This chapter shall be known as the "Freshwater Wetlands Protection Law
of the Town of Fenton."
It is declared to be the public policy of the Town of Fenton to preserve,
protect and conserve freshwater wetlands and the benefits derived therefrom,
to prevent the despoliation and destruction of the freshwater wetlands and
to regulate the development of such wetlands in order to secure the natural
benefits of freshwater wetlands, consistent with the general welfare and beneficial
economic, social and agricultural development of the Town of Fenton. It is
further declared to be the policy of the Town of Fenton to exercise its authority
pursuant to Article 24 of the New York State Environmental Conservation Law
and it is intended that the provisions of this chapter shall in all respects
be interpreted in a manner consistent with the provisions of Article 24, and
in the event of conflict therewith, the provisions of Article 24 shall be
deemed to control, including amendments of Article 24 hereafter adopted.
The following terms, phrases, words and their derivatives shall have
the meanings given herein:
ADJACENT AREA
Any land in the Town of Fenton immediately adjacent to a freshwater
wetland lying within 100 feet, measured horizontally, of the boundary of a
freshwater wetland.
AGENCY
The Town Board of the Town of Fenton.
APPLICANT
Any person who files an application for any permit issued by the
agency pursuant to this chapter, and includes the agent of the owner or a
contract vendee.
BOARD
The Freshwater Wetlands Appeals Board, established by Article 24
of the New York State Environmental Conservation Law.
BOUNDARIES OF A FRESHWATER WETLAND
The outer limit of the vegetation specified in Subsections A and
B of the definition of "freshwater wetlands" in this section and of the waters
specified in Subsection C of such definition.
FRESHWATER WETLANDS
Lands and waters lying within the boundaries of the Town of Fenton,
over 1/2 acre in area, whether or not shown on a freshwater wetlands map,
which contain any or all of the following:
A.
Lands and submerged lands commonly called "marshes," "swamps," "sloughs,"
"bogs" and "flats," supporting aquatic or semiaquatic vegetation of the following
vegetative types:
(1)
Wetland trees which depend upon seasonal or permanent flooding or sufficiently
waterlogged soils to give them a competitive advantage over other trees, including,
among others, red maple (Acer rubrum), willows (Salix species), black spruce
(Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica),
American elm (Ulmus americana) and larch (Larix laricina).
(2)
Wetland shrubs which depend upon seasonal or permanent flooding or sufficiently
waterlogged soils to give them a competitive advantage over other shrubs,
including, among others, alder (Alnus species), buttonbush (Cephalanthus occidentalis),
bog rosemary (Andromeda glaucophylla) and leatherleaf (Chamaedaphne calyculata).
(3)
Emergent vegetation, including, among others, cattails (Typha species),
pickerelweed (Pontederia cordata), bulrushes (Scirpus species), arrow arum
(Peltandra virginica), arrowheads (Sagittaria species), reed (Phragmites communis),
wild rice (Zizania aquatica), burreeds (Sparganium species), purple loosestrife
(Lythrum salicaria), swamp loosestrife (Decodon verticillatus) and water plantain
(Alisma plantago-aquatica).
(4)
Rooted, floating-leaved vegetation, including, among others, waterlily
(Nymphalea odorata), watershield (Brasenia schreberi) and spatterdock (Nuphar
species).
(5)
Free-floating vegetation, including, among others, duckweed (Lemna species),
big duckweed (Spirodela polyrhiza) and watermeal (Wolffia species).
(6)
Wet meadow vegetation which depends upon seasonal or permanent flooding
or sufficiently waterlogged soils to give them a competitive advantage over
other open land vegetation, including, among others, sedges (Carex species),
rushes (Juncus species), cattails (Typha species), rice cut-grass (Leersia
oryzoides), reed canary grass (Phalaris arundinacea), swamp loosestrife (Decodon
verticillatus) and spike rush (Eleocharis species).
(7)
Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum
species), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne
calyculata), pitcher plant (Sarracenia purpurea) and cranberries (Vaccinium
macrocarpon and Vaccinium oxycoccos).
