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Part 663: Freshwater Wetlands Permit Requirements

(Statutory authority: Environmental Conservation Law §3-0301 and §24-1301)

[Effective Date: 05/20/80]

[Amended on: 09/09/85 Amended on: 09/06/06]

Contents:

Sec.

§663.1 Purposes

(a) 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 freshwater wetlands, and to regulate use and development of such wetlands to secure the natural benefits of freshwater wetlands, consistent with the general welfare and beneficial economic, social and agricultural development of the state. It is the purposeof this Part to implement that policy by establishing regulations that:

(1) define the procedural requirements to be followed in undertaking different activities in wetlands and in areas adjacent to wetlands;

(2) establish standards governing the issuance of permits by the Department pursuant to the Act; and

(3) govern the Department's implementation of the Act.

(b) The system of wetlands classification upon which this Part is based is presented in Part 664 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR 664). That Part, which is administered by the Department, describes the benefits of wetlands cited in the Act and the characteristics associated with them.

(c) The statewide minimum land-use regulations for freshwater wetlands are contained in 6 NYCRR 665 (subdivision 665.7(g)). They are set forth herein at subdivision 663.4(d) for the convenience of permit applicants, and will be referenced in this Part where appropriate.

§663.2 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 Part 664.

(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 trees cut in accordance with definition 663.2(c)(1)(iv) above, 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 se, 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) otherwise 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 alter water flow or in any way deviate from definition 663.2(c)(1)(vi) above;

(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 or a letter of permission under this Part 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, 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 vegetation cover types. The innermost zone of the bog is open water that is of pH 5.00 or lower and is typically anoxic and dark brown. Surrounding this is a floating mat of sphagnum mosses, liverworts, 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 6 NYCRR 664. 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 trees over six inches in diameter at breast height remaining 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 clear cut 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 provision of recreational facilities for a fee.

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

(l) "Department" means the Department of Environmental Conservation.

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

(n) "Emergency action" means that which is immediately necessary for the protection or preservation of life, property or intrinsic resource values. Examples of emergency activities include search and rescue operations and the preventive and remedial activities related to large scale contamination of land, air or water.

(o) "Filling" means depositing any soil, stones, sand, gravel, mud, rubbish, or fill of any kind, including spoil resulting from dredging or draining activities.

(p) "Freshwater wetlands" or "wetlands" means lands and waters of the state which 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 and Part 664.

(q) "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.

(r) "Letter of permission" means a written notification by the Commissioner 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 and in the activities chart in subdivision 663.4(d) 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.

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

(t) "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 the Act and Part 664, on which are indicated the approximate location of the actual boundaries of regulated wetlands.

(u) "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.

(v) "Permit" means the written approval, issued by the Commissioner, where required for conducting a regulated activity in a wetland or adjacent area.

(w) "Person" means any corporation, firm, partnership, association, trust, estate, one or more individuals, or any unit of 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.

(x) "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.

(y) "Regional permit administrator" means a person designated to review, process and issue permits in each regional office of the Department.

(z) "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 above in subdivision 663.2(c), 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 that any other activities on that land subsequent to the original designation are subject to the provisions of the Act and 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. The Commissioner may request modification of these activities, orders or regulations if necessary to implement the policy of the Act.

(aa) "Selective cutting of trees" means any cutting of trees within the boundaries of a freshwater wetland or its adjacent area that is not "clear-cutting" as defined in subdivision 663.2(i).

§663.3 Applicability

(a) This Part provides the framework for the Department's administration of the freshwater wetlands regulatory protection program in those areas of the state where the Commissioner has promulgated an official map and the Department, rather than a local government, is the regulating authority.

(b) Permit applications must be filed with and processed by the local government, in accordance with local laws and regulations, for those areas of the state where the Commissioner has promulgated an official map and a local government has assumed the freshwater wetlands regulating authority pursuant to section 24-0501 of the Act and Part 665.

(c) Permit applications must be filed with the Department and processed in accordance with the Department's Freshwater Wetlands Interim Permits regulations (Part 662), for those areas of the state where the Commissioner has not promulgated an official map.

