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Part 660: Tidal Wetlands-Moratorium Permits

Contents:

Sec.

§660.1 Definitions.

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

(a) Act shall mean the Tidal Wetlands Act (article 25 of the Environmental Conservation Law, as from time to time amended).

(b) Alter shall mean the performing of any activity which directly or indirectly may have a significant adverse effect on the existing condition of any tidal wetland, including but not limited to any form of draining, dredging, excavation and removal, either directly or indirectly, of soil, mud, sand, shells, gravel or other aggregate; any form of dumping, filling or depositing, either directly or indirectly, of any soil, stones, sand, gravel, mud, rubbish or fill of any kind; erection of any structures or construction of any roads, the driving of any pilings or placing of any other obstructions, whether or not changing the ebb and flow of the tide.

(1) Alteration shall have a commensurate meaning.

(2) Ordinary and necessary maintenance and repair of existing structures and areas, including but not limited to docks, piers, wharves, pilings, dolphins and paved areas, shall not constitute an alteration where such activity does not directly or indirectly have a significant adverse effect on the existing condition of such wetland.

(3) The depositing or removal of the natural products of the tidal wetlands in the process of recreational or commercial fishing, shellfishing, aquaculture, hunting or trapping shall not constitute an alteration where otherwise legally permitted.

(c) Adjacent area shall mean any lands immediately adjacent to a tidal wetland which the commissioner may reasonably deem necessary to preserve in order to effectuate the policies and provisions of the act.

(1) Unless the commissioner shall otherwise determine in a particular case, such lands shall extend for a distance of 300 feet in any direction landward from the landward boundary of the tidal wetland or to an elevation of 10 feet above mean sea level, whichever is closer to such boundary. In those areas in which bulkheads or revetments exist at the edge of such wetland, such 300 foot boundary shall be measured from the seaward edge of any such bulkhead or revetment.

(2) Such lands shall extend for such farther distance as the commissioner may determine in a particular case where he finds that one or more activities on the lands in question may directly or indirectly cause an alteration to the existing state of such tidal wetland.

(3) Such lands shall not include such extensive or numerous areas as the commissioner may determine after public hearing to be not necessary to preserve in order to effectuate the policies and provisions of the act.

(4) Pending the determination of the commissioner in a particular case, the most recent, as of the effective date of this Part, topographical maps published by the United States Geological Survey, Department of the Interior, having a scale of 1:24,000 shall be rebuttable presumptive evidence of such 10 foot elevation.

(d) Central tidal wetland permit administrator shall mean any employee of the department who is designated by the commissioner to act in such capacity.

(e) Chief administrative officer shall mean in the case of a city or a village, the mayor thereof, in the case of a town, the supervisor thereof, and, in the case of a county, the county executive, borough president or county legislative body, as the case may be.

(f) Commissioner shall mean the Commissioner of Environmental Conservation or his duly authorized representative.

(g) Department shall mean the Department of Environmental Conservation.

(h) Hardship shall mean a condition unique and peculiar to the particular situation of the petitioner, which tends to impose a serious financial burden on the petitioner. Such condition shall not have been one created as a result of a voluntary act of the petitioner. The fact that an increase or decrease in the value of real property may result from the moratorium shall not be evidence of hardship.

(i) Local tidal wetland permit administrator shall mean an employee of the department designated by the commissioner to act in such capacity within the jurisdiction of a regional office of the department. 1

(j) Moratorium permit shall mean a written permit issued by the commissioner or the central tidal wetland permit administrator allowing the alteration of the state of any tidal wetland or any adjacent area prior to the effective date of the land-use regulations adopted by the commissioner pursuant to the act.

(k) Municipality shall mean a village, town, city, or county.

(l) Parties in interest shall mean:

(1) any person who files a petition pursuant to section 660.3 of this Part, files a notice of appearance and statement pursuant to section 660.4(a)(4) of this Part or is permitted to intervene as a party in interest pursuant to section 660.6(c)(2) of this Part; and

(2) any municipality or municipalities within the boundary of which the tidal wetland or adjacent area which is the subject of a petition for a moratorium permit is located.

