N.Y. Comp. Codes R. & Regs. tit. 6 § 661.9

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

Section 661.9 - Standards for issuance of permits

(a) Burden of proof. The applicant shall have the burden of establishing that the applicable standards of this section will be met.

(b) Standards for permits on any tidal wetland.

(1) Overall standards. The department shall issue a permit for a proposed regulated activity on any tidal wetland only if it is determined that the proposed activity:

(i) is compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 661.2 of this Part, taking into account the social and economic benefits which may be derived from the proposed activity;

(ii) is compatible with the public health and welfare;

(iii) is reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity and the degree to which the activity requires water access or is water dependent;

(iv) complies with the development restrictions contained in section 661.6 of this Part; and

(v) complies with the use guidelines contained in section 661.5 of this Part. If a proposed regulated activity is a presumptively incompatible use under such section, there shall be a presumption that the proposed regulated activity may not be undertaken in the subject area because it is not compatible with the area involved or with the preservation, protection or enhancement of the present or potential values of tidal wetlands if undertaken in that area. The applicant shall have the burden of overcoming such presumption and demonstrating that the proposed activity will be compatible with the area involved and with the preservation, protection and enhancement of the present and potential values of tidal wetlands. If a use is a type of use listed as an incompatible use in the use guidelines for the area involved, it shall not be undertaken on that area.

(2) Formerly connected tidal wetland. In addition to the standards contained in paragraph (1) of this subdivision, the department shall issue a permit for a regulated activity on a formerly connected tidal wetland only if it is determined that the proposed activity will be consistent with the possible future restoration of any portion of the tidal wetland adjoining or surrounding the project site to its original condition.

(c) Standards for permits on adjacent areas. The department shall issue a permit for a proposed regulated activity on an adjacent area only if it is determined that the proposed regulated activity:

(1) is compatible with the public health and welfare;

(2) complies with the development restrictions contained in section 661.6 of this Part;

(3) will not have an undue adverse impact on the present or potential value of any adjacent or nearby tidal wetland for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research or open space and aesthetic appreciation, taking into account the social and economic benefits which may be derived from the proposed activity; and

(4) complies with the use guidelines contained in section 661.5 of this Part. If a proposed activity is a presumptively incompatible use for adjacent areas under such section, there shall be a presumption that the proposed activity may not be undertaken on the adjacent area because it is not compatible with the preservation, protection, or enhancement of the present and potential values of tidal wetlands if undertaken in that area. The applicant shall have the burden of overcoming such presumption and demonstrating that the proposed regulated activity will be compatible with the preservation, protection and enhancement of the present and potential values of tidal wetlands. If a use is a type of use listed as an incompatible use, it shall not be undertaken on such adjacent area.

(d) Notice of acquisition. Written notice by the department to an applicant proposing a regulated activity, or written notice to the department from the State or any agency or subdivision thereof, that the State or any such agency or subdivision is in the process of acquiring the tidal wetland or adjacent area on which the proposed regulated activity would be located by negotiation or condemnation shall be sufficient basis for denial of a permit for such regulated activity. Such notice may be provided at any time prior to the department's decision to issue or deny a permit for a regulated activity.

(e) In determining whether the standards contained in subdivisions (b) and (c) of this section will be fulfilled by a proposed regulated activity, the department may in its discretion consider any proposal made by the applicant in his application to enhance the existing values served by a wetland on or in the vicinity of the site of the proposed regulated activity or to create and sustain new wetland values in or in the vicinity of the site of the proposed regulated activity, provided such proposal relates to an area that is or will be regulated under this Part.

(f) In any case in which an activity is specified as a use not requiring a permit (NPN) under section 661.5 of this Part but requires a permit pursuant to title 5 of article 15 of the Environmental Conservation Law, the standards of this Part will be applied in the department's review of such activity under article 15.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 661.9