, however, for construction activities that are associated with such maintenance, repair or restoration, such as the placing of access roads, staging areas and utilities. Various such associated activities are listed elsewhere in this chart.

Expansion or substantial restoration or reconstruction of existing structures and facilities can have significant impacts on the functions and benefits of wetlands. These impacts can be greater than those caused by the total replacement of the structures or facilities or by their construction in a different location.

Existing Structures and Facilities
Items Activities Compatibility by Area
FWW AA
10. Ordinary maintenance and repair of existing functional structures, facilities or improved areas, including but not limited to bridges, roads, highways, culverts, railroad beds, bulkheads, docks, beaches, piers, wharves, pilings, dolphins, utility rights-of-way, buildings, landscaped orpaved areas, lawns, and mosquito control ditches. Such maintenance and repair might include, for example, replacing broken boards in docks, repainting structures, redriving pilings, resurfacing paved areas, and installing and removing docks on a seasonal basis, but does not include activities covered by items 22, 23, 24, 38, 39, 40 and 41 or other applicable items listed in this chart. E E
11. In-kind and in-place replacement of existing functional bulkheads and similar structures. LP LP
12. Routine beach regrading and cleaning. LP LP
13. Restoring, reconstructing or modifying existing functional structures or facilities which involves a temporary disturbance of less than 50 square meters (approximately 540 square feet) of ground surface. C LP*
14. Expanding or substantially modifying existing functional structures or facilities, except for activities covered by items 13, 19 or 31. N C
* For classic kettlehole bogs as defined in section 665.2(g) of this Part, the category is "C".

Operating Motor Vehicles

Intense use of motor vehicles may impair any of the several functions and benefits of wetlands by introducing or increasing contaminants, noise or other forms of pollution, or by removing or reducing vegetation and exposing soil to erosion. Occasional use generally does not warrant regulation.

Operating Motor Vehicles
Items Activities Compatibility by Area
FWW AA
15 Operating all-terrain vehicles, air and motor boats, and snowmobiles, except as described in item 16. E E
16 Intensive, organized and repetitive use of all-terrain vehicles, air and motor boats and snowmobiles. N C

Draining, Filling, Grading, Clear-cutting and Dredging

Generally, draining of wetlands lowers groundwater levels, may increase downstream peak flows, and may decrease water storage capacity and downstream base flow. It may also cause changes in vegetation and water temperature, increased stream bed scouring, and sediment deposition. Draining can totally destroy a wetland.

Filling decreases the number and size of wetlands, thereby decreasing their ability to collect runoff and prevent erosion and sediment deposition downstream. Certain fill materials may adversely affect water quality. Disposal of dredge material may result in erosion and cause turbidity and sediment deposition. Filling eliminates wetland habitat for fish and wildlife, may alter the water table and groundwater flow and adversely affect groundwater recharge, and can irreversibly destroy a wetland.

Grading a wetland or adjacent area can substantially alter surface water drainage and flow patterns, may temporarily increase erosion, and may eliminate fish and wildlife habitat.

Clear-cutting removes the vegetative cover of wetlands and may reduce their ability to absorb water and serve as habitat. It may also cause soil erosion.

Dredging or excavation may increase water depth and remove wetland vegetation, thus altering the basic characteristics of, and perhaps destroying, wetlands. Fish and wildlife feeding or reproductive capacities may be altered, as may covertypes, turbidity, sediment deposition and erosion patterns.

Any of these activities can cause the permanent loss of benefits provided by wetlands, and may, in fact, destroy wetlands entirely.