(d) Permit applications must be filed with and processed by the Department in accordance with this Part 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 Part 665; or

(2) a county has transferred regulatory authority to the Department pursuant to section 24-0503 of the Act and Part 665; or

(3) the Commissioner has superseded local authority and retained jurisdiction pursuant to section 24-0503 of the Act and Part 665.

(e) 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 subdivision 663.2(z) of this Part must obtain either a permit or a letter of permission.

(f) 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.

(g) 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; and

(2) the agency within whose jurisdiction the proposed activity will occur will process the application in consultation with the other entities in an effort to achieve a mutually satisfactory decision. However, the final decision will rest with the agency having jurisdiction over the permit application.

(h) 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.

(i) A local government, upon the implementation of a local freshwater wetlands protection program pursuant to Title 5 of the Act and Part 665, 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). Permit applications for Class I wetlands must be filed with and processed by the Department.

(j) If the Department reclassifies to Class I a wetland under local jurisdiction, the local government retains jurisdiction for any permit application received prior to the reclassification and must apply the Class I standards of subdivision 665.7(e). Thereafter, the wetland shall be under the jurisdiction of the Department for subsequent permit applications.

(k) Notwithstanding the exemption of Class I wetlands from local implementation described in subdivision 663.3(i) above, the Commissioner may delegate to a local government the Department's regulatory authority for those wetlands, pursuant to paragraph 3-0301.2(p) of the Environmental Conservation Law and Part 665.

(l) A person who has obtained an interim permit from the Department pursuant to Part 662 prior to the date an official map is promulgated or a local government assumes regulatory authority is not required to obtain an additional permit; however a new permit may be necessary under those conditions specified in section 663.6. 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 pursuant to Part 665, the Department retains regulatory authority over that application. The Department staff must consult with the local government prior to making a decision on the application.

(m) 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.

(n) Activities regulated by Articles VII or VIII of the Public Service Law do not require a permit or letter of permission under this Part. However, the standards in subdivision 663.5 (e) must be applied in determining whether to issue a certificate of environmental compatibility and public need under those Articles.

(o) This Part and the Act do not apply to land-uses, improvements or developments for which final approval was obtained 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 any form of pollution, including but not limited to 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. Persons wishing to rely on an approval given by the local government prior to September 1, 1975, should request a decision from the Regional Permit Administrator as to whether the approval given meets the requirements of §24-1305 of the Act. To request such a decision, permit applicants should write to the Regional Permit Administrator, giving details of the approval relied upon, and enclosing supporting documentation. The burden of showing exemption from the permit requirements of the Act rests on the person seeking to benefit from the exemption.

§663.4 Regulatory Procedures

(a) All persons proposing to conduct, on wetlands or adjacent areas, activities that have not been specifically exempted under section 24-0701 of the Act, in the statewide minimum land-use regulations or under sections 663.3, 663.4(d), or 663.7 of this Part, must obtain either a permit or a letter of permission.

(b) Preapplication procedures.

(1) Information on whether an activity requires either a permit or a letter of permission, or whether the activity is exempt from regulation, is provided in the statewide minimum land-use regulations for freshwater wetlands and in subdivision 663.4(d).

(2) If a person wishing to conduct an activity is in doubt about whether the activity is exempt or about which procedural requirement applies, or wants to discuss with the Department any phase of the proposed project as it relates to the Act or to other permit programs, that person should contact the appropriate regional permit administrator for a preapplication conference.

(3) Any person intending to submit an application for a permit or letter of permission, in the course of a preapplication conference, may request in writing, in a form and manner prescribed by the Department, that the Commissioner confirm the classification done pursuant to Part 664 of the wetland that would be affected by the proposed activity. Within 20 working days of the Department's receipt of the request, the Commissioner will decide either to confirm the existing classification or to revise the classification on the basis of material new information or materially changed wetland conditions. Within that same 20-day period, the Department will send notice of the decision confirming or revising the classification to the person who submitted the request. That person may not file a permit application until such notice has been provided. Where a classification is revised, notice of the order setting forth the revised classification will also be given and published, and a copy of such order shall be filed, as provided in Part 664. Once the wetland's classification has been confirmed or revised pursuant to this paragraph and the procedures set out in Part 664, 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.

