Part 664: Freshwater Wetlands Maps and Classification
(Statutory authority: Environmental Conservation Law §3-0301 and §24-1301)
- 664.1 Applicability.
- 664.2 Definitions.
- 664.3 Purposes and approach.
- 664.4 Classification procedures.
- 664.5 Classification system.
- 664.6 Explanation of classification characteristics.
- 664.7 Freshwater wetlands map maintenance, amendment, and adjustment.
- 664.8 Appeals and review.
- 664.9 Effective date.
(a) This Part applies to all wetlands regulated under the freshwater wetlands act, whether regulated by the department or by towns, cities, villages, or counties. The department alone shall map and classify wetlands, regardless of which agency is implementing the act in a particular locality, except that the Adirondack Park Agency shall classify the wetlands within the Adirondack park.
(b) Where the department is the regulating authority, the wetlands classification system presented in this Part takes effect in the department's freshwater wetlands permit requirements regulations, Part 663 of title 6 of the official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR 663). In Part 663 standards for the issuance of permits are provided for each of the four wetland classes described in sections 664.5 and 664.6 of this Part.
(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, an adjacent area broader than 100 feet (approximately 30 meters) may be established where necessary to protect and preserve the wetland, as set forth in section 664.7.
(c) "Boundary of a wetland" means the outer limit of the vegetation specified in paragraphs (a) and (b) of subdivision one of section 24-0107 of the act and of the lands and waters specified in paragraphs (c) and (d) of such subdivision.
(d) "Commissioner" means the commissioner of the department of environmental conservation or a duly authorized representative.
(e) "Department" means the department of environmental conservation.
(f) "Freshwater wetland" or "wetland" means lands and waters of the state which meet the definition provided in section 24-0107(l) 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 section 24-0301(l) of the act.
(g) "Freshwater wetlands map" or "map" means a final freshwater wetlands map promulgated by the commissioner pursuant to section 24-0301(5) of the act, or such a map that has been amended or adjusted pursuant to section 664.7, on which are indicated the approximate location of the actual boundaries of wetlands.
(h) "Local government" means a village, town, city, or county.
(i) "Permit" means the written approval, issued by the commissioner or a local government, where required for the conducting of a regulated activity in a wetland or adjacent area, in accordance with title 7 of the act.
(j) "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.
(k) "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.
§664.3 Purposes and approach.
(a) Public policy. It is the public policy of the state, as set forth in the freshwater wetlands act, to preserve, protect and conserve freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of wetlands, and to regulate use and development of wetlands to secure the natural benefits of those wetlands, consistent with the general welfare and beneficial economic, social and agricultural development of the state. It is the purpose of this Part to implement that policy by clarifying certain aspects of wetland mapping and delineation of jurisdiction, and by creating a system for classifying wetlands in accordance with section 24-0903(l) of the act. Such a system must take into account the present condition of wetlands as well as their many benefits described below and in section 24-0105(7) of the act.
(b) Wetland benefits. The preservation, protection, and conservation of wetlands is of public concern because of the benefits they provide. These include:
(l) Flood and stormwater control. Wetlands may slow water runoff and temporarily store water, thus helping to protect downstream areas from flooding. Public health and private property in one part of a watershed may be harmed if wetlands are destroyed in a different part of that watershed.
(2) Wildlife habitat. Wetlands are of unparalleled value as wildlife habitat, and the perpetuation of scores of species depends upon them. Many of the species are migratory and must have nesting, migration, and wintering habitat. The destruction of one kind of wetland habitat in one place may reduce populations of wildlife elsewhere. Where specific wetlands support endangered species, destruction of those wetlands may threaten the presence of the endangered species for all time.
(3) Water supply. Wetlands themselves are a source of surface water and may, under appropriate hydrological conditions, serve to recharge groundwater and aquifers and to maintain surface water flow.
(4) Water quality. Many wetlands serve as chemical and biological oxidation basins that help cleanse water that flows through them. Wetlands can also serve as sedimentation areas and filtering basins that absorb silt and organic matter, thereby protecting channels and harbors and enhancing water quality.
(5) Fisheries. Wetlands provide the spawning and nursery grounds for several species of fish. The availability of these fish in lakes and streams may be adversely affected by the loss of wetlands adjacent to those waters.
(6) Food chains. Food and organic detritus supplied by wetlands support the fish and wildlife of adjacent waters.
(7) Recreation. Wetlands provide important hunting, fishing, boating, hiking, birdwatching, photography, camping, and other recreational opportunities. In addition, wetlands may be critical to recreation beyond their own borders because of their ability to protect water quality and protect and produce wildlife and fish.
(8) Open space and aesthetic appreciation. Wetlands provide visual variety in many different settings. Especially in urban areas, wetland open space contributes to social well-being by providing relief from intense development and a sense of connection with the natural world.
(9) Education and scientific research. Because of the high biological productivity and the variety of plant and animal species they can support, wetlands can be of broad social benefit in providing outdoor laboratories and living classrooms for studying and appreciating natural history, ecology, and biology. Many of the lessons learned and principles evolved through study of wetlands are applicable to other environmental issues.
§664.4 Classification procedures.
(a) The commissioner shall classify each wetland shownon the freshwater wetlands map according to the classification system set forth in section 664.5. That system establishes four separate classes that rank wetlands according to their ability to perform wetland functions and provide wetland benefits. Class I wetlands have the highest rank, and the ranking descends through Classes II, III and IV.
(b) When a wetland contains characteristic(s) of more than one class, the wetland shall be classified in the highest of the classes.
