Current through Register Vol. 47, No. 12, March 26, 2025
This section describes characteristics and their
associated benefits used in classifying wetlands in section
664.5 of this Part.
(a) Cover types. The different wetland cover
types described in this subdivision provide wetland benefits to varying
degrees. In order for a wetland to be considered to be of a given cover type
and classified accordingly, that cover type should constitute at least 50
percent of the area of the wetland. However, if no single cover type
constitutes 50 percent or more of the wetland area, this aspect of the
wetland's classification shall be determined by adding up the areas of all the
separate cover types in each class and then assigning the wetland to the class
that represents the largest proportion of the wetland's area. As listed in
section 664.5 of this Part, the only class
II cover type is emergent marsh in which purple loosestrife and/or reed
(phragmites) constitutes less than two thirds of the cover type; class III
cover types are emergent marsh in which purple loosestrife and/or reed
(phragmites) constitutes two thirds or more of the cover type, deciduous swamp,
shrub swamp, floating and/or submergent vegetation, and wetland open water; and
class IV cover types are wet meadow and coniferous swamp. The evaluations of
cover types in this subdivision are distinct from the evaluations of structural
groups provided in paragraph (b)(1) of this section.
(1) Wet meadow. This consists of such plants
as sedges, rushes, coarse grasses, and sometimes cattails. The soil is usually
saturated with water for a significant part of the growing season. Vegetation
tends to grow in clumps or tussocks. Cattails, if present, tend to grow between
the clumps. In agricultural areas, wet meadow is usually a cleared but
uncultivated parcel; often it is pastured. If the land is pastured, the clumps
are more pronounced due to trampling by livestock. Wet meadow may occur within
or at the edges of a hayfield and may be mowed, depending upon the degree of
wetness. Old beaver meadows and floodplains may contain wet meadow vegetation.
Standing water is often present during wet periods. Wet meadow, when associated
with other wetland cover types, is valuable for wildlife, especially for
nesting wetland birds. When associated with certain other wetland cover types
or with open water, wet meadow may be valuable for fish spawning. When not
associated with other wetland cover types, however, wet meadow is likely to be
of relatively low value.
(2)
Emergent marsh. This consists of such plants as cattails, purple loosestrife,
swamp loosestrife, arrowheads, reeds, bur reeds, pickerelweed, wild rice, water
plantain, bulrushes and arrow arum. These are herbaceous plants encroaching on
water areas and flooded with standing water much of the year. Emergent marsh is
generally the most valuable individual cover type. The emergent vegetation
itself provides nesting habitat, food and cover. Frequently, emergent
vegetation produces the largest annual increase in natural organic materials of
any cover type, providing nonpolluting nutrients to food chains. An emergent
marsh is usually different in physical structure from surrounding areas and
therefore provides habitat diversity. An exception to the high value assigned
to emergent marsh may occur where purple loosestrife or reed (phragmites) is
dominant, in that it constitutes two thirds or more of the cover type. In this
case, a wetland shall be a class III wetland.
(3) Deciduous swamp. This consists of live
deciduous trees over 4.5 meters (approximately 15 feet) in height. If not
totally flooded, the terrain is hummocky. The trees include, but are not
limited to, American elm, red maple, silver maple, red ash, black ash, swamp
white oak, and willows. Deciduous swamps will generally be flooded or saturated
during the spring and early summer but are likely to appear dry toward the end
of summer and in the fall. Deciduous swamp is relatively valuable because it is
frequently used by nesting waterfowl and is also heavily used by songbirds and
other wildlife.
(4) Coniferous
swamp. This consists of live coniferous trees over 4.5 meters (approximately 15
feet) in height. Some of the coniferous trees most commonly found in wetlands
are black spruce, white cedar, red spruce, balsam fir and American larch.
Flooded conifers usually grow in hummocky terrain. The trees tend to grow out
of the drier hummocks with pockets of water forming between the hummocks. The
value of coniferous swamp for wildlife is considered to be relatively low,
although coniferous swamp can provide important winter cover for deer and
habitat for varying hare.