Draining, Filling, Grading, Clear-cutting and Dredging
Items Activities Compatibility by Area
FWW AA
17 Draining and altering water levels, except as part of an agricultural activity. X X
18 Removing or breaching beaver dams. N C
19 Constructing, expanding or substantially modifying drainage ditches, except as part of an agricultural activity. X N
20 Filling, including filling for agricultural purposes. X N
21 Installing or creating a dry well, retention basin, filter, open swale or pond. N N
22 Clear-cutting trees. N C
23 Clear-cutting vegetation other than trees except as part of an agricultural activity. X N
24 Cutting but not elimination or destruction of vegetation, such that the functions and benefits of the wetland are not significantly adversely affected. LP LP
25 Grading, and dredging not included in item 26. X N
26 Dredging less than 400 cubic meters (approximately 523 cubic yards) to maintain present navigation channels. C C
27 Mining. X X
28 Constructing roads, except for winter truck roads as defined in section 665.2(c)(1)(vi) of this Part. X N
29 Drilling a water well to serve an individual residence. C LP
30 Drilling a well, except for activities covered by item 29. X N

Dams, Docks and Bulkheads

Generally, structures of this type are indicative of associated development which may increase disruptive human use or occupancy of wetland areas.

A structure sometimes interferes with surface or subsurface water flow, increases water levels, or otherwise affects wetland water supply. The impact of such a structure is related to its size, location and design. For example, docks on piles are generally more compatible with the functions and benefits of wetlands than are docks on fill.

Dams alter normal flow patterns and often increase water levels, thus eliminating or altering the natural vegetation. Depending on the size of the structure, entire wetlands can be destroyed.

Dams, Docks and Bulkheads
Items Activities Compatibility by Area
FWW AA
31. Installing a dock, pier, wharf or other structure built on floats or open-work supports and having a top surface area of 20 square meters (approximately 200 square feet) or less. C C
32. Installing any dock, pier, wharf or other structure used as a landing place on water, except for activities covered by item 31. N N
33. Constructing groins, bulkheads and other shoreline stabilization structures. X N
34. Constructing or removing berms, levees, dikes, dams, and other control structures. X N

Utilities

Installing utilities in or adjacent to wetlands will be presumed to cause less damage to those wetlands if little or no additional clearing and grading is necessary. Where extensive clearing and construction of access or maintenance roads occurs, erosion and sedimentation may be the most serious problems.

Installing overhead lines, while often spanning wetlands and thereby minimizing construction impacts, will result in a permanent adverse aesthetic impact on wetlands. Overhead power lines may also result in higher bird mortality rates, either through collision or electrocution.

Utilities
Items Activities Compatibility by Area
FWW AA
35. Installing utility service to an individual residence. LP E
36. Installing electric, telephone or other utilities from an existing utility distribution facility to a structure, except for activities covered by item 35, where no major modifications or construction activities in the wetland are necessary. C LP
37. Installing utilities, except for activities regulated by article VII or VIII of the Public Service Law or by item 36. X N

Pollution and Pesticides

Introduction of sewage effluent, runoff of pesticides, or disposal of toxic substances into wetlands or adjacent areas may contaminate ground and surface water with undesirable chemicals, nutrients and organisms. The contamination may be temporary or permanent. It may result from activities located directly in wetlands or within adjacent areas, but, due to runoff and drainage patterns, it may also be caused by activities located some distance away. Distant activities can have adverse effects as severe as those caused by activities within or adjacent to wetlands. The presence of pollutants or pesticides in wetlands or adjacent areas may increase mortality rates among fish and wildlife, alter their behavior or reproductive capability, and adversely affect their value as a food source. Excessive nutrients alter vegetative cover, fish and wildlife distribution and water potability. Resulting organisms may also create a health hazard.

Pollution and Pesticides
Items Activities Compatibility by Area
FWW AA
38. Introducing or storing any substance, including any chemical, petrochemical, solid waste, nuclear waste, toxic material, sewage effluent or other pollutant, except as described in items 39, 40 and 41. X X
39. Application of a pesticide conducted pursuant to a permit issued under article 15 of the Environmental Conservation Law (see 6 NYCRR Parts 327, 328 and 329). N C
40. Application of a pesticide where no permit is required under article 15 of the Environmental Conservation Law (see 6 NYCRR Parts 327, 328 and 329). X X
41. Application of a pesticide to the grounds of a private residence when such use is by the owner. C LP

Buildings

Constructing buildings, accessory roads and parking areas can have several effect on wetlands, not the least of which is the increased pressure to continue development beyond the initial construction.