(m) Person shall mean any individual, public or private corporation, political subdivision, government agency, department or bureau of the State, bi-State authority, municipality, industry, co-partnership, association, firm, trust, estate or any other legal entity whatsoever.

(n) Petition shall mean a petition for a moratorium permit filed with the local tidal wetland permit administrator pursuant to section 660.3 of this Part.

(o) Tidal wetlands shall mean and include the following:

(1) Those areas which border on or lie beneath tidal waters, such as, but not limited to, banks, bogs, salt marsh, swamps, meadows, flats or other low lands subject to tidal action, including those areas now or formerly connected to tidal waters; provided, however, that areas formerly connected to tidal waters shall not include former tidal wetlands which prior to the effective date of the act have been irreparably lost or despoiled as a result of dredging, dumping, filling, excavating, polluting and like activities and are no longer in their natural state.

(2) All banks, bogs, meadows, flats and tidal marsh subject to such tides, and upon which grow or may grow some or any of the following: salt hay (Spartina patens and Distichlis spicata), black grass (Juncus Gerardi), saltworts (Salicornia ssp.), sea lavender (Limonium carolinianum), tall cordgrass (Spartina pectinata and Spartina cynosuroides), hightide bush (Iva frutescens), Cattails (Typha angustifolia and Typha latifolia), groundsel (Baccharis Halmilifolia), marsh mallow (Hybiscus palustris); and

(3) The intertidal zone including low marsh cordgrass (Spartina alterniflora).

1 Region I--Building 40, State University of N.Y., Stony Brook, N.Y. 11790 (516) 751-7900 (Nassau, Suffolk) 1 Region II--World Trade Center, New York, N.Y. 10047 (212) 488-2755 (New York City) 1 Region III--21 So. Putt Corners Rd., New Paltz, N.Y. 12561 (914) 255-5453 (Rockland, Westchester)

§660.2 Moratorium Permit Required.

No person shall alter the state of any tidal wetland or adjacent area prior to the effective date of the land-use regulations adopted by the commissioner pursuant to the act unless such person has submitted a petition and has obtained a moratorium permit for such alteration from the department; provided, however, in connection with applications under articles seven and eight of the Public Service Law, the Public Service Commission and the New York State Board on Electric Generating Siting and the Environment, respectively, will apply the provisions of this Part in determining whether to issue a certificate of public need and environmental compatibility; and provided, further, that this Part shall not apply to any alteration of the state of any tidal wetland or adjacent area:

(a) with respect to which alteration a permit, pursuant to Part 608 of this Title shall have been issued prior to September 1, 1973, or

(b) which tidal wetland or adjacent area is now or hereafter appropriated by the State or any department or agency thereof under the power of eminent domain for a valid public purpose, or

(c) if the activity is exempt from regulation under this Part pursuant to section 25-0401(4) of the act (relating to certain public health activities).

§660.3 Petition for Moratorium Permit; Determinations of Non-Applicability.

(a) A petition for a moratorium permit shall be filed by the petitioner with the local tidal wetland permit administrator on forms provided by the department. Such petition shall set forth the purpose, character and extent of the proposed alteration of the state of the tidal wetlands or adjacent area, shall set forth with particularity the hardship of the petitioner and shall be accompanied by such maps, drawings, surveys and other information as may be required by the department. A petition shall not be deemed to be received until the local tidal wetland permit administrator determines that all such information has been supplied in a complete and satisfactory form.

(b) A petitioner shall be required, unless waived by the commissioner, to file with the petition an undertaking in an amount fixed by the local tidal wetland permit administrator to guarantee payment for the costs of the public hearing, including payment for a reporter and the costs of the department for a transcript of the hearing and for physical accommodations for the holding of the hearing if not in department facilities.

(c) The local tidal wetlands permit administrator may, on request of the petitioner or on his own motion, treat the petition as a request for a determination that the act does not apply to the work proposed in the petition. If he determines that the proposed work does not constitute an alteration or is on lands immediately adjacent to a tidal wetland which are not necessary to preserve in order to effectuate the policies and provisions of the act, he shall so notify the petitioner in writing. Any person may petition the commissioner for review of such determination.

