Current through Register Vol. 46, No. 39, September 25, 2024
(a) A person proposing to conduct an activity
that requires a permit or letter of permission, as described in section
663.4(d) of this
Part, must meet the standards for permit issuance and receive a permit or
letter of permission prior to commencing that activity. The burden of showing
that the proposed activity will comply with the policies and provisions of the
act and this Part rests entirely on the applicant.
(b) A letter of permission will be issued
only if the commissioner has determined that the proposed activity will not
substantially alter or impair the functions or benefits of a wetland. Those
activities are identified as "LP" in section
665.7(g) of this
Title, the statewide minimum land use regulations for freshwater wetlands, and
as "L" in the activities chart in section
663.4(d). In
granting a letter of permission, the commissioner must determine that the
proposed activity complies with the limits of the activities as stated in the
statewide minimum land use regulations contained in Part 665 of this
Title.
(c) In granting, denying or
modifying a permit, the commissioner shall apply the standards for permit
issuance contained in subdivision (e) of this section in conjunction with the
classification of the subject wetland as indicated on the official freshwater
wetlands map filed by the department, and as established in Part 664 of this
Title. In applying these standards, the commissioner will consider the effects
of the proposed activity regardless of political boundaries.
(d) As shown in the chart in subdivision (e)
of this section, a determination of compatibility and a weighing of need
against benefits lost are the criteria for decisionmaking. The three tests for
compatibility must be used for all activities listed in the minimum land use
regulations and section
663.4(d) of this
Part that carry a compatibility category of "C" or "N" as defined in Part 665
of this Title and in section
663.4(d).
Activities and land uses not listed in the minimum land use regulations or in
the procedures table in section
663.4(d) also must
be evaluated using the three-part compatibility test. Activities designated as
"L" in section
663.4(d) have been
determined under the minimum land use regulations to be compatible and no
further compatibility or weighing analysis need be performed before issuance of
a letter of permission as defined in section
663.2(r).
Activities identified as "E" are exempt and do not require either a permit or
letter of permission. Exempt activities are included in section
663.4(d) to assist
the department and applicants in determining regulatory procedures.
(1) When the three tests of compatibility
given in the chart in subdivision (e) of this section are met, no other
weighing standards need apply, regardless of the wetland's classification, and
a permit, with or without conditions, may be issued for the proposed activity.
In conjunction with the three-part test, the statewide minimum land use
regulations or a local variance from them that has been duly adopted according
to the provisions of Part 665 of this Title are the basis for determinations of
compatibility.
(2) If the proposed
activity cannot meet all three tests of compatibility or if it is identified as
"X," incompatible, then, for a permit to be issued, the activity must meet each
of the weighing standards listed in the chart in subdivision (e) of this
section for the classification of the wetland that would be affected by the
proposed activity.
(3) If it is
determined that a written request for a letter of permission exceeds the
thresholds identified in the items listed in sections
665.7(g) and
663.4(d), a letter
of permission may not be issued. Instead the proposed action must be tested for
compatibility using the three-part test in subdivision (e) of this section and
a permit application must be processed pursuant to the act and this Part. If
there is question or doubt as to whether any proposed activity being reviewed
for compatibility with the three-part test in subdivision (e) meets any of the
three parts of the test, the action must be treated as incompatible and the
activity weighed according to the standards identified in subdivision
(e).
(e)
Standards
for Permit issuance.
(1)
Compatibility. These three tests are to be used to determine
the compatibility of all activities identified as P(C) or P(N) in section
663.4(d) of this
Part or for any actions not listed in section
663.4(d). If all
three of the following tests of compatibility are met, no other weighing
standards need be met, regardless of the wetland class. A permit, with or
without conditions, may be issued for a proposed activity on a wetland of any
class or in a wetland's adjacent area, if it is determined that the activity
(i) would be compatible with preservation, protection and conservation of the
wetland and its benefits, and (ii) would result in no more than insubstantial
degradation to, or loss of, any part of the wetland, and (iii) would be
compatible with public health and welfare.