(8)
Submergent vegetation, including, among others, pondweeds (Potamogeton
species), naiads (Najas species), bladderworts (Utricularia species), wild
celery (Vallisneria americana), coontail (Ceratophyllum demersum), water mil
foils (Myriophyllum species), muskgrass (Chara species), stonewort (Nitella
species) water weeds (Eleodea species) and water smartweed (Polygonum amphibium).
B.
Lands and submerged lands containing remnants of any vegetation that
is not aquatic or semiaquatic that has died because of wet conditions over
a sufficiently long period, provided that such wet conditions do not exceed
a maximum seasonal water depth of six feet; and provided, further, that such
conditions can be expected to persist indefinitely, barring human intervention;
C.
Lands and waters enclosed by aquatic or semiaquatic vegetation as set forth herein in Subsection
A and dead vegetation as set forth in Subsection
B, the regulation of which is necessary to protect and preserve the aquatic and semiaquatic vegetation; and
D.
The waters overlying the areas as set forth in Subsections
A and
B and the lands underlying Subsection
C.
FRESHWATER WETLANDS MAP
A map delineating the boundaries of freshwater wetlands, which has
been filed with the Town Clerk of Fenton by the State Department of Environmental
Conservation pursuant to § 24-0301 of the New York State Environmental
Conservation Law, as the map may be amended from time to time. If no such map has been filed by the State Department of Environmental
Conservation, "freshwater wetlands map" means a map on which are delineated
the boundaries of freshwater wetlands, which has been approved by the Town
of Fenton Planning Board and filed with the Town Clerk of Fenton. In the event
that a map has been filed by the Department of Environmental Conservation
and a map has also been filed with the approval of the Town of Fenton Planning
Board, the map filed by the Department of Environmental Conservation shall
apply to each wetlands area containing 12.4 acres or more, and the map filed
with the approval of the Town of Fenton Planning Board shall apply to each
wetlands area within the Town of Fenton exceeding one-half (1/2) acre, but
less than 12.4 acres.
[Amended 8-6-1980 by L.L. No. 3-1980]
PARTY IN INTEREST
The applicant, the agency, the State Department of Environmental Conservation, each local government in which the regulated activity or any part thereof is located and any person who appears and wishes to be a party in interest at the public hearing held pursuant to §
85-16 of this chapter.
PERSON
Any corporation, firm, partnership, association, trust, estate, one
or more individuals and any unit of government or agency or subdivision thereof.
POLLUTION
The presence in the environment of human-induced conditions or contaminants
in quantities or characteristics which are or may be injurious to humans,
plants, animals or property.
PROJECT
Any action which may result in direct or indirect physical impact
on a freshwater wetlands, including, but not limited to, any regulated activity.
REGULATED ACTIVITY
Any form of draining, dredging, excavation, removal of soil, mud, sand, shells, gravel or other aggregate from any freshwater wetland, either directly or indirectly; any form of dumping, filling or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly; erecting any structures or roads, the driving of pilings or placing of any other obstructions whether or not changing the ebb and flow of the water; any form of pollution, including, but not limited to, installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid wastes directly into or so as to drain into a freshwater wetland; that portion of any subdivision of land that involves any land in any freshwater wetland or adjacent area; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom which are set forth in §
85-3 of this chapter.
SELECTIVE CUTTING
The annual or periodic removal of trees, individually or in small
groups, in order to realize the yield and establish a new crop and to improve
the forest, which removal does not involve the total elimination of one or
more particular species of trees.
STATE
The State of New York.
STATE AGENCY
Any state department, bureau, commission, board or other agency,
public authority or public benefit corporation.
SUBDIVISION OF LAND
Any division of land into two or more lots, parcels or sites, whether
adjoining or not, for the purpose of sale, lease, license or any form of separate
ownership or occupancy (including any grading, road construction, installation
of utilities or other improvements or any other land use and development preparatory
or incidental to any such division) by any person or by any other person controlled
by, under common control with or controlling such person or by any group of
persons acting in concert as part of a common scheme or plan. "Subdivision
of land" shall include any map, plat or other plan of division of land, whether
or not previously filed. "Subdivision of land" shall not include the lease
of land for hunting and fishing and other open space recreation uses and shall
not include the division of land by bona fide gift, devise or inheritance.
