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Part 662: Freshwater Wetlands-Interim Permits

Contents:

Sec.

§662.1 Definitions

The following terms, when used in this Part, have the following meanings:

(a) Act means the Freshwater Wetlands Act (article 24 of the Environmental Conservation Law), as amended.

(b) Adjacent area means those areas of land or water that are outside of, and within 100 feet of, the boundary of a freshwater wetland. As set out in subdivision 24-0701.2 of the act, an adjacent area greater than 100 feet may be established where necessary to protect and preserve the wetland.

(c) Alter or alteration refers to the conduct of any of the following activities:

(1) any form of draining, dredging, excavation, or removal of soil, mud, sand, shells, gravel or other aggregate, either directly or indirectly;

(2) any form of dumping, filling or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly;

(3) erecting any structures or roads, the driving of pilings, or the placing of any other obstructions, whether or not changing the ebb and flow of the water;

(4) any form of pollution, including but not limited to installing a septic tank, running a sewer outfall, or discharging sewage treatment effluent or other liquid wastes into or so as to drain into a freshwater wetland; and

(5) any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived from them which are listed in section 24-0105 of the act.

(d) Applicant means any person who files an application for a permit pursuant to this Part, and who is either the owner of the land on which the proposed alteration would be located, a contract vendee, a lessee of the land, the person who would actually control and directt the proposed activity, or the authorized agent of such person.

(e) Application means a request for an interim permit, filed with the regional permit administrator on a form provided by the department, pursuant to section 662.5 of this Part.

(f) Board means the Freshwater Wetlands Appeals Board, as defined in title 11 of the act.

(g) Boundary means the outer limit of the vegetation specified in paragraphs (k)(1) and (2) of this section and of the lands and waters specified in paragraph (k)(3) of this section.

(h) Chief administrative officer means a city or village mayor, a town supervisor, or, in the case of a county, the county executive, borough president, or appropriate county legislative body official, as the case may be.

(i) Commissioner means the Commissioner of Environmental Conservation or a duly designated representative.

(j) Department means the Department of Environmental Conservation.

(k) Freshwater wetlands or wetlands means lands and waters of the State that are subject to regulation under this Part because they have an area of 12.4 acres or more, or have a smaller area but have been determined by the commissioner to have unusual local importance because they provide one or more of the benefits of wetlands described in subdivision 24-0105.7 of the act and are listed as such in the office of the appropriate regional permit administrator. These lands and waters contain any or all of the following:

(1) lands and submerged lands commonly called marshes, swamps, sloughs, bogs, and flats supporting aquatic or semi-aquatic vegetation of the following types:

(i) wetland trees, which depend upon seasonal or permanent flooding or sufficiently water-logged soils to give them a competitive advantage over other trees, including, among others, red maple (Acer rubrum), willows (Salix spp.), black spruce (Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica), black ash (Fraxinus nigra), silver maple (Acer saccharinum), American elm (Ulmus americana), and larch (Larix Laricina);

(ii) wetland shrubs, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others, alder (Alnus spp.), buttonbush (Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla), dogwoods (Cornus spp.), and leatherleaf (Chanaedaphne calyculata);

(iii) emergent vegetation, including, among others, cattails (Typhaspp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow-arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed (Phragmites communis), wild rice (Zizania aquatica), bur reeds (Sparganium spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon verticillatus), and water plantain (Alisma plantago-aquatica);

(iv) rooted, floating-leaved vegetation, including, among others, water lily (Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar spp.);

(v) free-floating vegetation, including, among others, duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza), and watermeal (Wolffia spp.);

(vi) wet meadow vegetation, which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give it a competitive advantage over other openland vegetation, including, among others, sedges (Carex spp.), rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinacea), swamp loosestrife (Decodon verticillatus), and spikerush (Eleocharisspp.);

(vii) bog mat vegetation, including, among others, sphagnum mosses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea), and cranberries (Vaccinium macrocarpon and V. oxycoccos);

(viii) submergent vegetation, including, among others, pondweeds (Potamogeton spp.), naiads (Najas spp.), bladderworts (Utricularia spp.); wild celery (Vallisneria americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum spp.), muskgrass (Charaspp.), stonewort (Nitella spp.), waterweeds (Elodeaspp.), and water smartweed (Polygonum amphibium);

(2) lands and submerged lands containing remnants of any vegetation that is not aquatic or semi-aquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet, and provided further that such conditions can be expected to persist indefinitely, barring human intervention;

(3) lands and waters substantially enclosed by aquatic or semi-aquatic vegetation as set forth in paragraph (1) of this subdivision or by dead vegetation as set forth in paragraph (2) of this subdivision, the regulation of which is necessary to protect and preserve the aquatic and semi-aquatic vegetation;

(4) waters overlying the areas set forth in paragraphs (1) and (2) of this subdivision and lands underlying the areas set forth in paragraph (3) of this subdivision; and

(5) as contained in subdivision (b) of section 664.7 of this Title, two or more areas of land and/or water, as defined in paragraphs (1) through (4) of this subdivision, 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 in paragraphs 24-0105.7(a), (b), (c), (e), (f), and (i) of the act, and if they are no more than 50 meters (approximately 165 feet) apart.