Roofs and paved areas quickly shed rain where that rain previously had an opportunity to soak into the ground. This can result in more turbulent streamflow, more erosion and sedimentation, and higher water levels in surrounding areas, including in nearby wetlands.

The effects of filling, grading and draining are discussed elsewhere in this chart.

Buildings
Items Activities Compatibility by Area
FWW AA
42. Constructing a residence or related structures or facilities. X N
43. Constructing commercial or industrial facilities, public buildings or related structures or facilities. X X

(h) The applicant may suggest a proposal to enhance the existing benefits provided by a wetland or to create and maintain new wetland benefits in order to increase the likelihood that a proposed activity will meet the applicable standards for permit issuance. Such a proposal must meet the following provisions:

(1) the mitigation must occur on or in the immediate vicinity of the site of the proposed project;

(2) the area affected by the proposed mitigation must be regulated by this Part after mitigative measures are completed; and

(3) the mitigation must provide substantially the same or more benefits that will be lost through the proposed activity.

(i) Duly filed notice in writing that the State or any agency or political subdivision of the State is in the process of acquiring any freshwater wetland by negotiation or condemnation authorizes but does not require denial of any permit, but only if both the affected landowner and the local government have been so notified.

(1) The written notice must include an indication that the acquisition process has commenced, such as that an appraisal of the property has been prepared or is in the process of being prepared.

(2) If the landowner receives no offer for the property within one year of the permit denial, this bar to the permit lapses. If its negotiations with the applicant are broken off, the State or any agency or political subdivision must, within six months of the end of negotiation, either issue its findings and determination to acquire the property pursuant to section 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to section 206 of the General Domain Procedure Law, or this ban to the permit lapses.

§665.8 Variances from Statewide Minimum Land-use Regulations

(a) In accordance with subdivision 24-0903.2 of the act, a local government that has assumed regulatory authority pursuant to this Part may submit within six months of receipt, and then annually to the commissioner a proposed variance from the statewide minimum land-use regulations in section 665.7(g) of this Part to govern wetlands within its boundaries.

(b) Such a proposed variance must be consistent with the purposes of the act and may be more or less restrictive than the statewide minimum land-use regulations. Where less restrictive, the proposed variance must be accompanied by supporting material setting forth, among other things, that there are overriding economic and social considerations vital to the growth and economic base of the local government that clearly require such variance.

(c) The commissioner must hold a public hearing in the area in which the affected wetlands are located, after giving 15 days prior notice of the hearing by publishing at least once in a newspaper having general circulation in the area of the local government proposing a variance. Notice of the proposed variance must be published as a notice of proposed agency action in the State Register.

(d) If the commissioner approves the variance, he must promulgate the local variance as an amendment to the statewide minimum land-use regulations within 30 days of the hearing and after publishing a notice at least once in two newspapers having general circulation in the area of the local government concerned and make the variance available for public inspection and review. The variance does not take effect until the notice and review requirements of the State Administrative Procedure Act have been satisfied and the amendment has been filed with the Secretary of State and until 30 days after its filing with the clerk of the county in which the local government is located.

(e) If the commissioner does not approve the variance, any person aggrieved by that decision may seek review pursuant to section 665.14 of this Part.

§665.9 Delegation of Regulatory Authority over Class I Wetlands

(a) As noted in section 665.3(f) of this Part, the commissioner may delegate regulatory authority over Class I wetlands to a local government. For such delegation, the commissioner must consider the degree to which the local government's prior performance demonstrates a commitment to wetland preservation, protection and conservation, and demonstrates a high level of technical and administrative capability. Delegation may occur only if:

(1) a local government has implemented a local freshwater wetlands protection program pursuant to the act for at least two years and has acted on at least six permit applications; and

(2) the local government program has resulted in negligible loss of wetlands benefits, or substantive losses where a result of clearly justified, overriding considerations pursuant to the standards for issuance of permits in section 665.7 of this Part.

