Town of Greece, NY Freshwater Wetlands

Pursuant to § 24-0501 of the New York State Freshwater Wetlands Act (Article 24 of the New York Environmental Conservation Law), the Town of Greece shall fully undertake and exercise its regulatory authority with regard to activities subject to regulation under the Act in freshwater wetlands as shown on the Freshwater Wetlands Map, as such map may from time to time be amended, filed by the Department of Environmental Conservation pursuant to the Act, and in all areas adjacent to any such freshwater wetland up to 100 feet from the boundary of such wetland. Such regulatory authority shall be undertaken and exercised in accordance with all of the procedures, concepts and definitions set forth in Article 24 of the New York Environmental Conservation Law and Title 23 of Article 71 of such law relating to the enforcement of Article 24, as such law may from time to time be amended, with the following exceptions, additions and modifications [§ 24-0501, Subdivision 3, provides for a specification of any exceptions, additions and modifications to the procedures of Article 24. Please read the Department's August 6, 1976, "Criteria for Reviewing Local Freshwater Wetlands Protection Ordinances and Laws Pursuant to the Freshwater Wetlands Act (Article 24 of the New York Environmental Conservation Law)" prior to making any exception, addition or modification to the provisions of Article 24].

§ 120-2 When effective; filing of map.

This chapter, adopted on the date set forth above, shall take effect upon the filing of the final Freshwater Wetlands Map applicable to any or all lands within the Town of Greece with the Clerk of the Town of Greece by the New York State Department of Environmental Conservation, pursuant to § 24-0301 of the Freshwater Wetlands Act.

§ 120-3 Rules and regulations adopted.

The following are rules and regulations for the implementation of this chapter, which rules and regulations have been adopted pursuant to appropriate public notice and public hearing.

§ 120-4 Definitions.

The following terms, phrases, words and their derivatives shall have the meanings given herein:

ADJACENT AREA

All lands within 100 feet, horizontally, of the vegetative boundary of any freshwater wetland.

ALTER

Any form of draining, dredging, excavating or removing soil, mud, sand, shells, gravel or other aggregate, or 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, driving any pilings or placing any other obstructions, whether or not changing the ebb and flow of the water; any form of pollution; 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 § 24-0105 of the New York State Environmental Conservation Law.

APPLICANT

Any person who files an application for any permit issued by the Town pursuant to this chapter, and shall include the agent of the owner or a contract vendee.

FRESHWATER WETLANDS

Lands and waters of the Town, as shown on a freshwater wetlands map prepared by the Town of Greece and filed with the Town Clerk, or County Clerk where applicable, which contain any or all of the following, as such map may from time to time be amended by the Department of Environmental Conservation pursuant to the Act:

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 rubum), 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), bur reeds (Sparganium species), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon verticillatus) and water plantain (Alisma plantago-aquatica).

(4)

Rooted, floating-leaved vegetation, including, among others, water lily (Nymphaea odorata), water shield (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 it 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 (Sarrancenia purpurea) and cranberries (Vaccinium macrocarpon and Vaccinium oxycoccos).

(8)

Submergent vegetation, including, among others, pondweeds (Potamogeton species), naiads (Naias species), bladderworts (Ultricularia species), wild celery (Vallisneria americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum species), muskgrass (Chara species), stonewort (Nitella species), waterweeds (Elodea species) 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.

Lands and waters enclosed by aquatic or semiaquatic vegetation as set forth herein in Subsection A above and dead vegetation as set forth in Subsection B above, the regulation of which is necessary to protect and preserve the aquatic and semiaquatic vegetation.

The waters overlying the areas set forth in Subsections A and B and the lands underlying the areas set forth in Subsection C.

PARTY IN INTEREST

Any person who files an application or objection pursuant to this chapter.

PERMIT

That form of Town approval required by this chapter for the carrying on of a regulated activity.

PERSON

Any corporation, firm, partnership, association, trust, estate, one or more individuals and any unit.

POLLUTION

The presence in the environment of man-induced conditions or contaminants in quantities or characteristics which are injurious to humans, vegetation, wildlife or property.

PROJECT

Any action resulting in direct or indirect physical impact on a freshwater wetland, including but not limited to any regulated activity.

REGULATED ACTIVITY

Any activity within a freshwater wetland or adjacent area which, directly or indirectly, may substantially alter or impair the natural condition of any freshwater wetland, including any form of pollution, including but not limited to installing a septic tank, running a sewer outfall and discharging sewage treatment effluent or other liquid wastes into, or so as to drain into, a freshwater wetland, and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom.

§ 120-5 Regulated activities.

Except as hereinafter provided, it shall be unlawful for anv person to alter any freshwater wetland or adjacent area without obtaining a written permit therefor issued by the Town of Greece.

The deposition or removal of natural products of freshwater wetlands by recreational fishing, shellfishing, aquiculture, hunting or trapping shall be exempt from the regulated activities.

Public health activities of the Department of Health shall be excluded from regulated activities. Such agency shall, however, notify the Building Inspector, in writing, of the proposed activity prior to commencement of any such activity.

§ 120-6 Permit required; application procedures.

Any person proposing to conduct a regulated activity altering any freshwater wetland or adjacent area shall file an application for a permit with the Building Inspector. Said application shall include a detailed description of the proposed activity and a map showing the area of freshwater wetland directly affected with the location for the proposed activity thereon.

If the Building Inspector determines that the proposed activity is not a regulated activity, he/she shall notify the applicant, adjacent landowners, the Town Environmental Board and the Town Board within 10 days of receipt of said application, and he/she shall issue a permit 20 days after said notification unless objections to said permit are filed.

