[HISTORY: Adopted by the Town Board of the Town of Wheatland 8-26-1976
by L.L. No. 1-1976 (Ch. 39 of the 1980 Code).
Amendments noted where applicable.]
This chapter shall be known as the "Freshwater Wetlands Protection Law
of the Town of Wheatland."
It is declared to be the public policy of the Town of Wheatland to preserve,
protect and conserve freshwater wetlands and the benefits derived therefrom,
to prevent the despoliation and destruction of 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. It is further declared
to be the policy of the Town of Wheatland to exercise its authority pursuant
to Article 24 of the State Environmental Conservation Law.
A.
The freshwater wetlands located in the Town of Wheatland
are invaluable resources for flood protection, wildlife habitat, open space
and water resources.
B.
Considerable acreage of freshwater wetlands in the Town
of Wheatland has been lost, despoiled or impaired by unregulated draining,
dredging, filling, excavating, building, pollution or other acts inconsistent
with the natural uses of such areas. Other freshwater wetlands are in jeopardy
of being lost, despoiled or impaired by such unregulated acts.
C.
Recurrent flooding aggravated or caused by the loss of
freshwater wetlands has serious effects upon natural ecosystems.
D.
Freshwater wetlands conservation is a matter of Town
concern.
E.
Any loss of freshwater wetlands deprives the people of
the Town of Wheatland of some or all of the many and multiple benefits to
be derived from wetlands, namely:
(1)
Flood and storm control by the hydrologic absorption
and storage capacity of freshwater wetlands.
(2)
Wildlife habitat by providing breeding, nesting and feeding
grounds and cover for many forms of wildlife, wildfowl and shorebirds, including
migratory wildfowl and rare species.
(3)
Protection of subsurface water resources and provision
for valuable watersheds and recharging groundwater supplies.
(4)
Recreation by providing areas for hunting, fishing, boating,
hiking, bird watching, photography, camping and other uses.
(5)
Pollution treatment by serving as biological and chemical
oxidation basins.
(6)
Erosion control by serving as sedimentation areas and
filtering basins, absorbing silt and organic matter and protecting channels
and harbors.
(7)
Education and scientific research by providing readily
accessible outdoor biophysical laboratories, living classrooms and training
and education resources.
(8)
Open space and aesthetic appreciation.
(9)
Sources of nutrients in freshwater food cycles and nursery
grounds and sanctuaries for freshwater fish.
F.
Regulation of freshwater wetlands, in accordance with the agricultural exemption established in § 72-5 hereof, is consistent with the legitimate interests of farmers and other landowners to graze and water livestock, make reasonable use of water resources, harvest natural products of the wetlands, selectively cut timber and otherwise engage in the use of land for agricultural production.
The following terms, phrases, words and their derivatives shall have
the meanings given herein:
Any land in the Town of Wheatland immediately adjacent to a freshwater
wetland, lying within 100 feet, measured horizontally, of the boundary of
a freshwater wetland.
The Town of Wheatland Conservation Board.[1]
[Amended 7-10-1980 by L.L.
No. 8-1980]
Any person who files an application for any permit issued by the
agency pursuant to this chapter, including the agent of the owner or a contract
vendee.
The Freshwater Wetlands Appeals Board established by Article 24 of
the State Environmental Conservation Law.
The outer limit of the vegetation specified in Subsections A and
B of the definition of "freshwater wetland" and of the waters specified in
Subsection C of such definition.
Lands and waters lying within the boundaries of the Town of Wheatland
as shown on a freshwater wetlands map which contain any or all of the following:
Lands and submerged lands commonly called "marshes," "swamps," "sloughs,"
"bogs" and "flats" supporting aquatic or semiaquatic vegetation of the following
vegetative types:
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 spp.), black spruce
(Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica),
black ash (Fraxinus nigra), silver maple (Acer saccharinum), American elm
(Ulmus americana) and larch (Larix laricina).
[Amended 7-10-1980 by L.L.
