N.Y. Comp. Codes R. & Regs. tit. 6 § 663.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 663.4 - Regulatory procedures

(a) All persons proposing to conduct, on wetlands or adjacent areas, activities which have not been specifically exempted under section 24-0701 of the act, in the statewide minimum land use regulations or under section 663.3, 663.4(d) or 663.7 of this Part, must obtain either a permit or a letter of permission.

(b)Preapplication procedures.

(1) Information on whether an activity requires either a permit or a letter of permission, or whether the activity is exempt from regulation, is provided in the statewide minimum land use regulations for freshwater wetlands and in subdivision (d) of this section.

(2) If a person wishing to conduct an activity is in doubt about whether the activity is exempt or about which procedural requirement applies, or wants to discuss with the department any phase of the proposed project as it relates to the act or to other permit programs, that person should contact the appropriate regional permit administrator for a preapplication conference.

(3) Any person intending to submit an application for a permit or letter of permission in the course of a preapplication conference, request in writing, in a form and manner prescribed by the department, that the commissioner confirm the classification, done pursuant to Part 664 of this Title, of the wetland that would be affected by the proposed activity. Within 20 working days of the department's receipt of the request, the commissioner will decide either to confirm the existing classification or to revise the classification on the basis of material new information or materially changed wetland conditions. Within that same 20-day period, the department shall send notice of the decision confirming or revising the classification to the person who submitted the request. That person shall not file a permit application until such notice has been provided. Where a classification is revised, notice of the order setting forth the revised classification will also be given and published, and a copy of such order shall be filed, as provided in Part 664 of this Title. Once the wetland's classification has been confirmed or revised pursuant to this paragraph and the procedures set out in Part 664 of this Title, and the permit application that was the subject of the preapplication conference has been filed, no further department-initiated change in the wetland's classification shall change the standard for permit issuance applied to that application.

(c)Regulatory mechanisms and application procedures.

The form to be used in applying for either a permit or a letter of permission is available from each regional office of the department, and the completed application form should be submitted to the appropriate regional permit administrator. The procedures for the two types of permission are as follows:

(1) Permits.

The procedures and schedules, including those for notices and hearings, that both an applicant and the department must follow in the permit application process are detailed in the Uniform Procedures Law (article 70 of the Environmental Conservation Law) and applicable regulations (Part 621 of this Title), and in the State Environmental Quality Review Act (article 8 of the Environmental Conservation Law) and applicable regulations (Part 617 of this Title). The department's regional permit administrators are available to explain the requirements of the uniform procedures regulations. In addition, the department will notify the applicant if the proposed activity is subject to the requirements of the State Environmental Quality Review Act, Waterfront Revitalization and Coastal Resources Act and/or State Historic Preservation Act, and will indicate which of those requirements apply. See also section 663.9 of this Part.

(2) Letters of permission.

The abbreviated letter of permission procedures are applicable when the department has determined that the proposed activity will not substantially alter or impair the natural functions or benefits of a wetland. If, after consulting the chart in subdivision (d) of this section, an applicant deems that a letter of permission is appropriate for the proposed activity, that should be indicated on the application form submitted. The advantages of a letter of permission are that no application fee or public hearing is required and that the letter of permission, if it is granted, is granted within 20 calendar days of the department's receipt of a properly completed application. The issuance of a letter of permission allows an applicant to proceed without a permit. However, to ensure that the activity to be covered by an issued letter of permission does not exceed the thresholds identified in the activities chart in subdivision (d) of this section, the department may attach to the letter of permission a statement of any necessary conditions to the proposed activity. If the proposed activity does not qualify for a letter of permission and a permit is required instead, the department will notify the applicant in writing within 15 calendar days and will require the appropriate permit processing fee and any additional information necessary to make the application complete, in accordance with the Uniform Procedures Law and its regulations.

(d)Activities chart.

