[HISTORY: Adopted by the Board of Trustees of the Village of Rye Brook 9-27-1994 by L.L. No. 10-1994; amended in its entirety 11-12-2003 by L.L. No. 15-2003. Subsequent amendments noted where applicable.]
Wetlands and watercourses serve multiple functions, including:
Protecting water resources by providing sources of surface water, recharging groundwater and aquifers, serving as chemical and biological oxidation basins and functioning as settling basins for naturally occurring sedimentation.
Controlling flooding and stormwater runoff by storing or regulating natural flows.
Providing unique nesting, migratory and wintering habitats for diverse wildlife species, including many on the New York State and federal lists of special concern, threatened, rare and endangered species.
Supporting unique vegetative associations specifically adapted for survival in low-oxygen environments.
Providing areas of unusually high plant productivity which support significant wildlife diversity and abundance.
Providing breeding and spawning grounds, nursery habitat and food for various species of fish.
Serving as nutrient traps for nitrogen and phosphorus and filters for surface water pollutants.
Helping to maintain biospheric stability by supporting particularly efficient photosynthesizers capable of producing significant amounts of oxygen and supporting bacteria which process excess nitrates and nitrogenous pollutants and return them to the atmosphere as inert nitrogen gas.
Providing open space and visual relief from intense development in urbanized and growing areas.
Serving as outdoor laboratories and living classrooms for the study and appreciation of natural history, ecology and biology.
Preserving the quality and value of wetlands and water-related recreational opportunities.
Protecting reservoirs and watersheds vital to the community and to the water supply of New York City, Westchester County and Connecticut.
Considerable acreage of these important natural resources has been lost or impaired by draining, dredging, filling, excavating, building, polluting and other acts inconsistent with the natural uses of such areas. Remaining wetlands and watercourses are in jeopardy of being lost, despoiled or impaired by such acts, contrary to the public health, safety and welfare.
It is therefore the policy of the Village of Rye Brook to protect its citizens, including generations yet unborn, by preventing the despoliation and destruction of wetlands and watercourses while taking into account varying ecological, economic, recreational and aesthetic values. Activities that may damage wetlands and watercourses should be located on upland areas.
Intent. It is the intent of the Village of Rye Brook that activities in and around wetlands and watercourses conform to all applicable building codes and other regulations and that such activities not threaten public safety or the natural environment or cause nuisances by:
Impeding flood flows, reducing flood storage areas or destroying storm barriers, thereby resulting in increased flood heights, frequencies or velocities on other lands.
increasing water pollution through location of domestic waste disposal systems in wet soils; inappropriate siting of stormwater control facilities; unauthorized application of fertilizers, pesticides, herbicides and algicides; disposal of solid wastes at inappropriate sites; creation of unstabilized fills; or the destruction of wetland soils and vegetation serving pollution and sediment control functions.
Decreasing breeding, nesting and feeding areas for many species of waterfowl and shorebirds, including those rare and endangered.
interfering with the exchange of nutrients needed by fish and other forms of wildlife.
Decreasing habitat for fish and other forms of wildlife.
Adversely altering the recharge or discharge functions of wetlands, thereby impacting groundwater or surface water supplies.
Significantly altering the wetland hydroperiod and thereby causing either short- or long-term changes in vegetational composition, soil characteristics, nutrient recycling or water chemistry.
Destroying sites needed for education and scientific research, such as outdoor biophysical laboratories, living classrooms and training areas.
interfering with public rights in navigable waters and the recreation opportunities provided by wetlands for fishing, boating, hiking, bird-watching, photography, camping and other passive uses.
Destroying or damaging aesthetic and property values, including significant public viewsheds.
Rules for establishing and interpreting wetland boundaries. The boundaries of a wetland ordinarily shall be determined by field investigation, flagging and subsequent survey by a licensed land surveyor unless waived by the approval authority. The approval authority may consult and/or may require the applicant to consult with soil scientists, ecologists/botanists or other experts as necessary to make this determination, pursuant to the definition contained in § 245-3.
Grandfathered projects. The provisions of this chapter shall not apply to any land use, improvement or development that has been physically completed and obtained a certificate of occupancy prior to the effective date of this chapter.
Current projects and nonconforming activities. A regulated activity that was approved prior to passage of this chapter and to which significant economic resources have been committed pursuant to such approval but which is not in conformity with the provisions of this chapter may be continued without a permit under this chapter, subject to the following:
All such uses or activities shall continue to be governed by the present regulations of the Village of Rye Brook.
No such use or activity shall be expanded, changed, enlarged or altered in such a way that increases its size or impact without a permit.
If such use or activity is discontinued for six consecutive months, subsequent to the adoption of this chapter, any resumption of the activity shall conform to this chapter.
If any such use or activity is destroyed by human activities or an act of God, it shall not be resumed except in conformity with the provisions of this chapter.
Activities or adjuncts thereof that are or become nuisances, as determined by the approval authority, shall not be entitled to continue.
Pending applications. Project applications pending before the effective date of this chapter which are under review on a referral as of such effective date shall comply with the provisions of this chapter, subject to the procedure following below. Notwithstanding any other provision of this chapter to the contrary, such pending applications shall be subject to administrative permit procedures, provided that all of the following criteria are demonstrated to the satisfaction of the administrative permit approval authority:
The pending application has been planned and reviewed consistent with the criteria, spirit and intent of this chapter.
The pending application has not been significantly changed in such a way that its size or impact has been increased from the application under review when this chapter became effective.
Significant economic resources have been committed by the applicant to the planning and review of the pending application.
The pending application has been diligently and continuously prosecuted by the applicant.
All outstanding application and review fees and charges for the project have been fully paid to the Village.
No more than nine months have elapsed since the effective date of this chapter.