If the Building Inspector determines that the proposed activity is a regulated activity or if objections to the determination that the proposed activity is not a regulated activity are filed, the Building Inspector shall submit the application to the Town Board, which shall have 30 days from its receipt of said application to deny a permit, issue a permit with conditions, issue a permit without conditions or schedule a public hearing.

The Town Board may dispense with a public hearing if no notice of objection has been filed or if it determines that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within the freshwater wetland. If the Town Board finds that a hearing is not necessary, said Board shall publish its decision, setting forth its reason therefor.

A permit approved by the Town Board does not relieve the applicant of the necessity of obtaining authorization from other Town, state or federal agencies which have jurisdiction over the project proposal.

§ 120-7 Administration of permit application.

Preparation for public hearing.

(1)

Any public hearing that is authorized by the Town Board shall be held within 30 days from the determination under § 120-6C above. Notice of said hearing shall be published at least once in at least two newspapers having a general circulation in the area where the affected freshwater wetland is located. The notice of hearing shall be published not more than 21 days nor less than 10 days prior to the hearing date. The applicant shall notify the owners of record, adjacent landowners and known parties in interest of the proposed activity by certified mail, return receipt requested, not less than seven days prior to the hearing date, and said applicant shall submit proof of said notification to the Town at or prior to the public hearing.

(2)

In granting, denying or conditioning any permit, the Town Board shall consider the effects of the proposed activity with references to public health and welfare, flood, hurricane and storm dangers and the protection or enhancement of freshwater wetlands and the benefits derived therefrom. A permit will not be issued unless it is consistent with the policy and regulations as applicable, all as set forth in §§ 24-0103 and 24-0903 of the Act.

Approval or denial of permit application. If a permit is approved, approved with conditions or denied and the decision is unacceptable to any person after public hearing, an appeal may be made to the New York State Freshwater Wetlands Board of Appeals. Subsequent appeal and review may be made in accordance with Article 78 of the New York State Civil Practice Law and Rules.

The permit applicant or his/her agent proceeding with approved operations shall have posted at the site of the activity to be conducted the approved permit and shall show the same to the Building Inspector or any of his/her agents, or other responsible governmental regulatory agency or board, or member thereof, whenever requested.

Operations conducted under permit shall be open to inspection at any time by any responsible governmental regulatory agency or board, or member thereof.

§ 120-8 Bonds, sureties and insurance.

The applicant, upon approval of the permit, shall file with the Building Inspector a performance bond, if required, in an amount and with such sureties and in a form approved by the Town Board.

The bond and sureties shall be conditioned on compliance with all provisions of this chapter and conditions imposed on the permit.

The applicant shall certify that he/she has public liability insurance against liability which might result from proposed operations or use, covering any and all damage which might occur within three years of completion of such operations.

The applicant shall also submit to the Building Clerk an affidavit which indemnifies and saves harmless the Town or agency or agent thereof from any claims arising out of or connected with operations under the permit and from all acts, omissions, commissions or negligence on the part of the applicant or his/her agents or employees.

The Town Board shall reserve the right to require a permit or license fee for any operation or use permitted pursuant to this chapter.

§ 120-9 Penalties for offenses; corrective actions.

Administrative sanctions.

(1)

Any person, firm, corporation or entity found violating any provision of this chapter or conditions imposed by the Town Board upon an approved permit shall be served with a written notice by the Town of Greece Building Inspector stating the nature of the violation and providing a specified time within which the violation shall cease, and satisfactory corrective action shall be taken by the violator.

(2)

In the case where damage to a wetland has already occurred, the Town Building Inspector shall have the power to direct the violator, in a written notice served as aforesaid, to cease his/her violation of this chapter and to satisfactorily restore the affected freshwater wetland to its condition prior to the violation.

(3)

Within 10 days of the notice of violation by the Building Inspector, the alleged violator may request an opportunity to be heard by the Town Board, such request to be made in writing and mailed to the Town Clerk. He/she shall be heard at a meeting of the Town Board. Subsequent to such hearing, the Town Board shall issue a revised notice, withdraw the previous notice or reaffirm the same, all of which shall be in writing and mailed to the alleged violator at his/her then known address. Such notice shall specify the time within which corrective action, if any, must be taken.

(4)

Any person who violates, disobeys or disregards any provision of this chapter or any notice or order of the Building Inspector as provided herein or of the Town Board shall be liable to the people of the Town for a civil penalty not to exceed $3,000 for every such violation.

(5)

Any civil penalty or order issued by the Building Inspector as provided herein or by the Town Board shall be reviewable in an appropriate court of law pursuant to the New York State Civil Practice Law and Rules.

Criminal sanctions.

(1)

Any person who knowingly violates any order of the Building Inspector or of the Town Board regulating freshwater wetlands shall, in addition to the first offense, be guilty of a criminal violation punishable by a fine of not less than $500 nor more than $1,000.

(2)

For a second and each subsequent offense, he/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 for not less than 15 days nor more than six months, or both.

(3)

The Town Attorney shall prosecute persons alleged to have violated the provisions of this chapter and shall seek equitable relief to restrain any violation or threatened violation of its provisions.

§ 120-10 Effect on other legislation.

All ordinances and local laws or parts of ordinances and local laws in conflict herewith are preempted by this chapter. If any portion of this chapter shall be interpreted as less restrictive, except for the procedural provisions herein, than the Freshwater Wetlands Act or the appropriate regulations therein as provided in the New York State Environmental Conservation Law, the more restrictive provisions shall be incorporated herein and shall be controlling.