No. 8-1980]
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 spp.), buttonbush (Cephalanthus occidentalis),
bog rosemary (Andromeda glaucophylla), dogwoods (Cornus spp.) and leatherleaf
(Chamaedaphne calyculata).
[Amended 7-10-1980 by L.L.
No. 8-1980]
Emergent vegetation, including, among others, cattails (Typha spp.),
pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra
virginica), arrowheads (Sagittaria spp.), reed (Phragmites communis), wildrice
(Zizania aquatica), bur reeds (Sparganium spp,), purple loosestrife (Lythrum
salicaria), swamp loosestrife (Decodon verticillatus) and water plantain (Alisma
plantago-aquatica).
Rooted, floating-leaved vegetation, including, among others, water lily
(Nymphaea odorata), watershield (Brasenla schreberi) and spatterdock (Nuphar
spp.).
Free-floating vegetation, including, among others, duckweed (Lemna spp.),
big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.).
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 spp.),
rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides),
reed canary grass (Phalaris arundinacea), swamp loosestrife (Decodon verticillatus)
and spikerush (Eleocharis spp.).
Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum
spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata),
pitcher plant (Sarracenia purpurea) and cranberries (Vaccinium macrocarpon
and V. oxycoccos).
Submergent vegetation, including, among others, pondweeds (Potamogeton
spp.), naiads (Najas spp.), bladderworts (Utricularia spp.), wild celery (Vallisneria
americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum
spp.), muskgrass (Chara spp.), stonewort (Nitella spp.), waterweeds (Elodea
spp.) and water smartweed (Polygonum amphibium).
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.
A map on which are indicated the boundaries of any freshwater wetland
and which has been filed with the Clerk of the Town of Wheatland by the State
Department of Environmental Conservation pursuant to § 24-0301 of
the State Environmental Conservation Law.
The Town of Wheatland.
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 § 72-7 of this chapter.
Any corporation, firm, partnership, association, trust, estate, one
or more individuals and any unit of government or agency or subdivision thereof.
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.
Any action which may result in direct or indirect physical impact
on a freshwater wetland, including but not limited to any 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 § 72-3 of this chapter.
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.
The State of New York.
Any state department, bureau, commission, board or other agency,
public authority or public benefit corporation.
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.
The Town of Wheatland.
A.
Except as provided in Subsection B of this section, 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.
B.
No permit under this chapter shall be required for:
(1)
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.
(2)
The activities of farmers and other landowners in grazing
and watering livestock, making reasonable use of water resources, harvesting
natural products of the wetlands, selectively cutting 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, and provided that the use of land designated as a freshwater wetland
upon the freshwater wetlands map at the effective date thereof for uses other
than those referred to in this subsection shall be subject to the provisions
of this chapter.
[Amended 7-10-1980 by L.L.
No. 8-1980]
C.
Public health activities, orders and regulations of the
Monroe County Department of Health undertaken in compliance with § 24-0701(5)
of the 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 VII or Article VIII[1] of the State 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.
[1]
Editor's Note: Former Articles VIII, both relating to siting of major
steam generating facilities, were enacted. The Laws of 1972, c. 385, enacted
the first such article, effective 1-1-1972, to remain in full force and effect
until 1-1-1979 and provided that subsequent to said expiration the provisions
of such article were to remain operative and were to continue in full force
and effect with regard to applications filed on or before 12-31-1978.
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 city, town or village.
A.
Any person proposing to conduct or cause to be conducted
a regulated activity requiring a permit under this chapter upon any freshwater
wetland or adjacent area, shall file an application for a permit with the
Clerk of the Town of Wheatland. The Clerk shall immediately forward such application
to the agency.
B.
Application requirements.
(1)
An application for a permit shall be filed by the applicant
on a form prescribed by the agency. Such application shall set forth the purpose,
character and extent of the proposed regulated activity. The application shall
include a detailed description of the regulated activity, a map showing the
area of freshwater wetland or adjacent area directly affected, with the location
of the proposed regulated activity thereon, a deed or other legal description
describing the subject property and such additional information as the agency
deems sufficient to enable it to make the findings and determinations required
under this chapter.