(2)
Weighing. These weighing
standards must be applied to all activities identified as P(X) in section
663.4(d) of this
Part, and to all those activities listed as P(C) of (N) in section
663.4(d) or not
listed in section
663.4(d) that do
not meet the three tests of compatibility listed in section
663.5(e)(1). If
the proposed activity is listed as (X) or cannot meet the three tests for
compatibiltiy, then a permit may be issued only if the proposed activity meets
each of the standards below for the class of wetland affected:
For wetland Classes I, II, III and IV, the proposed
activity must be compatible with the public health and welfare, be the only
practible alternative that could accomplish the applicant's objectives and have
no practicable alternative on a site that is not a freshwater wetland or
adjacent area.
For wetland Classes I, II, and III, the proposed activity
must minimize degradation to, or loss of, any part of the wetland or is
adjacent area and must minimize any adverse impacts on the functions and
benefits that the wetland provides.
For wetland Class IV, the proposed activity must make a
reasonable effort to minimize degradation to, or loss of, any part of the
wetland or its adjacent area.
| Class I wetlands |
Class II wetlands |
Class III wetlands |
Class IV Wetlands |
| Class I wetlands provide the most critical of the
State's wetland benefits, reduction of which is acceptable only in the most
unusual circumstances. A permit shall be issued only if it is determined that
the proposed activity satisfies a compelling economic or social need that
clearly and substantially outweighs the loss of or detriment to the benefit(s)
of the Class I wetland. |
Class II wetlands provide important wetland
benefits, the loss of which is acceptable only in very limited circumstances. A
permit shall be issued only if it is determined that the proposed activity
satisfies a pressing economic or social need that clearly outweighs the loss of
or detriment to the benefit(s) of the Class II wetland. |
Class III wetlands supply wetland benefits, the
loss of which is acceptable only after the exercise of caution and discernment.
A permit shall be issued only if it is determined that the proposed activity
satisfies an economic or social need that outweighs the loss of or detriment to
the benefit(s) of the Class III wetland. |
Class IV wetlands provide some wildlife and open
space benefits and may provide other benefits cited in the act. Therefore,
wanton or uncontrolled degradation or loss of Class IV wetlands is
unacceptable. A permit shall be issued for a proposed activity in a Class IV
wetland only if it is determined that the activity would be the only
practicable alternative which could accomplish the applicant's objectives. |
(f)
Interpretation of some terms used
in subdivision (e) of this section.
(1)
Public health and welfare.
Those concerns include:
(i) consistency of the proposed activity with
physical health, if necessary, as judged by health professionals; and
(ii) consistency with related Federal, State
and local laws, regulations and policies.
If a proposed activity is inconsistent with physical
health, or with any related laws, regulations and government policies, this
would weigh against issuing a permit under the act until such conditions were
met that would make the proposed activity consistent with these
provisions.
(2) Only
practicable alternative. A proposed activity is the only practicable
alternative if no other is physically or economically feasible. This does not,
however, mean that the most profitable or least costly alternative is the only
feasible one nor that the least profitable or more costly alternative is the
only feasible one.
(3) Economic and
social need. When the economic and social need for the proposed activity is
considered, the economic and social burden that would be imposed on the public
shall be considered. The public economic and social burden may include:
associated services, such as sewer systems, schools, and fire and police
protection, necessitated by the proposed activity; prevention of contamination,
flood or other damage to the proposed development on the wetland by methods
such as channelization, alteration of land, alteration of water flow, draining
or construction of dams, dikes or levees; and/or services and repairs, such as
medical care, pumping, cleaning, dredging and emergency assistance as a result
of contamination, flooding or other damage to the proposed development on the
wetland. Nothing in this section precludes the consideration of any issue which
must be addressed under the State Environmental Quality Review Act (article 8
of the Environmental Conservation Law).
(4) Specific Class I standards.