(c) Regulatory mechanisms and application procedures. The form to be used in applying for either a permit or a letter of permission is available from each regional office of the Department, and the completed application form should be submitted to the appropriate regional permit administrator. The procedures for the two types of permission are as follows:

(1) Permits. The procedures and schedules, including those for notices and hearings, that both an applicant and the Department must follow in the permit application process are detailed in the Uniform Procedures Law (Article 70 of the Environmental Conservation Law) and applicable regulations (6 NYCRR 621), and in the State Environmental Quality Review Act (Article 8 of the Environmental Conservation Law) and applicable regulations (6 NYCRR 617). The Department's regional permit administrators are available to explain the requirements of the uniform procedures regulations. In addition, the Department will notify the applicant if the proposed activity is subject to the requirements of the State Environmental Quality Review Act, Waterfront Revitalization on Coastal Resources Act and/or State Historic Preservation Act and will indicate which of those requirements apply. See also section 663.9.

(2) Letters of permission. The abbreviated letter of permission procedures are applicable when the Department has determined that the proposed activity will not substantially alter or impair the natural functions or benefits of a wetland. If, after consulting the chart in subdivision 663.4(d), an applicant deems that a letter of permission is appropriate for the proposed activity, that should be indicated on the application form submitted. The advantages of a letter of permission are that no application fee or public hearing is required and that the letter of permission, if it is granted, is granted within 20 calendar days of the Department's receipt of a properly completed application. The issuance of a letter of permission allows an applicant to proceed without a permit. However, to ensure that the activity to be covered by an issued letter of permission does not exceed the thresholds identified in the activities chart in subdivision 663.4(d), the Department may attach to the letter of permission a statement of any necessary conditions to the proposed activity.

If the proposed activity does not qualify for a letter of permission and a permit is required instead, the Department will notify the applicant in writing within 15 calendar days and will require the appropriate permit processing fee and any additional information necessary to make the application complete, in accordance with the Uniform Procedures Law and its regulations.

(d) Activities Chart. Guidelines and procedural requirements for various activities are given in this subdivision. This chart is included to assist applicants and permit application reviewers in determining regulatory requirements under the Act and this Part. To further assist applicants, the relative compatibility with wetlands and their adjacent areas, of the various activities, as determined in the statewide minimum land-use regulations contained in subdivision 665.7(g), are included in parentheses whenever a permit requirement is indicated.

Subdivision 663.4(d) PROCEDURAL REQUIREMENTS

FOR VARIOUS ACTIVITIES

The statewide minimum land-use regulations contained in subdivision 665.7(g) 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. This chart states the procedural requirements to be followed in implementing those minimum land-use regulations. For activities and land-uses not shown on this chart, the Department must first make a determination that the activity is a regulated activity as defined in the Act and section 663.2 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 663.5(e) must be used.

Area Categories

FWW - Freshwater Wetland

AA - Adjacent Area

Levels of Procedural Requirements

E - Exempt; no permit or letter of permission required

L - Letter of Permission required

P - Permit required

Levels of Compatibility

C-usually compatible; 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.

N-usually incompatible; 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.

X-incompatible; means that a regulated activity is incompatible with a wetland and its functions and benefits.

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.

Items Activities Procedure & 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 effect 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 non-motorized 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 by items 22, 23, and 24. E E
9 Conducting an agricultural activity as defined in the Act or section 663.2. 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.

Items Activities Procedure & 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 or paved 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. L L
12 Routine beach regrading and cleaning. L L
13 Restoring, reconstructing or modifying existing functional structures or facilities which involves temporary disturbance of less than 50 square meters (approximately 540 square feet) of ground surface P L*
14 Expanding or substantially modifying existing functional structures or facilities, except for activities covered by items 13, 19 or 31. P(N) P(C)

*For classic kettlehole bogs as defined in section 663.2, the category is P(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 for a of pollution, or by removing or reducing vegetation and exposing soil to erosion. Occasional use generally does notwarrant regulation.