(c) If irreversible degradation has removed the benefits associated with the particular characteristic(s) justifying a classification, the wetland shall be classified on the basis of the remaining characteristics. For example, a wetland could be irreversibly contaminated by toxic substances that remove its benefits as habitat for fish andwildlife, or could be irreversibly visually degraded, thus removing some or all of its aesthetic, recreational, and open space benefits.
(d) Notwithstanding subdivision (c) above, where land originally designated as a wetland on the map was altered for agricultural purposes following the promulgation of that map, the land shall continue to be classified in light of its wetland conditions, and the wetland benefits set forthin section 24-0105 of the act and in this Part that it provided, at the time of its original designation on the map.
(e) The classification of each wetland shall be set forth in a written order by the commissioner. An explanation of the reasons for the classification shall be on file in the appropriate regional office(s) of the department. A copy of the classification order shall be filed in the office of the clerk of each local government in which the wetland is located and in the appropriate regional office(s)of the department. Notice of each order shall also be given to the chief administrative officer of each affected local government and to each owner of record, as shown on the latest completed tax assessment rolls, of classified wetlands affected by the order, and also shall be published in the depatrment's environmental notice bulletin.
(f) The commissioner may raise or lower a classification on the basis of material new information or materially changed wetland conditions. Notice of the order setting forth the revised classification shall be given and published,and a copy of such order shall be filed, as provided in subdivision (e) above.
(g) Any person may request of the department a change in a wetland's classification by setting forth reasons for believing the present classification to be incorrect. Such request shall be submitted in writing in a form and manner prescribed by the department and shall set forth material new information relevant to the wetland or materially changed conditions of the wetland justifying the request.The request must include evidence addressed to the classification system set forth in section 664.5, consisting of, for example, photographs identifying covertypes justifying a different classification; water samples; or the affidavit of an expert. The department shall notify the person making the request within 15 working days as to whether the request is adequate to warrant consideration. If the department deems the request adequate, the decision to reclassify the wetland as requested, to retain the existing classification, or to change the classification to another classification not so requested shall continue to be at the discretion of the commissioner. Notice of any order setting forth a revised classification shall be given and published, and a copy of such order shall be filed, as provided in subdivision(e) above.
(h) Any person intending to submit an application for a permit or a letter of permission may, in the course of a preapplication conference held pursuant to subdivision (b)of 6 NYCRR 663.4, or in the course of analogous discussions with a local government that is administering the act, request in writing, in a form and manner prescribed by the department, that the commissioner confirm the classification of the wetland that would be affected by the proposed activity. Within 15 working days of the department's receipt of the request, the commissioner shall decide either to confirm the existing classification or to revise (either to raise or lower) the classification on the basis of material new information or materially changed wetland conditions. Within that same 15-day period, the department shall send notice of the decision confirming or revising the classification to the person who submitted the request; and that person shall not file a permit application until such notice has been provided. Where the classification is revised, notice of the order setting forth the revised classification shall also be given and published, and a copy of such order shall be filed, as provided in subdivision (e) above. Once the wetland's classification has been confirmed or revised pursuant to this subdivision and the permit application that was the subject of the preapplication conference has been filed, no further department-initiated change in the wetland's classification shall change the standard for permit issuance applied to that application.
(i) If there is a public hearing on a permit application, then once that hearing has commenced, no department-initiated change in the wetland's classification shall change the standard for permit issuance applied to that application. However, any other party to such a hearing may request a change in the existing classification of that wetland in the same manner and under the same conditions asset forth in subdivision (g) above. Within 5 working days of its receipt of the request, the department must determine whether the request is adequate to warrant consideration. If the department deems the request adequate, the commissioner must act upon the request; either to reclassify the wetland as requested, to retain the existing classification, or to change the classification to another classification not so requested; within 15 working days from the date ofthe request, and before the permit hearing may continue.
§664.5 Classification system.
Not all wetlands supply equally the benefits explained in section 664.3(b). The degree to which wetlands supply benefits depends upon many factors, including: their vegetative cover, their ecological associations, their specialfeatures, their hydrological and pollution control features, and their distribution and location; and these may vary considerably from wetland to wetland.
Because of this variation, the act requires the commissioner to classify wetlands in a way that recognizes that not all wetlands are of equal value. This section establishes four ranked regulatory classes of wetlands, depending upon the degree of benefits supplied. The benefits cited in section 24-0105(7) of the act are translated into discernible wetland characteristics, and these characteristics are used to classify wetlands. Section 664.6 describes each characteristic in some detail and discusses the benefits supplied by a wetland when it contains that characteristic.
(a) Class I wetlands.
A wetland shall be a Class I wetland if it has any of the following seven enumerated characteristics:
(1) it is a classic kettlehole bog (664.6(b)(2));*
(* The reference in parentheses after each characteristic is to description of that characteristic and its associated benefits in section 664.6.)
(2) it is resident habitat of an endangered or threatened animal species (664.6(c)(2) and (4));
(3) it contains an endangered or threatened plant species (664.6(c)(4));
(4) it supports an animal species in abundance or diversity unusual for the state or for the major region of the state in which it is found (664.6(c)(1) and (6));
Hydrological and pollution control features
(5) it is tributary to a body of water which could subject a substantially developed area to significant damage from flooding or from additional flooding should the wetland be modified, filled, or drained (664.6(d)(1));
(6) it is adjacent or contiguous to a reservoir or other body of water that is used primarily for public water supply, or it is hydraulically connected to an aquifer which is used for public water supply (664.6(d)(2),(3), and (4)); or
(7) it contains four or more of the enumerated Class II characteristics. The department may, however, determine that some of the characteristics are duplicativeof each other, therefore do not indicate enhanced benefits, and so do not warrant Class I classification. Each species to which paragraphs 664.5(b)(6) through (8) apply shall be considered a separate Class II characteristic for this purpose.