Guidelines and procedural requirements for various activities are given in this subdivision. This chart is included to assist applicants and permit application reviewers in determining regulatory requirements under the act and this Part. To further assist applicants, the relative compatibility with wetlands and their adjacent areas, of the various activities, as determined in the statewide minimum land use regulations contained in section 665.7(g) of this Title, are included in parentheses whenever a permit requirement is indicated.

PROCEDURAL REQUIREMENTS FOR VARIOUS ACTIVITIES

The statewide minimum land use regulations contained in section 665.7(g) of this Title establish the compatibility categories to be used in conjunction with the different types of land use activities to be conducted upon freshwater wetlands or adjacent areas. This chart states the procedural requirements to be followed in implementing those minimum land use regulations. For activities and land uses not shown on this chart, the department must first make a determination that the activity is a regulated activity as defined in the act and section 663.2 of this Part. If the activity is regulated, then an independent determination of compatibility using the three tests for compatibility contained in the standards for permit issuance in section 663.5(e) of this Part must be used.

Area Categories:	Levels of Procedural Requirements:
FWW - Freshwater wetland	E - Exempt; no permit or letter of permission required
AA - Adjacent area	L - Letter of permission required
P - Permit required

Levels of Compatibility:

C - Usually compatible means that a regulated activity may be compatible with a wetland and its functions and benefits, although in some circumstances the proposed action may be incompatible.

N - Usually incompatible means that a regulated activity is usually incompatible with a wetland and its functions or benefits, although in some cases the proposed action may be insignificant enough to be compatible.

X - Incompatible means that a regulated activity is incompatible with a wetland and its functions and benefits.