(2)
The application shall be accompanied by a list of the
names of the owners of record of lands adjacent to the freshwater wetland
or adjacent area upon which the project is to be undertaken and the names
of known claimants of water rights, of whom the applicant has notice, which
relate to any land within, or within 100 feet of the boundary of, the property
on which the proposed regulated activity will be located.
(3)
An application shall not be deemed to be completed or
received until the agency determines that all such information, including
any additional information requested, has been supplied in a complete and
satisfactory form.
C.
The Clerk of the Town of Wheatland shall cause a copy
of such completed application to be mailed to all local governments where
the proposed activity or any part thereof is located.
D.
Notice of application.
(1)
Within five days of its receipt of a completed application
for a permit regarding a proposed regulated activity, the agency shall provide
the applicant with a notice of application which the applicant shall publish
at his or her own expense at least once in each of at least two newspapers
having a general circulation in the Town of Wheatland.
(2)
Said notice of application shall be in a form prescribed
by the agency and shall specify that:
(a)
Persons wishing to object to the application should file
a notice of objection by a specified date, together with a statement of the
precise grounds of objection to the application, with the agency.
(b)
If no notices of objection are timely filed or if the
agency determines that the proposed activity is of such a minor nature as
to not affect or endanger the balance of systems within any freshwater wetland,
then the agency, in its discretion, may determine a hearing is not necessary
and dispense with the public hearing.
(c)
The application, including all documents and maps therewith,
is available for public inspection at the office of the Clerk of the Town
of Wheatland.
E.
Public hearing.
(1)
No sooner than 30 days and not later than 60 days after its receipt of a completed application for a permit regarding a proposed regulated activity and after the publication of a notice of application pursuant to Subsection D of this section, the agency shall hold a public hearing on such application at a suitable location in the Town of Wheatland, which hearing shall be held pursuant to the provisions of § 72-7 of this chapter.
(2)
Notwithstanding the provisions of Subsection E(1) above, where no notice of objection to the notice of application published pursuant to Subsection D of this section shall have been filed within the time specified by that notice or where the agency determines that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within any freshwater wetland, the agency may, in its discretion, dispense with such hearing. Where the agency finds that a public hearing is not necessary, it shall publish a decision setting forth its reasons therefor, which decision shall be a matter of public record and shall be mailed to each local government where the proposed regulated activity or any part thereof will be located. Public notice of such decision that a public hearing is not necessary shall be provided in the same manner as notice of application set forth in Subsection D of this section.
F.
Notice of hearing.
(1)
The agency shall, within 21 days of receipt of a completed
application, provide the applicant with a notice of hearing which the applicant
shall publish at his or her own expense at least 15 days prior to the date
set for the hearing, at least once in each of at least two newspapers of general
circulation in the Town of Wheatland.
(2)
At least 15 days prior to the date set for the hearing,
the agency shall, by certified mail, provide a notice of hearing to each local
government within whose boundaries the proposed regulated activity or any
portion thereof will be located.
(3)
At least 15 days prior to the date set for the hearing,
the agency shall, by certified mail, provide notice of hearing to all owners
of record of land adjacent to the affected freshwater wetland or adjacent
area and to all known claimants of water rights, of whom the applicant has
notice, which relate to any land within, or within 100 feet of the boundary
of, the property on which the proposed regulated activity will be located.
(4)
The notice of hearing shall:
(a)
State the name of the applicant;
(b)
Specify the location and outline the scope of the proposed
regulated activity;
(c)
Specify the date, time and place of the public hearing
on the application;
(d)
Specify that persons wishing to be parties in interest
and eligible to be heard at such public hearing, if any, should file a notice
of appearance by a specified date, together with a statement of the precise
grounds of support of, opposition to or interest in the application, with
the agency;
(e)
Specify that any person who wishes to be a party in interest
without filing a notice of appearance may do so by appearing at the public
hearing and indicating his or her desire to be a party in interest, if a public
hearing is held;
(f)
Specify that if no notices of appearance are timely filed
by any party in interest and if the applicant waives any public hearing, then
the public hearing may be cancelled by the agency; and
(g)
Specify that the application, including all documents
and maps therewith, is available for public inspection at the office of the
Clerk of the Town of Wheatland.