§660.4 Publication of Notice of Petition.

(a) The local tidal wetland permit administrator shall provide the petitioner with a "notice of petition" form which shall:

(1) State the name of the petitioner;

(2) Outline the location and the scope of the proposed alteration of tidal wetlands or adjacent areas and indicate the basis for the petitioner's claim of hardship;

(3) Specify the date, time and place of the public hearing on the petition;

(4) State that the petition and supporting documents are available for public inspection at the appropriate regional office of the department;

(5) Specify that persons wishing to be deemed parties in interest and eligible to be heard at such public hearing, if any, shall file a notice of appearance, together with a statement of the precise grounds of support of, opposition to or interest in the petition, with the local tidal wetland permit administrator by 4:45 p.m. of the fourth business day next preceding the date of the public hearing. Filing for this purpose shall require actual receipt in the office of the local tidal wetland permit administrator; and

(6) Specify that if no notices of appearance are timely filed by any party in interest, then the public hearing may be cancelled by the local tidal wetland permit administrator.

(b) As the local tidal wetland permit administrator shall direct, the petitioner shall publish the "notice of petition" at his own expense at least once in each of at least two newspapers having a general circulation in the area where the affected tidal wetlands or adjacent areas are located.

(c) Notice of such hearing will be given by registered mail to the chief administrative officer of each municipality within whose boundaries the affected tidal wetlands or portion thereof is located.

§660.5 Standards for the Issuance of a Moratorium Permit; Burden of Proof.

(a) The petitioner shall establish to the satisfaction of the commissioner that he will suffer a hardship if the moratorium permit is not issued. In the absence of satisfactory evidence of hardship, no moratorium permit may be issued.

(b) The basis for the issuance of a moratorium permit shall be a determination that the petitioner has established that the proposed alteration of the state of the tidal wetland is not contrary to

(1) the policy of the State to preserve and protect tidal wetlands, to prevent their despoliation and destruction and to give due consideration to the reasonable economic and social development of the State; and

(2) the provisions of the act.

The burden of proof shall be on the petitioner to establish that the proposed alteration is not contrary to such policy or provisions. In granting, denying or limiting any moratorium permit, the commissioner shall consider the compatibility of the proposed activity with reference to the public health and welfare, marine fisheries, shell-fisheries, wildlife, flood and hurricane and storm dangers and the legislative findings contained in section 1 of chapter 790 of the Laws of 1973.

§660.6 Public Hearing.

(a) Hearing officer. The public hearing upon a petition for a moratorium permit shall be conducted by a hearing officer designated by the commissioner.

(b) Public hearing within 30 days of the petition. The public hearing upon the petition shall be held within 30 days of receipt by the local tidal wetland permit administrator of the petition for a moratorium permit, shall be conducted expeditiously and shall, insofar as practicable, continue from day to day exclusive of holidays and weekends. Insofar as practicable, the public hearing will be held in the municipality where the affected tidal wetlands are located.

(c) Parties.

(1) Parties to the public hearing upon a petition for a moratorium permit shall be the parties in interest.

(2) The hearing officer may, if in his discretion he determines it to be in the public interest, permit any person to intervene as a party in interest, notwithstanding the failure of such person to file a timely notice of appearance. With respect to any such person, the hearing officer may permit such intervention solely for the purpose of making or filing a statement, receiving copies of notices with respect to the petition, presenting evidence, cross-examining witnesses or for any or all of such purposes as he in his discretion shall deem to be in the public interest. Public interest for the purposes of this paragraph shall include the presentation of all relevant views without unnecessary repetition and the avoidance of irrelevant or repetitious material in the record of the hearing.

(3) The hearing officer may also designate a spokesman for parties in interest who represent a common organization or a substantially identical interest or viewpoint and may similarly designate a single party in interest to receive notice on behalf of such parties in interest.