Except as provided in §
85-6, no person shall conduct a regulated activity on any freshwater wetland or adjacent area unless such person has first obtained a permit pursuant to this chapter.
No permit under this chapter shall be required for:
A. The deposition or removal of the natural products of
freshwater wetlands and adjacent areas by recreational or commercial fishing,
shellfishing, aquiculture, hunting or trapping where otherwise legally permitted
and regulated.
B. The activities of farmers and other landowners in grazing
and watering livestock, making reasonable use of water resources, harvesting
natural products of wetlands or adjacent areas, selective cutting of timber,
draining land or wetlands for growing agricultural products and otherwise
engaging in the use of wetlands or other land for growing agricultural products,
except that structures not required for enhancement or maintenance of the
agricultural productivity of the land and any filling activities shall not
be excluded hereunder. Each farmer or other landowner who intends to conduct
an otherwise regulated activity shall notify the agency, in writing, prior
to conducting the activity, of his intention to engage in such activity, stating
the approximate acreage of freshwater wetlands or adjacent area affected,
the location thereof, the methods to be employed, and the uses to be made
of such land. A soil and water conservation plan prepared by a Soil and Water
Conservation District and filed with the agency shall be deemed sufficient
notification for the purposes of this subsection.
C. Public health activities, orders and regulations of the
Broome County Department of Health undertaken in compliance with § 24-0701,
Subdivision 5, of the New York State Environmental Conservation Law.
D. Activities subject to the review jurisdiction of the
State Public Service Commission or the New York State Board on Electric Generation
Siting and the Environment under Article 7 or Article 8 of the Public Service
Law, respectively. The standards and restrictions of this chapter will be
applied by said bodies in determining whether to issue a certificate of environmental
compatibility and public need under such articles.
E. Any actual and ongoing emergency activity which is immediately
necessary for the protection and preservation of life or property or the protection
or preservation of natural resource values. Such emergency activities include,
for example: search and rescue operations; preventive or remedial activities
related to large-scale contamination of streams or other bodies of water;
floods, hurricanes and other storms; and public health concerns. Within five
days of the end of such an emergency involving the undertaking of any activity
which otherwise would be treated as a regulated activity under this chapter,
the person chiefly responsible for undertaking such emergency activity shall
send a written statement to the agency setting forth the pertinent facts regarding
such emergency, including an explanation of the life, property or resource
values such activity was designed to protect or preserve.
F. Any activity located in a freshwater wetland where such
wetland is located in more than one town.
G. Ordinary maintenance and repair of existing structures
or improved areas which do not involve expansion or substantial restoration,
reconstruction, rehabilitation or modification, including, but not limited
to, bridges, roads, highways, railroad beds, bulkheads, docks, piers, pilings
or paved streets.
H. Any land use, improvement or development for which final
approval shall have been obtained prior to September 1, 1975, from the Town
of Fenton. As used in this subsection, the term "final approval" shall mean:
(1) In the case of the subdivision of land, conditional approval
of a final plat as the term is defined in § 276 of the Town Law.
(2) In the case of a site plan not involving the subdivision
of land, approval by the appropriate body or office of the Town of Fenton
of the site plan; and
(3) In those cases not covered by Subsections
H(1) or
(2) above, the issuance of a building permit or other authorization for the commencement of the use, improvement or development for which such permit or authorization was issued.
The agency shall make the application, including all documents and maps
associated with it, available for public inspection at the office of the Town
Clerk.
The agency may establish reasonable permit fees to compensate for its
administration of this chapter.
In order to carry out the purposes and provisions of this chapter, the
agency shall have the following powers:
A. To adopt, amend and repeal, after public hearing (except
in the case of rules and regulations that relate to the organization or internal
management of the agency), such rules and regulations, consistent with this
chapter, as it deems necessary to administer this chapter and to do any and
all things necessary or convenient to carry out the purpose and policies of
this chapter.
B. To contract for professional and technical assistance
and advice.
C. To hold hearings and subpoena witnesses in the exercise
of its powers, functions and duties provided for by this chapter.