Notwithstanding anything in this chapter to the contrary, any land use, improvement, development or activity on land improved with a one- or two-family residence shall not require a permit under this chapter except where an application for a subdivision, site plan or special permit is made or the land use, improvement or activity involves a disturbance of land more than 400 square feet in area.
Notwithstanding anything in this chapter to the contrary, this chapter shall not apply to any land use, improvement, development or activity undertaken by the Village of Rye Brook or its designated representative(s).
Words or phrases used in this chapter shall be interpreted as defined below, and, where ambiguity exists, words or phrases shall be interpreted so as to give this chapter its most reasonable application in carrying out the regulatory goals stated in § 245-1:
- ADJACENT AREA
- See "wetland/watercourse buffer."
- ADMINISTRATIVE PERMIT
- A permit issued by the Superintendent of Public Works/Village Engineer, as the designated approval authority, for activities in wetlands which are limited in scope and limited in potential impact on such areas as determined by this chapter with regard to applications concerning activities listed in § 245-4 of this chapter.[Amended 10-27-2020 by L.L. No. 9-2020]
- AGRICULTURAL ACTIVITY
- The activity of an individual farmer or other landowner in grazing and watering livestock other than horses; making reasonable use of water resources for agricultural purposes; harvesting the natural products of wetlands, excluding peat mining and timber harvesting; and selective cutting of trees. Agricultural activity does not mean clear-cutting of trees; filling or deposition of soil; mining; or draining for growing agricultural products or for other purposes.
- Any individual, firm, partnership, association, corporation, company, organization or other legal entity of any kind who requests the approval authority to issue a permit.
- APPROVAL AUTHORITY
- The administrative board or public official empowered to grant or deny permits under this chapter, to require the posting of bonds as necessary and to revoke or suspend a permit where lack of compliance with the permit is established. The approval authority shall be:
- A. The Planning Board, for any wetlands activity requiring a permit as specified in § 245-4B of this chapter. For any regulated activity for which other approvals by the Village Board or the Planning Board are necessary, such as subdivision or site plan approval, and for all activities proposed for state-designated wetlands, the approval authority under this chapter shall be the Planning Board, notwithstanding that the type of activity may otherwise fall within the scope of an administrative permit.
- B. The Superintendent of Public Works/Village Engineer of the Village of Rye Brook for any wetlands activity requiring an administrative permit as specified in § 245-4C of this chapter, except where such activity is proposed for state-designated wetlands or where the approval authority is the Planning Board.[Amended 10-27-2020 by L.L. No. 9-2020]
- BOUNDARY OF A WETLAND
- The outer limit of the soils and/or vegetation as defined under "wetland/freshwater wetland."
- Any cutting of more than 30% of trees six inches or more in diameter at breast height (DBH) over any ten-year cutting cycle as determined on the basis of wetland area per lot or group of lots under common ownership, including any 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 30% threshold.
- CODE ENFORCEMENT OFFICER
- The public official empowered by the Village of Rye Brook Board of Trustees to enforce the provisions of this chapter.
- The Commissioner of the Department of Environmental Conservation of the State of New York.
- To construct a new wetland, including but not limited to excavating and/or flooding land not previously occupied by a wetland.
- DAMS AND WATER CONTROL MEASURES
- Barriers that intentionally or unintentionally obstruct the flow of water or raise, lower or maintain the level of water.
- DATE OF RECEIPT OF APPLICATION BY APPROVAL AUTHORITY
- When the approval authority is the Planning Board, an application
shall be deemed received by the approval authority on the date of
the first regular meeting of the approval authority following the
filing of the application and supporting plans pursuant to the provisions
of this chapter. When the approval authority is the Superintendent
of Public Works/Village Engineer, the date of receipt shall be the
date that a complete application is filed with the Superintendent
of Public Works/Village Engineer pursuant to the provisions of this
chapter.[Amended 3-22-2005 by L.L. No. 5-2005; 10-27-2020 by L.L. No. 9-2020]
- To fill, grade, discharge, emit, dump or place any material.
- DIAMETER AT BREAST HEIGHT
- Measurement of the width (diameter) of the trunk of a tree to the outside bark at breast height. Breast height is defined as 4.5 feet (1.37 m) above the woodland floor on the uphill side of the tree. For the purposes of determining breast height, the forest floor includes the duff layer that may be present but does not include unincorporated woody debris that may rise above the ground line.
- The emission of any water, substance or material into a wetland or wetland/watercourse buffer whether or not such substance causes pollution.
- DOMINANT(S) OR DOMINANCE
- A dominant species is either the predominant plant species (i.e., the only species dominating a vegetative unit) or a co-dominant species (i.e., when two or more species dominate a vegetative unit). Dominant species are considered to be those with 20% or more areal coverage in the plant community. The measures of spatial extent are percent areal 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 discernible or measurable in the field.
- To deplete or empty of water by drawing off by degrees or in increments.
- To excavate or remove sediment, soil, mud, sand, shells, gravel or other aggregate.
- A person having special knowledge 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 and associations.
- To disturb, dig out or remove any material from a wetland, watercourse or wetland/water course buffer.
- FACULTATIVE SPECIES
- Vegetative species that can occur in both upland and wetland systems. There are three subcategories of species: facultative wetland, straight facultative, and facultative upland. Under natural conditions, a facultative wetland species is usually (estimated probability of 67% to 99%) found in wetlands but occasionally in uplands; a straight facultative species has a similar likelihood (estimated probability of 34% to 66%) of occurring in both wetlands and uplands; and a facultative upland species is usually (estimated probability of 67% to 99%) found in uplands but occasionally in wetlands.
- FERROUS IRON
- The reduced form of iron found in waterlogged soils.
- See "deposit."