G.
The agency shall make the application, including all
documents and maps associated with it, available for public inspection at
the office of the Clerk of the Town of Wheatland.
H.
If no timely notice of appearance has been filed as provided in the notice of hearing published pursuant to Subsection F of this section, and the applicant waives in writing any public hearing on his or her application, the agency may dispense with a public hearing and in such instance shall provide public notice of the cancellation of the hearing.
I.
For any notice canceling a hearing which has been scheduled, notice shall be given on the same basis as the notice of public hearing provided in Subsection F of this section.
J.
The agency may establish permit fees to assist in its
implementation of this chapter.
A.
Any public hearing held on a permit application received
under this chapter shall be conducted by a hearing officer designated by the
agency. The hearing officer shall have full authority to control the conduct
and procedure of the hearing, and shall be responsible for a complete record
of the hearing being kept. The public hearing shall be held within the Town
of Wheatland.
B.
Appearance of parties in interest.
(1)
Any person may appear as a party in interest, notwithstanding
the failure of such person to file a timely notice of appearance, by appearing
at the hearing and making known his or her desire to be a party in interest.
Persons who are not parties in interest may be allowed to participate in the
hearing where the hearing officer finds that such participation would be in
the public interest.
(2)
All parties in interest shall be afforded an opportunity
to present oral and written arguments on issues of law and policy and an opportunity
to call witnesses in their behalf and to present oral and written evidence
on issues of fact. The hearing officer shall permit the parties in interest
to cross-examine witnesses but may limit such cross-examination to avoid the
introduction of irrelevant or repetitious material in the record of the hearing.
A.
Where a public hearing has been held regarding a permit
application, the agency shall either issue the permit requested, with or without
conditions, or deny the application. The decision by the agency to issue or
deny a permit after public hearing shall be based on the record of the hearing
and shall be made in writing within 30 days of the agency's receipt of the
hearing record.
B.
Where no public hearing regarding a permit application has been held, either because a hearing was determined not to be necessary pursuant to § 72-6E(2) of this chapter or because no notice of appearance was filed with regard to the public hearing and a hearing was canceled pursuant to § 72-6H of this chapter, the agency shall compile an official file consisting of documents submitted by the applicant and any additional documents relied on by the agency with respect to the application. The agency may also take notice of general, technical or scientific facts within the specialized knowledge of the agency. Any document made part of such official file shall be available for inspection by the applicant and any interested member of the public. On the basis of such file, the agency shall either issue the permit requested, with or without conditions, deny the application or order a public hearing to be held pursuant to the provisions of this chapter. The decision by the agency to issue or deny a permit or to order that a hearing be held shall be based on the official file and shall be made in writing within 30 days of its completion of the official file and in any event within 60 days of its receipt of a completed application; provided, however, that in the case where there have been no objections filed regarding a proposed project, the issuance of a permit shall be deemed to be a written decision by the agency.
C.
A copy of the decision of the agency on each application
for a permit under this chapter shall be mailed by the agency as soon as practicable
following such decision to the applicant and to each local government within
whose boundaries the proposed regulated activity or any portion thereof is
located and, if a public hearing has been held regarding the application,
to each party in interest.
A.
In granting, denying or conditioning any permit, the agency shall consider the effect of the proposed activity with reference to the public health and welfare, fishing, flood, hurricane and storm dangers and protection or enhancement of the several functions of the freshwater wetlands and the benefits derived therefrom which are set forth in § 72-3 of this chapter.
B.
Standards.
(1)
No permit shall be issued by the agency pursuant to this
chapter unless the agency shall find that:
(a)
The proposed regulated activity is consistent with the
policy of this chapter to preserve, protect and conserve freshwater wetlands
and the benefits derived therefrom, to prevent the despoliation and destruction
of 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;
(b)
The proposed regulated activity is consistent with the
land use regulations applicable in the Town of Wheatland pursuant to § 24-0903
of Article 24 of the State Environmental Conservation Law;
(c)
The proposed regulated activity is compatible with the
public health and welfare.