Exempt Activities
The following activities either have been exempted from regulation by the act or are not regulated because they will not substantially impair any of the functions and benefits of freshwater wetlands.
Procedure and Compatibility by Area
Items	Activities	FWW	AA
1.	Continuing lawfully existing uses and continuing all activities normally and directly associated with any such use, except for those activities covered by items 38, 39, 40 and 41, where such continuance does not involve expansion or significant alteration of the existing use and does not affect additional wetland area.	E	E
2.	Establishing scenic, historic, wildlife and scientific preserves, where no significant impairment of the wetland or its benefits is involved.	E	E
3.	Boating, hiking, swimming, camping, picnicking and other similar nonmotorized forms of outdoor activity, where no significant impairment of the wetland or its benefits is involved.	E	E
4.	Depositing or removing the natural products of wetlands in the process of recreational or commercial fishing, shellfishing, aquiculture, hunting or trapping, including the erection and maintenance of temporary hides or blinds.	E	E
5.	Conducting educational and scientific research activities where no significant impairment of the wetland or its benefits is involved.	E	E
6.	Establishing walking trails, where no significant impairment of the wetland or its benefits involved.	E	E
7.	Establishing an individual recreational mooring.	E	E
8.	Gathering fuelwood, except as covered by items 22, 23 and 24.	E	E
9.	Conducting an agricultural activity, as defined in the act or section 663.2 of this Part.	E	E
Existing Structures and Facilities
Normally, maintenance, repair or restoration of existing facilities will not cause adverse impacts on wetlands. This is not always true, however, for construction activities that are associated with such maintenance, repair or restoration, such as the placing of access roads, staging areas and utilities. Various such associated activities are listed elsewhere in this chart.
Expansion or substantial restoration or reconstruction of existing structures and facilities can have significant impacts on the functions and benefits of wetlands. These impacts can be greater than those caused by the total replacement of the structures or facilities or by their construction in a different location.
Procedure and Compatibility by Area
Items	Activities	FWW	AA
10.	Ordinary maintenance and repair of existing functional structures, facilities or improved areas, including but not limited to bridges, roads, highways, culverts, railroad beds, bulkheads, docks, beaches, piers, wharves, pilings, dolphins, utility rights-of-way, buildings, landscaped or paved areas, lawns and mosquito control ditches. Such maintenance and repair might include, for example, replacing broken boards in docks, repainting structures, redriving pilings, resurfacing paved areas, and installing and removing docks on a seasonal basis, but does not include activities covered by items 22, 23, 24, 38, 39, 40 and 41 or other applicable items listed in this chart.	E	E
11.	In-kind and in-place replacement of existing functional bulkheads and similar structures.	L	L
12.	Routine beach regrading and cleaning.	L	L
13.	Restoring, reconstructing, expanding or modifying existing functional structures or facilities which involves a temporary disturbance of less than 50 square meters (approximately 540 square feet) of ground surface.	P(C)	L*
14.	Expanding or substantially modifying existing functional structures or facilities, except for activities covered by item 13, 19 or 30.	P(N)	P(C)
Operating Motor Vehicles
Intense use of motor vehicles may impair any of the several functions and benefits of wetlands by introducing or increasing contaminants, noise or other forms of pollution, or by removing or reducing vegetation and exposing soil to erosion. Occasional use generally does not warrant regulation.
15.	Operating all-terrain vehicles, air and motor boats, and snowmobiles, except as described in item 16.	E	E
16.	Intensive, organized and repetitive use of all-terrain vehicles, air and motor boats, and snowmobiles.	P(N)	P(C)
Draining, Filling, Grading, Clear-cutting and Dredging
Generally, draining of wetlands lowers groundwater levels, may increase downstream peak flows, and may decrease water storage capacity and downstream base flow. It may also cause changes in vegetation and water temperature, increased stream bed scouring, and sediment deposition. Draining can totally destroy a wetland.
Filling decreases the number and size of wetlands, thereby decreasing their ability to collect runoff and prevent erosion and sediment deposition downstream. Certain fill materials may adversely affect water quality. Disposal of dredged material may result in erosion and cause turbidity and sediment deposition. Filling eliminates wetland habitat for fish and wildlife, may alter the water table and groundwater flow and adversely affect groundwater recharge, and can irreversibly destroy a wetland.
Grading a wetland or adjacent area can substantially alter surface water drainage and flow patterns, may temporarily increase erosion, and may eliminate fish and wildlife habitat.
Clear-cutting removes the vegetative cover of wetlands and may reduce their ability to absorb water and serve as habitat. It may also cause soil erosion.
Dredging or excavation may increase water depth and remove wetland vegetation, thus altering the basic characteristics of, and perhaps destroying, wetlands. Fish and wildlife feeding or reproductive capacities may be altered, as may cover types, turbidity, sediment deposition, and erosion patterns.
Any of these activities can cause the permanent loss of benefits provided by wetlands, and may, in fact, destroy wetlands entirely.
Procedure and Compatibility by Area
Items	Activities	FWW	AA
17.	Draining and altering water levels, except as part of an agricultural activity.	P(X)	P(X)