- FRESHWATER WETLANDS AND WATERCOURSES MAP
- The Wetlands and Watercourses Map of the Village of Rye Brook, adopted by the Village Board, pursuant to this chapter, or such map as has been amended or adjusted, and on which are indicated the approximate boundaries of the known wetlands, watercourses and wetland/watercourse buffers defined pursuant to this chapter. Areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers defined and regulated by this chapter. The Village of Rye Brook Wetlands and Watercourses Map is intended to provide only general guidance in locating and determining those areas which constitute wetlands and watercourses and their related buffers, as defined in this chapter.
- To adjust the degree of inclination of the contours of the land, including leveling, smoothing and other modification of the natural land surface.
- GROWING SEASON
- The portion of the year when soil temperatures are above biologic zero (5° C.). The growing season for Westchester County is March through October.
- HISTOSOLS/ORGANIC SOILS
- 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 fragmented rock materials is less than 32 inches (a rare condition) or the bulk density is very low, and as further defined under "wetland/freshwater wetland."
- HYDRIC SOIL
- A soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part and as further defined under "wetland/freshwater wetland."
- HYDROPHYTIC VEGETATION
- Macrophytic plant life growing in water, soil or substrate that is at least periodically deficient in oxygen as a result of excessive water content.
- LONG DURATION
- A duration class referring to flooding or inundation in which inundation for a single event ranges from seven days to one month.
- Liquid, solid or gaseous substances, including but not limited to soil, silt, gravel, rock, water, clay, peat, mud, debris and refuse; any organic or inorganic compound, chemical agent or matter; sewage sludge or effluent; or industrial or municipal solid waste.
- A small site supporting facultative or obligate vegetation anomalous within the context of the larger vegetative unit. Microsites may be drier or wetter than surrounding areas as a result of altered drainage, incidental topographic variation or a related characteristic.
- MINERAL SOIL
- A soil consisting predominantly of, and having its properties determined predominantly by, mineral matter. Mineral soils usually contain less than 20% organic matter by weight.
- MITIGATION PLAN
- The plan prepared by the applicant pursuant to § 245-9 of this chapter, wherein the applicant shall demonstrate that either losses or impacts to the wetland, watercourse or wetland/watercourse buffer are necessary and unavoidable, as defined in § 245-8D of this chapter, and have been minimized to the maximum extent practicable.
- The Village of Rye Brook, New York.
- MUNSELL SOIL COLOR CHARTS
- A soil color designation system produced by the Kollmorgen Corporation, 1992, or as amended or updated from time to time, that specifies the relative degree of the three simple variables of color: hue, value, and chroma.
- OBLIGATE UPLAND SPECIES
- Plant species that, under natural conditions, almost always occur in uplands (i.e., greater than 99% of the time).
- OBLIGATE WETLAND SPECIES
- Plant species that, under natural conditions, almost always occur in wetlands (i.e., greater than 99% of the time).
- That form of written authorization by the designated approval
authority as required by this chapter for the conduct of a regulated
activity within a wetland or wetland/watercourse buffer. A permit
will include a wetland permit issued by the Planning Board in accordance
with this chapter or an administrative permit issued by the Superintendent
of Public Works/Village Engineer in accordance with this chapter.[Amended 3-22-2005 by L.L. No. 5-2005; 10-27-2020 by L.L. No. 9-2020]
- See "applicant."
- PHYSICALLY COMPLETED
- The actual completion of construction activities related to an activity, including filling, erection of structures or other improvement or development activities.
- Any harmful thermal effect or the contamination or rendering unclean or impure of any wetland or waters by reason of erosion or by any waste or other materials discharged or deposited therein.
- Any proposed or ongoing action which may result in direct or indirect physical or chemical impact on a wetland, including but not limited to any regulated activity.
- To dig, dredge, suck, bulldoze, dragline, blast or otherwise excavate or grade, or the act thereof.
- RENDERING UNCLEAN OR IMPURE
- Any alteration of the physical, chemical or biological properties of any wetland or waters, including but not limited to change in odor, color, turbidity or taste.
- To reclaim a disturbed or degraded wetland by bringing back one or more functions that have been partially or completely lost.
- SELECTIVE CUTTING
- My cutting of trees within the boundaries of a wetland or wetland/watercourse buffer that is not "clear-cutting," as defined in this section.
- SOIL SCIENTIST
- A person having special knowledge 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 ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)
- The law pursuant to Article 8 of the New York Environmental Conservation Law providing for environmental quality review of actions which may have a significant effect on the environment.
- Anything constructed or erected, as defined in Chapter 250, Zoning, of the Code of the Village of Rye Brook, for which a building permit is required for construction.
- Any subdivision of land into two or more lots, plots, blocks, parcels or sites, with or without the intervention of existing streets or the creation of new streets, and including resubdivision.
- VERY LONG DURATION
- A duration class referring to flooding or inundation in which inundation for a single event is greater than one month.
- The Village of Rye Brook.
- VILLAGE BOARD
- The Board of Trustees of the Village of Rye Brook.
- VILLAGE ENGINEER
- Any person employed by the Village of Rye Brook as the Village Engineer or Engineering Consultant.
- WATER TABLE
- The zone of saturation at the highest average depth during the wettest season.
- Any natural or artificial, intermittent, seasonal or permanent, public or private water body or waterway that is contained within, flows through or borders on the Village of Rye Brook.
- WETLAND/FRESHWATER WETLAND
- Any area which meets one or more of the following criteria:
- A. Lands and waters that meet the definition provided in § 24-0107.1 of the New York State Freshwater Wetlands Act (Article 24 and Title 23 of Article 72 of the Environmental Conservation Law) and have an area of at least 12.4 acres or, if smaller, have unusual local importance as determined by the Commissioner pursuant to § 24-0301.1 of the Act. The approximate boundaries of such lands and waters are indicated on the Official Freshwater Wetlands Map promulgated by the Commissioner pursuant to § 24-0301.5 of the Act, or such a map that has been amended or adjusted pursuant to § 24-0301.6 of the Act.