Items Activities Procedure & 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. P(N) P(C)

Draining, Filling, Grading, Clear-cutting, and Dredging

Generally, draining of wetlands lowers groundwater levels, may increase down-stream 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 cover types, 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.

Items Activities Procedure & Compatibility by Area
FWW AA
17 Draining and altering water levels, except as part of an agricultural activity. P(X) P(X)
18 Removing or breaching beaver dams. P(N) P(C)
19 Constructing, expanding, or substantially modifying drainage ditches, except as part of an agricultural activity. P(X) P(N)
20 Filling, including filling for agricultural purposes. P(X) P(N)
21 Installing or creating a dry well, retention basin, filter, open swale, or pond. P(N) P(N)
22 Clear-cutting trees. P(N) P(C)
23 Clear-cutting vegetation other than trees except as part of an agricultural activity. P(X) P(N)
24 Cutting but not elimination or destruction of vegetation, such that the functions and benefits of the wetland are not significantly adversely affected. L L
25 Grading, and dredging not included in item 26. P(X) P(N)
26 Dredging less than 400 cubic meters (approximately 523 cubic yards) to maintain present navigation channels. P(C) P(C)
27 Mining. P(X) P(X)
28 Constructing roads, except for winter truck roads as defined in subdivision 663.2(c). P(X) P(N)
29 Drilling a water well to serve an individual residence. P(C) L
30 Drilling a well, except for activities covered by item 29. P(X) P(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 thefunctions 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.

Items Activities Procedure & 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. P(C) P(C)
32 Installing any dock, pier, wharf, or other structure used as a landing place on water, except for activities covered by item 31. P(N) P(N)
33 Constructing groins, bulkheads, and other shoreline stabilization structures. P(X) P(N)
34 Constructing or removing berms, levees, dikes, dams, and other control structures. P(X) P(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.

Items Activities Procedure & Compatibility by Area
FWW AA
35 Installing utility service to an individual residence. L 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. P(C) L
37 Installing utilities, except for activities regulated by Article VII or VIII of the Public Service Law or by item 36. P(X) P(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 causes 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.

Items Activities Procedure & 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 item 39, 40, and 41. P(X) P(X)
39 Application of a pesticide conducted pursuant to a permit issued under Article 15 of the Environmental Conservation Law (see 6 NYCRR Part 327, 328, 329). P(N) P(C)
40 Application of a pesticide where no permit is required under Article 15 of the Environmental Conservation Law (see 6 NYCRR 327, 328, 329). P(X) P(X)
41 Application of a pesticide to the grounds of a private residence when such use is by the owner. P(C) L

Buildings

Constructing buildings, accessory roads, and parking areas can have several effects 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.

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

§663.5 Standards for Issuance of Permits and Letters of Permission

(a) A person proposing to conduct an activity that requires a permit or letter of permission, as described in subdivision 663.4(d) must meet the standards for permit issuance and receive a permit or letter of permission prior to commencing that activity. The burden of showing that the proposed activity will comply with the policies and provisions of the Act and this Part rests entirely on the applicant.

(b) A letter of permission will be issued only if the Commissioner has determined that the proposed activity will not substantially alter or impair the functions or benefits of a wetland. Those activities are identified as "LP" in subdivision 665.7(g), the statewide minimum land-use regulations for freshwater wetlands, and as "L" in the activities chart in subdivision 663.4(d). In granting a letter of permission, the Commissioner must determine that the proposed activity complies with the limits of the activities as stated in the statewide minimum land-use regulations contained in Part 665.

(c) In granting, denying, or modifying a permit, the Commissioner will apply the standards for permit issuance contained in paragraph 663.5(e) in conjunction with the classification of the subject wetland as indicated on the official freshwater wetlands map filed by the Department, and as established in Part 664. In applying these standards, the Commissioner will consider the effects of the proposed activity regardless of political boundaries.

