Protection Of Waters Program

Article 15, Title 5 Environmental Conservation Law (ECL) Implementing Regulations, 6NYCRR PART 608.

The protection of New York's diverse water resources ensures that our rivers, streams, lakes, and ponds continue to provide essential ecological and commercial services. Preserving fish and wildlife habitat, safeguarding our drinking water, and allowing industrial and agricultural ventures to responsibly flourish are maintained through Article 15, Title 5 of the ECL.

NYSDEC Protection of Waters (POW) regulatory program establishes and enforces regulations that:

1. are compatible with the preservation, protection and enhancement of the present and potential values of the water resources;
2. protect the public health and welfare; and
3. are reasonably consistent with the state's social and economic development.

Explore the categories listed below to find the specific regulated and exempt activities and to determine if your project is Minor or Major. Time frames, procedures and requirements for public notice for permit applications are different for Minor and Major projects under the Uniform Procedures Act requirements (6NYCRR Part 621). Generally, Minor projects have shorter review time frames and require less public review.

Classification of Waters

All waters of the state are provided a class and standard designation based on existing or expected best usage, which also determines the protection status of a particular water or waterway segment.

Streams and small waterbodies -- ponds and lakes with a surface area of 10 acres or less -- located in the course of a stream with a classification of AA, A, or B, or with a classification of C with a standard of (T) or (TS) are collectively referred to as protected streams and are subject to the stream protection provisions of the POW regulations.

The Environmental Resource Mapper (ERM) can be used to identify protected streams based on their classification and to create simple maps needed as part of the POW Permit Application process.

Disturbance of The Bed or Banks of a Protected Stream or Other Watercourse

Required for disturbing the bed or banks of a stream with a classification of AA, A or B, or with a classification of C with a standard of (T) or (TS).

"Banks" means that land area immediately adjacent to and which slopes toward the bed of a watercourse and which is necessary to maintain the integrity of the watercourse. A bank will not be considered to extend more than 50 feet horizontally from the mean high water line; with the following exception: Where a generally uniform slope of 45 degrees (100%) or greater adjoins the bed of a watercourse, the bank is extended to the crest of the slope or the first definable break in slope, either a natural or constructed (road, or railroad grade) feature lying generally parallel to the watercourse.

Some examples of activities requiring this permit are:

• placement of structures in or across a stream (i.e., bridges, culverts or pipelines);
• fill placement for bank stabilization or to isolate a work area (i.e., rip-rap or coffer dams);
• excavations for gravel removal or as part of a construction activity;
• lowering stream banks to establish a stream crossing;
• utilization of equipment in a stream to remove debris or to assist in-stream construction.

Exempt Activities

The most common activities which are exempt from the requirement to obtain a Protection of Waters Permit for Protected Streams are:

• Disturbance of a protected stream conducted by a town or county government which enters into a written agreement with DEC for specified categories of work undertaken in compliance with performance criteria that are protective of stream resources.
• Agricultural activities involving the crossing of a stream by livestock or farm equipment at an established crossing.
• Withdrawal of irrigation waters where no alteration of the stream bed or banks is required.
• Removal of fallen tree limbs or tree trunks where material can be cabled and pulled from the stream without disruption of the stream bed or banks, utilizing equipment placed on or above the stream bank (i.e., no in-stream use of equipment is necessary).

Note: The exempt activities listed only represent exemptions for this section of the Protection of Waters Permit Program. Other DEC permits under other sections of the Protection of Waters Permit Program or under other Articles of the Environmental Conservation Law may be required.

Construction, Reconstruction or Repair of Dams and other Impounding Structures

Required for constructing, reconstructing, repairing, or modifying dams and water impounding structures that permanently or temporarily impound water as a result of a structure.

Some examples of activities requiring this permit are:

• siting and constructing a new dam or water impounding structure (i.e., concrete, earthen, stone and wooden structures);
• reconstruction or modification (i.e., refacing, anchoring, breaching, or removal of an existing structure);
• repairs or maintenance which may affect the structural integrity or functional capability of a dam or impounding structure.

Review Application Forms and other requirements needed for your dam and water impoundment project. 

Exempt Activities

The most common impoundment related activities not needing a Protection of Waters Permit for a Dam or Other Impoundment Structure are constructing or repairing a dam or structure used for impounding water that satisfies any one of the following criteria:

• maximum height is 6 feet or less (maximum height is measured as the height from the downstream (outside) toe of the dam at its lowest point to the highest point at the top of the dam);
• maximum impounding capacity is one million gallons or less (maximum impounding capacity is measured as the volume of water impounded when the water level is at the top of the dam);
• maximum height is between 6 feet and 15 feet and the maximum impounding capacity is less than 3 million gallons.

