New York Codes, Rules and Regulations
Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Chapter X - DIVISION OF WATER RESOURCES
Subchapter A - GENERAL
Article 1 - MISCELLANEOUS RULES
Part 661 - Tidal Wetlands-land Use Regulations
Section 661.5 - Use guidelines

Universal Citation: 6 NY Comp Codes Rules and Regs ยง 661.5

Current through Register Vol. 46, No. 39, September 25, 2024

(a)

(1) Any type of use designated in this section as a use not requiring a permit for the type of area involved is not subject to the permit requirements of this Part.

(2) Any type of use designated in this section as a generally compatible use for the type of area involved is generally compatible with that type of area and with the preservation, protection and enhancement of the present and potential value of tidal wetlands if undertaken in that area. The compatibility of a particular use depends on the particular location, design and probable impact of the proposed use. Generally compatible uses are subject to the permit requirements of this Part.

(3) Any type of use designated in this section as a presumptively incompatible use for the type of area involved shall be presumed not to be compatible with the type of area involved or with the preservation, protection or enhancement of the present and potential values of tidal wetlands if undertaken in that area. Any such use is subject to the permit requirements of this Part.

(4) Any type of use designated in this section as an incompatible use is not compatible with the type of area involved or with the preservation, protection or enhancement of the present and potential values of tidal wetlands if undertaken in that area. Any such use is subject to the permit requirements of this Part.
(i) Nothing in this subdivision shall be deemed to remove any burden of proof imposed on an applicant by section 661.9 of this Part.

(b) The classification of uses in coastal fresh marshes, intertidal marshes, coastal shoals, bars and flats, high marshes or salt meadows, littoral zones, and adjacent areas, shall be as respectively indicated in the following chart:

ABBREVIATIONS

Area Categories Use Categories
FM-Coastal Fresh Marsh NPN-Uses Not Requiring a Permit
IM-Intertidal Marsh GCp-Generally Compatible Use-Permit Required
SM-Coastal Shoals, Bars and Flats PIp-Presumptively Incompatible Use-Permit Required
LZ-Littoral Zone I-Incompatible Use
HM-High Marsh or Salt Meadow P-Permit Required
AA-Adjacent Area NA-Not Applicable
Uses Area and Use Categories
FM, IM, HM SM, LZ AA
1. The continuance of lawfully existing uses (including but not limited to residential, commercial, industrial, agricultural, recreational and public use) and the continuance of all activities normally and directly associated with any such use, where such continuance does not involve expansion or significant alteration of the existing use. NPN NPN NPN
2. Activities of the department of health or of units of local government with respect to public health, when conducted in conformance with section 25-0401 of the Act. NPN NPN NPN
3. Activities subject to the review jurisdiction of the public service commission or the state board on electric generation siting and the environment under article seven or article eight of the public service law, respectively. The standards and restrictions of this Part will be applied by said bodies in determining whether to issue a certificate of environmental compatibility and public need under such articles. NPN NPN NPN
4. Establishing scenic, historic, wildlife and scientific preserves, without any material alteration of the area involved. NPN NPN NPN
5. Boating, hiking, swimming, camping, picnicking and other similar non-motorized forms of outdoor activity. NPN NPN NPN
6. Depositing or removing the natural products of a tidal wetland (or adjacent area) in the process of recreational or commercial fishing, shellfishing, aquaculture, hunting or trapping, including the erection and maintenance of temporary hides or blinds. NPN NPN NPN
7. Conducting educational and research activities not involving any material alteration of the area involved. NPN NPN NPN
8. Establishing walking trails without material alteration of the area involved. NPN NPN NPN
9. Establishing plantings. GCp GCp NPN
10. Establishing recreational moorings. NPN NPN NPN
11. Operation of motor vehicles, including but not limited to air boats and other all-terrain vehicles, for educational or scientific research purposes (provided this item shall not include operation of aircraft or mechanically propelled vessels, other than air boats). GCp GCp NPN
12. Operation of motor vehicles, including but not limited to air boats and other all-terrain vehicles, for other than educational or scientific purposes (provided this item shall not include the use of aircraft or mechanically propelled vessels other than air boats). PIp GCp NPN
13. Operation of aircraft or mechanically propelled vessels other than air boats. NPN NPN NPN
14. Constructing one open pile catwalk and/or dock not greater than four feet in width for any principal building. GCp GCp GCp
15. Constructing open pile catwalks and docks more than four feet in width; or constructing more than one open pile catwalk and/or dock not greater than four feet in width for any principal building. PIp GCp GCp
16. Installing a floating dock(s) totalling less than 200 square feet in area. GCp NPN NPN
17. Installing a floating dock(s) totalling 200 square feet or more in area. PIp GCp GCp
18. Relocation or rearrangement of floating docks, open pile docks, and similar structures within an established marina or boat basin where such activities involve no disturbance of a tidal wetland other than removing or relocating anchors or pilings. PIp NPN NPN
19. Constructing solid fill docks. PIp PIp GCp
20. Permanent or seasonal mooring of any vessel or structure to be used as a single family dwelling, multiple family dwelling, commercial use building, industrial use building or public or semi-public building. PIp GCp GCp
21. Ordinary maintenance and repair (not involving expansion or substantial restoration, reconstruction or modification) of existing functional structures, facilities, or improved areas, including but not limited to bridges, roads, highways, railroad beds, bulkheads, docks, beaches, piers, wharves, pilings, dolphins, buildings, landscaped or paved areas, lawns, and agricultural and mosquito control ditches,-including for example, replacing broken boards in docks, repainting structures, redriving pilings, resurfacing paved areas, installing or removing lawful structures on a seasonal basis. NPN NPN NPN
22. In-kind and in-place replacement of existing functional bulkheads and similar structures. GCp GCp GCp
23. Routine beach regrading and cleaning, both above and below mean high water mark. PIp NPN NPN
24. Substantial restoration or reconstruction, of existing functional structures or facilities of any kind, except for those covered by items 22 and 26, (provided, where the installation of a new structure or facility is listed in this subdivision as NPN for a particular type of area, the substantial restoration or reconstruction of such a structure or facility on that area shall be treated in the same manner as the installation of such a new structure or facility). GCp GCp GCp
25. Expansion or substantial modification of existing functional facilities and structures, except for those actions covered by items 26, 33, 34 or 38 (provided where the installation of a new structure or facility is listed in this subdivision as NPN or GCp, the expansion or substantial modification of such a structure or facility shall be treated in the same manner in that area). PIp GCp GCp
26. Substantial restoration, reconstruction, modification or expansion of existing functional residential structures which are and will continue to be located 75 feet or more (or 30 feet or more in New York City) from the most landward edge of any tidal wetland. NA NA NPN
27. Dredging. PIp PIp PIp
28. Maintenance dredging. GCp GCp GCp
29. Construction of groins, bulkheads and other shoreline stabilization structures. PIp GCp GCp
30. Filling. PIp PIp GCp
31. Disposal of dredged material. I PIp GCp
32. Construction of berms. PIp PIp GCp
33. Construction or substantial modification of mosquito control ditches. GCp GCp GCp
34. Construction or substantial modification of drainage ditches for other than agricultural or mosquito control purposes. PIp PIp GCp
35. Cultivating and harvesting naturally occurring agricultural and horticultural products, other than activities covered by items 36 and 37 below. NPN NPN NPN
36. Manual harvesting of salt hay. NPN NA NA
37. Harvesting of salt hay by mechanical equipment. GCp NA NA
38. Substantial modification of existing agricultural ditches. GCp GCp GCp
39. New agricultural activities not covered by items 35-38. PIp PIp GCp
40. Connection of electric, gas, sewer, water, telephone or other utilities from an existing distribution utility facility to an existing structure. GCp GCp NPN
41. Installation of underground electric, sewer, water, or other utilities where such installation will involve restoration of existing ground elevation, other than activities covered by item 40. GCp GCp GCp
42. Installation of electric, gas, sewer, water or other utilities, other than activities covered by items 40 or 41. PIp PIp GCp
43. Installation of a dry well, retention basin, filter, open swale or pond. PIp PIp GCp
44. New discharge of any pollutant requiring a SPDES permit pursuant to the environmental conservation law and complying with the requirements for the issuance of such a permit. P P P
45. Installation of a sewage disposal septic tank, cesspool, leach field or seepage pit and discharge of any pollutant into such facilities not requiring a SPDES permit pursuant to article 17 of the environmental conservation law. PIp PIp GCp
46. Construction of single family dwellings and multiple family dwellings. PIp PIp GCp
47. Construction of commercial and industrial use facilities requiring water access and public and semi-public buildings requiring water access; and undertaking commercial and industrial use activities requiring water access. PIp PIp GCp
48. Construction of commercial and industrial use facilities not requiring water access and public or semi-public buildings not requiring water access; and undertaking commercial and industrial use activities not requiring water access. PIp PIp PIp
49. Construction of accessory structures or facilities for any use listed in items 46 and 47, other than accessory structures or facilities covered by item 50 or covered specifically in this list. PIp PIp GCp
50. Construction of accessory structures or facilities for existing residential structures where such accessory structures or facilities are and will continue to be in full compliance with the development restrictions of this Part. NA NA NPN
51. Construction of accessory structure or facilities for any use listed in item 48. PIp PIp PIp
52. Disposal of any chemical, petrochemical or other toxic material, including any pesticide. I I I
53. The use or application of any chemical, petrochemical or other toxic material, including any pesticide, where not authorized by law. I I I
54. The storage of any chemical, petrochemical or other toxic material, including any pesticide, for wholesale purposes or for purposes of distribution to persons other than the ultimate user of such materials. I I PIp
55. The use or application of any chemical, petrochemical or other toxic material, including any pesticide, where otherwise authorized by law, or the storage of any such material for purposes other than wholesaling or distribution to persons other than the ultimate users of such materials. NPN NPN NPN
56. Disposal of solid wastes as defined in section 27-0501 of the environmental conservation law. I I PIp
57. Any type of regulated activity not specifically listed in this chart and any subdivision of land. P P P

(c) Formerly connected tidal wetlands.

For formerly connected tidal wetlands, uses not requiring a permit, generally compatible uses, presumptively incompatible uses and incompatible uses shall be deemed to be the same respectively as the type of wetland which a particular formerly connected tidal wetland most closely resembles.

(d) Uses not specifically listed in subdivision (b).

For any regulated activity covered by item 57 in subdivision (b) of this section, the regional permit administrator shall on a case-by-case basis classify such cases as GCp, PIp, or I under subdivision (b) of this section, utilizing the listed items as a guideline for such classification.

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