(5) Shrub
swamp. This cover type is found in a variety of areas including floodplains;
frost pockets; edges of ponds, lakes and bogs; and in association with hillside
seeps. Woody vegetation is classified as shrub swamp if it is 4.5 meters
(approximately 15 feet) or less in height. Species include: alders, willows,
leather-leaf, bog rosemary, sweet gale, buttonbush, highbush cranberry, and red
osier dogwood. Also, sphagnum moss in bog mats usually occurs in association
with shrub species. The value of shrub swamp for fish and wildlife is variable,
but shrub swamp can provide some of the values of emergent marsh or deciduous
swamp: it is likely to have a structure different from surrounding areas and
may supply significant nesting and other wildlife uses.
(6) Floating and submergent vegetation.
Floating wetland vegetation may be free-floating, such as duckweed and
watermeal, or rooted with floating leaves, such as water lily, water shield and
spatterdock. Submergent plants, such as pondweeds, naiads, coontail, water
milfoil, wild celery, muskgrass, stonewort, water smartweed, and bladderworts,
normally grow beneath the surface of the water. These cover types can be
important food sources for waterfowl and frequently are valuable areas for fish
spawning and nurseries.
(7) Wetland
open water, including open water with dead trees and open water that
occasionally exposes unvegetated mud flats. Unvegetated open water is part of a
wetland as a wetland cover type if it is substantially enclosed by wetland
vegetation and is no larger than 2.5 hectares (approximately 6.2 acres). If the
body of open water that is substantially enclosed by wetland vegetation is
larger than 2.5 hectares (approximately 6.2 acres), then only that portion of
the open water that is within 50 meters (approximately 165 feet) of the wetland
vegetation is considered to constitute a wetland cover type and to be part of a
wetland. When in close conjunction with wetland vegetation, open water can be
of considerable value as fish and wildlife habitat.
(b) Ecological associations. A variety of
significant ecological associations may occur in wetlands. Wetlands having an
association of substantially different kinds of physical or vegetative
structures have special ecological value, especially for wildlife and fish.
Association with particular non-wetland features may be important in defining
wetland benefits. In addition, the visual diversity provided serves a valuable
aesthetic function. The nature and significance of these associations are set
forth in this subdivision.
(1) Two or more
structural groups. Three groups of wetland vegetative structures can be
identified. In order to be significant enough to be considered a factor in
classifying a wetland according to this class II characteristic, each
structural group must constitute at least a particular minimum percentage of
the area of the wetland.
(i) The herbaceous
structural group consists of the cover types made up of herbaceous vegetation
which emerges above the surface of the water or soil. These emergent marsh
and/or wet meadow cover types must constitute at least 25 percent of the area
of the wetland.
(ii) The woody
structural group consists of cover types of generally woody vegetation. These
deciduous swamp, coniferous swamp, and/or shrub swamp cover types must
constitute at least 25 percent of the area of the wetland.
(iii) The water structural group consists of
cover types in which the surface of the water is apparent. These submergent and
floating vegetation and/or wetland open water cover types, including open water
with dead trees and open water that occasionally exposes unvegetated mud flats,
must constitute at least 15 percent of the area of the wetland.
For example, a wetland which is 80 percent shrub swamp
(woody structural group) and 20 percent submergent and floating vegetation
(water structural group) has this class II characteristic. A wetland which is
45 percent deciduous swamp (woody structural group), 35 percent coniferous
swamp (also woody structural group), and 20 percent wet meadow (herbaceous
structural group) does not have this class II characteristic because, although
the woody structural group constitutes well over its minimum 25 percent of the
wetland, the herbaceous structural group constitutes less than its minimum 25
percent of the wetland. The physical structure of each of these three groups is
substantially different from the structure of each of the other two. The
presence of this characteristic increases the value of a wetland as fish and
wildlife habitat because each of the different groups can support species not
found in the others, thus increasing the variety of species on the wetland as a
whole. In addition, those species which need two different structural groups to
meet all of their requirements can only exist when both groups are present. The
presence of different groups together also provides visual variety, thus
enhancing aesthetic benefits.