Note: The exempt activities listed only represent exemptions for this section of the Protection of Waters Program. Other DEC permits under other sections of the Protection of Waters Permit Program, or under other Articles of the Environmental Conservation Law may be required.

Construction, Reconstruction or Expansion of Docking and Mooring Facilities

Required for constructing, reconstructing, or repairing docks or platforms and installing moorings on, in or above navigable waters.
 

A docking facility is any marina, boat basin, marine terminal and any other areas on navigable waters containing a single structure or a collection of related structures such as docks, piers, bulkheads, breakwaters and pilings used for the reception, securing and protection of boats, ships, barges or other watercraft. A mooring facility is defined as any device that is fixed in navigable waters to which a vessel can be made fast including buoys, chains, ropes, piles, spars and dolphins. A platform is generally a flat surface located in, on or over a water body, on which structures can be constructed or activities can be conducted.

Some examples of activities requiring a permit are:

• installation of a floating dock or dock constructed on piles;
• establishment of a marina consisting of multiple docks and ramps, breakwaters and other in-water structures;
• installation of a platform to accommodate a use or activity on or above the water (i.e., deck, boathouse);
• restoring or rebuilding an existing dock, pier, or wharf;
• substantially changing the use of an existing dock or platform;
• the installation of mooring devices.

Exempt Activities

Many residential docks are exempt from Protection of Waters permit requirements, according to the list of exemptions below. However, docks or other structures proposed within DEC regulated freshwater wetland or tidal wetland areas require either a freshwater wetland permit or tidal wetlands permit.

The most common activities which are exempt from the requirement to obtain a Protection of Waters Permit for a Dock and Mooring Facility are:

• Constructing, reconstructing or repairing docks or platforms, and installing moorings in, on or above navigable waters lying above underwater lands owned by the State of New York for which a lease or other approval authorizing use or occupancy of such lands has been obtained from the New York State Office of General Services. See Jurisdictions of Other Agencies.
• Constructing, reconstructing or repairing a docking facility for five or fewer boats and encompassing within its perimeter an area less than 4,000 square feet. Perimeter means a boundary encompassing all structures and related water surface area utilized at a docking facility including docks, piers, platforms, bulkheads, breakwaters, pilings, travel lanes and berthing areas. See a sample docking/mooring facility perimeter drawing.
• Establishing a mooring area for fewer than ten boats.
• Temporary anchoring where a boat is not attached to an in-place or fixed mooring device.
• The seasonal replacement or reinstallation of floating docks and other structures, exceeding the thresholds for regulated activities, which legally existed prior to May 4, 1993 or for which a permit was previously obtained.
• The relocation, replacement, or rearrangement of floating structures such as docks, ramps, walkways and anchoring devices within an approved perimeter.
• The ordinary maintenance and repair of structures such as repainting, re-driving piles or replacing boards in docks. Ordinary maintenance and repair does not include substantial reconstruction or restoration involving 50 percent or more of an existing structure.

Note: The exempt activities listed only represent exemptions for this section of the Protection of Waters Permit Program. Other DEC permits under other sections of the Protection of Waters Permit Program, Freshwater Wetland regulations, Tidal Wetland regulations, or under other Articles of the Environmental Conservation Law may be required.

Excavation or Placement of Fill in Navigable Waters

Required for excavating or placing fill in navigable waters of the state, below the mean high water level, including adjacent and contiguous marshes and wetlands.

Some examples of activities requiring a permit are:

• installation of support piers (larger than 12" in diameter) and cribs for docks or boathouses;
• placement of fill for access, construction or structure installation (i.e., bridges, culverts, pipeline crossings);
• excavations associated with construction activities and dredging for navigation channel establishment or maintenance;
  sand or gravel mining.

Exempt Activities

An exemption from the requirement to obtain a Protection of Waters Permit for Excavation or Placement of Fill in Navigable Waters is for waters that are surrounded by land held in single private ownership at every point in their total area.

Note: The exempt activity listed only represents exemptions for this section of the Protection of Waters Permit Program. Other DEC permits under other sections of the Protection of Waters Permit Program or under other Articles of the Environmental Conservation Law may be required.

Water Quality Certification for Projects Requiring a Federal Permit

Under Section 401 of the Clean Water Act (CWA), a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a Section 401 Water Quality Certification (WQC) is issued, verifying compliance with state water quality requirements. In New York State, applicants for a Federal license or permit for activities that may result in a discharge into waters of the United States are required to apply for and obtain a WQC from DEC indicating that the proposed activity will comply with New York State water quality standards.