(d)
The proposed regulated activity is reasonable and necessary;
(e)
There is no reasonable alternative for the proposed regulated
activity on a site which is not a freshwater wetland or adjacent area.
(2)
The applicant shall have the burden of demonstrating
that the proposed regulated activity will be in accord with the standards
set forth in this subsection.
C.
Duly filed written notice by the state or any agency
or subdivision thereof to the agency, that the state or any such agency or
subdivision is in the process of acquiring the affected freshwater wetland
on which a 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 agency's decision
to issue or deny a permit for the regulated activity.
A.
Any permit issued pursuant to this chapter may be issued
with conditions. Such conditions may be attached as are necessary to assure
the preservation and protection of affected freshwater wetlands and to assure
compliance with the policy and provisions of this and the provisions of the
agency's rules and regulations adopted pursuant to this chapter.
B.
Every permit issued pursuant to this chapter shall contain
the following conditions:
(1)
The agency shall have the right to inspect the project
from time to time.
(2)
The permit shall expire on a date certain.
(3)
The permit holder shall notify the agency of the date
on which project construction is to begin at least five days in advance of
such date.
(4)
The agency's permit shall be prominently displayed at
the project site during the undertaking of the activities authorized by the
permit.
C.
The agency shall set forth in writing in the file it
keeps regarding a permit application its findings and reasons for all conditions
attached to any permit.
In order to carry out the purposes and provisions of this chapter, the
agency shall have the following powers:
A.
To appoint officers, agents and employees, prescribe
their duties and qualifications and fix their compensation.
B.
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.
C.
To contract for professional and technical assistance
and advice.
D.
To hold hearings and subpoena witnesses in the exercise
of its powers, functions and duties provided for by this chapter.
A.
To the greatest extent practicable, any public hearing held pursuant to § 72-7 of this chapter shall be incorporated with any public hearing required by or pursuant to the New York State Town Law, Village Law, General City Law, General Municipal Law or Environmental Conservation Law relating to approvals or permits otherwise required for the undertaking of regulated activities on the freshwater wetland or adjacent area in question.
B.
No permit granted pursuant to this chapter shall remove
any person's obligation to comply in all respects with the applicable provisions
of any other federal, state or local law or regulation, including but not
limited to the acquisition of any other required permit or approval.
A.
The agency may require that, prior to commencement of
work under any permit issued pursuant to this chapter, the permittee shall
post a bond with the agency, in an amount determined by the agency, conditioned
upon the faithful compliance with the terms of such permit and for the indemnification
of the Town of Wheatland for restoration costs resulting from failure to so
comply. Such bond shall be issued by a corporate surety authorized to do business
in the state and shall be in favor of the Town of Wheatland. It shall remain
in effect until the agency certifies that the work has been completed in compliance
with the terms of the permit or the bond is released by the agency or a substitute
bond is provided.
B.
The agency shall set forth in writing in the file it
keeps regarding a permit application its findings and reasons for imposing
a bond pursuant to this section.
A.
The agency may suspend or revoke a permit issued pursuant
to this chapter where it finds that the permittee has not complied with any
or all terms of such permit, has exceeded the authority granted in the permit
or has failed to undertake the project in the manner set forth in the application.
B.
The agency shall set forth in writing in the file it
keeps regarding a permit application its findings and reasons for revoking
or suspending a permit pursuant to this section.
A.