(b) Class II wetlands.
A wetland shall be a Class II wetland if it has any of the following seventeen enumerated characteristics:
(1) it is an emergent marsh in which purple loosestrife and/or reed (phragmites) constitutes less than two-thirds of the covertype (664.6(a)(2));
(2) it contains two or more wetland structural groups (664.6(b)(1));
(3) it is contiguous to a tidal wetland (664.6(b)(3));
(4) it is associated with permanent open water outside the wetland (664.6(b)(4));
(5) it is adjacent or contiguous to streams classified C(t) or higher under article 15 of the environmental conservation law (664.6(b)(5));
(6) it is traditional migration habitat of an endangered or threatened animal species (664.6(c)(3) and (4));
(7) it is resident habitat of an animal species vulnerable in the state (664.6(c)(2) and (5));
(8) it contains a plant species vulnerable in the state (664.6(c)(5));
(9) it supports an animal species in abundance or diversity unusual for the county in which it is found (664.6(c)(7));
(10) it has demonstrable archaeological or paleontological significance as a wetland (664.6(c)(8));
(11) it contains, is part of, owes its existence to, or is ecologically associated with, an unusual geological feature which is an excellent representation of its type (664.6(c)(9));
Hydrological and pollution control features
(12) it is tributary to a body of water which could subject a lightly developed area, an area used for growing crops for harvest, or an area planned for development by a local planning authority, to significant damage from flooding or from additional flooding should the wetland be modified, filled, or drained (664.6(d)(1));
(13) it is hydraulically connected to an aquifer which has been identified by a government agency as a potentially useful water supply (664.6(d)(4));
(14) it acts in a tertiary treatment capacity for a sewage disposal system (664.6(d)(3));
Distribution and location
(15) it is within an urbanized area (664.6 (e) (1));
(16) it is one of the three largest wetlands within a city, town, or New York City borough (664.6(e)(3)); or
(17) it is within a publicly owned recreation area (664.6(e)(4)).
(c) Class III wetlands.
A wetland shall be a Class III wetland if it has any of the following fifteen enumerated characteristics:
(1) it is an emergent marsh in which purple loosestrife and/or reed (phragmites) constitutes two-thirds or more of the covertype (664.6(a)(2));
(2) it is a deciduous swamp (664.6(a)(3));
(3) it is a shrub swamp (664.6(a)(5));
(4) it consists of floating and/or submergent vegetation (664.6(a)(6));
(5) it consists of wetland open water (664.6(a)(7));
(6) it contains an island with an area or height above the wetland adequate to provide one or more of the benefits described in section 664.6(b)(6);
(7) it has a total alkalinity of at least 50 parts per million (664.6(c)(10));
(8) it is adjacent to fertile upland (664.6(c)(ll));*
(9) it is resident habitat of an animal species vulnerable in the major region of the state in which it is found, or it is traditional migration habitat of an animalspecies vulnerable in the state or in the major region ofthe state in which it is found (664.6(c)(1),(2),(3), and (5));
(10) it contains a plant species vulnerable in the major region of the state in which it is found (664.6(c)(1) and (5));
Hydrological and pollution control features
(11) it is part of a surface water system with permanent open water and it receives significant pollution of a type amenable to amelioration by wetlands (664.6(d)(3));
Distribution and location
(12) it is visible from an interstate highway, a parkway, a designated scenic highway, or a passenger railroad and serves a valuable aesthetic or open space function (664.6(e)(2));
(13) it is one of the three largest wetlands of the same covertype within a town (664.6(e)(3));
(14) it is in a town in which wetland acreage is less than one percent of the total acreage (664.6(e)(3)); or
(15) it is on publicly owned land that is open to the public (664.6(e)(5)).
(d) Class IV wetlands.
A wetland shall be a Class IV wetland if it does not have any of the characteristics listed as criteria for Class I, II or III wetlands. Class IV wetlands will include wet meadows (664.6(a)(l) and coniferous swamps (664.6(a)(4)) which lack other characteristics justifying a higher classification.
§664.6 Explanation of classification characteristics.
This section describes characteristics and their associated benefits used in classifying wetlands in section 664.5.
(a) Covertypes. The different wetland covertypes described in this subdivision provide wetland benefits to varying degrees. In order for a wetland to be considered to be of a given covertype and classified accordingly, that covertype should constitute at least 50 percent of the area of the wetland. However, if no single covertype constitutes 50 percent or more of the wetland area, this aspect of the wetland's classification shall be determined by adding up the areas of all the separate covertypes in each class and then assigning the wetland to the class that represents the largest proportion of the wetland's area. As listed in section 664.5, the only Class II covertype is emergent marsh in which purple loosestrife and/or reed (phragmites) constitutes less than two-thirds of the covertype; Class III covertypes are emergent marsh in which purple loosestrife and/or reed (phragmites) constitutes two-thirds or more of the covertype, deciduous swamp, shrub swamp, floating and/or submergent vegetation, and wetland open water; and Class IV covertypes are wet meadow and coniferous swamp. The evaluations of covertypes in this subdivision are distinct from the evaluations of structural groups provided in section 664.6(b)(1).
