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 665 - Local Government Implementation Of The Freshwater Wetlands Act And Statewide Minimum Land-use Regulations For Freshwater Wetlands
Section 665.4 - Assumption of regulatory authority

Universal Citation: 6 NY Comp Codes Rules and Regs § 665.4

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

(a) A local government must adopt a local freshwater wetlands protection law or ordinance pursuant to section 24-0501 of the act and this Part in order to assume regulatory authority within its jurisdiction. The local law or ordinance must:

(1) be applicable to all freshwater wetlands wholly or partially within the local government's jurisdiction;

(2) be no less protective of freshwater wetlands, and no less effective in its administrative and judicial review, than the act; and

(3) not regulate activities exempted from regulation by section 24-0701 of the act as set forth in section 665.2(x)(1)-(3) of this Part.

(b) A local government may adopt a local law or ordinance by reference to the procedures and concepts set forth in the act and this Part with exceptions, additions and modifications to the act noted. Such adoption, once effected, must include subsequent statutory amendments to the act, subject to exception, addition or modification by the local government.

(c) Pursuant to section 24-0507 of the act, a local government may elect to extend regulatory control to smaller wetland areas than those identified on the final freshwater wetlands maps as defined in section 665.2(m) of this Part. A local government may also institute, through its local law or ordinance, higher standards for permit issuance than those set out in section 665.7 of this Part.

(d) If a city, town or village does not adopt a local law or ordinance by the date the official applicable freshwater wetlands may is filed by the department, regulatory authority is transferred to the county until the city, town or village assumes regulatory authority pursuant to the act and this Part. If a county does not adopt a local law or ordinance within 90 days of the date the official applicable freshwater wetlands map is filed by the department, regulatory authority is retained by the department until the county assumes regulatory authority pursuant to the act and this Part. The department will remain as the regulatory authority in those areas of the State where no local government has assumed authority and during the time in which a local government is in the process of assuming pursuant to this section.

(e) A copy of the local law or ordinance must be forwarded to the department within 30 days of its adoption, along with a statement that it was adopted pursuant to section 24-0501 of the act and the date of adoption. Within 30 days of receipt of a properly submitted local law or ordinance, the department will review it for compliance with the act as presented in subdivision (a) of this section and then notify the local government in writing of its findings.

(1) If a local law or ordinance is in compliance and meets the conditions stated in the act and this Part, the commissioner will certify to the local government in his written findings that it has satisfied the requirements for this Part of assumption of regulatory authority.

(2) If a local law or ordinance is not in compliance, the commissioner will notify the local government in his written findings that it has not met the conditions stated in the act and this Part. He will also identify those areas of concern, as practicable, to assist the local government in bringing its local law or ordinance into compliance. The local government must then bring its law into compliance and resubmit it to the commissioner, pursuant to this subdivision, along with a statement indicating the necessary changes made in the law. The commissioner will then process the loal law pursuant to this subdivision.

(f) A local law or ordinance pursuant to the act cannot be implemented until applicable freshwater wetland maps have been filed by the department.

(g) Subsequent amendments of a local law or ordinance must be forwarded to the department and acted upon in accordance with the procedures outlined in subdivision (e) of this section.

(h) At the time a local government submits its local law or ordinance pursuant to subdivision (e) of this section, the chief executive officer of a local government must report to the department that it has or will obtain within 90 days of the submission to the department of the local law or ordinance, the technical and administrative capability to administer the act, in accordance with the standards and criteria presented in section 665.5 of this Part. The report must describe the local government's capability in sufficient detail to enable the department to assess compliance with the standards in section 665.5 of this Part. At a minimum, the report must:

(1) describe the permit administration and technical review processes to be undertaken;

(2) designate the person(s) who will serve as the local government's permit officer and will provide technical review of permit applications and evaluation of regulated activities; and

(3) describe the qualifications of those person(s) and their relationship to the local government.

(i) Within 60 days of receipt of the report submitted pursuant to subdivision (h) of this section, the department will assess the technical and administrative capability of the local government to administer the act and notify the local government in writing of its findings.

(1) When the commissioner has determined that the local government possesses the necessary technical and administrative capability pursuant to the act and this Part, and that the local law or ordinance has been approved pursuant to paragraph (e)(1) of this section, the commissioner will notify by certified mail the chief executive officer of that local government that it has met all the requirements of the act and this Part and that regulatory authority is transferred to that local government effective immediately upon receipt of said notification.

(2) When the commissioner has determined that the local government does not possess the necessary technical or administrative capability pursuant to the act and this Part, the commissioner will notify the local government in his written findings, that it has not met the standards of conditions stated in the act and this Part. He will also identify those areas of concern, as practicable, to assist the local government in meeting its capability requirements. The local government must then acquire the necessary technical or administrative capability and resubmit its new report to the commissioner pursuant to subdivision (h) of this section, along with a statement indicating the necessary changes made. The commissioner will then process the capability report pursuant to this subdivision.

(j) A local government may not assume jurisdiction until it has been certified by the department as to its capability and its local law or ordinance, pursuant to this section. Until such a time that a local government receives notification of regulatory authority pursuant to paragraph (i)(1) of this section, the next level of local government which has assumed regulatory authority pursuant to the act and this Part, or the department, will be the regulatory authority.

(k) As set out in section 665.12 of this Part, whenever the commissioner finds that a local government lacks or has lost the administrative or technical capability to effectively administer the act, he or she may supersede the local government and order, by certified mail sent to the chief executive officer of the local government involved, that its regulatory authority be transferred to the county or to the department to the extent necessary to carry out the purposes of the act. A local government will be afforded an opportunity for a hearing before its jurisdiction is superseded.

(l) A local government may certify in writing that it does not want to assume or retain regulatory authority or that it does not possess the technical capacity or the procedures to effectively carry out the requirements of the act and transfer its jurisdiction to the county or to the department, as the case may be, in accordance with section 24-0503 of the act. A village, town or city making such certification must send it by certified mail to the chief executive officer of the county; a county making such certification must send it by certified mail to the commissioner.

(m) In accordance with the procedures outlined in subdivisions (e) and (i) of this section, the department must be notified of changes in the capability of a local government which would impair its ability to effectively implement the act and the provisions of this Part.

(n) Any local government that defaults or transfers its jurisdiction or has its jurisdiction superseded, may recover its authority by adopting a local law or ordinance and/or certifying as to its technical and administrative capability, as the case may be, pursuant to subdivision 24-0501.6 of the act and the provisions of this Part.

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