Administrative sanctions. Any person who violates, disobeys
or disregards any provision of this chapter, including any provision of any
permit issued pursuant to this chapter or any rule or regulation adopted by
the agency pursuant to this law, shall be liable to the people of the state
for a civil penalty of not to exceed $3,000 for every such violation, to be
assessed by the agency after a hearing or opportunity to be heard upon due
notice and with the rights to specification of the charges and representation
by counsel at such hearing. Such penalty may be recovered in an action brought
by the Attorney General at the request and in the name of the agency in any
court of competent jurisdiction. Such civil penalty may be released or compromised
by the agency before the matter has been referred to the Attorney General,
and such penalty may be released or compromised and any action commenced to
recover the same may be settled and discontinued by the Attorney General with
the consent of the agency. In addition, the agency shall have power, following
a hearing held in conformance with the procedures set forth in § 71-1709
of the State Environmental Conservation Law, to direct the violator to cease
his or her violation of this chapter and to restore the affected freshwater
wetland to its condition prior to the violation, insofar as that is possible
within a reasonable time and under the supervision of the agency. Any such
order of the agency shall be enforceable in an action brought by the Attorney
General at the request and in the name of the agency in any court of competent
jurisdiction. Any civil penalty or order issued by the agency pursuant to
this subsection shall be reviewable in a proceeding pursuant to Article 78
of the State Civil Practice Law and Rules.
B.
Criminal sanctions. Any person who violates an order,
permit or rule or regulation of the agency regulating freshwater wetlands
and adjacent areas pursuant to this chapter shall, in addition, for the first
offense, be guilty of a violation, punishable by a fine of not less than $500
nor more than $1,000; for a second and each subsequent offense, he or she
shall be guilty of a misdemeanor, punishable by a fine of not less than $1,000
nor more than $2,000 or a term of imprisonment of not less than 15 days nor
more than six months, or both. Instead of these punishments, any offender
may be punishable by being ordered by the court to restore the affected freshwater
wetland to its condition prior to the offense, insofar as that is possible.
The court shall specify a reasonable time for the completion of such restoration,
which shall be effected under the supervision of the agency. Each offense
shall be a separate and distinct offense and, in the case of a continuing
offense, each day's continuance thereof shall be deemed a separate and distinct
offense.
A.
The Attorney General, upon his or her own initiative
or upon complaint of the agency, shall prosecute persons alleged to have violated
any such order of the agency pursuant to this chapter.
B.
The agency shall have the right to seek equitable relief
to restrain any violation or threatened violation of any provisions of this
chapter.
A.
Any decision or order of the agency or any officer or
employee thereof made pursuant to or within the scope of this chapter may
be reviewed at the instance of any person affected thereby, including but
not limited to any owner of the affected wetland or adjacent area and any
resident or citizen of the Town of Wheatland, by the Board in accordance with
Title 11 of Article 24 of the State Environmental Conservation Law, provided
that such review is commenced by the filing with the Board of a notice of
review within 30 days after service of such order or notice of such decision
given, as the case may be.
B.
Any party to any proceeding before the agency may make
an appeal to the Board in accordance with Title 11 of Article 24 of the State
Environmental Conservation Law from any order or decision of the agency, or
any officer or employee thereof, issued or made pursuant to or within the
scope of this chapter, provided that such appeal is commenced by the filing
with the Board of a notice of appeal within 30 days after service of such
order or after notice of such decision given, as the case may be.
C.
Any decision or order of the agency or any officer or
employee thereof made pursuant to or within the scope of this chapter may
be reviewed at the instance of any person, including but not limited to any
owner of the affected wetland or adjacent area and any resident or citizen
of the Town of Wheatland, in accordance with Article 78 of the State Civil
Practice Law and Rules, provided that such review is commenced within 30 days
of the filing of such decision or order; and the limitation upon the availability
of such remedy as prescribed in § 7801 of the Civil Practice Law
and Rules shall not be applicable to the applications for review of determinations
and orders made pursuant to this chapter.
D.
The institution of a judicial proceeding to review a
determination or order of the agency shall preclude the institution of a proceeding
before the Board to review such a determination or order. The availability
of such review by the Board shall not affect the right of any person to seek
review of a determination of the agency as provided in Article 78 of the State
Civil Practice Law and Rules.
This chapter shall take effect upon the filing with the Clerk of the
Town of Wheatland of the final freshwater wetlands map by the State Department
of Environmental Conservation pursuant to § 24-0301 of the New York
State Environmental Conservation Law applicable to any or all lands within
the Town of Wheatland.