(4) Parties in interest shall be afforded an opportunity to present written arguments on issues of law or policy and an opportunity to present evidence on issues of fact and shall have the right of cross-examination; provided, however, that irrelevant or repetitious cross-examination may be excluded at the discretion of the hearing officer. The rules of evidence shall not apply to such a public hearing.

(d) Hearing officer's record. The hearing officer shall be responsible for assuring that a complete record of hearing be kept. In addition to the evidence presented pursuant to subdivision (c) of this section, the record shall consist of any additional documents in the possession of the department which are relevant to the application and are introduced into the record of the hearing. The department may utilize its experience, technical competence, resources and specialized knowledge and any resources available to it in providing factual information for the record and the hearing officer may take notice of general, technical or scientific facts within the specialized knowledge of the department. Parties in interest shall be afforded an opportunity to contest the facts so noticed. Any document relied on by the department shall be available for inspection by the parties in interest.

(e) Hearing officer's decision. The hearing officer shall make findings of fact and his recommended determination and reasons for such recommendations and, within 60 days of receipt of the transcript of the hearing, unless extended by the central tidal wetlands permit administrator, shall forward them to the commissioner for determination. The commissioner will issue his determination within 30 days of receipt of such recommendations. No determination shall be made except upon the basis of the record.

(f) Reopening of hearing. The commissioner or the central tidal wetland permit administrator may at any time direct that the hearing be reopened where the public interest so requires.

(g) Waiver of hearing. If no timely notice of appearance has been filed as provided in the notice of petition described in section 660.4 of this Part and the petitioner waives any public hearing on his petition, the local tidal wetland permit administrator may dispense with a public hearing. In such event, an official file shall be compiled by the local tidal wetland permit administrator consisting of documents submitted by the petitioner and any additional documents relied on by the department with respect to the application. The department may also utilize its own experience, technical competence, resources and specialized knowledge and any resources available to it and may take notice of general, technical or scientific facts within the specialized knowledge of the department. Any document made part of such official file shall be available for inspection by the petitioner and other interested persons. The local tidal wetland permit administrator may at any time request additional information from the petitioner. The official file will be referred to the central tidal wetlands permit administrator for action under section 660.7 of this Part.

(h) Cost of hearing. The petitioner shall pay the costs of the public hearing, including payment for a reporter and the costs of the department for the transcript of the hearing and for physical accommodations for the holding of the hearing if not held in department facilities.

§660.7 Issuance or Denial of Moratorium Permit.

The moratorium permit may be issued or the petition for such permit may be denied by either the commissioner or, where the hearing has been waived pursuant to subdivision (g) of section 660.6 of this Part, the central tidal wetland permit administrator. Such permit may be issued subject to such conditions or limitations, including bonding requirements, as may be necessary to assure the preservation and protection of the tidal wetland consistent with the alteration permitted or otherwise to assure compliance with the policy and provisions of the act.

§660.8 Mandatory Conditions of Moratorium Permit.

(a) Every moratorium permit shall require that, not less than five days before the date of construction will begin on the project for which the moratorium permit has been issued, the holder of a moratorium permit shall notify the local tidal wetland permit administrator of such date.

(b) The moratorium permit shall be conditioned upon the right of the department to inspect such project from time to time.

(c) The moratorium permit shall expire on a date determined by the central tidal wetland permit administrator or the date of filing with the county clerk of final boundary lines for the tidal wetland or portion thereof which is the subject of such moratorium permit, whichever is earlier.

§660.9 Notice of Determination and Record of Proceedings.

(a) All actions taken by the central tidal wetland permit administrator or commissioner denying a petition, or granting, suspending or revoking a moratorium permit shall be in writing and shall be accompanied by a written statement of his findings and the reasons for all such actions taken, and shall be sent by registered mail to the parties in interest and to the chief administrative officer of each municipality within whose boundaries the affected tidal wetlands or portion thereof is located; provided, however, in the case of an uncontested petition for which no hearing has been held the requirement for a written statement shall be satisfied, if the petition is granted, by the issuance of a moratorium permit.