- B. All areas that comprise hydric soils and/or are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of hydrophytic vegetation, as defined by the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands prepared by the Federal Interagency Committee of the United States Army Corps of Engineers, United States Environmental Protection Agency, United States Fish and Wildlife Service and United States Department of Agriculture (USDA) Natural Resources Conservation Service.
- C. All areas within and including the finite boundaries of a wetland. General locations of wetlands are depicted on the Freshwater Wetlands and Watercourses Map. Finite boundaries of wetlands will be established when necessary upon request by the wetland owner, the approval authority, the applicant, the Commissioner of the New York State Department of Environmental Conservation or other persons whose interests are shown to be affected. Such establishment will consist of appropriate field survey work by a qualified wetland scientist and acceptance by the approval authority.
- D. Watercourses as defined in this chapter.
- WETLAND/WATERCOURSE BUFFER
- A specified area surrounding a wetland or watercourse that is intended to provide protection to the wetland or watercourse from human activity and other encroachment associated with development. The wetland/watercourse buffer shall be subject to the regulations for wetlands as defined in this chapter. At a minimum, the wetland/watercourse buffer shall be the area extending 100 feet horizontally away from and paralleling the wetland boundary or watercourse edge or bank of the watercourse. The wetland/watercourse buffer shall be greater than 100 feet where designated by either the Commissioner of the New York State Department of Environmental Conservation or the local approval authority.
- 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 plants listed in the National List of Plant Species That Occur In Wetlands: Northeast (Region I), which lists facultative and obligate upland and wetland plant species with appropriate indicator status, developed by the U.S. Department of the Interior, Fish and Wildlife Service, for the National Wetland inventory, as amended and updated from time to time
- WETLAND SCIENTIST
- A person having special knowledge by reason of education and work experience in natural, physical and biological sciences related to the identification, assessment and management of wetlands to a degree acceptable to the approval authority.
Editor's Note: The former definition of "Advisory Council on Environmental Conservation," which immediately followed, was repealed 2-24-2015 by L.L. No. 6-2015.
No regulated activity shall be conducted in a wetland or wetland/watercourse buffer without a written permit from the approval authority and full compliance with the terms of this chapter and other applicable regulations. All activities that are not permitted as of right or by permit shall be prohibited.
Permitted uses. The following uses shall be permitted as of right within a wetland or wetland/watercourse buffer to the extent that they are not prohibited by any other law; and to the extent that they do not constitute pollution or erosion hazard(s) or interfere with proper drainage; and provided that they do not require structures, grading, fill, draining or dredging except as authorized by permit:
Normal ground maintenance, including mowing, trimming of vegetation and removal of dead or diseased vegetation other than trees.
Repair of walkways and walls.
Decorative landscaping and planting in wetland/watercourse buffers, excluding those activities regulated in § 245-4B.
Public health activities, orders and regulations of the Westchester County Department of Health or the New York State Department of Health for emergencies only.
The deposit or removal of natural products of wetlands in the process of recreational fishing, but excluding excavation and removal of timber, except as provided in § 245-4A(2).
Regulated activities. Regulated activities include all activities within a wetland or wetland/watercourse buffer other than those specified in § 245-4A and may be permitted upon written application to the approval authority. Regulated activities include but are not limited to:
Placement or construction of any structure, including but not limited to buildings, roads, dams, driveways, culverts, water control devices, pilings, bridges, tennis courts, swimming pools, decks, docks, wells or septic systems.
My form of draining, dredging, excavation or removal of material either directly or indirectly, except as allowed in § 245-4A(6).
Any form of dumping, filling or depositing of material either directly or indirectly.
Introduction of any form of pollution, including but not limited to the installation of a septic tank, the running of a sewer outfall or the discharging of sewage treatment effluent or other liquid wastes into or so as to drain into a wetland.
Alteration or modification of natural features and contours.
Alteration or modification of natural drainage patterns.
Construction of dams, docks or other water-control devices, pilings or bridges, whether or not they change the natural drainage characteristics.
Installation of any pipes or wells.
Grazing of one or more horses and any agricultural activity which involves filling, draining or excavation of a wetland.
Excavation and removal of peat.
Any other activity that may impair the natural function(s) of a wetland as described in § 245-1 of this chapter.
The deposition or introduction of organic or inorganic chemicals within a wetland or watercourse, including herbicides and pesticides regulated pursuant to Article 33 of the New York Public Health Law.
Regulated acts which require an administrative permit. The following activities are determined by this chapter to be limited in scope and limited in potential impact. The approval authority for these activities shall be the Superintendent of Public Works/Village Engineer, who will authorize, if appropriate, the issuance of an administrative permit. The Superintendent of Public Works/Village Engineer may set reasonable conditions as part of any such approval or, at his/her discretion, refer any application for an administrative permit to the Planning Board for its review and action. Activities for which an administrative permit may be applied are:
[Amended 3-22-2005 by L.L. No. 5-2005; 10-27-2020 by L.L. No. 9-2020]
Removal of water-deposited silt, sand and other material to restore preexisting land elevations and restoration of storm and erosion damage where movement not in excess of seven cubic yards of material is necessary.
Construction of driveways to access a new residential dwelling unit when the length of a wetland crossing or intrusion is less than 50 feet in length or 10 feet in width or where a single culvert of less than 20 feet in length and 18 inches in diameter is required.
The application of nonpolluting chemicals and dyes for the purpose of maintenance or scientific study.
Installation of any service lines or cable conduits.
Other activities which do not require subdivision, site plan or special exception use permit approval and which involve less than 10 cubic yards of earth.
Procedure for permits when the Planning Board is the approval authority.
Ten copies of the application for a permit shall be submitted to the approval authority on forms furnished by the Village Clerk. Additional copies shall be provided as required by the approval authority for distribution to advisory boards, councils, commissions and consultants.
