This chapter shall be known as the "Freshwater Wetlands, Watercourse
and Water Body Law of the Town of Fishkill."
As used in this chapter, the following terms shall have the
meanings indicated:
AGRICULTURAL ACTIVITY
The activity of an individual farmer or other landowner in
grazing and watering livestock, making reasonable use of water resources
for agricultural purposes, harvesting the natural products of wetlands,
selective harvesting of trees, but excluding peat mining. "Agricultural
activity" does not include clear-cutting of trees, filling or deposition
of spoil, soil mining or draining of wetlands for growing agricultural
products or for other purposes.
APPLICANT
Any person who files an application for any permit issued
by the approval authority pursuant to this chapter; applicants may
include owners, the agent of the owner, or a contract vendee.
APPROVAL AUTHORITY
The administrative board or public official empowered to
grant or deny permits under this chapter. The approval authority shall
be empowered to require posting of bonds, as necessary, and to revoke
or suspend a permit where lack of compliance is established. The approval
authority shall be the Planning Board of the Town of Fishkill.
BOARD
The Freshwater Wetlands Appeals Board established under Article
24 of the New York Environmental Conservation Law.
BUFFER AREA
Protective areas surrounding or adjacent to wetlands, watercourses
or water bodies that are subject to regulation. The size or extent
of the buffer areas are defined under "wetland/watercourse/water body
buffer" in this section.
CLEAR-CUTTING
Any cutting of more than 30% of trees four inches or more
in diameter at breast height (4.5 feet) over any ten-year cutting
cycle as determined on the basis of wetland area per lot or group
of lots under single ownership, including cutting of trees which results
in the total removal of one or more naturally occurring species, whether
or not the cut meets or exceeds the threshold of 30%.
DEPOSIT
To fill, grade, discharge, emit, dump or place any material.
DISCHARGE
The emission of any water, substance or material into a wetland,
watercourse or water body or their buffers, whether or not such substance
causes pollution.
DOMINANT(S) or DOMINANCE
A dominant species is either the dominant plant species (i.e.,
the only species dominating a vegetative unit) or a codominant species
(i.e., when two or more species dominate a vegetative unit). The measures
of spatial extent are percent area cover for all vegetation units
other than trees and basal area for trees. In this chapter, "dominance"
refers to the spatial extent of a vegetative species because spatial
extent is directly measurable or discernible in the field.
DRAIN
To deplete or empty of water by drawing off by degrees or
in increments.
DREDGE
To excavate or remove sediment, sand, soil, mud, shells,
gravel or other aggregate.
ECOLOGIST/BOTANIST
A person having special knowledge by reason of education
or experience of the physical, chemical and biological sciences related
to the physiology, identification and distribution of native plants
and vegetative associations in wetland and upland systems and of methods
to describe, classify and delineate vegetative species.
FACULTATIVE SPECIES
Vegetative species that can occur in both wetland and upland
systems. There are three subcategories of facultative species: facultative
wetland, straight facultative and facultative upland. Under natural
conditions a facultative wetland species is usually (estimated probability
67% to 99%) found in wetlands, but occasionally in uplands. A straight
facultative species has basically a similar likelihood (estimated
probability of 34% to 66%) of occurring in both wetlands and uplands.
A facultative upland species is usually (estimated probability 67%
to 99%) found in uplands, but occasionally in wetlands. Facultative
species for the Northeast are listed in the "National List of Plant
Species That Occur in Wetlands, New York State: 1988," or as amended
and updated.
FLAGGING
Placement of visible markers at the wetland boundary which,
upon the approval of the Town, may be transferred by a qualified surveyor
onto the site plan or other project map.
GRADING
To adjust the degree of inclination of the natural contours
of the land, including leveling, smoothing and other modification
of the natural land surface.
HYDRIC SOIL
A soil that is saturated, flooded or ponded long enough during
the growing season to develop anaerobic conditions in its upper portions
and as further defined under "wetland" in this section.
HYDROPHYTIC VEGETATION
Plant life growing in water or on a substrate that is at
least periodically deficient in oxygen as a result of excessive water
content and as further defined under "wetland" in this section.
MUNSELL SOIL COLOR CHART
A soil color designation system that specifies the relative
degree of the three simple variables of color: hue, value and chroma,
produced by the Kollmorgen Corporation, 1975, or as amended and updated.
OBLIGATE UPLAND SPECIES
Plant species that, under natural conditions, always occur
in uplands (i.e., 99% of the time).
OBLIGATE WETLAND SPECIES
Plant species that, under natural conditions, always occur
in wetlands (i.e., greater than 99% of the time).
ORGANIC SOILS/HISTOSOILS
A taxonomic order composed of organic soils (mostly peats
and mucks) that have organic materials in over half the upper 32 inches
unless the depth to rock or to fragmental materials is less than 32
inches (a rare condition) or the bulk density is very low, and as
further defined under "wetland" in this section.
PERSON
Any corporation, firm, partnership, association, trust or
estate; one or more individuals and any unit of government agency
or subdivision thereof.