(1) Wet meadow. This consists of such plants as sedges, rushes, coarse grasses, and sometimes cattails. The soil is usually saturated with water for a significant part of the growing season. Vegetation tends to grow in clumps or tussocks. Cattails, if present, tend to grow between the clumps. In agricultural areas, wet meadow is usually a cleared but uncultivated parcel; often it is pastured. If the land is pastured, the clumps are more pronounced due to trampling by livestock. Wet meadow may occur within or at the edges of a hayfield and may be mowed, depending upon the degree of wetness. Old beaver meadows and floodplains may contain wet meadow vegetation. Standing water is often present during wet periods.
Wet meadow, when associated with other wetland covertypes, is valuable for wildlife, especially for nesting wetland birds. When associated with certain other wetland covertypes or with open water, wet meadow may be valuable for fish spawning. When not associated with other wetland covertypes, however, wet meadow is likely to be of relatively low value.
(2) Emergent marsh. This consists of such plants as cattails, purple loosestrife, swamp loosestrife, arrowheads, reeds, bur-reeds, pickerel-weed, wildrice, water plantain, bulrushes, and arrow-arum. These are herbaceous plants encroaching on water areas and flooded with standing water much of the year.
Emergent marsh is generally the most valuable individual covertype. The emergent vegetation itself provides nesting habitat, food, and cover. Frequently, emergent vegetation produces the largest annual increase in natural organic materials of any covertype, providing non-polluting nutrients to foodchains. An emergent marsh is usually different in physical structure from surrounding areas and therefore provides habitat diversity. An exception to the high value assigned to emergent marsh may occur where purple loosestrife or reed (phragmites) is dominant, in that it constitutes two-thirds or more of the covertype. In this case, a wetland shall be a Class III wetland.
(3) Deciduous swamp. This consists of live deciduous trees over 4.5 meters (approximately 15 feet) inheight. If not totally flooded, the terrain is hummocky. The trees include, but are not limited to, American elm, red maple, silver maple, red ash, black ash, swamp white oak, and willows. Deciduous swamps will generally be flooded or saturated during the spring and early summer but are likely to appear dry toward the end of summer and in the fall. Deciduous swamp is relatively valuable because it is frequently used by nesting waterfowl and is also heavily used by songbirds and other wildlife.
(4) Coniferous swamp. This consists of live coniferous trees over 4.5 meters (approximately 15 feet) in height. Some of the coniferous trees most commonly found in wetlands are black spruce, white cedar, red spruce, balsam fir, and American larch. Flooded conifers usually grow in hummocky terrain. The trees tend to grow out of the drier hummocks with pockets of water forming between the hummocks.
The value of coniferous swamp for wildlife is considered to be relatively low, although coniferous swamp can provide important winter cover for deer and habitat for varying hare.
(5) Shrub swamp. This covertype is found in a variety of areas including floodplains; frost pockets; edges of ponds, lakes, and bogs; and in association with hillside seeps. Woody vegetation is classified as shrub swamp if it is 4.5 meters (approximately 15 feet) or less in height. Species include alders, willows, leatherleaf, bog rosemary, sweet gale, buttonbush, highbush cranberry, and red osier dogwood. Also, sphagnum moss in bog mats usually occurs in association with shrub species.
The value of shrub swamp for fish and wildlife is variable, but shrub swamp can provide some of the values of emergent marsh or deciduous swamp: it is likely to have a structure different from surrounding areas and may supply significant nesting and other wildlife uses.
(6) Floating and submergent vegetation. Floating wetland vegetation may be free-floating, such as duckweed and watermeal, or rooted with floating leaves, such as water-lily, watershield, and spatterdock. Submergent plants, such as pondweeds, naiads, coontail, water milfoil, wild celery, quskgrass, stonewort, water smartweed, and bladderworts, normally grow beneath the surface of the water.
These covertypes can be important food sources for waterfowl and frequently are valuable areas for fish spawning and nurseries.
(7) Wetland open water, including open water with dead trees and open water that occasionally exposes unvegetated mud flats. Unvegetated open water is part of a wetland as a wetland covertype if it is substantially enclosed by wetland vegetation and is no larger than 2.5 hectares (approximately 6.2 acres). If the body of open water that is substantially enclosed by wetland vegetation is larger than 2.5 hectares (approximately 6.2 acres), then only that portion of the open water that is within 50 meters (approximately 165 feet) of the wetland vegetation is considered to constitute a wetland covertype and to be part of a wetland.
When in close conjunction with wetland vegetation, open water can be of considerable value as fish and wildlife habitat.
(b) Ecological associations. A variety of significant ecological associations may occur in wetlands. Wetlands having an association of substantially different kinds of physical or vegetative structures have special ecological value, especially for wildlife and fish. Association with particular non-wetland features may be important in defining wetland benefits. In addition, the visual diversity provided serves a valuable aesthetic function. The nature and significance of these associations are set forth in this subdivision.
(1) Two or more structural groups. Three groups of wetland vegetative structures can be identified. In order to be significant enough to be considered a factor in classifying a wetland according to this Class II characteristic, each structural group must constitute at least a particular minimum percentage of the area of the wetland.
(i) The herbaceous structural group consists of the covertypes made up of herbaceous vegetation which emerges above the surface of the water or soil. These emergent marsh and/or wet meadow covertypes must constitute at least 25 percent of the area of the wetland.
(ii) The woody structural group consists of covertypes of generally woody vegetation. These deciduous swamp, coniferous swamp, and/or shrub swamp covertypes must constitute at least 25 percent of the area of the wetland.
(iii) The water structural group consists of covertypes in which the surface of the water is apparent. These submergent and floating vegetation and/or wetland open water covertypes, including open water with dead trees and open water that occasionally exposes unvegetated mud flats, must constitute at least 15 percent of the area of the wetland.