(2) Classic kettlehole bog. Classic
kettlehole bogs are wetlands which are at least 75 meters (approximately 246
feet) in diameter within a closed drainage basin, having a minimal or no
surface inlet or outlet. These bogs have complete or virtually complete
concentric zones of differing vegetative cover types. The innermost zone of the
bog is open water that is of pH 5.00 or lower and is typically anoxyous and
dark brown. Surrounding this is a floating mat of sphagnum mosses, liverwort,
and shrubby heath plants; this mat is surrounded in turn by coniferous swamp
above deep deposits primarily of partly decayed sphagnum mosses. Wetlands of
this type are very rare, as are many of the life forms within them, and
therefore they contribute to the ecological, geological and aesthetic diversity
of the State. This in turn provides educational and scientific research
benefits.
(3) Wetlands contiguous
to tidal wetlands. These are freshwater wetlands which abut the landward
boundary of tidal wetlands shown on the tidal wetlands inventory maps
promulgated pursuant to section
25-0201 of the Environmental
Conservation Law. Freshwater wetlands contiguous to tidal wetlands can provide
unusual fish and wildlife habitat benefits. The perpetuation of freshwater
wetlands associated with tidal wetlands is likely to be essential to the
protection of the tidal wetlands. These freshwater wetlands can purify water
flowing into tidal wetlands and also can act with tidal wetlands to protect
adjacent property against storm tides.
(4) Associated with permanent open water
outside the wetland. A wetland may include open water, as described in
subdivision
664.6(a)(7).
However, to be considered under this characteristic, a wetland must be
associated with permanent open water which exists outside of the wetland. This
association must be one of close proximity, with water flow between the wetland
and the open water at some time during the year. The wetland must be contiguous
to the open water or, if it is separated, the separation must be only a narrow
strip of land, such as a barrier beach or a railroad bed. Wetlands associated
with open water have many special values. Some wildlife and fish usually found
in open water must spend part of their life cycle in wetlands for reproduction,
food and cover. The wetlands are also vital in providing natural nutrients to
open water ecosystems. They may cleanse water entering the open water body and
thus protect the quality of the open water. The associated open water often
provides recreational and educational opportunities dependent upon these
wetland functions.
(5) Adjacent or
contiguous to streams classified C(t) or higher under article 15 of the
Environmental Conservation Law. Wetlands may be critical to protecting the
quality of these streams. They may remove sediment and other pollutants,
stabilize water flow, and help to maintain water temperatures required by
desirable fish species.
(6) Island
present within wetland. Islands provide nesting habitat and refuge for
wildlife. They provide visual variety and interest and can be the focus of
recreational and educational activities.
(c) Special features. Wetlands may contain
particularly critical or fragile resources that require special protection.
They may also contain other special features which enhance their benefits.
Since some of these features are described in relation to major regions of the
State, a definition of those major regions is provided in paragraph (1) of this
subdivision.
(1) The major regions of the
State are shown on the map in Appendix 8-D. More detailed delineations of the
major regions shown on that map are available in the regional offices of the
department. Where a wetland is near a major region border, the wetland's region
shall be considered to extend into the adjacent region(s) to a distance of 15
kilometers (approximately 9 miles) from the wetland. However, this modification
of regional borders does not apply to the borders of the metropolitan region.
The major regions are:
(i) Coastal plain
(Long Island, outside of the New York portion of the New York-Northeastern New
Jersey urbanized area, as defined by the United States Bureau of the
Census--see also paragraph [e][1] of this section);
(ii) Metropolitan (the New York portion of
the New York - Northeastern New Jersey urbanized area);
(iii) Hudson-Mohawk (in the Hudson Valley,
north of the metropolitan region, from the eastern border of the State to the
Appalachian highlands; in the Mohawk Valley, from the Appalachian highlands to
the Adirondacks);.