A WQC from DEC is most commonly required when a project also requires a permit from the U.S. Army Corps of Engineers under Section 404 of the CWA for the placement of fill in waters of the United States. Some examples of activities requiring a WQC are:
 

• Streambank & lake shoreline stabilization
• Bridge & culvert installations and repair
• Dredging in navigable waters
• Road and driveway construction in wetlands or streams
• Temporary construction access in wetlands or streams

Blanket Coverage

Certain activities have already been provided blanket statewide WQC and do not require an individual determination. The DEC Blanket Water Quality Certification, only applies to limited activities, and those that are covered by a specific U.S. Army Corps of Engineers Nationwide 404 Permit. For more information regarding the US Army Corps of Engineers Nationwide 404 Permits, please contact the appropriate Office.

In 2020 the Corps of Engineers proposed to reissue and modify all of the 2017 Nationwide Permits. However, after the completion of the public notice process the Corps of Engineers only proceeded to reissue and modify some of the Nationwide Permits, which became effective March 15, 2021. Those nationwide permits were subject to DEC Blanket Water Quality Certification issued on December 18, 2020.

Since December 18, 2020, the Corps of Engineers proposed to finalize the remaining Nationwide Permits and provided DEC until October 15, 2021 to revise its blanket WQC decision for those remaining permits. DEC issued a revised blanket Water Quality Certification on October 15, 2021 for the remaining permits. Effective February 25, 2022, the Corps of Engineers finalized the remaining Nationwide Permits.

As a result, there are currently two sets of U.S. Army Corps of Engineers Nationwide 404 Permits in effect, some in effect since March 15, 2021 and some in effect since February 25, 2022. The DEC blanket WQC decision issued October 15, 2021 (PDF) addresses both sets of Nationwide Permits. However, those Nationwide Permits effective March 15, 2021 are subject to conditions and limitations set by DEC on December 18, 2020 (Attachments 1, 2, and 3 of the October 15, 2021 decision letter) and those Nationwide Permits effective February 25, 2022 are subject to conditions and limitations set by DEC on October 15, 2021 (Attachments 1, 2, and 5 of the October 15, 2021 decision letter).

The following table indicates which Corps of Engineers' Nationwide Permits (NWP) are covered by which set of DEC blanket WQC conditions (December 18, 2020 or October 15, 2021):

Early in the development of a project proposal it may be difficult to determine whether proposed activities are covered under a Corps of Engineers Nationwide Permit and DEC Blanket WQC. As a result, individuals are encouraged to contact the appropriate Corps of Engineers District office and DEC Regional Permit Administrator for guidance before undertaking work.

Application Checklist for Protection of Waters Permit

Required items include:

1. The Joint Application for Permit Form (PDF) (637 KB). See Instructions (PDF) for help completing the Joint Application Form.
2. Location Map: A US Geological Survey (USGS) Quadrangle Map, or equivalent, identifying the project location.
3. Project Plans:
   • Draw plans at a scale of 1" = 50' or larger, including topography at a contour interval prescribed by the region.
   • The plan must show the existing conditions and the work to be performed.
   • The extent of all fill or excavation and the dimensions of all proposed buildings or structures must be shown on the plans.
   • Refer to Sample Plans (PDF)(4 MB).
4. Photographs: At least 3 color photographs which clearly depict the site of the proposed activity.
5. Water depth demonstration. DEC may require a survey of water depths for new boat mooring structures, such as docks, piers & floats.
6. Other information. DEC staff may determine additional information is necessary to adequately review and evaluate the application, such as engineering or supplemental reports, justifying this proposal over alternative sites and alternative layouts or designs which might avoid or minimize impacts to protect the watercourse.
7. Additional for Dams and Impoundment Structures.
   • The Joint Application Form Supplement D-1 (PDF) (724 KB) -- for Permit for the Construction, Reconstruction or Repair of a Dam or Other Impoundment Structures.
   • Include the following specific information:
     1. Detailed construction plans and specifications done by a licensed professional engineer, or, in the case of farm ponds, by an engineer or conservationist employed by a governmental agency cooperating with a soil conservation district. Hydrologic and other criteria are to be in accordance with the department's "Guidelines for Design of Dams."
     2. The plans and specifications submitted with the application must include the following information sufficiently detailed for department evaluation of the safety aspects of the dam:
        1. A plan showing the proposed dam and dam appurtenances, horizontal and vertical controls, the normal water level in the lake or pond, the limits of the owner's property, the location of drill holes, test pits or other foundation exploration, the location of borrow areas, and topographic contours at the dam and around the anticipated reservoir area, including 2-foot contours to 6 feet above high water level.
        2. A profile along the dam axis from abutment to abutment and a cross section diagram of the dam at its maximum height, showing original, existing, and proposed conditions.
        3. A profile along the center line and a cross section diagram, or diagrams, of the spillways, including stilling basins, outlet work, and other details of the design of the structures.
        4. Specifications for the materials and for the methods of construction.
        5. A description of construction inspection activities, to be performed by the applicant's engineer, to ensure that work is performed in conformance with the approved design.
        6. A record of subsurface investigation and soils information used by the design engineer or conservationist for foundation and borrow assessment.
        7. Any additional drawings needed to clearly show all details of the proposed project.
        8. Samples of foundation, embankment and construction materials need not be furnished unless specifically requested by the Department.
8. Additional for Docks, Moorings or Platforms.
   • The Joint Application Form Supplement D-2 (PDF) (596 KB) - for Permit for the Construction, Reconstruction or Expansion of Docking and Mooring Facilities (Including Platforms and Breakwaters)
   • Include the following specific information:
     1. Scaled plans, cross-sections and specifications depicting all major structures and the delineated facility perimeters that include a reference point tied to a permanent structure or significant natural features.
9. Additional for 401 Water Quality Certification.
   • To comply with United States Environmental Protection Agency rules, effective September 11, 2020 concerning Water Quality Certifications, a pre-filing meeting request must be sent to DEC at least 30 days prior to applying. The request can be completed by using the Pre-Filing Meeting Request Form (PDF), which must be sent along with the supporting attachments to the appropriate DEC Regional Permit Administrator.
   • The Joint Application Form Supplement WQC-1 (PDF) - for Section 401 Water Quality Certification.
10. Environmental Assessment Form (EAF).
    In accordance with the State Environmental Quality Review Act (SEQR), your project will require a determination.
     