For example, a wetland which is 80 percent shrub swamp (woody structural group) and 20 percent submergent and floating vegetation (water structural group) has this Class II characteristic. A wetland which is 45 percent deciduous swamp (woody structural group), 35 percent coniferous swamp (also woody structural group), and 20 percent wet meadow (herbaceous structural group) does not have this Class II characteristic because although the woody structural group constitutes well over its minimum 25 percent of the wetland, the herbaceous structural group constitutes less than its minimum 25 percent of the wetland.
The physical structure of each of these three groups is substantially different from the structure of each of the other two. The presence of this characteristic increases the value of a wetland as fish and wildlife habitat because each of the different groups can support species not found in the others, thus increasing the variety of species on the wetland as a whole. In addition, those species which need two different structural groups to meet all of their requirements can only exist when both groups are present. The presence of different groups together also provides visual variety, thus enhancing aesthetic benefits.
(2) Classic kettlehole bog. Classic kettlehole bogs are wetlands which are at least 75 meters (approximately 246 feet) in diameter within a closed drainage basin, having a minimal or no surface inlet or outlet. These bogs have 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.
Wetlands of this type are very rare, as are many of the life form within them, and therefore they contribute to the ecological, geological, and aesthetic diversity of the state. This in turn provides educational and scientific research benefits.
(3) Wetlands contiguous to tidal wetlands. These are freshwater wetlands which abut the landward boundary of tidal wetlands shown on the tidal wetlands inventory maps promulgated pursuant to section 25-0201 of the environmental conservation law.
Freshwater wetlands contiguous to tidal wetlands can provide unusual fish and wildlife habitat benefits. The perpetuation of freshwater wetlands associated with tidal wetlands is likely to be essential to the protection of the tidal wetlands. These freshwater wetlands can purify water flowing into tidal wetlands and also can act with tidal wetlands to protect adjacent property against storm tides.
(4) Associated with permanent open water outside the wetlands A wetland may include open water, as described in subdivision 664.6(a)(7). However, to be considered under this characteristic, a wetland must be associated with permanent open water which exists outside of the wetland. This association must be one of close proximity, with water flow between the wetland and the open water at some time during the year. The wetland must be contiguous to the open water, or, if it is separated, the separation must be only a narrow strip of land, such as a barrier beach or a railroad bed.
Wetlands associated with open water have many special values. Some wildlife and fish usually found in open water must spend part of their life cycle in wetlands for reproduction, food, and cover. The wetlands are also vital in providing natural nutrients to open water ecosystems. They may cleanse water entering the open waterbody and thus protect the quality of the open water. The associated open water often provides recreational and educational opportunities dependent upon these wetland functions.
(5) Adjacent or contiguous to streams classified C(t) or higher under article 15 of the environmental conservation law. Wetlands may be critical to protecting the quality of these streams. They may remove sediment and other pollutants stabilize water flow, and help to maintain water temperatures required by desirable fish species.
(6) Island present within wetland. Islands provide nesting habitat and refuge fir wildlife. They provide visual variety and interest and can be the focus of recreational and educational activities.
(c) Special features. Wetlands may contain particularly critical or fragile resources that require special protection. They may also contain other special features which enhance their benefits. Since some of these features are described in relation to major regions of the state, a definition of those major regions is provided in paragraph (1).
(1) The major regions of the state are shown on the map included in this subdivision. More detailed delineations of the major regions shown on that map are available in the regional offices of the department. Where a wetland is near a major region border, the wetland's region shall be considered to extend into the adjacent region(s) to a distance of 15 kilometers (approximately 9 miles) from the wetland. However, this modification of regional borders does not apply to the borders of the metropolitan region. The major regions are:
(i) Coastal plain (Long Island outside of the New York portion of the New York-Northeastern New Jersey urbanized area, as defined by the United States bureau of the census - see also subdivision (e)(1) of this section);
(ii) Metropolitan (the New York portion of the New York-Northeastern New Jersey urbanized area);
(iii) Hudson-Mohawk (in the HudsonValley, north of the metropolitan region, from the eastern border of the state to the Appalachian highlands; in the Mohawk Valley, from the Appalachian highlands to the Adirondacks);
(iv) Lake plain (a narrow strip bordering Lake Erie; south of Lake Ontario to the Appalachian highlands; east of Lake Ontario to the Adirondacks; north of the Adirondacks to the St. Lawrence River or to the Canadian border; a narrow strip bordering Lake Champlain);
(v) Adirondack (within the Adirondack forest park and bordered by the lake plain and Hudson-Mohawk regions);
(vi) Appalachian highland (from the Pennsylvania and New Jersey borders to the lake plain and the Hudson-Mohawk valleys).
(2) Wetlands containing resident animal habitat. This means habitat of year-round resident animal species, or habitat of migratory species during their breeding or wintering periods.
(3)Wetlands containing traditional migration habitat of an animal species. This is habitat used by a species in moving from breeding to wintering habitat in the late summer and fall, and from wintering to breeding habitat in the late winter and spring. Such use must be on a recurring basis so that there are grounds to believe that it will continue annually. This characteristic does not apply to the occasional occurrence of a stray or wandering individual animal during the migration period.
(4) Endangered or threatened species. This is a species or subspecies (or botanical "variety" where "variety" is used as the equivalent of the zoological "subspecies") of plant or animal (vertebrate or invertebrate) which, for the purposes of this Part, shall be considered to be of statewide significance because it has been identified as endangered or threatened by the United States fish and wildlife service or in regulations, such as 6 NYCRR 182, promulgated by the department pursuant to section 11-0535 of the environmental conservation law, in the case of animals, or in additions to this Part after public hearing, in the case of plants.