(iv) Lake plain
(a narrow strip bordering Lake Erie; south of Lake Ontario to the Appalachian
highlands; east of Lake Ontario to the Adirondacks; north of the Adirondacks to
the St. Lawrence River or to the Canadian border; a narrow strip bordering Lake
Champlain);
(v) Adirondack (within
the Adirondack forest park and bordered by the lake plain and Hudson Mohawk
regions);
(vi) Appalachian highland
(from the Pennsylvania and New Jersey borders to the lake plain and the
Hudson-Mohawk valleys).
(2) Wetlands containing resident animal
habitat. This means habitat of year-round resident animal species, or habitat
of migratory species during their breeding or wintering periods.
(3) Wetlands containing traditional migration
habitat of an animal species. This is a habitat used by a species in moving
from breeding to wintering habitat in the late summer and fall, and from
wintering to breeding habitat in the late winter and spring. Such use must be
on a recurring basis so that there are grounds to believe that it will continue
annually. This characteristic does not apply to the occasional occurrence of a
stray or wandering individual animal during the migration period.
(4) Endangered or threatened species. This is
a species or subspecies (or botanical "variety", where "variety" is used as the
equivalent of the zoological "subspecies") of plant or animal (vertebrate or
invertebrate) which, for the purposes of this Part, shall be considered to be
of statewide significance because it has been identified as endangered or
threatened by the United States Fish and Wildlife Service or in regulations,
such as Part 182 of this Title, promulgated by the department pursuant to
section
11-0535 of the Environmental
Conservation Law, in the case of animals, or in additions to this Part after
public hearing, in the case of plants.
(5) Vulnerable species. This is a species or
subspecies (or botanical "variety", where "variety" is used as the equivalent
of the zoological "subspecies") of plant or animal (vertebrate or
invertebrate):
(i) for which extirpation from
the State or a major region of the State is likely, but the species as a whole
is not in jeopardy;
(ii) that is in
such small numbers throughout the State or a major region of the State that it
could be extirpated if recent trends degrading or diminishing its habitat
continue; or
(iii) whose range is
restricted in the State or a major region of the State and it or its habitat
has a low tolerance for disturbance.
Vulnerable species shall be identified by the department
in additions to this Part after public hearing.
(6) Wetlands having animal species in unusual
abundance or diversity (statewide or regional). Certain wetlands are unusual
ecosystems because they are sites of large heronries or other colonial nesting;
are regularly and intensively used by raptors, waterfowl or other migrating
birds; are in major deer winter concentration areas; support valuable and
intensive fish spawning; are extremely productive in breeding ducks, geese,
shore birds, wading birds, and/or furbearers; or otherwise contain an unusually
high abundance or diversity of wildlife or fish. In order to be considered
under this characteristic, the abundance and/or diversity must be actual, not
merely potential or predicted; with the expectation, based on the department's
knowledge of existing conditions and fish and wildlife behavior, that the
abundance and/or diversity is not merely a one-year or transitory phenomenon.
However, this characteristic does not apply to domestic or invertebrate species
or to disease-bearing or other noxious species such as the Norway
rat.
(7) Wetlands having animal
species in unusual abundance or diversity (county). The same values described
under paragraph (6) of this subdivision apply here, except that they are lower
because the basis for assessing abundance or diversity is countywide rather
than regional or statewide.
(8)
Wetlands having demonstrable archaeological or paleontological signifi-cance as
wetlands. Some existing wetlands were important sites of native American
activities such as food-gathering, or supported concentrations of life forms
now long extinct, and the natural conditions in wetlands enabled the evidence
of these functions to be preserved. Such areas now are valuable resources for
education and scientific research examining the importance of wetlands to human
and animal life over time. Damage to such wetlands could significantly diminish
those resources.