PLANNING BOARD
The duly appointed Planning Board of the Town of Fishkill.
POLLUTION
The presence of conditions or contaminants in quantities
which are, or may be, injurious to humans, plants, animals or property.
PROJECT
Any collection of actions which may result in direct or indirect
physical or chemical impact on a freshwater wetland, wetland buffer,
watercourse or water body, including but not limited to a regulated
activity.
REGULATED ACTIVITY
Those activities to be conducted in wetlands, wetland buffers,
watercourses or water bodies that require a permit from the Town.
SELECTIVE CUTTING
The annual or periodic removal of trees, individually or
in a small group, 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 species of trees.
SOIL SCIENTIST
A person having special knowledge by reason of education
or experience of the physical, chemical and biological sciences applicable
to the genesis and morphology of soils as natural bodies and of the
methods to describe, classify and map soil units.
STATE AGENCY
Any department, bureau, commission, board or other agency
or public authority of the State of New York.
STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)
The law promulgated at Article 8 of the New York State Environmental
Conservation Law, and the regulations promulgated thereunder by the
Commissioner of the Department of Environmental Conservation.
STRUCTURE
Anything constructed or erected, the use of which requires
location on or within the ground or attachment to something having
location on the ground, including but not limited to buildings, tennis
courts, swimming pools, as examples.
SUBDIVISION OF LAND
The division of any parcel of land into two or more lots in accordance with the provisions of Chapter
132 of the Town Code of the Town of Fishkill.
TOWN BOARD
The duly elected Town Board of the Town of Fishkill.
TOWN CLERK
The duly elected Town Clerk of the Town of Fishkill.
TOWN ENGINEER
Any person or firm designated by or contracted by the Town
of Fishkill as Town Engineer.
WATER BODY
Any natural or artificial pond, lake, reservoir or other
area which ordinarily contains water, has a discernible shoreline
and an area of one acre or more, but not including a watercourse as
defined in this chapter.
WATERCOURSE
A running stream of water; a natural stream fed from permanent
or natural sources, including rivers, creeks, runs and rivulets. There
must be a stream, generally flowing in a definite channel, having
a bed or banks and usually discharging itself into some other stream
or body of water. It must be something other than mere surface drainage
over the entire face of a tract of land, occasioned by unusual freshets
or other extraordinary causes.
WETLAND
Any area which meets one or more of the following criteria:
A.
Lands and waters that meet the definition provided in § 24-0107,
Subdivision 1, of the New York State Environmental Conservation Law,
Freshwater Wetlands Act, or as amended and updated. The approximate
boundaries of such lands and waters are indicated on the official
wetlands map promulgated by the Commissioner of the New York State
Department of Environmental Conservation, or as amended and updated.
B.
All areas of one acre or more in area that comprise hydric soils
and/or are inundated or saturated by surface or groundwater at a frequency
or duration sufficient to support, and under normal conditions do
support, a prevalence of hydrophytic vegetation as defined by the
Federal Interagency Committee for Wetlands Delineation, 1989, in the
Federal Manual for Identifying and Delineating Jurisdictional Wetlands,
Washington, DC, and adopted by the US Army Corps of Engineers, US
Environmental Protection Agency, and the US Fish and Wildlife Service,
or as amended and updated. Hydric soils referenced above shall include
the soil types taken from the revised Dutchess County Soil Survey
Series, 1991, or such revised, updated and adjusted soil surveys as
may be completed.
WETLAND ADMINISTRATOR
An official(s) designated to enforce this chapter, who shall
be the Zoning Administrator.
WETLAND DELINEATION
A.
The process of determining wetlands and their boundaries. The
boundaries of a wetland shall ordinarily be determined by field investigation,
flagging and survey. Identification of the location and boundaries
of wetlands shall be a product of reference to:
(1)
Any freshwater wetlands map filed with the Clerk of the Town
of Fishkill by the New York State Department of Environmental Conservation,
as amended and updated; and
(2)
The Soils Map of Dutchess County — Soil Survey Series
1991, or as from time to time updated;
(3)
Other maps such as the 1990 US Fish and Wildlife Service Map
which may assist in the location and delineation of wetlands; and
(4)
Wetland boundary delineations made by either the NYS DEC or
the Army Corps of Engineers.
B.
Wetlands not depicted on any such maps are not thereby exempted
from regulation under the provisions of this chapter.
WETLAND HYDROLOGY
The sum total of wetness characteristics in areas that are
inundated or have saturated soils for a sufficient duration to support
hydrophytic vegetation.
WETLAND PLANTS OF THE STATE OF NEW YORK
The list of obligate and facultative wetland and upland species
developed by the United States Department of Interior, Fish and Wildlife
Service, "National List of Plant Species that Occur in Wetlands, New
York State: 1988," in cooperation with the National and Regional Wetland
Plant List Review Panels, or as amended and updated.