(b) The commissioner may rescind this delegation of regulatory authority to a local government for cause and with due notice. Jurisdiction over a permit application in process on the effective date of rescission is transferred to the department.

(c) A local government may apply for the delegation of regulatory authority by a written request from the chief executive officer, accompanied by a resolution of its legislative body, after that local government has complied with subdivision (a) of this section.

(d) Before delegating its regulatory authority, the department must provide for public comment by publishing a notice of its intent in the department's environmental notice bulletin, and at least once in two newspapers having general circulation in the area in which the affected wetlands are located, at least 60 days before such delegation.

(e) The delegation of regulatory authority to a local government may not occur within two years of the date a previous delegation was rescinded pursuant to subdivision (b) of this section or authority was superseded pursuant to section 665.12 of this Part.

(f) The commissioner also may choose to delegate authority for Class I wetlands in certain circumstances according to conditions and provisions which he prescribes, providing that the delegation of authority is consistent with the intent and purposes of the act and this Part and after complying with subdivisions (c) and (d) of this section.

§665.10 Local Government Enforcement

(a) No person may violate the terms or conditions of a permit issued by a local government. Civil and criminal sanctions for violation of the act or local laws or ordinances adopted pursuant to the act and this Part are set out in title 23 of article 71 of the Environmental Conservation Law.

(b) A local government must reasonably and conscientiously enforce the provisions of its local freshwater wetlands protection program in that it will:

(1) conduct inspections to ensure compliance with permit conditions;

(2) investigate all reports of violation;

(3) suspend or revoke a permit upon a finding of noncompliance; and

(4) prosecute violation of the act, the local law or ordinance, or permit condition as appropriate.

§665.11 Emergency Activities

A local government may waive the requirement for a permit where an actual and ongoing emergency activity in a wetland or adjacent area is immediately necessary to protect life, property or natural resource values. The person responsible for taking the emergency measures is required to notify the local government's permit administrator within two working days after the commencement of those emergency measures and is required to describe the emergency; the property, life or natural resource values being protected; and the measures being taken. After completion of the emergency measures, the local government must require this information in writing.

§665.12 Supersession of regulatory authority

(a) The commissioner, as set forth in section 665.4(k) of this Part, may supersede local jurisdiction on the basis of a finding of inadequate technical and/or administrative capability to implement a local freshwater wetlands protection program.

(b) The commissioner, pursuant to section 24-0503 of the act, may also supersede local jurisdiction on the basis of a finding that a local government has failed to effectively implement its local freshwater wetlands protection program.

(c) In the event of a finding under subdivision (a) of this section:

(1) The commissioner must notify the chief executive officer of the local government of such a finding by certified mail. The local government will be allowed 60 days to bring its program into conformance according to provisions of sections 665.4 and 665.5 of this Part. During that time, the local government must obtain, for a fee, the assistance of the department in processing and reviewing any permit applications already in process or which are received in the interim.

(2) If, after 60 days, conformance is not achieved, the commissioner must notify the chief executive officer by certified mail that local jurisdiction has been superseded and transferred to the next level of local government or to the department, as the case may be. In doing so, the commissioner must afford the local government an opportunity to request a hearing within 15 days of receipt of the notice.

(d) In the event of a finding under subdivision (b) of this section, the commissioner will notify the chief executive officer by certified mail that local jurisdiction has been superseded and transferred to the next level of local government or to the department, as the case may be. In doing so, the commissioner must afford the local government an opportunity to request a hearing within 15 days of receipt of the notice.

(e) The decision to supersede shall be based on a finding of inadequate technical and/or administrative capability or inadequate performance as evidenced by:

(1) failure to meet the requirements and standards in section 665.4, 665.5, 665.6 or 665.7 of this Part;

(2) failure to notify the department of a substantive change in local government capability or its local freshwater wetlands protection program in accordance with section 665.4(g) or 665.4(m) of this Part;

(3) failure to demonstrate technical capability in practice or to employ technical capability or to consider technical findings;

(4) failure to adhere to administrative processes in a single major case or several substantive cases; e.g., failure to provide for adequate public involvement; or

(5) failure to enforce a local freshwater wetlands protection program in accordance with section 665.10 of this Part.