An application shall not be deemed complete until and unless the applicant has complied fully with the procedures of the State Environmental Quality Review Act.
The approval authority, upon receipt of an application which is complete and meeting the application requirements of this chapter, may refer the application to the Sustainability Committee for review and report. The Sustainability Committee shall, upon a referral, report to the approval authority within 30 days of the referral date or within such other longer period as may be specified by the approval authority.
[Amended 2-24-2015 by L.L. No. 6-2015]
Any application for a wetlands permit shall be subject to the notification requirements as set forth in § 250-40 of the Village Code.
All information relating to a permit application, including but not limited to the application itself, additional required materials or information, notices, record of hearings, written comments and findings shall be maintained on file in the office of the Village Clerk.
The approval authority, its agents or employees may enter upon any lands or waters for good cause shown for the purpose of undertaking any investigations, examinations, surveys or other activity for the purposes of this chapter.
The approval authority may contract with qualified professionals, at the expense of the applicant, to assist it in any aspect of the review of an application.
A permit shall be issued after the approval of an application by the approval authority. The date of issue shall be the date the permit is issued pursuant to the approval of the application. All permits shall expire upon completion of the acts permitted and, unless otherwise indicated, shall be valid for a period of one year from the date of issue. An extension of an original permit may be granted upon written request to the approval authority by the original permit holder or his/her legal agent at least 90 days prior to the expiration date of the original permit. The time period for a renewal may be waived for good cause shown. The approval authority may require a new hearing if, in its judgment, the original intent of the permit is altered or extended by the renewal or if the applicant has failed to abide by the terms of the original permit in any way. The request for renewal of a permit shall follow the same form and procedure as the original application except that the approval authority shall have the option of not holding a hearing if the original intent of the permit is not altered or extended in any significant way. The standards for issuance of renewals shall be the same as for the issuance of permits.
Procedure for administrative permits.
Three copies of the application for a permit shall be submitted to the approval authority on forms furnished by the Village Clerk.
An application shall not be deemed complete until and unless the applicant has complied fully with the procedures of the State Environmental Quality Review Act.
The approval authority shall review the application in light of the standards for permit decisions contained in § 245-8. A public hearing shall not be required on such application.
All information relating to a permit application, including but not limited to the application itself and additional required materials or information, shall be maintained on file in the office of the Village Clerk.
The approval authority, its agents or employees may enter upon any lands or waters for the purpose of undertaking any investigations, examination, surveys or other activity for the purposes of this chapter.
The approval authority may contract with qualified professionals, at the expense of the applicant, to assist it in any aspect of the review of an application.
A permit shall be issued after the approval of an application by the approval authority. The date of issue of the permit shall be the date the permit is signed by the approval authority. All permits shall expire upon completion of the acts permitted and, unless otherwise indicated, shall be valid for a period of one year from the date of issue, in accordance with the provisions of § 245-11B(2) of this chapter. If the work for which the permit was issued has commenced within one year from the date of issue of the permit, an extension of an original permit may be granted upon written request to the approval authority by the original permit holder or his/her legal agent at least 90 days prior to the expiration date of the original permit. The time period for a renewal may be waived for good cause shown. The request for renewal of a permit shall follow the same form and procedure as the original application and the standards for issuance of renewals shall be the same as for the issuance of permits.
Any application for a permit which shall be filed with the approval authority shall contain the following information:
Name and address of the owner and applicant, if different.
Street address and Tax Map designation of the property.
Statement of authority from the owner or any agent making application.
Description of the proposed work and purpose thereof and an explanation why the proposed activity cannot be located at another site, including an explanation of how the proposed activity is dependent on wetlands or water-related resources.
A completed environmental assessment form.
A statement that the property owner and applicant will indemnify and hold the Village of Rye Brook or its representatives harmless against any damage or injury.
A list of all other agencies that will need to approve the proposed action.
The application requirements of § 245-6A(1) shall be sufficient for an administrative permit application, unless the Superintendent of Public Works/Village Engineer shall determine that there are unusual circumstances requiring further information.
[Amended 10-27-2020 by L.L. No. 9-2020]
An application fee and engineering and inspection fees in amounts established by resolution of the Village Board and set forth in the License and Permit Fee Schedule on file in the Village Clerk's office.
Additional information may be requested by the approval authority, including any of the following:
Proof that notice of the application was sent to all owners of record of lands adjacent to the wetland or wetland/watercourse buffer in which the project is to be undertaken, all other agencies from which approval of the proposed project is required and the names of known claimants of water rights, of whom the applicant has notice, which relate to any land within 100 feet of the boundary of the property on which the proposed regulated activity will be located.
A description of all functions, as described in § 245-1A, currently provided by the wetland under review.
Complete plans for the proposed site improvements, which shall be certified by an engineer, architect, land surveyor or landscape architect licensed in the State of New York, drawn to a scale no less detailed than one inch equals 50 feet and showing the following:
The location of all wetlands as determined by a qualified ecologist/botanist, soil scientist or other qualified individual no earlier than 12 months prior to the date of filing the application.
A description of the vegetative cover of the regulated area, including dominant species.
A description of the soil types on site, including groundwater table elevations showing depth to water table, direction of flow and hydrological connections with surface water features.
Location of the construction area or area proposed to be disturbed and its relation to property lines, roads, buildings and watercourses within 250 feet.
The exact locations, specifications and amount of all proposed draining, filling, grading, dredging and vegetation removal or displacement and procedures to be used in completing the work.
Location of any wells and depths thereof and any disposal system within 50 feet of areas to be disturbed.
Existing and adjusted contours at two-foot intervals in the proposed disturbed area and to a distance of 50 feet beyond and elevations of the site and adjacent lands within 200 feet of the site at contour intervals of no greater than five feet.
Details of a temporary or permanent drainage system proposed both for the conduct of work and after completion thereof, including locations of any point discharges, artificial inlets or other human-made conveyances which would discharge into the wetland or wetland/watercourse buffer, and measures proposed to control erosion both during and after the work.