(b) The official record of the proceedings on the petition for a moratorium permit will be available for inspection by any person in the appropriate regional office of the department.

§660.10 Extension of Expiration Date.

The expiration date of the moratorium permit, if prior to the date of filing with the county clerk of final boundary lines for the tidal wetland which is the subject of such moratorium permit, may be extended by the central tidal wetland permit administrator for good cause shown upon a written request to him filed not later than 45 days prior to the expiration date and upon simultaneous notice to the parties in interest by the holder of the moratorium permit. Such request shall set forth the grounds for such extension. The holder of the moratorium permit shall be required to serve the parties in interest at his own expense with a copy of the documents evidencing the action of the central tidal wetland permit administrator with respect to such requested extension.

§660.11 Modification of Permit.

If conditions are revealed during construction which will require minor modification of already approved plans and specifications, the moratorium permit may be amended upon written application to the central tidal wetland permit administrator who may for good cause shown permit such amendment if such modification will not be contrary to the policy or provisions of the act; provided, however, that in cases of doubt as to the substantiality of such modification or whether or not it will be contrary to the policy or provisions of the act, the central tidal wetlands permit administrator shall treat such application as a petition for a moratorium permit and require the holder of a moratorium permit to file a new petition under section 660.3 of this Part.

§660.12 Revocation or Suspension of Moratorium Permit.

a) A moratorium permit may be suspended by the commissioner at any time upon one or more of the following grounds:

(1) Materially false or inaccurate statements were made in the petition or supporting papers;

(2) The holder of a moratorium permit has failed to comply with any of the conditions and limitations set forth in the moratorium permit;

(3) The holder of a moratorium permit has exceeded the scope of the work as set forth in the petition;

(4) Conditions are revealed during construction which will require modification of already approved plans and specifications and no amendment to the moratorium permit has been approved by the central tidal wetlands permit administrator pursuant to section 660.11 of this Part.

(5) Conditions are revealed following issuance of the moratorium permit which may require modification or cancellation thereof in order to achieve the policy of the act.

(b) Notice of suspension shall be given to the holder of a moratorium permit and shall be sent to such holder by registered mail specifying the reasons therefor.

(c) A holder of a moratorium permit shall have a right to a public hearing after the suspension of a moratorium permit provided that such holder files a written request for a public hearing within 30 days of his receipt of a notice of suspension. The request for a public hearing shall set forth reasons why the moratorium permit should not be revoked.

(1) The holder of the moratorium permit shall serve the parties in interest at his own expense with copies of the request for a public hearing.

(2) Within 15 days of the receipt of such a request, the commissioner shall cause a public hearing to be held. In the event that the holder of a moratorium permit does not request an opportunity to be heard within 30 days of his receipt of the notice of suspension, the moratorium permit shall be deemed revoked.

(d) Upon review of the hearing officer's recommendations and report, the commissioner may:

(1) Reinstate the permit with or without changes in conditions or limitations; or

(2) Revoke the permit.

(e) In connection with action taken pursuant to this section, the commissioner may order the removal or modification of any portion of a completed project which is not in conformity with the moratorium permit.

§660.13 Joint Proceedings Under Other Laws and Regulations.

(a) In the event that a petitioner for a moratorium permit is also required to apply for a permit, license, certificate or other approval pursuant to Part 608 of this Title, or any other Part of this Title or any section of the Environmental Conservation Law, the local permit agent, the central permit agent or other official before whom such application is pending shall insofar as possible process any or all such applications in the same proceeding as the petition for a moratorium permit and in the event of any procedural inconsistencies between this Part and such other Part, he may, insofar as permitted by statute, follow the procedures of this Part for any and all such applications.

(b) The commissioner may, by mutual agreement with any municipality within whose boundary the affected tidal wetland or portion thereof is located or any other Federal, State or local body having jurisdiction over the subject matter of the petition for a moratorium permit or any work related to such subject matter, provide for joint processing of any such petition with any application for a permit or other proceeding required by such municipality or body, including provision for joint notices and hearings.