N.Y. Comp. Codes R. & Regs. tit. 6 § 665.7

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

Section 665.7 - Standards for issuance of permits

(a) All persons proposing to conduct activities on wetlands or adjacent areas that have not been specifically exempted from regulation under section 24-0701 of the act or section 665.2(x)(1)-(3) of this Part must obtain either a permit or a letter of permission.

(b) The permit applicant or a person requesting a letter of permission has the burden of establishing that the applicable standards of this section will be met.

(c) In granting, denying or modifying a permit, a local government must apply the standards for permit issuance contained in this section in conjunction with the classification of the subject wetland as indicated by the official map filed by the department. In applying these standards, the local government must consider the effects of the proposed activity regardless of political boundaries. In granting a letter of permission, a local government must determine that the proposed activity complies with the limits of the activities as stated in subdivision (g) of this section.

(d) As shown in the chart in subdivision (e) of this section, a determination of compatibility and a weighing of need against benefits lost are the criteria for decisionmaking. The three tests for compatibility must be used for all activities listed in the minimum land-use regulations of subdivision (g) of this section that carry a compatibility category of "C" or "N" as defined in subdivision (g) of this section. Activities and land uses not listed in the minimum land-use regulations also must be evaluated using the three-part compatibility test. Activities designated as "LP" in subdivision (g) of this section have been determined under the minimum land-use regulations to be compatible and no further compatibility or weighing analysis need be performed before issuance of a letter of permission as defined in section 665.2 of this Part. Activities identified as "E" are exempt and do not require either a permit or letter of permission. Exempt activities are included in subdivision (g) of this section to assist local governments in determining regulatory procedures.

(1) When the three tests of compatibility given in the chart in subdivision (e) of this section are met, no other weighing standards need apply, regardless of the wetland's classification, and a permit, with or without conditions, may be issued for the proposed activity. In conjunction with the three-part test, the statewide minimum land-use regulations contained in subdivision (g) of this section or a local variance from them that has been duly adopted according to the provisions of section 665.8 of this Part are the basis for determinations of compatibility.

(2) If the proposed activity cannot meet all three tests of compatibility or if it is identified as "X," incompatible, then, for a permit to be issued, the activity must meet each of the weighing standards listed in the chart in subdivision (e) of this section for the classification of the wetland that would be affected by the proposed activity.

(3) If a local government determines that a written request for a letter of permission exceeds the thresholds identified in the items listed in subdivision (g) of this section, a letter of permission may not be issued. Instead, the proposed action must be tested for compatibility using the three-part test in subdivision (e) of this section and a permit application must be processed pursuant to the act and this Part. If there is a question or doubt as to whether any proposed activity being reviewed for compatibility with the three-part test in subdivision (e) of this section meets any of the three parts of the test, the action must be treated as incompatible and the activity weighed according to the standards identified in subdivision (e) of this section.

(e)Standards for permit issuance.

(1) Compatibility. These three tests are to be used to determine the compatibility of all activities identified as "C" or "N" in subdivision (g) of this section for any action not listed in subdivision (g). If all three of the following tests of compatibility are met, no other weighing standards need be met, regardless of the wetland class. A permit, with or without conditions, may be issued for a proposed activity on a wetland of any class or in a wetland's adjacent area if it is determined that the activity (i) would be compatible with preservation, protection and conservation of the wetland and its benefits, and (ii) would result in no more than insubstantial degradation to, or loss or, any part of the wetland, and (iii) would be compatible with the public health and welfare.

(2) Weighing. These weighing standards must be applied to all activities identified as "X" in subdivision (g) of this section, and to all those activities listed as "C" or "N" in subdivision (g) or not listed in subdivision (g) which do not meet the three tests of compatibility listed in paragraph (1) of this subdivision. If the proposed activity is listed as "X" or cannot meet the three tests for compatibility, then a permit shall be issued only if the proposed activity meets each of the standards below for the clases of wetland affected:

Class I Wetlands^1,2,3	Class II Wetlands^1,2,3	Class III Wetlands^1,2,3	Class IV Wetlands^1,2,4
Class I wetlands provide the most critical of the State's wetland benefits, reduction of which is acceptable only in the most unusual circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefit(s) of the Class I wetland.	Class II wetlands provide important wetland benefits, the loss of which is acceptable only in very limited circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the benefit(s) of the Class II wetland.	Class III wetlands supply wetland benefits, the loss of which is acceptable only after the exercise of discernment. A permit shall be issued only if it is determined that the proposed activity satisfies an economic or social need that outweighs the loss of or detriment to the benefit(s) of the Class III wetland.	Class IV wetlands provide some wildlife and open space benefits and may provide other benefits cited in the act. Therefore, wanton or uncontrolled degradation or loss of Class IV wetlands is unacceptable. A permit shall be issued for a proposed activity in a Class IV wetland only if it is determined that the activity would be the only practicable alternative which could accomplish the applicant's objectives.