Where creation of a lake or pond is proposed, details of the construction of any dams, embankments, outlets or other water-control devices and analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations and subsurface soil, geology and groundwater conditions.
Where creation of a detention basin is proposed, with or without excavation, details of the construction of any dams, berms, embankments, outlets or other water-control devices and an analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations and subsurface soil, geology and groundwater conditions.
Copies of all applicable county, state or federal permits or permit applications that are required for such work or, if none have been submitted at the time of wetland permit application, a list of all permits that will ultimately be required.
The approval authority may require additional information as needed, such as the study of flood, erosion or other hazards at the site and the effect of any protective measures that might be taken to reduce such hazards and other information deemed necessary to evaluate the proposed use in terms of the goals and standards of this chapter.
The applicant shall have the burden of proof of demonstrating that the proposed activity is not adverse to the general health, safety or economic and general welfare of the residents of the Village of Rye Brook or its neighboring communities, nor that it will degrade the environment or result in any of the adverse impacts stated in § 245-1 or that the applicant will otherwise suffer undue hardship if a permit is not issued.
Where the Planning Board is the approval authority, the Planning Board may hold a public hearing, in its discretion, on the application. Insofar as practicable, any public hearing on the application shall be integrated with any public hearing required or otherwise held pursuant to any other law, including the State Environmental Quality Review Act. Notice of a public hearing shall comply with § 250-40 of the Village Code.
[Amended 3-22-2005 by L.L. No. 5-2005]
All hearings shall be open to the public, and a full and complete record of each hearing shall be made. The record of any hearing shall become part of the permanent record of a permit application.
Any party may present evidence and testimony at the hearing.
In granting, denying or conditioning any permit, the approval authority shall consider any report of the Sustainability Committee. The approval authority shall also evaluate wetland functions and the role of the wetland in the hydrologic and ecological system and shall determine the impact of the proposed activity upon public health, safety and welfare, flora and fauna, rare and endangered species, water quality and additional wetland functions listed in § 245-1 of this chapter. In this determination, the approval authority shall consider the following factors:
[Amended 3-22-2005 by L.L. No. 5-2005; 2-24-2015 by L.L. No. 6-2015]
The direct and indirect impact(s) of the proposed activity and existing and reasonably anticipated similar activities upon neighboring land uses and wetland functions as set forth in § 245-1 of this chapter, including but not limited to the:
Infilling of a wetland or other modification of natural topographic contours;
Disturbance or destruction of natural flora and fauna;
Influx of sediments or other materials causing increased water turbidity or substrate aggradation;
Removal or disturbance of wetland soils;
Reductions in wetland water supply;
Interference with wetland water circulation;
Damaging decreases or increases in wetland nutrients;
Influx of toxic chemicals or heavy metals;
Damaging thermal changes in the wetland water supply; and
Destruction of natural aesthetic values.
Any existing wetland impacts and the cumulative effect of reasonably anticipated future wetland activities in or adjacent to the wetland subject to the application.
The impact of the proposed activity and reasonably anticipated similar activities upon flood flows, flood storage, shoreline protection and water quality.
The safety of the proposed activity from flooding, erosion, hurricane winds, soil limitations and other hazards.
The adequacy of water supply and waste disposal for the proposed use.
Consistency with federal, state, county and local comprehensive land use plans and regulations.
The availability of preferable alternative locations on the subject parcel or, in the case of an activity which cannot be undertaken on the property without disturbance to wetlands, the availability of other reasonable locations for the activity.
Demonstration by the applicant that the proposed action will not cause any significant adverse impacts, that any direct or indirect impacts have been avoided to the maximum extent practicable and that any remaining unavoidable direct or indirect impacts have been minimized to the maximum extent practicable.
The approval authority shall deny a permit if:
The proposed activity or use threatens public health, safety and welfare, causes nuisances, impairs public rights to the enjoyment and use of public lands and waters, threatens a rare or endangered plant or animal species, violates pollution control standards, violates any other federal, state or local regulations or is not in conformance with this chapter.
Based on the factors listed in § 245-8A, it finds that the nonmonetary detriment to the public that would occur if the permit was granted outweighs the nonmonetary benefits associated with the activity.
Both the affected landowner and the local government have been notified by a 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, with the following provisions:
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.
If the landowner receives no offer for the property within one year of the permit denial, this ban 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 § 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to § 206 of the Eminent Domain Procedure Law or this ban to the permit lapses.
Preference will be given to activities that must have a watercourse or wetland location in order to function and that will have as little impact as possible upon the wetland/watercourse buffer. In general, permission will not be granted for dredging or ditching solely for the purpose of draining wetlands, controlling mosquitoes, lagooning, constructing factories, providing spoil and dump sites or building roadways or structures that may be located elsewhere. The regulated activity must, to the maximum extent practicable, be confined to the portion of a lot outside of a wetland and wetland/watercourse buffer. All measures must be taken to minimize, to the maximum extent practicable, direct and indirect impacts upon the wetland.
The approval authority shall require preparation of a mitigation plan by the applicant pursuant to § 245-9 when the applicant has demonstrated that either losses or impacts to the wetland or wetland/watercourse buffer are necessary and unavoidable and have been minimized to the maximum extent practicable. For the purposes of this chapter, wetland impacts are necessary and unavoidable only if the approval authority finds that all of the following criteria are satisfied:
The proposed activity is compatible with the public health, safety and welfare.
There is no feasible on-site alternative to the proposed activity, including reduction in density, change in use, revision of road and lot layout and related site planning considerations, that could accomplish the applicant's objectives.
There is no feasible alternative to the proposed activity on another site available to the applicant that is not a wetland or wetland/watercourse buffer.