(l) Interim permit means a written approval on a special form, allowing the alteration of a freshwater wetland or an adjacent area, that is issued by the commissioner prior to the department's filing of the applicable final freshwater wetlands map pursuant to section 24-0301 of the act.

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

(n) 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.

(o) 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.

(p) Regional permit administrator means the employee of the department designated by the commissioner to process permits in a regional office of the department.

(q) Selective cutting of timber means the annual or periodic removal of trees, individually or in small groups, in order to realize the yield and establish a new stand, and to improve the forest. It does not mean tree-cutting that causes the total elimination of one or more particular species of trees.

§662.2 Purpose and Applicability

(a) This Part implements the act by governing the department's issuance of interim permits in an area prior to the department's filing of a final freshwater wetlands map for that area pursuant to section 24-0301 of the act. Once a final map has been filed, the act will be implemented in the area either by the appropriate local governments or by the department, according to the jurisdictional provisions of the act and applicable regulations.

(b) No person may alter any freshwater wetland or adjacent area without having first submitted an application and obtained an interim permit for the alteration from the department. However, this Part does not apply to any alteration of a freshwater wetland or adjacent area caused by:

(1) deposition or removal of the natural products of freshwater wetlands and adjacent areas by recreational or commercial fishing, shellfishing, aquiculture, hunting or trapping, where otherwise legally permitted and regulated;

(2) the activities of farmers and other landowners in grazing and watering livestock, making reasonable use of water resources, harvesting natural products of the wetlands, selectively cutting timber, draining land or wetlands for growing agricultural products, and otherwise engaging in the use of wetlands or other land for growing agricultural products. However, the erection of structures not required for enhancement or maintenance of the agricultural productivity of the land, and any filling activities, are not included in this exemption;

(3) public health activities, orders, and regulations of the Department of Health. Copies of all such public health orders and regulations affecting wetlands must be filed with the Department of Environmental Conservation. The commissioner may request modification of such orders or regulations, if necessary, in order to implement the policy of the act;

(4) projects for which applications have been filed, pursuant to article VII or VIII of the Public Service Law. However, the Public Service Commission and the New York State Board on Electric Generation Siting and the Environment must apply the provisions of this Part in determining whether to issue a certificate of environmental compatibility and public need under either of those articles;

(5) ordinary maintenance and repair of existing functional structures, facilities, or improved areas that do not involve expansion or substantial restoration, reconstruction, rehabilitation, or modification, including, but not limited to, bridges, roads, highways, railroad beds, bulkheads, docks, piers, pilings, or paved areas; or

(c) The department may treat an application as a request for a determination that the act does not apply to the activity proposed in the application and that an interim permit is not required. If the department determines that the proposed activity will not constitute an alteration, will be on lands not subject to regulation under this Part, or will occur entirely outside the boundaries of a wetland and not substantially effect that wetland, the department will notify the applicant in writing of the conditions under which an interim permits will not be required.

(d) This Part does not apply to any land use, improvement, or development for which final approval was obtained prior to September 1, 1975, from the local governmental authority or authorities having jurisdiction over the land use, as provided in section 24-1305 of the act. Any person who wishes to rely on an approval given by the local government prior to September 1, 1975, must make a written request to the department for a determination as to whether the local approval meets the requirements of section 24-1305 of the act. The request must contain details of the approval relied upon, and supporting documentation must be enclosed. The burden of showing exemption from the permit requirements of the act rests on the person seeking to benefit from the exemption.

§662.3 Regulation of Wetlands in the Adirondack Park

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 local governments within the park pursuant to title 8 of the act.

§662.4 Determination of Wetlands Subject to Regulation

(a) Any person may inquire of the department as to whether or not a particular parcel of land includes all or part of a freshwater wetland that is 12.4 acres or more in size and therefore is subject to regulation under this Part.

(b) Any person may request the commissioner to determine whether a parcel that meets the definition of a freshwater wetland, but is less than 12.4 acres in size, has unusual local importance for one or more of the specific benefits listed in subdivision 24-0105.7 of the act, and is therefore subject to regulation under this Part.