(d) As shown in the chart in subdivision 663.5(e), a determination of compatibility and a weighing of need against benefits lost are the criteria for decision-making. The three tests for compatibility must be used for all activities listed in the minimum land-use regulations and subdivision 663.4(d) that carry a compatibility category of "C" or "N" as defined Part 665 and in subdivision 663.4(d). Activities and land-uses not listed in the minimum land-use regulations or in the procedures table in subdivision 663.4(d) also must be evaluated using the three-part compatibility test. Activities designated as "L" in paragraph 663.4(d) 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 subdivision 663.2(r). Activities identified as "E" are exempt and do not require either a permit or letter of permission. Exempt activities are included in subdivision 663.4(d) to assist the Department and applicants in determining regulatory procedures.

(1) When the three tests of compatibility given in the chart in subdivision 663.5(e) are met, no other weighing standards need apply, regardless of the wetlands classification, and a permit, with or without conditions, may be issued for the proposed activity. In conjunction with the three-part teat, the statewide minimum land-use regulations or a local variance from them that has been duly adopted according to the provisions of Part 665 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 paragraph 663.5(e) for the classification of the wetland that would be affected by the proposed activity.

(3) If it is determined that a written request for a letter of permission exceeds the thresholds identified in the items listed in subdivisions 665.7(g) and 663.4(d), a letter of permission may not be issued. Instead the proposed action must be tested for compatibility using the three-part test in subdivision 663.5(e) and a permit application must be processed pursuant to the Act and this Part. If there is question or doubt as to whether any proposed activity being reviewed for compatibility with the three-part test in subdivision 663.5(e) meets any of the threeparts of the test, the action must be treated as incompatible and the activity weighed according to the standards identified in subdivision 663.5(e).

663.5 Subdivision 663.5 (e) STANDARDS FOR PERMIT ISSUANCE

(1) Compatibility- These three tests are to be used to determine the compatibility of all activities identified as P(C) or P(N) in Subdivision 663.4 (d) or for any actions not listed in subdivision 663.4 (d). 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 of, 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 P(X) in subdivision 663.4 (d), and to all those activities listed as P(C) or (N) in subdivision 663.4 (d) or not listed in subdivision 663.4 (d) that do not meet the three tests of compatibility listed in paragraph 663.5 (e) (1). If the proposed activity is listed as (X) or cannot meet the three tests for compatibility, then a permit may be issued only if the proposed activity meets each of the standards below for the class of wetland affected:

  • For wetland Classes I, II, III and IV, the proposed activity must be compatible with the public health and welfare, be the only practicable alternative that could accomplish the applicant's objectives and have no practicable alternative on a site that is not a freshwater wetland or adjacent area.
  • For wetland Classes I, II, and III, 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 that the wetland provides.
  • For wetland Class IV, the proposed activity must make a reasonable effort to minimize degradation to, or loss of, any part of the wetland or its adjacent area.
Class 1 Wetlands Class II Wetlands Class III Wetlands Class IV Wetlands
Class 1 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 satisfied 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 caution and 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 wetland 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 applicants objectives.

(f) Interpretation of some terms used in subdivision 663.5(e).

(1) "Public health and welfare." Those 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 andrepairs, 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 tothe partial loss or reduction of a benefit.

(ii) "...satisfies 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 it is 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 benefitof 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 lose 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) "...satisfies 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) Mitigation of Impacts.

(1) 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:

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

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

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

(2) Any mitigation considered as part of a permit granted pursuant to this Part will be included as a condition on such permit and must be complied with as mandatory if other work is started or completed.

(3) If mitigation proposed does not totally compensate for lost values or benefits that would be lost by the proposed activity, then the net loss of benefits must be assessed. Any unmitigated net loss of wetland values must then be weighed according to standards contained in section 663.5.

(h) A duly filed notice in writing that the State or any agency or political sub-division 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 theprocess 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 monthsof 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.

§663.6 Continuance of Interim Permits; Pending Applications

At the time this Part becomes effective in a particular area, some persons in that area may have already obtained wetlands interim permits or will have applied for them in accordance with the Department's Freshwater Wetlands Interim Permit regulations (Part 662).