After it has been determined by the approval authority pursuant to § 245-8D that losses or impacts to the wetlands or wetland/watercourse buffers are necessary and unavoidable and have been minimized to the maximum extent practicable, the applicant shall develop a mitigation plan which shall specify mitigation measures that provide for:
Replacement wetlands or enhancement or restoration of existing wetlands that re-create as nearly as possible the original wetlands in terms of size, type, function, geographic location and setting and improve the density and diversity of native plant species within such wetlands. On-site mitigation shall be the preferred approach; off-site mitigation shall be permitted only in cases where an on-site alternative is not possible.
Replacement, enhancement or restoration of a disturbed watercourse that re-creates as nearly as possible the disturbed or lost portion of the original watercourse in terms of size, type, function, geographic location and setting, by a ratio of one to one, unless another ratio is determined by the approval authority, for the disturbed or lost portion of the watercourse or the preparation of other mitigation plans acceptable to the approval authority that serve to replace or enhance the functions of the watercourse affected by the proposed activity.
Enhancement or restoration of existing wetland/watercourse buffers by improving the density and diversity of native plant species or enhancement or restoration of existing wetlands to mitigate for losses to wetland/watercourse buffers by a ratio of at least two to one for the area of wetland/watercourse buffer disturbed by the proposed activity that replace or enhance the functions of the wetland or wetland/watercourse buffer as described in § 245-1A.
For the purposes of mitigation, losses of wetland/watercourse buffers will be viewed as losses of wetland.
All mitigation measures shall balance the benefits of regaining new wetland areas with the impacts and loss to other natural areas due to wetland creation. In no case shall the impacts of the implementation of the mitigation plan exceed the benefit to be gained by the mitigation work.
If the approval authority requires a mitigation plan pursuant to § 245-9A hereof, the following shall apply:
Mitigation plans developed to compensate for the loss of wetlands or wetland/watercourse buffer shall include hydrologic, soil and vegetation baseline data as needed to adequately review the effectiveness of the plan.
Any mitigation plan prepared pursuant to this section and accepted by the approval authority shall become part of the permit for the application to conduct a regulated activity.
All mitigation plans shall include:
A map with sufficient detail and at a scale to be able to determine where the wetland is located and its size, boundaries and topographic features.
A narrative which describes goals and specific objectives for the mitigation wetland or wetland/watercourse buffer, including the functions and benefits to be provided, clear performance standards and criteria for assessing project success.
A description of the physical, hydrological and ecological characteristics of the impacted wetland and/or wetland/watercourse buffer and proposed restored and/or created wetland and/or buffer in sufficient detail to enable the approval authority to determine whether wetland and/or buffer impacts will be permanently mitigated.
Details of construction, including diking, excavation, or other means by which the wetland will be restored or created, including existing and proposed topographic contours; a construction schedule; measures to control erosion and sedimentation during construction in accordance with Chapter 118, Erosion and Sediment Control, of the Village Code; plantings, including source of stock, procedures for transplanting/seeding the stock, area(s) to be planted, planting schedule, the source of vegetation obtained from the wild and measures to prevent introduction of undesirable exotics; and chemicals used with an explanation of why chemicals will be used and what precautions will be taken to minimize application to protect the wetland and/or watercourse from excessive chemicals.
Details on management of the mitigation site, including measures to assure persistence of the wetland, including protection against predation by birds and other animals, control of invasive or undesirable plant and animal species and protection against vandalism; vegetative management, including watering, replanting or reseeding to maintain plant densities, fertilizing during the growing-in period and removal of organic lifter; sediment and erosion control measures; plans for monitoring the site during and after construction, including methods and a schedule for data collection and provisions for mid-course corrections; provisions for long-term protection of the site such as a permanent conservation easement; and provision for bonding or other financial guarantees.
A description of periodic reporting, including at the end of construction, during the monitoring period and at the end of the monitoring period.
Identification by name, qualifications and experience of the person(s) implementing the mitigation plan (i.e., the contractor who will restore or construct the wetland).
The approval authority may monitor, or may cause to have monitored, projects according to the specifications set forth in the permit to determine whether the elements of the mitigation plan and permit conditions, if required, have been met and whether any wetland acreage created replaces wetland acreage lost. The requirements for monitoring shall be specified in the permit and the mitigation plan and shall include but not be limited to:
The time period over which compliance monitoring shall occur.
Field measurements to verify the size and location of the impacted wetland area and the restored/replacement wetland area.
The date of completion of the restoration/replacement.
Field verification of the vegetative, hydrologic and soils criteria as specified in the mitigation plan and permit, including but not limited to:
Any permit issued pursuant to this chapter may be issued with conditions. Such conditions may be attached as the approval authority deems necessary, pursuant to § 245-8 of this chapter, to ensure the preservation and protection of affected wetlands and to ensure compliance with the policies and provisions of this chapter and the provisions of the approval authority's rules and regulations, if any, adopted pursuant to this chapter.
Every permit issued pursuant to this chapter shall be in written form and shall contain the following conditions:
Work conducted under a permit shall be open to inspection at any time, including weekends and holidays, by the approval authority, the Sustainability Committee, the Superintendent of Public Works/Village Engineer or their designated representatives.
[Amended 2-24-2015 by L.L. No. 6-2015; 10-27-2020 by L.L. No. 9-2020]
All permits issued under this chapter shall be shall be void and of no effect after one year from the date of issue thereof, unless the work for which the permit was issued has been actually commenced and not been abandoned during that period. In such cases, the applicant may reapply for a wetlands permit from the approval authority in accordance with the provisions of this chapter. If the work for which the permit was issued has commenced within one year from the date of issuance of the permit, such permit may be renewed by the approval authority in accordance with the renewal provisions set forth at § 245-5B(7) of this chapter.
The permit holder shall provide written notification to the approval authority of the date on which the regulated activity is to begin at least five business days in advance of such date.