WETLAND/WATERCOURSE/WATER BODY BUFFER
The wetland/watercourse/water body buffer areas surrounding
or adjacent to a wetland, watercourse or water body are also subject
to regulation. The size and extent of the buffers shall be as follows:
A.
For wetlands and water bodies of at least one acre but less
than two acres, the buffer shall be 50 feet. For wetlands and water
bodies of at least two acres but less than three acres, the buffer
shall be 75 feet. For wetlands of three acres and more, the buffer
shall be 100 feet. The buffers cited above may be greater where designated
by either the Commissioner of the DEC or local approval authority.
The buffers shall be measured horizontally and away from and paralleling
the wetland or water body boundary.
B.
The buffer for the following watercourses shall be 50 feet from
the normal waters' edge of stream: the main and tributary branches
of Fishkill Creek, Clove Creek, and Sprout Creek.
C.
For all other watercourses, the buffer zone shall be 30 feet
beyond the normal waters' edge of the stream.
D.
Where a wetland is regulated by another agency responsible for
the administration of regulatory wetland buffers, the buffer requirements
of this chapter shall be deemed concurrent, and not additional or
consecutive, to the other agency's buffer regulations.
The boundaries of a wetland ordinarily shall be determined by field investigation, flagging and survey, consistent with the definition of wetland delineation found within §
82-5 of this chapter. The approval authority may consult and/or may require the applicants to consult with approved biologists, hydrologists, soil scientists, ecologists, botanists, legal counsel, engineers, or other experts necessary to make this determination.
The issuance of permits for regulated activities under this
chapter shall be the responsibility of the Planning Board, to which
shall be referred all permit applications deemed to be complete by
the Zoning Administrator. Applications for permits for regulated activities
shall be filed with the Zoning Administrator.
In granting or denying or conditioning any application for a
permit, the approval authority shall consider the following:
A. All evidence offered at any public hearing.
B. Any reports from other environmental councils, boards or commissions
and/or federal, county, state or Town agencies.
C. The environmental impact of the proposed action.
D. Irreversible and irretrievable commitments of natural resources that
would be involved in the proposed activity.
E. The suitability or unsuitability of the activity to the area for
which it is proposed.
F. The effect of the proposed activity to the protection or enhancements of functions of wetlands, watercourses and water bodies and the benefits they provide as set forth in §
82-4 of this chapter.
G. The possibility of avoiding further reduction of the wetlands', watercourses',
or water bodies' natural capacity to support desirable biological
life, prevent flooding, supply water, control sedimentation, prevent
erosion, assimilate wastes, facilitate drainage and provide recreation
and open space.
H. The extent to which the exercise of property rights and the public
benefit to be derived from such use may or may not outweigh or justify
the possible degradation of the wetland, watercourse or water body,
the interference with the exercise of other property rights and the
impairment or endangerment of public health, safety and welfare.
I. The comments of the Zoning Administrator, which shall be submitted
in writing to the Planning Board.
Any permit issued pursuant to this chapter may be issued with
conditions to assure the preservation and protection of affected wetlands,
watercourses and water bodies, and compliance with the policy and
provisions of this chapter.
No permit granted pursuant to this chapter shall remove an applicant's
obligation to also comply in all respects with the applicable provisions
of any other federal, state or local laws or regulations, including
but not limited to, the acquisition of any other permit or approval.
Any person convicted of having violated or disobeyed any provision
of this chapter, or any condition attached by the approval authority
in a permit granted pursuant to this chapter shall, for the first
offense, be punishable by a fine of not less than $1,000. For each
subsequent offense, such person shall be punishable by a fine of not
less than $2,000 nor more than $15,000, and/or imprisonment of not
more than 15 days. Each consecutive day of the violation may be considered
a separate offense.
Where the Planning Board uses the services of private engineers, attorneys or other consultants for purposes of engineering, scientific land use planning, environmental or legal reviews of the adequacy or substantive details of applications, or issues raised during the course of review of such applications, or to assist in assuring or enforcing an applicant's compliance with the terms and conditions of permits or approvals, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs of such services, in accordance with the procedures and substantive provisions set forth in §
150-98 of the Town Code. In no event shall that responsibility be greater than the actual cost to the Town of such engineering, legal or other consulting services.
In order to carry out the purposes and provisions of this chapter,
and in addition to the provisions specified elsewhere in this chapter,
the following general provisions shall apply:
A. Severability. The provisions and sections of this chapter shall be
deemed to be severable and the invalidity of any portion of this chapter
by a court of competent jurisdiction shall not affect the validity
of the remainder of this chapter.
The provisions of this chapter shall not apply to proposed uses
or redesignation of allowable uses, subdivisions, or site development
of lands which were the subject of a complete application to the relevant
Town agency authorized to review and to approve such action(s) as
of the effective date of Local Law No. 1 of 2003 entitled "Freshwater
Wetlands, Watercourse and Water Body Law." Also, this chapter shall
not apply to properties in connection with regulated activities which
were reviewed and approved by a relevant Town agency prior to the
effective date of said Local Law No. 1 of 2003.