(a) A person who has already obtained an interim permit for a particular project may rely on it, and need not obtain any additional permit or letter of permission under this Part, except as described in paragraph (b) below. If the project for which the permit was issued is located in a village, town, city, or county which has adopted a local law or ordinance and is implementing the Act in accordance with section 24-0501 of the act and Part 665, no additional permit for the project will be required under that local legislation, but the Commissioner will forward to the local government a copy of the interim permit.

(b) Upon receipt of an application for renewal or extension of an interim permit, the Department may as per section 621.11 of this Title treat such a renewal or extension as a new application under Part 663. Furthermore, the Department may modify, suspend or revoke such an interim permit pursuant to section 621.13 of this Title.

(c) If an application for an interim permit has been submitted for a proposed project and a decision on that application has not been made at the time this Part becomes effective, the Department will retain regulatory jurisdiction over that application and will treat the application as an application for a permit or letter of permission under this Part. Accordingly, additional information may then be required in order to comply with this Part.

(d) If the proposed project described in paragraphs (b) or (c) above is located in a village, town, city, or county which has assumed regulatory authority pursuant to section 24-0501 of the Act and Part 665, the Department staff will consult with the local government prior to making a decision on the application.

§663.7 Emergency Activities

In the event any of the activities regulated under this part are carried out as emergency activities as defined by subdivision 663.2(n) of this Part, it shall be the responsibility of the person defined by subdivision 663.2(w) responsible for funding, directing or carrying out such emergency actions to notify by registered mail or telegram and seek written approval from the regional permit administrator in advance, or if that is not possible, to notify the regional permit administrator within 24 hours of the commencement of such emergency activities. Whenever such emergency activities are carried out they shall be performed in a manner that will cause the least change, modification, disturbance or damage to the environment and comply with any other restrictions imposed by the Department. The responsible person is required to provide to the regional permit administrator any such information that is requested including, but not limited to, a description of the emergency, the property, life, or intrinsic resource values being protected as well as the measures being taken. Should it be deemed necessary, the regional permit administrator may require remedial action on the part of the responsible person.

§663.8 Appeals and Reviews

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 11 of the Act.

§663.9 Relation to Other Laws

(a) No provision of this Part shall relieve any person from the obligation to comply with any other applicable federal, state, or local law or regulation. Individuals should be aware that local governments may regulate wetlands irrespective of the Act and this Part.

(b) No area which is treated as a tidal wetland under 6 NYCRR 661 shall be deemed a freshwater wetland under this Part. However, a freshwater wetland within the adjacent area of a tidal wetland, or a tidal wetland within the adjacent area of a freshwater wetland, or an area contained within the adjacent areas of both a tidal wetland and a freshwater wetland, shall be subject to both 6 NYCRR 661 and this Part.

(c) All actions taken pursuant to this Part shall conform to the State Administrative Procedure Act.

(d) 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 6 NYCRR 664. That Part, which is administered by the Department, describes the benefits of wetlands cited in the Act and the characteristics associated with them.

(e) Regulations governing permit administration by the Department prior to promulgation of official maps are presented in 6 NYCRR 662.

(f) The statewide minimum land-use regulations are contained in 6 NYCRR 665.

(g) The regulations governing local government assumption of jurisdiction and a/ministration of the Act pursuant to Title 5 of Article 24 are contained in 6 NYCRR 665.

§663.10 Enforcement

(a) Sanctions. No person may violate the terms or conditions of either a permit or a letter of permission. Civil and criminal sanctions for violation of the Act or of this Part are set out in Title 23 of Article 71 of the Environmental Conservation Law.

(b) Abatement of pollution. Where any freshwater wetlands have been damaged or endangered by pollution or are subject to pollution, the Commissioner may take all appropriate action to abate the pollution, including instituting summary abatement proceedings as set forth in subdivision 71-0301.1 of Article 71 of the Environmental Conservation Law. The Commissioner may restrict or order cessation of solid waste disposal, deep-well disposal, or liquid waste disposal, where such is polluting a freshwater wetland.

§663.11 Effective Date

This Part will become effective in a particular county for those wetlands that will be under Department jurisdiction, as set out in section 663.3, when the final freshwater wetlands map for that county has been promulgated pursuant to subdivision 24-0301.5 of the Act.