The approval authority's permit shall be prominently displayed at the project site during the undertaking of any of the activities authorized by the permit.
The boundaries of the regulated activity and all wetlands and watercourses shall be stated and appropriately marked in the field so as to make the boundaries visible.
The permit, including all conditions, shall be binding on all successors and assignees of the permit holder.
The approval authority may attach conditions to any permit it issues. Such conditions may include but shall not be limited to:
Limitation on minimum lot size for any activity.
Limitation on the total portion of any lot or the portion of the wetland on the lot that may be graded, filled or otherwise modified.
Modification of waste disposal and water supply facilities.
Imposition of operation controls, sureties and deed restrictions concerning future use and subdivision of lands such as preservation of undeveloped areas as open space and limitation of vegetation removal.
Dedication of easements to protect wetlands.
Erosion control measures.
Imposition of setbacks for structures, fill, excavation, deposit of soil and other activities from the wetland.
Modification in project design to ensure continued ground and surface water supply to the wetland and circulation of waters.
Replanting of wetland vegetation and construction of new wetland areas to replace damaged or destroyed areas.
The approval authority may require that, prior to commencement of work under any permit issued pursuant to this chapter, the applicant shall post a bond in an amount and with surety and conditions sufficient to secure compliance with the conditions and limitations set forth in the permit. The particular amount and the conditions of the bond shall be consistent with the purposes of this chapter. The bond shall remain in effect until the approval authority or its designated agent certifies that the work has been completed in compliance with the terms of the permit and the bond is released by the approval authority or a substitute bond is provided. In the event of a breach of any condition of any such bond, the approval authority may institute an action in the court upon such bond and prosecute the same to judgment and execution.
No permit granted pursuant to this chapter shall remove an applicant'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.
[Amended 7-27-2004 by L.L. No. 10-2004; 10-27-2020 by L.L. No. 9-2020]
In the event any person or entity commences or conducts any regulated activity contrary to any provision of this chapter and/or to any term, condition or provision of any permit issued pursuant to this chapter, the Superintendent of Public Works/Village Engineer, the Building Inspector, the Director of Public Works or the Code Enforcement Officer(s) or any other agent designated by the Village Board may issue a written stop-work order in accordance with the provisions of Chapter 214.
In order to carry out the purposes and provisions of this chapter, and in addition to the powers specified elsewhere in this chapter, the approval authority shall have the power to consult or contract with expert persons or agencies in reviewing a permit application.
Any person or entity who undertakes any regulated activity within a wetland or wetland/watercourse buffer without a permit issued hereunder or 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 approval authority pursuant to this chapter, shall be liable to the Village for a civil penalty of not more than $5,000 for every such violation. Each consecutive day of the violation will be considered a separate offense. Such civil penalty may be recovered in an action brought by the Village at the request and in the name of the approval authority in any court of competent jurisdiction. Such civil penalty may be released or compromised by the approval authority and such penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the approval authority.
In addition, the approval authority shall have power, following a hearing, to direct the violator to restore the affected wetland to its condition prior to the violation, insofar as that is possible, within a reasonable time and under the supervision of the approval authority or its designee. Any such order of the approval authority shall be enforceable in an action brought in any court of competent jurisdiction. Any order issued by the approval authority pursuant to this subsection shall be reviewable in a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules.
Any person or entity who violates or fails to comply with any provision of this chapter or any order, permit, condition, rule or regulation issued by the approval authority regulating wetlands and wetland/watercourse buffers pursuant to this chapter shall be guilty of a misdemeanor.
Each provision of this chapter and/or each order, permit, condition, rule or regulation of the approval authority regulating wetlands and/or wetland/watercourse buffers pursuant to this chapter, which is violated, shall constitute a separate and distinct offense. Each day during which any violation is committed, occurs and/or continues shall constitute a separate and distinct offense.
Upon conviction, the first such offense shall be punishable by a fine of not less than $500 and not more than $1,000. Upon conviction, the second and each subsequent offense, shall be punishable by a fine of not less than $1,000 nor more than $2,000 or by a term of imprisonment of not less than 15 days or more than six months, or both. In addition to these punishments, any offender may be required to restore the affected wetland or wetland/watercourse buffer to its condition prior to the offense, insofar as that is possible. A reasonable time for the completion of such restoration shall be specified and the restoration shall be effected under the supervision of the approval authority.
Criminal sanctions may be invoked without prior resort to administrative sanctions, which sanctions shall be deemed cumulative.
Additional remedies. The foregoing provisions for the enforcement of this chapter are not exclusive but are in addition to any and all rights and remedies of the Village at law or in equity to restrain violations or threatened violations of this chapter or to obtain damages therefor.
The Village is specifically empowered to seek injunctive relief restraining any violation or threatened violation of any provisions of this chapter and to compel the restoration of the affected wetland or wetland/watercourse buffer to its condition prior to the violation of the provision(s) of this chapter.
[Amended 3-22-2005 by L.L. No. 5-2005]
When the approval authority is the Superintendent of Public Works/Village Engineer, any applicant may appeal to the Planning Board any order or decision of the Superintendent of Public Works/Village Engineer or any agent or subordinate thereof issued or made pursuant to or within the scope of this chapter. Such appeal must be commenced by filing with the Planning Board a notice of appeal within 30 days after service of such order or decision or after notice of such order or decision is given, as the case may be.
[Amended 10-27-2020 by L.L. No. 9-2020]
Judicial review. Any determination, decision or order of the Planning Board that is issued or made pursuant to or within the scope of this chapter may be judicially reviewed pursuant to Article 78 of the New York Civil Practice Law and Rules in the Supreme Court for Westchester County, provided that available administrative remedies have been exhausted.
This chapter may from time to time be amended in accordance with the procedures and requirements of the general statutes and as new information concerning soils, hydrology, flooding or botanical species particular to wetlands becomes available.