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 663 - FRESHWATER WETLANDS PERMIT REQUIREMENTS
Section 663.2 - Definitions

Universal Citation: 6 NY Comp Codes Rules and Regs ยง 663.2

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

(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 of this Title.

(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 subparagraph (iv) of this paragraph, 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 use, 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 Part 360 or 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 subparagraph (1)(vi) of this subdivision;

(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 (c) and (d) of such section.

(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 differing vegetation covertypes. 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 Part 664 of this Title. 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 clearcut 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 200 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 removing 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 section 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 section 24- 0301(1) of the act and Part 664 of this Title.

(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 it's 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 section 663.4(d) of this Title 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 section 24-0301(5) of the act, or such a map that has been amended or adjusted pursuant to the act and Part 664 of this Title, 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 the conducting of 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 in subdivision (c) of this section, are not regulated under the act or this Part. However, land altered by an agricultural activity after its original designation as a wetland upon the 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 (i) of this section.

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