18.	Removing or breaching beaver dams.	P(N)	P(C)
19.	Constructing, expanding or substantially modifying drainage ditches, except as part of an agricultural activity.	P(X)	P(N)
20.	Filling, including filling for agricultural purposes.	P(X)	P(N)
21.	Installing or creating a dry well, retention basin, filter, open swale, or pond.	P(N)	P(N)
22.	Clear-cutting timber.	P(N)	P(C)
23.	Clear-cutting vegetation other than trees, except as part of an agricultural activity.	P(X)	P(N)
24.	Cutting but not elimination or destruction of vegetation, such that the functions and benefits of the wetland are not significantly adversely affected.	L	L
25.	Grading, and dredging not included in item 26.	P(X)	P(N)
26.	Dredging less than 400 cubic meters (approximately 523 cubic yards) to maintain present navigation channels.	P(C)	P(C)
27.	Mining.	P(X)	P(X)
28.	Constructing roads, except for winter truck roads as described in section 663.2(c) of this Part.	P(X)	P(N)
29.	Drilling a water well to serve an individual residence.	P(C)	L
30.	Drilling a well, except for activities covered by item 29.	P(X)	P(N)
Dams, Docks and Bulkheads
Generally, structures of this type are indicative of associated development which may increase disruptive human use or occupancy of wetland areas.
A structure sometimes interferes with surface or subsurface water flow, increases water levels, or otherwise affects wetland water supply. The impact of such a structure is related to its size, location and design. For example, docks on piles are generally more compatible with the functions and benefits of wetlands than are docks on fill.
Dams alter normal flow patterns and often increase water levels, thus eliminating or altering the natural vegetation. Depending on the size of the structure, entire wetlands can be destroyed.
Procedure and Compatibility by Area
Items	Activities	FWW	AA
31.	Installing a dock, pier, wharf or other structure built on floats or open-work supports and having a top surface area of 20 square meters (approximately 200 square feet) or less.	P(C)	P(C)
32.	Installing any dock, pier, wharf or other structure used as a landing place on water, except for activities covered by item 31.	P(N)	P(N)
33.	Constructing groins, bulkheads and other shoreline stabilization structures.	P(X)	P(N)
34.	Constructing or removing berms, levees, dikes, dams and other control structures.	P(X)	P(N)
Utilities
Installing utilities in or adjacent to wetlands will be presumed to cause less damage to those wetlands if little or no additional clearing and grading is necessary. Where extensive clearing and construction of access or maintenance roads occurs, erosion and sedimentation may be the most serious problems.
Installing overhead lines, while often spanning wetlands and thereby minimizing construction impacts, will result in a permanent adverse aesthetic impact on wetlands. Overhead power lines may also result in higher bird mortality rates, either through collision or electrocution.
35.	Installing utility service to an individual residence.	L	E
36.	Installing electric, telephone or other utilities from an existing utility distribution facility to a structure, except for activities covered by item 35, where no major modifications or construction activities in the wetland are necessary.	P(C)	L
37.	Installing utilities, except for activities regulated by article VII or VIII of the Public Service Law or by item 36.	P(X)	P(N)
Pollution and Pesticides
Introduction of sewage effluent, runoff of pesticides, or disposal of toxic substances into wetlands or adjacent areas may contaminate ground and surface water with undesirable chemicals, nutrients and organisms. The contamination may be temporary or permanent. It may result from activities located directly in wetlands or within adjacent areas, but, due to runoff and drainage patterns, it may also be caused by activities located some distance away. Distant activities can have adverse effects as severe as those caused by activities within or adjacent to wetlands. The presence of pollutants or pesticides in wetlands or adjacent areas may increase mortality rates among fish and wildlife, alter their behavior or reproductive capability, and adversely affect their value as a food source. Excessive nutrients alter vegetative cover, fish and wildlife distribution, and water potability. Resulting organisms may also create a health hazard.
Procedure and Compatibility by Area
Items	Activities	FWW	AA
38.	Introducing or storing any substance, including any chemical, petrochemical, solid waste, nuclear waste, toxic material, sewage effluent or other pollutant, except as described in items 39, 40 and 41.	P(X)	P(X)
39.	Application of a pesticide conducted pursuant to a permit issued under article 15 of the Environmental Conservation Law (see 6 NYCRR Parts 327, 328 and 329).	P(N)	P(C)
40.	Application of a pesticide where no permit is required under article 15 of the Environmental Conservation Law (see 6 NYCRR Parts 327, 328 and 329).	P(X)	P(X)
41.	Application of a pesticide to the grounds of a private residence when such use is by the owner.	P(C)	L
Buildings
Constructing buildings, accessory roads, and parking areas can have several effects on wetlands, not the least of which is the increased pressure to continue development beyond the initial construction.
Roofs and paved areas quickly shed rain where that rain previously had an opportunity to soak into the ground. This can result in more turbulent streamflow, more erosion and sedimentation, and higher water levels in surrounding areas, including in nearby wetlands.
The effects of filling, grading and draining are discussed elsewhere in this chart.
42.	Constructing a residence or related structures or facilities.	P(X)	P(N)
43.	Constructing commercial or industrial facilities, public buildings, or related structures or facilities.	P(X)	P(X)

Footnotes

* For classic kettlehole bogs as defined in section 663.2(f) of this Part, the category is P(C).

N.Y. Comp. Codes R. & Regs. Tit. 6 § 663.4