(5) Vulnerable species. This is a species or subspecies (or botanical "variety" where "variety" is used as the equivalent of the zoological "subspecies") of plant or animal (vertebrate or invertebrate):
(i) for which extirpation from the state or a major region of the state is likely, but the species as a whole is not in jeopardy; or
(ii) that is in such small numbers throughout the state or a major region of the state that it could be extirpated if recent trends degrading or diminishing its habitat continue; or
(iii) whose range is restricted in the state or a major region of the state and it or its habitat has a low tolerance for disturbance.
Vulnerable species shall be identified by the department in additions to this Part after public hearing.
(6) Wetlands having animal species in unusual abundance or diversity (statewide or regional). Certain wetlands are unusual ecosystems because they are sites of large heronries or other colonial nesting; are regularly and intensively used by raptors, waterfowl, or other migrating birds; are in major deer winter concentration areas; support valuable and intensive fish spawning; are extremely productive in breeding ducks, geese, shore birds, wading birds, and/or furbearers; or otherwise contain an unusually high abundance or diversity of wildlife or fish. In order to be considered under this characteristic, the abundance and/or diversity must be actual, not merely potential or predicted; with the expectation, based on the department's knowledge of existing conditions and fish and wildlife behavior, that the abundance and/or diversity is not merely a one-year or transitory phenomenon. However, this characteristic does not apply to domestic or invertebrate species or to disease-bearing or other noxious species such as the Norway rat.
(7) Wetlands having animal species in unusual abundance or diversity (county). The same values described under paragraph (6) above apply here, except that they are lower because the basis for assessing abundance or diversity is county-wide rather than regional or statewide.
(8) Wetlands having demonstrable archaeological or paleontological significance as wetlands. Some existing wetlands were important sites of native American activities such as food-gathering, or supported concentrations of life forms now long extinct, and the natural conditions in wetlands enabled the evidence of these functions to be preserved. Such areas now are valuable resources for education and scientific research examining the importance of wetlands to human and animal life over time. Damage to such wetlands could significantly diminish those resources.
(9) Wetlands having geological significance. Some wetlands are associated with unusual geological features which are excellent representations of their type. Examples of such features might be lakeshore barrier beaches, sand dunes, eskers, or pine barrens. Where wetlands contain, are part of, owe their existence to, or are ecologically associated with such a feature, they comprise integral parts of unusual ecological communities. Damage to such wetlands may therefore result in the loss of unusual species of fish, wildlife, or vegetation and is likely to significantly diminish the state's or a major region's ecological, educational, or aesthetic resources or diminish the variety of the state's or a major region's landforms.
(10) Wetlands having a total alkalinity of at least 50 parts per million. A relatively high total alkalinity has value for wildlife and fish for at least two reasons. It is a measure of the capacity of wetlands to avoid acidic conditions and as such deters the accumulation of substances harmful to the growth of vegetation that provides good wildlife habitat. Total alkalinity is also a general indication of the natural fertility of the substrate underlying the wetlands Generally, a more naturally fertile substrate will support better habitat.
(11) Wetlands adjacent to fertile upland. This characteristic is identified by soil tests or by soils maps. Upland soils in the immediate vicinity of a wetland are an indication of the fertility of the wetland substrate. In general, those soils described by the United States soil conservation service as "high base soils" (pH 5.6 or higher) will be considered fertile for the purposes of this Part. The value of fertile soils is similar to the values described in paragraph (10) above: generally, a more naturally fertile substrate will support better habitat for fish and wildlife.
(d) Hydrological and pollution control features. Some wetlands provide significant hydrological and pollution control benefits. The major features of wetlands providing those benefits are set forth in this subdivision.
(1) Wetlands may provide a drainage basin with a natural stormwater retention facility. This flood storage function may slow the downstream movement of the flood crest and lower its peak elevation. The flood control benefits of a wetland generally increase with its size relative to the size of the drainage area tributary to the flood-endangered locale. The loss of a significant area of wetland within a drainage basin may therefore aggravate flooding, erosion, and sedimentation in the immediate downstream area.
(2) The protection of wetlands adjacent or contiguous to reservoirs or to other bodies of water used primarily for public water supply may be essential to preserving that supply. Disturbance or loss of these wetlands can lower water quality and cause health problems to the water users.
(3) Some wetlands that are part of a surface water system with permanent open water receive pollutants. By slowing runoff, adding water to the pollutants, and spreading water shallowly over a large area, these wetlands may remove sediment, oxidize or precipitate pollutants, and dilute wastewater, thus cleansing water in the surface water system. In some cases, such wetlands provide tertiary treatment in relation to sewage disposal systems. However, these beneficial characteristics are considered for classification only if the pollution is generally of a kind amenable to assimilation or amelioration by wetlands.
(4) Some wetlands are underlain by deposits of pervious earth materials which serve to hydraulically connect them to aquifer systems so that some of the water from such wetlands percolates into the aquifers and recharges them. For infiltration of water from a wetland to be of an amount significant enough to provide a groundwater supply source, and therefore to be either a Class I or II characteristic, the pervious earth materials underlying the wetland must be more than three meters (approximately ten feet) thick. Some of the more important aquifers in the state have already been identified by various agencies, such as the U.S. geological survey, the department of environmental conservation, the state department of health, and various county and regional planning agencies.