(i) ". . . reduction of which is acceptable
only in unusual circumstances." Permits for the vast majority of activities
that could not avoid reducing a benefit provided by a Class I wetland would not
be approved. The word reduction means that this applies not
just to the loss of any benefit, but to the partial loss or reduction of a
benefit.
(ii) ". . . satisfies a
compelling economic or social need. . ." The word compelling
implies that the proposed activity carries with it not merely a sense of
desirability or urgency, but of actual necessity; that the proposed activity
must be done; that it is unavoidable.
(iii) ". . . clearly and substantially
outweighs. . ." Clearly means that the need for the proposed
activity must outweigh the loss of or detriment to the benefits in a way that
is beyond serious debate. Substantially carries this further,
in that not only must the need clearly outweigh the loss or detriment, but the
margin of outweighing itself must be large or significant.
(5) Specific Class II standards.
(i) ". . . loss of which is acceptable only
in limited circumstances." Permits for most activities that could not avoid
causing a loss of or detriment to a benefit provided by a Class II wetland
would not be approved.
(ii) ". . .
satisfies a pressing economic or social need. . ." Pressing
should suggest that for the need to outweigh the loss of or detriment to a
benefit of a Class II wetland, it must be urgent and intense, though it does
not have to be necessary or unavoidable.
(iii) ". . . clearly
outweighs. . ." means that the need for the proposed activity must
outweigh the loss of or detriment to the benefits in a way that is beyond
serious debate, although there does not have to be a large or significant
margin between the need and the loss.
(6) Specific Class III standards.
(i) ". . . loss of which is acceptable only
after the exercise of caution and discernment." This means that permits could
be issued for activities that could not avoid loss of or detriment to a benefit
provided by a Class III wetland but only after careful evaluation.
(ii) ". . . satisfies an economic or social
need. . ." The need for the activity is real and undeniable, though it does not
have to be necessary, unavoidable, urgent or intense.
(iii) ". . . outweighs. . ."
means that the need for the activity must outweigh the loss of or detriment to
a benefit, but the balance in favor of the activity does not have to be beyond
serious debate.
(7) Class
IV standards. Permit issuance cannot be indiscriminate or unexamined for Class
IV wetlands and still require consideration of loss of wetland
values.
(g)
Mitigation of impacts.
(1) The
applicant may suggest a proposal to enhance the existing benefits provided by a
wetland or to create and maintain new wetland benefits in order to increase the
likelihood that a proposed activity will meet the applicable standards for
permit issuance. Such a proposal must meet the following provisions:
(i) the mitigation must occur on or in the
immediate vicinity of the site of the proposed project;
(ii) the area affected by the proposed
mitigation must be regulated by the act and this Part after mitigative measures
are completed; and
(iii) the
mitigation must provide substantially the same or more benefits that will be
lost through the proposed activity.
(2) Any mitigation considered as part of a
permit granted pursuant to this Part will be included as a condition on such
permit and must be complied with as mandatory if other work is started or
completed.
(3) If mitigation
proposed does not totally compensate for lost values or benefits that would be
lost by the proposed activity, then the net loss of benefits must be assessed.
Any unmitigated net loss of wetland values must then be weighed according to
standards contained in section
663.5 of this Part.
(h) A duly filed notice in writing
that the State or any agency or political subdivision of the State is in the
process of acquiring any freshwater wetland by negotiation or condemnation
authorizes, but does not require, denial of any permit, but only if both the
affected landowner and the local government have been so notified.
(1) The written notice must include an
indication that the acquisition process has commenced, such as that an
appraisal of the property has been prepared or is in the process of being
prepared.
(2) If the landowner
receives no offer for the property within one year of the permit denial, this
ban to the permit lapses. If its negotiations with the applicant are broken
off, the State or any agency or political subdivision must, within six months
of the end of negotiation, either issue its findings and determination to
acquire the property pursuant to section 204 of the Eminent Domain Procedure
Law or issue a determination to acquire the property without public hearing
pursuant to section 206 of the General Domain Procedure Law, or this ban to the
permit lapses.
