Current through Register Vol. 46, No. 39, September 25, 2024
(a) Procedures.
(1) The commissioner shall supervise the
maintenance of each map. Maps shall be available for public examination at the
appropriate regional office of the department and in the office of the clerk of
each county in which each wetland or a portion thereof is located. They will
also be filed with each appropriate local government.
(2) The commissioner may, upon request by any
person having evidence such as photographs of the area in question, or upon
department initiative, issue an order amending or adjusting any map for the
following reasons and under the following circumstances:
(i) The commissioner may amend a map by
adding a previously unmapped or newly created wetland to the map, by
significantly expanding or contracting the boundaries of a wetland shown on the
map, or by deleting a wetland from the map, all as may be necessary to conform
the map to actual onsite conditions. This will be done only after a copy of the
proposed amended map has been made available for public inspection in the
appropriate regional office of the department and in the office of the clerk of
each affected local government, and only after the commissioner has provided
notice of the proposed amendment and an opportunity for a public hearing on the
proposal. The notice shall be sent by certified mail, not fewer than 30 days
prior to any such hearing, to each owner of record, as shown on the latest
completed tax assessment rolls, of land involved in the proposed amendment and
also to the chief administrative officer and clerk of each affected local
government. Notice of the proposed amendment shall also be published at least
once in at least two newspapers having a general circulation in the area that
is the subject of the proposed amendment, and also in the department's
environmental notice bulletin. If a hearing is scheduled, notice shall be
provided to the same parties, and also published, in the same manner, not more
than 30 nor fewer than 10 days before the date set for the hearing. Once the
announcement of a proposed amendment has been made, no activity subject to
regulation pursuant to the act shall be initiated within the area that is the
subject of the proposal until the commissioner has either amended the map or
denied the amendment. However, no activity which has already been initiated at
the time of the announcement, within an area that is proposed as an addition to
the map, will be subject to such regulation.
(ii) Notwithstanding subparagraph (i) of this
paragraph, the commissioner may make minor adjustments to a map as follows: to
reflect natural changes that have occurred through erosion or accretion since
the effective date of the map, as originally established or amended; to reflect
changes that have occurred as a result of granting permits under the act; to
clarify the boundaries of any wetlands; to correct minor errors; or to effect
other technical changes. These adjustments may be made only after notice by
certified mail to each owner of record, as shown on the latest completed tax
assessment rolls, of land involved in the adjustment and to the chief
administrative officer of each affected local government, at least 30 days
prior to the issuance of an order adjusting the map. A public hearing will not
be held on any such proposed adjustment unless the commissioner determines that
it is appropriate, at which time the provisions set forth in subparagraph (i)
of this paragraph shall apply.
(3) Any public hearing held pursuant to
paragraph (2) of this subdivision shall provide to any person an opportunity to
support, oppose, or make a statement of interest in, a proposed amendment or
adjustment to a map.
(4) After
considering the testimony given at any such hearing and any other facts which
may be deemed pertinent, and after considering the rights of affected property
owners and the policy and purposes of the act, the commissioner either shall
deny the amendment or adjustment or shall promulgate by order an amended or
adjusted map. A copy of any such order, together with a copy of the relevant
portion of the amended or adjusted map, shall be filed in the office of the
clerk of each affected local government. The commissioner shall simultaneously
give notice of such decision and any resultant order to each owner, as shown on
the latest completed tax assessment rolls, of land that is the subject of the
decision. This notice shall be given by mailing a copy of the decision and any
resultant order to the owner by certified mail, in any case where a notice by
certified mail was not sent under paragraph (2) of this subdivision, and in all
other cases by first class mail. At the same time, the commissioner shall give
notice of the decision and any resultant order to the chief administrative
officer of each affected local government. A copy of the decision and any
resultant order also shall be published in at least two newspapers having a
general circulation in the area that is the subject of the decision, and notice
of the decision also shall be published in the department's environmental
notice bulletin.
(b)
Treatment of two or more areas as a single wetland. Two or more areas of land
and/or water, as defined in paragraphs (a) through (d) of section 24- 0107(1)
of the act, may be considered to be a single wetland for regulatory purposes if
they are determined by the commissioner to function as a unit, or to be
dependent upon each other, in providing one or more of the wetland benefits
listed in paragraphs (a), (b), (c), (e), (f), and (i) of section 24- 0105(7) of
the act, and if they are no more than 50 meters (approximately 165 feet) apart.
The areas will be included, and labelled as a single wetland, on a map
according to the procedures for amending a map set out in subdivision (a) of
this section.
(c) Wetlands of less
than 12.4 acres (approximately 5 hectares) having unusual local importance.
(1) The commissioner shall designate an area
of land and/or water, as defined in paragraphs (a) through (d) of section
24-0107(1) of the act, of less than 12.4 acres (approximately 5 hectares) as a
wetland having unusual local importance if it contains any class I
characteristic listed in section
664.5(a)
of this Part. Any person may nominate such an area for this purpose by
providing evidence or testimony to the department that the area contains such a
class I characteristic. Pursuant to section
663.3(g)
of this Title, the commissioner may delegate jurisdiction over such a wetland
to a local government within which the wetland is located if that government is
the regulating authority for wetlands pursuant to the act.
(2) For any such area not containing a class
I characteristic, the commissioner shall consider its nomination as a wetland
having unusual local importance for one or more of the benefits enumerated in
section 24-0105(7) of the act and, in accepting or rejecting nominations, shall
take into account the expressed local interest.
(3) Where an area of land and/or water, as
defined in paragraphs (a) through (d) of section 24-0107(1) of the act, of less
than 12.4 acres (approximately 5 hectares) is on a State or national border,
that portion of the area that is within New York shall be designated as a
wetland having unusual local importance if the rest of the area is receiving
protection as a wetland in the adjoining state or nation.
(4) A designation of an area as a wetland
having unusual local importance shall be made pursuant to section 24-0301(1) of
the act, but included on the map only after the commissioner has followed the
procedures for amending a map set out in subdivision (a) of this
section.
(d) Extending
the adjacent area. All or part of a wetland's adjacent area may be extended
beyond 100 feet (approximately 30 meters) from a wetland boundary where
necessary to protect and preserve the wetland, pursuant to section 24- 0701(2)
of the act. Such an extension shall be in relation to the nature and importance
of the wetland's benefits, the resulting wetland classification, and the
fragility and vulnerability of the wetland and its benefits, and shall be made
only after the commissioner has followed the procedures for amending a map set
out in subdivision (a) of this section. The amended map will indicate what
wetland has been affected by an adjacent area extension, and a record showing
that extension in more detail shall be available in the same locations as the
map of the wetland to which it is adjacent, as those locations are set forth in
paragraph (1) of subdivision (a) of this section.