1 The proposed activity must be compatible with the public health and welfare.

2 The proposed activity must be the only practicable alternative which could accomplish the applicant's objectives and must have no practicable alternative on a site that is not a freshwater wetland or adjacent area.

3 The proposed activity must minimize degradation to, or loss of, any part of the wetland or its adjacent area and must minimize any adverse impacts on the functions and benefits which that wetland provides.

4 The proposed activity must make a reasonable effort to minimize degradation to, or loss of, any part of the wetland or its adjacent area.

(f)Interpretation of some terms used in subdivision (e) of this section.

(1) Public health and welfare. These concerns include:

(i) consistency of the proposed activity with physical health, if necessary as judged by health professionals; and

(ii) consistency with related Federal, State and local laws, regulations and policies.

If a proposed activity is inconsistent with physical health, or with any related laws, regulations and government policies, this would weigh against issuing a permit under the act until such conditions were met that would make the proposed activity consistent with these provisions.

(2)Only practicable alternative. A proposed activity is the only practicable alternative if no other is physically or economically feasible. This does not, however, mean that the most profitable or least costly alternative is the only feasible one nor that the least profitable or most costly alternative is the only feasible one.

(3)Economic and social need. When the economic and social need for the proposed activity is considered, the economic and social burden that would be imposed on the public shall be considered. The public economic and social burden may include: associated services, such as sewer systems, schools, and fire and police protection, necessitated by the proposed activity; prevention of contamination, flood, or other damage to the proposed development on the wetland by methods such as channelization, alteration of land, alteration of water flow, draining, or construction of dams, dikes, or levees; and/or services and repairs, such as medical care, pumping, cleaning, dredging, and emergency assistance as a result of contamination, flooding, or other damage to the proposed development on the wetland. Nothing in this section precludes the consideration of any issue which must be addressed under the State Environmental Quality Review Act (article 8 of the Environmental Conservation Law).

(4)Specific Class I standards.

(i) ". . . reduction of which is acceptable only in unusual circumstances." Permits for the vast majority of activities that could not avoid reducing a benefit provided by a Class I wetland would not be approved. The word reduction means that this applies not just to the loss of any benefit, but to the partial loss or reduction of a benefit.

(ii) ". . . satisfied a compelling economic or social need. . ." The word compelling implies that the proposed activity carries with it not merely a sense of desirability or urgency, but of actual necessity; that the proposed activity must be done; that is it unavoidable.

(iii) ". . . clearly and substantially outweighs. . ." Clearly means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate. Substantially carries this further, in that not only must the need clearly outweigh the loss or detriment, but the margin of outweighing itself must be large or significant.

(5)Specific Class II standards.

(i) ". . .loss of which is acceptable only in limited circumstances." Permits for most activities that could not avoid causing a loss of or detriment to a benefit provided by a Class II wetland would not be approved.

(ii) ". . . satisfies a pressing economic or social need. . ." Pressing should suggest that for the need to outweigh the loss of or detriment to a benefit of a Class II wetland, it must be urgent and intense, though it does not have to be necessary or unavoidable.

(iii) ". . . clearly outweighs. . ." means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate, although there does not have to be a large or significant margin between the need and the loss.

(6)Specific Class III standards.

(i) ". . . loss of which is acceptable only after the exercise of caution and discernment." This means that permits could be issued for activities that could not avoid loss of or detriment to a benefit provided by a Class III wetland, but only after careful evaluation.

(ii) ". . . satisfied an economic or social need. . ." The need for the activity is real and undeniable, though it does not have to be necessary, unavoidable, urgent or intense.

(iii) ". . . outweighs. . ." means that the need for the activity must outweigh the loss of or detriment to a benefit, but the balance in favor of the activity does not have to be beyond serious debate.

(7) Class IV standards.

Permit issuance cannot be indiscriminate or unexamined for Class IV wetlands and still require consideration of loss of wetland values.

(g) The commissioner is charged pursuant to section 24-0903 of the act with the identification of compatible uses of each class of wetlands in the form of minimum land-use regulations. The chart included in this subdivision serves as statewide minimum land-use regulations for use by local governments or the department as appropriate, subject to local variance in accordance with section 665.8 of this Part. These land-use regulations, in conjunction with the standards for permit issuance, are the basis for determinations of compatibility. The following categories are used in the statewide minimum land-use regulations:

(1) "LP" means that a letter of permission will be issued for the proposed activity. These are activities which are neither specifically exempted from the regulation nor identified for regulation according to section 24-0701 of the act, but which the commissioner has determined will not have a significant adverse impact on freshwater wetlands.

(2) "C" 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.

(3) "N" 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.

(4) "X" means that a regulated activity is incompatible with a wetland and its functions and benefits.