(9) Wetlands
having geological significance. Some wetlands are associated with unusual
geological features which are excellent representations of their type. Examples
of such features might be lakeshore barrier beaches, sand dunes, eskers, or
pine barrens. Where wetlands contain, are part of, owe their existence to, or
are ecologically associated with, such a feature, they comprise integral parts
of unusual ecological communities. Damage to such wetlands may therefore result
in the loss of unusual species of fish, wildlife or vegetation and is likely to
significantly diminish the State's or a major region's ecological, educational
or aesthetic resources or diminish the variety of the State's or a major
region's landforms.
(10) Wetlands
having a total alkalinity of at least 50 parts per million. A relatively high
total alkalinity has value for wildlife and fish for at least two reasons. It
is a measure of the capacity of wetlands to avoid acidic conditions and as such
deters the accumulation of substances harmful to the growth of vegetation that
provides good wildlife habitat. Total alkalinity is also a general indication
of the natural fertility of the substrate underlying the wetland. Generally, a
more naturally fertile substrate will support better habitat.
(11) Wetlands adjacent to fertile upland.
This characteristic is identified by soil tests or by soils maps. Upland soils
in the immediate vicinity of a wetland are an indication of the fertility of
the wetland substrate. In general, those soils described by the United States
Soil Conservation Service as "high base soils" (pH 5.6 or higher) will be
considered fertile for the purposes of this Part. The value of fertile soils is
similar to the values described in paragraph (10) of this subdivision:
generally, a more naturally fertile substrate will support better habitat for
fish and wildlife.
(d)
Hydrological and pollution control features. Some wetlands provide significant
hydrological and pollution control benefits. The major features of wetlands
providing those benefits are set forth in this subdivision.
(1) Wetlands may provide a drainage basin
with a natural stormwater retention facility. This flood storage function may
slow the downstream movement of the flood crest and lower its peak elevation.
The flood control benefits of a wetland generally increase with its size
relative to the size of the drainage area tributary to the flood-endangered
locale. The loss of a significant area of wetland within a drainage basin may
therefore aggravate flooding, erosion, and sedimentation in the immediate
downstream area.
(2) The protection
of wetlands adjacent or contiguous to reservoirs or to other bodies of water
used primarily for public water supply may be essential to preserving that
supply. Disturbance or loss of these wetlands can lower water quality and cause
health problems to the water users.
(3) Some wetlands that are part of a surface
water system with permanent open water receive pollutants. By slowing runoff,
adding water to the pollutants, and spreading water shallowly over a large
area, these wetlands may remove sediment, oxidize or precipitate pollutants,
and dilute wastewater, thus cleansing water in the surface water system. In
some cases, such wetlands provide tertiary treatment in relation to sewage
disposal systems. However, these beneficial characteristics are considered for
classification only if the pollution is generally of a kind amenable to
assimilation or amelioration by wetlands.
(4) Some wetlands are underlain by deposits
of pervious earth materials which serve to hydraulically connect them to
aquifer systems so that some of the water from such wetlands percolates into
the aquifers and recharges them. For infiltration of water from a wetland to be
of an amount significant enough to provide a ground-water supply source, and
therefore to be either a class I or II characteristic, the pervious earth
materials underlying the wetland must be more than three meters (approximately
10 feet) thick. Some of the more important aquifers in the State have already
been identified by various agencies, such as the U.S. Geological Survey, the
Department of Environmental Conservation, the State Department of Health and
various county and regional planning agencies. Preservation of groundwater
recharge areas is critical to the protection of the aquifers and the water
supply. Recharge to groundwater systems generally takes place during times of
the year when little foliage (which discharges water via transpiration) is
present. At these times, as well as other times, wetlands can recharge aquifers
if the soils at their bottoms are so pervious as to allow infiltration. For
example. although the soil types underlying wetlands are usually peat, muck,
marl or clay, none of which is very pervious, wetland overflow lands in
floodplains may be underlain by sandy or gravelly alluvial soils. These
wetlands, even if not very large, can serve to restore significant amounts of
water to aquifers, thereby allowing wells to continue yielding water.