(f) A local government may recover its authority to assume local jurisdiction in accordance with the procedures outlined in section 665.4 of this Part, not less than one year after supersession.

(g) In order to provide the necessary audit of local implementation:

(1) The department will review all actions and supporting documentation of a local government at least once within six months of assumption of local jurisdiction and at least once every two years thereafter. In its review, the department will consider the purposes, policies and provisions of the act and the standards and criteria included in this Part.

(2) A local government must provide the department with a copy of all permits upon issuance for audit and official map maintenance purposes. The local government must retain all applications, permits, letters of permission and supporting material for public or department inspection until two years after the permitted activity is completed or an application is denied.

§665.13 Other Department Responsibilities

In addition to those already specified, the act assigns the department other continuing roles in freshwater wetlands protection for the sake of consistency and to assure adequate jurisdiction in view of the fact that natural systems transcend local boundaries.

(a) The department is responsible for the promulgation of official maps for regulatory purposes and, except in the Adirondack Park, the classification of mapped wetlands the maintenance of said maps and classifications.

(b) Except in the Adirondack Park, the department must delineate more precisely the boundary line or lines of a freshwater wetland or parts of a wetland upon written request of any person showing good cause for such delineation. Such delineation must be in accordance with the provisions of subdivision 24-0301.7 of the act.

(c) The department, in accordance with section 664.4(g) and (h), must respond to a written request by any person to change a wetland's classification and must confirm the classification of a wetland to be affected by a proposed activity upon the written request of any person intending to submit an application for a permit to the department or a local government.

(d) The department, except in the Adirondack Park, retains regulatory authority in all cases where:

(1) an official map has not yet been promulgated;

(2) no local government has assumed local jurisdiction or said jurisdiction has been transferred to, defaulted or superseded by the department;

(3) wetlands have been exempted from local implementation and not delegated to a local government; or

(4) a local government is the applicant for a permit.

(e) The department, pursuant to subdivision 24-0501.7 of the act, will make its technical services available for a fee. Such fees are imposed at the discretion of the department and must not exceed the total cost of providing the service.

(1) Technical services for a fee may be supplied to a local government that has temporarily lost the services of a person(s) providing technical capability to the local freshwater wetlands protection program and thus its ability to administer the act. The local government must reestablish its technical capability, in accordance with section 665.4(h), (i) and (j) within six months or its authority will be superseded.

(2) Local governments are encouraged to seek the advice of the department for permit application review under circumstances that do not require formal participation and consideration of a fee. Technical information of the department that is available to the public (e.g., flora and fauna occurrence) will be available for free to local governments to assist them in reviewing permit applications.

(f) Notwithstanding the requirement for local government enforcement of its local freshwater wetlands protection program in accordance with section 665.10 of this Part, the department may, at the request of local government or on its own initiative, take enforcement action against violation of the act, local law or ordinance or the terms of any permit.

§665.14 Appeals and Review

An appeal from, or an application for review of, any decision, determination or order under this Part may be made to the Freshwater Wetlands Appeals Board or to a court of competent jurisdiction pursuant to the provisions of title 11 of the act.

§665.15 Relation to Other Laws

(a) No provision of this Part relieves any person from the obligation to comply with any other applicable Federal, State or local law or regulation.

(b) The system of wetlands classification upon which this Part is based and which local governments must use in administering their local freshwater wetlands protection program is presented in Part 664 of this Title. That Part, which is administered by the department, describes the benefits of wetlands cited in the act and the characteristics associated with them.

(c) Regulations governing permit administration by the department after official maps have been promulgated are presented in Part 663 of this Title.

(d) Regulations governing permit administration by the department prior to promulgation of official maps are presented in Part 662 of this Title.

§665.16 Effective Date

(a) This Part will be effective on May 15, 1984.

(b) The effective day of this Part is considered to be the day for receipt of the statewide minimum land-use regulations.