(5) "E" means that an activity is exempted in section 24-0701 of the act, or is not regulated by the act because the activity will not substantially impair any of the functions or benefits of freshwater wetlands. Exempt actions are not regulated, but are included in the tables in subdivision (g) of this section to assist permit application reviewers in determining regulatory requirements.

(g)Statewide minimum land-use regulations-determinations of compatibility.

The statewide minimum land-use regulations 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. For activities and land uses not shown on this chart, a local government or the department, as appropriate, must first make a determination that the activity is a regulated activity as defined in the act and section 665.2 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 subdivision (e) of this section must be used.

*Area categories*	*Compatibility categories*
FWW - Freshwater Wetland	LP - Compatible; letter of permission issued
AA - Adjacent Area	C - Usually compatible
	N - Usually incompatible
	X - Incompatible
	E - Exempt

	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.
	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 is 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 665.2 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.
	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.	LP	LP
12.	Routine beach regrading and cleaning.	LP	LP
13.	Restoring, reconstructing 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.	C	LP*
14.	Expanding or substantially modifying existing functional structures or facilities, except for activities covered by items 13, 19 or 31.	N	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.
	Compatibility by Area
Items	Activities	FWW	AA
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.	N	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 dredge 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 covertypes, 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.
	Compatibility by Area
Items	Activities	FWW	AA
17.	Draining and altering water levels, except as part of an agricultural activity.	X	X
18.	Removing or breaching beaver dams.	N	C
19.	Constructing, expanding or substantially modifying drainage ditches, except as part of an agricultural activity.	X	N
20.	Filling, including filling for agricultural purposes.	X	N
21.	Installing or creating a dry well, retention basin, filter, open swale or pond.	N	N
22.	Clear-cutting trees.	N	C
23.	Clear-cutting vegetation other than trees except as part of an agricultural activity.	X	N
24.	Cutting but not elimination or destruction of vegetation, such that the functions and benefits of the wetland are not significantly adversely affected.	LP	LP
25.	Grading, and dredging not included in item 26.	X	N
26.	Dredging less than 400 cubic meters (approximately 523 cubic yards) to maintain present navigation channels.	C	C
27.	Mining.	X	X
28.	Constructing roads, except for winter truck roads as defined in section 665.2(c)(1)(vi) of this Part.	X	N
29.	Drilling a water well to serve an individual residence.	C	LP
30.	Drilling a well, except for activities covered by item 29.	X	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.
	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.	C	C
32.	Installing any dock, pier, wharf or other structure used as a landing place on water, except for activities covered by item 31.	N	N
33.	Constructing groins, bulkheads and other shoreline stabilization structures.	X	N
34.	Constructing or removing berms, levees, dikes, dams, and other control structures.	X	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.
	Compatibility by Area
Items	Activities	FWW	AA
35.	Installing utility service to an individual residence.	LP	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.	C	LP
37.	Installing utilities, except for activities regulated by article VII or VIII of the Public Service Law or by item 36.	X	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.
	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.	X	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).	N	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).	X	X
41.	Application of a pesticide to the grounds of a private residence when such use is by the owner.	C	LP
	Buildings
	Constructing buildings, accessory roads and parking areas can have several effect 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.
	Compatibility by Area
Items	Activities	FWW	AA
42.	Constructing a residence or related structures or facilities.	X	N
43.	Constructing commercial or industrial facilities, public buildings or related structures or facilities.	X	X

(h) The applicant may suggest a proposal to enhance the existing benefits provided by a wetland or to create and maintain new wetland benefits in order to increase the likelihood that a proposed activity will meet the applicable standards for permit issuance. Such a proposal must meet the following provisions:

(1) the mitigation must occur on or in the immediate vicinity of the site of the proposed project;

(2) the area affected by the proposed mitigation must be regulated by this Part after mitigative measures are completed; and

(3) the mitigation must provide substantially the same or more benefits that will be lost through the proposed activity.

(i) Duly filed notice in writing that the State or any agency or political subdivision of the State is in the process of acquiring any freshwater wetland by negotiation or condemnation authorizes but does not require denial of any permit, but only if both the affected landowner and the local government have been so notified.

(1) The written notice must include an indication that the acquisition process has commenced, such as that an appraisal of the property has been prepared or is in the process of being prepared.

(2) If the landowner receives no offer for the property within one year of the permit denial, this bar to the permit lapses. If its negotiations with the applicant are broken off, the State or any agency or political subdivision must, within six months of the end of negotiation, either issue its findings and determination to acquire the property pursuant to section 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to section 206 of the General Domain Procedure Law, or this ban to the permit lapses. Footnotes

Footnotes

1 The proposed activity must be compatible with the public health and welfare.

4 The proposed activity must make a reasonable effort to minimize degradation to, or loss of, any part of the wetland or its adjacent area.

* For classic kettlehole bogs as defined in section 665.2(g) of this Part, the category is "C".

N.Y. Comp. Codes R. & Regs. Tit. 6 § 665.7