(e) Distribution and location. The
distribution and location of wetlands are important considerations in
determining the benefits of particular wetlands as open space and for
recreational, aesthetic and educational purposes. Nothing in this Part or in
the act, however, requires a landowner to open land to public access for such
purposes.
(1) Within urbanized areas.
"Urbanized areas" are defined by the United States Bureau of the Census, and
consist of a central city, or cities, and surrounding suburban areas. According
to that definition, the central city must have a population of 50,000 or more,
and surrounding closely settled areas are included if these are:
(i) incorporated places of 2,500 inhabitants
or more;
(ii) incorporated places
with fewer than 2,500 persons, provided that each has a closely settled area of
100 housing units or more;
(iii)
small land parcels normally less than one square mile in area having a
population density of 1,000 inhabitants or more per square mile; or
(iv) other similar small areas in
unincorporated territory with lower population density when these areas serve
to complete urban-suburban community boundaries.
For the purposes of this Part, the urbanized areas of the
State are listed by the United States Bureau of the Census as follows: New York
-Northeastern New Jersey (the New York State portion), Buffalo,
Albany-Schenectady-Troy, Binghamton, Rochester, Syracuse, and Utica-Rome. In
addition, incorporated cities not covered by the United States Bureau of the
Census definition are included for the purposes of this Part, but only the city
proper and not surrounding areas. These are: Amsterdam, Auburn, Batavia,
Beacon, Canandaigua, Corning, Cortland, Dunkirk, Elmira, Fulton, Geneva, Glens
Falls, Gloversville, Hornell, Hudson, Ithaca, Jamestown, Johnstown, Kingston,
Little Falls, Lockport, Mechanicville, Middletown, Newburgh, Norwich,
Ogdensburg, Olean, Oneida, Oneonta, Oswego, Plattsburgh, Port Jervis,
Poughkeepsie, Salamanca, Saratoga Springs and Watertown. Because of their
rarity, their distinctiveness from urban surroundings, and their proximity to
large numbers of people, wetlands in urbanized areas can provide unusually
important natural, recreational, educational, scientific, open space and
aesthetic benefits.
(2) Visible from an interstate highway, a
parkway, a designated scenic highway or a passenger railroad, and serves a
valuable aesthetic or open space function. The following criteria will be
considered in determining the applicability of this characteristic: the
visibility of the wetland or of the wildlife on the wetland, the size of the
wetland, and the topography and the variety of vegetative types in and
surrounding the wetland. As a guideline, the wetland should be within one-half
kilometer (approximately one-third mile) from the transportation corridor,
although the criteria may justify a reduction or increase in this distance. For
many people who commute on high use transportation corridors, the open space,
visual variety, and wildlife-viewing opportunities provided by wetlands are
aesthetically important benefits.
(3) One of the three largest wetlands within
a city, town, or New York City borough; one of the three largest wetlands of
the same cover type within a town; in a town in which wetland acreage is less
than one percent of the total acreage. The rarer wetlands are, and the rarer
any one cover type is in a locality, the more valuable are the recreational and
educational opportunities and open space and aesthetic benefits provided by the
wetlands or cover types which remain. In addition, the retention of a base of
wetlands and wetland cover types in a locality can help to perpetuate fish and
wildlife diversity in that locality. The size of a wetland can also be
significant because many species have substantial threshold space requirements
and are unable to make use of smaller areas. In addition, disturbance of
wetland wildlife by activities outside the wetland or adjacent area can be
buffered to some degree in larger wetlands.
(4) Within a publicly owned recreation area.
These wetlands provide many recreational and educational
opportunities.
(5) On publicly
owned land that is open to the public. Many of the recreational, educational,
scientific, aesthetic and open space benefits of wetlands cited in section
24-0105 of the act will usually be most fully realized on publicly owned lands.
Such lands may have greater public use than private lands.