(c) Each inquiry or request under subdivision (a) or (b) of this section should be directed to the appropriate regional permit administrator. It must be in writing and must, at a minimum, contain a description of the location of the parcel in question, the reason for the inquiry or request, and a list of all landowners of the parcel, as shown on the latest completed tax assessment rolls. In addition, a request under subdivision (b) should contain a description of the unusual nature of the wetland benefit(s) derived from the area.

(d) Department responses to inquiries or requests.

(1) The department must respond within 30 days of receipt of a complete inquiry or request by giving a written answer to the inquirer or requestor, the affected landowners, and the chief administrative officer(s) of the local government(s) within which the parcel is located, as to whether or not the parcel contains a freshwater wetland subject to regulation under this Part.

(2) If the department's answer is affirmative, the response must contain a general indication of the wetland's boundary and the types and location of wetland vegetation found within that boundary.

(3) In the case of an inquiry under subdivision (a) of this section: if the parcel itself does not encompass 12.4 acres of wetland, but contains part of a wetland of at least 12.4 acres, the department must so indicate in its response, giving a general indication of the location and types of wetland vegetation that make up at least 12.4 acres of wetland.

(4) In the case of a request under subdivision (b) of this section: if the department's answer is affirmative, the response must contain the reason for the department's decision that the wetland has unusual local importance and is therefore subject to regulation.

(5) In the event that weather or ground conditions prevent the department from making a determination within 30 days, it may extend such period until a determination can be made.

(e) All determinations made under this section will be on file at the appropriate regional office of the department.

§662.5 Interim Permit Application Procedures

(a) The procedures of Part 621 (Uniform Procedures) and Part 624 (Permit Hearing Procedures) of this Title govern the form, submission, processing, and review of permit applications under this Part and the modification, renewal, suspension, and revocation of permits issued pursuant to this Part. Permit application forms are available from each regional office of the department.

(b) The review procedures required pursuant to the State Environmental Quality Review Act (SEQR), which is article 8 of the Environmental Conservation Law, apply to activities subject to the permit requirements of this Part. An applicant may be required to submit information necessary for compliance with SEQR in addition to information required under this Part or under Part 621 or 624 of this Title.

§662.6 Standards for the Issuance of an Interim Permit

(a) In granting, denying, or imposing conditions on any permit, the commissioner must consider the effect of the proposed alteration with reference to the public health and welfare, wildlife resources, fishing, dangers from floods, hurricanes and storms, and protection or enhancement of the several functions and benefits of the wetlands which are listed in section 24-0105 of the act.

(b) No interim permit can be issued pursuant to this Part unless the commissioner determines that the proposed alteration:

(1) is consistent with the policy of the act to preserve, protect, and conserve freshwater wetlands and the benefits derived from them, to prevent the despoliation and destruction of freshwater wetlands, and to regulate the use and development of such wetlands in order to secure the natural benefits of freshwater wetlands, consistent with the general welfare and beneficial economic, social and agricultural development of the State;

(2) is compatible with the public health and welfare;

(3) is reasonable and necessary; and

(4) has no reasonable alternative on a site which is not a freshwater wetland or adjacent area.

(c) Duly filed notice in writing that the State, or any agency or subdivision thereof, is in the process of acquiring any wetlands by negotiation or condemnation shall be sufficient basis for denial of any permit.

(d) The department may attach conditions to permits in order to assure compliance with the act and this Part and to minimize adverse impacts on wetlands.

(e) The official record of the proceedings on the application for an interim permit will be available for inspection by any person in the appropriate regional office of the department.

§662.7 Enforcement

(a) Sanctions. Any person who violates any provision of this Part, including any permit or order issued according to this Part, will be subject to the administrative and criminal sanctions set out in title 23 of article 71 of the Environmental Conservation Law.

(b) Enforcement.

(1) The Attorney General, upon his or her own initiative or upon complaint of the commissioner, shall prosecute persons alleged to have violated any order of the commissioner pursuant to the act, including but not limited to any provision of this Part or any permit issued pursuant to this Part.

(2) The commissioner has the right to seek equitable relief to restrain any violation or threatened violation of any provisions of the act, including but not limited to any provision of this Part or any permit issued pursuant to this Part.

§662.8 Permits and Regulatory Requirements under Other Legislation

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

§662.9 Appeals and Review

Any appeal from a decision, order, or determination of the commissioner under this Part may be made to the board pursuant to title 11 of the act and Part 647, or pursuant to article 78 of the Civil Practice Law and Rules.