Preservation of groundwater recharge areas is critical to the protection of the aquifers and the water supply. Recharge to groundwater systems generally takes place during times of the year when little foliage (which discharges water via transpiration) is present. At these times, as well as other times, wetlands can recharge aquifers if the soils at their bottoms are so pervious as to allow infiltration. For example, although the soil types underlying wetlands are usually peat, muck, marl, or clay, none of which is very pervious, wetland overflow lands in flood plains may be underlain by sandy or gravelly alluvial soils. These wetlands, even if not very large, can serve to restore significant amounts of water to aquifers, thereby allowing wells to continue yielding water.
(e) Distribution and location. The distribution and location of wetlands are important considerations in determining the benefits of particular wetlands as open space and for recreational, aesthetic, and educational purposes. Nothing in this Part or in the act, however, requires a landowner to open land to public access for such purposes.
(1) Within urbanized areas. "Urbanized areas" are defined by the United States bureau of the census, and consist of a central city, or cities, and surrounding suburban areas. According to that definition, the central city must have a population of 50,000 or more, and surrounding closely settled areas are included if these are:
(i) incorporated places of 2,500 inhabitants or more;
(ii) incorporated places with fewer than 2,500 persons, provided that each has a closely settled areaof 100 housing units or more;
(iii) small land parcels normally less than one square mile in area having a population density of 1,000 inhabitants or more per square mile; or
(iv) other similar small areas in unincorporated territory with lower population density when these areas serve to complete urban-suburban community boundaries.
For the purposes of this Part, the urbanized areas of the state are listed by the United States bureau of the census as follows: New York - Northeastern New Jersey (the New York State portion), Buffalo, Albany - Schenectady - Troy, Binghamton, Rochester, Syracuse, and Utica-Rome.
In addition, incorporated cities not covered by the United States bureau of the census definition are included for the purposes of this Part, but only the city proper, and not surrounding areas. These are: Amsterdam, Auburn, Batavia, Beacon, Canandaigua, Corning, Cortland, Dunkirk, Elmira, Fulton, Geneva, Glens Falls, Gloversville, Hornell, Hudson, Ithaca, Jamestown, Johnstown, Kingston, Little Falls, Lockport, Mechanicville, Middletown, Newburgh, Norwich, Ogdensburg, Olean, Oneida, Oneonta, Oswego, Plattsburgh, Port Jervis, Poughkeepsie, Salamanca, Saratoga Springs, and Watertown.
Because of their rarity, their distinctiveness from urban surroundings, and their proximity to large numbers of people, wetlands in urbanized areas can provide unusually important natural, recreational, educational, scientific, open space, and aesthetic benefits.
(2) Visible from an interstate highway, a parkway, a designated scenic highway, or a passenger railroad and serves a valuable aesthetic or open space function. The following criteria will be considered in determining the applicability of this characteristic: the visibility of the wetland or of the wildlife on the wetland the size of the wetland and the topography and the variety of vegetative types in and surrounding the wetlands. As a guideline, the wetland should be within one-half kilometer (approximately one-third mile) from the transportation corridor, although the criteria may justify a reduction or increase in this distance.
For many people who commute on high use transportation corridors, the open space, visual variety, and wildlife-viewing opportunities provided by wetlands are aesthetically important benefits.
(3) One of the three largest wetlands within a city, town, or New York City borough; one of the three largest wetlands of the same covertype within a town; in a town in which wetland acreage is less than one percent of the total acreage. The rarer wetlands are, and the rarer any one covertype is in a locality, the more valuable are the recreational and educational opportunities and open space and aesthetic benefits provided by the wetlands or covertypes which remain. In addition, the retention of a base of wetlands and wetland covertypes in a locality can help to perpetuate fish and wildlife diversity in that locality. The size of a wetland can also be significant because many species have substantial threshold space requirements and are unable to make use of smaller areas. In addition, disturbance of wetland wildlife by activities outside the wetland or adjacent area can be buffered to some degree in larger wetlands.
(4) Within a publicly owned recreation area. These wetlands provide many recreational and educational opportunities.
(5) On publicly owned land that is open to the public. Many of the recreational, educational, scientific, aesthetic, and open space benefits of wetlands cited in section 24-0105 of the act will usually be most fully realized on publicly owned lands. Such lands may have greater public use than private lands.
§664.7 Freshwater wetlands map maintenance, amendment, and adjustment.
(1) The commissioner shall supervise the maintenance of each map. Maps shall be available for public examination at the appropriate regional office of the department and in the office of the clerk of each county in each each wetland or a portion thereof is located. They will also be filed with each appropriate local government.
(2) The commissioner may, upon request by any person having evidence such as photographs of the area in question, or upon department initiative, issue an order amending or adjusting any map for the following reasons and under the following circumstances:
(i) The commissioner may amend a map by adding a previously unmapped or newly created wetland to the map, by significantly expanding or contracting the boundaries of a wetland shown on the map, or by deleting a wetland from the map, all as may be necessary to conform the map to actual on-site conditions. This will be done only after a copy of the proposed amended map has been made available for public inspection in the appropriate regional office of the department and in the office of the clerk of each affected local government, and only after the commissioner has provided notice of the proposed amendment and an opportunity for a public hearing on the proposal. The notice shall be sent by certified mail, not fewer than thirty days prior to any such hearing, to each owner of record, as shown on the latest completed tax assessment rolls, of land involved in the proposed amendment and also to the chief administrative officer and clerk of each affected local government. Notice of the proposed amendment shall also be published at least once in at least two newspapers having a general circulation in the area that is the subject of the proposed amendment, and also in the department's environmental notice bulletin. If a hearing is scheduled, notice shall be provided to the same parties, and also published, in the same manner not more than thirty nor fewer than ten days before the date set for the hearing. Once the announcement of a proposed amendment has been made, no activity subject to regulation pursuant to the act shall be initiated within the area that is the subject of the proposal until the commissioner has either amended the map or denied the amendment. However, no activity which has already been initiated at the time of the announcement within an area that is proposed as an addition to the map will be subject to such regulation.