    • For Type 1 and Unlisted actions, an application is not complete until:
      • a properly completed environmental assessment form (EAF) has been submitted,
      • a lead agency has been established,
      • and a negative declaration or a conditioned negative declaration has been filed or a draft environmental impact statement has been accepted by the lead agency.
    • The EAF Mapper Application is used to complete questions required for both the Short and Full EAF
      • If the project is an Unlisted Action, submit a completed Part 1 of a Short EAF.
      • If the project is a Type I Action, submit a completed Part 1 of a Full EAF.
11. Structural / Archaeological Assessment Form (SAAF)
    • In accordance with the State Historic Preservation Act (SHPA), certain applications are not complete until a determination has been made concerning the impact of the project on properties listed on or eligible for listing on the State or National Register of Historic Places.
    • Where applicable, submit a project for review to the NYS Historic Preservation Office (SHPO) through the Cultural Resource Information System (CRIS) to receive an effect finding letter; or
    • Submit a completed Structural Archaeological Assessment Form (PDF), with your application. In some cases, a cultural resource survey, including a field study of archaeological or historic features may be needed. See the Applicant's Guide to the State Historic Preservation Act (PDF).

Standards of Issuance

New York State regulations for Protection of Waters Permits ( 6NYCRR Part 608.8 ) Standards states:
The basis for the issuance or modification of a permit will be a determination that the proposal is in the public interest, in that:

1. The proposal is reasonable and necessary.
2. The proposal will not endanger the health, safety or welfare of the people of the State of New York.
3. The proposal will not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the state including soil, forests, water, fish, shellfish, crustaceans, and aquatic and land - related environment.

DEC reviews each application for a Protection of Waters Permit to determine whether the proposal is consistent with the standards for permit issuance. In each instance DEC considers:

1. The effect of a proposal on natural resources such as fish and wildlife habitat, water quality, hydrology, and watercourse and water body integrity.
2. Adequacy of project design and construction techniques.
3. Operational and maintenance characteristics.
4. Safe commercial and recreational use of water resources.
5. The water dependent nature of a use.
6. The safeguarding of life and property.
7. Natural resource management objectives and values.
8. Importance of the area for spawning or nesting.
9. Applicants should be conscious of these considerations in preparing project plans and justifications supporting applications for permit.

Additional Permits

Your project may also require additional permits under other DEC Permit Programs.

• Activities in navigable waters which also contain regulated freshwater wetlands or tidal wetlands require a permit under the Freshwater Wetlands Act or the Tidal Wetlands Act in addition to the Protection of Waters Permit.
• A project site located within a coastal erosion hazard area in the coastal zone of New York State may also require a permit under the Coastal Erosion Hazard Areas Act.
• Mooring buoys, swim floats and private navigational aids may require a Floating Objects Permits under NYS Navigation Law.
  DEC has jurisdiction for this permit in the Adirondack and Catskill Parks. A DEC Application for Floating Object Permit can be obtained from the DEC Regional Permit Administrator for the county where the activity or project is located. NYS Office of Parks, Recreation and Historic Preservation has jurisdiction for the rest of the state; see Jurisdiction of Other Agencies, New York State Office of Parks, Recreation and Historic Preservation on for a contact address.

Contacting the Department

If you are not sure whether your project requires more than one permit, contact the office of the Regional Permit Administrator for the county where the project is located.

If the project requires more than one permit, check all the pertinent boxes at the top of the application submitted. All the materials required for each permit should be submitted simultaneously so the project can be reviewed as a whole. DEC cannot commence review of your project until these materials are submitted.