(ii) Notwithstanding subparagraph (i) above, the commissioner may make minor adjustments to a map as follows: to reflect natural changes that have occurred through erosion or accretion since the effective date of the map, as originally established or amended; to reflect changes that have occurred as a result of granting permits under the act; to clarify the boundaries of any wetlands; to correct minor errors; or to effect other technical changes. These adjustments may be made only after notice by certified mail to each owner of record, as shown on the latest completed tax assessment rolls, of land involved in the adjustment and to the chief administrative officer of each affected local government, at least thirty days prior to the issuance of an order adjusting the map. A public hearing will not be held on any such proposed adjustment unless the commissioner determines that it is appropriate, at which time the provisions set forth in subparagraph (i) above shall apply.
(3) Any public hearing held pursuant to paragraph (2) above shall provide to any person an opportunity to support, oppose, or make a statement of interest in, a proposed amendment or adjustment to a map.
(4) After considering the testimony given at any such hearing and any other facts which may be deemed pertinent, and after considering the rights of affected property owners and the policy and purposes of the act, the commissioner either shall deny the amendment or adjustment or shall promulgate by order an amended or adjusted map. A copy of any such order, together with a copy of the relevant portion of the amended or adjusted map, shall be filed in the office of the clerk of each affected local government. The commissioner shall simultaneously give notice of such decision and any resultant order to each owner, as shown on the latest completed tax assessment rolls, of land that is the subject of the decision. This notice shall be given by mailing a copy of the decision and any resultant order to the owner by certified mail, in any case where a notice by certified mail was not sent under paragraph (2) above, and in all other cases by first class mail. At the same time, the commissioner shall give notice of the decision and any resultant order to the chief administrative officer of each affected local government. A copy of the decision and any resultant order also shall be published in at least two newspapers having a general circulation in the area that is the subject of the decision, and notice of the decision also shall be published in the department's environmental notice bulletin.
(b) Treatment of two or more areas as a single wetland. Two or more areas of land and/or water, as defined inparagraphs (a) through (d) of section 24-0107(l) of the act, may be considered to be a single wetland for regulatory purposes if they are determined by the commissioner to function as a unit, or to be dependent upon each other, in providing one or more of the wetland benefits listed inparagraphs (a), (b), (c), (e), (f), and (i) of section 24-0105(7) of the act, and if they are no more than 50 meters (approximately 165 feet) apart. The areas will be included, and labelled as a single wetland, on a map according to the procedures for amending a map set out in subdivision(a) of this section.
(c) Wetlands of less than 12.4 acres (approximately 5 hectares) having unusual local importance.
(1) The commissioner shall designate an area of land and/or water, as defined in paragraphs (a) through (d) of section 24-0107(l) of the act, of less than 12.4 acres (approximately 5 hectares) as a wetland having unusual loca limportance if it contains any Class I characteristic listed in section 664.5(a). Any person may nominate such an area for this purpose by providing evidence or testimony to the department that the area contains such a Class I characteristic. Pursuant to 6 NYCRR 663.3(g), the commissioner may delegate jurisdiction over such a wetland to a local government within which the wetland is located if that government is the regulating authority for wetlands pursuant to the act.
(2) For any such area not containing a Class I characteristic, the commissioner shall consider its nomination as a wetland having unusual local importance for one or more of the benefits enumerated in section 24-0105(7) of the act, and in accepting or rejecting nominations, shall take into account the expressed local interest.
(3) Where an area of land and/or water, as defined in paragraphs (a) through (d) of section 24-0107(l) of the act, of less than 12.4 acres (approximately 5 hectares) is on a state or national border, that portion of the area that is within New York shall be designated as a wetland having unusual local importance if the rest of the area is receiving protection as a wetland in the adjoining state or nation.
(4) A designation of an area as a wetland having unusual local importance shall be made pursuant to section 24-0301(l) of the act, but included on the map only after the commissioner has followed the procedures for amending a map set out in subdivision (a) of this section.
(d) Extending the adjacent area. All or part of a wetland's adjacent area may be extended beyond loo feetapproximately 30 meters) from a wetland boundary wherenecessary to protect and preserve the wetland, pursuant to section 24-0701(2) of the act. Such an extension shall be in relation to the nature and importance of the wetland's benefits, the resulting wetland classification, and the fragility and vulnerability of the wetland and its benefits, and shall be made only after the commissioner has followed the procedures for amending a map set out in subdivision (a) of this section. The amended map will indicate what wetland has been affected by an adjacent area extension, and a record showing that extension in more detail shall be available in the same locations as the map of the wetland to which it is adjacent, as those locations are set forth in paragraph (1) of subdivision (a) of this section.
§664.8 Appeals and review.
An appeal from, or an application for review of, a decision, determination, or order under this Part may be made to the freshwater wetlands appeals board or to a court of competent jurisdiction in accordance with the provisions of title 11of the act.
§664.9 Effective date.
This Part shall take effect within the boundaries of a particular local government upon the filing of a final freshwater wetlands map, promulgated pursuant to section 24-0301(5) of the act, in the office of the clerk of that local government.