Chapter 91 Freshwater Wetlands

Editor's Note: This local law also repealed former Ch. 91, Freshwater Wetlands, adopted 9-13-1989 by L.L. No. 14-1989.

§ 91-1 Findings.

The Board of Trustees of the Village of Kings Point (the "Board") has determined as follows:

Freshwater wetlands are invaluable resources for flood protection, erosion control, wildlife habitat, pollution treatment, open space, water, including groundwater recharge, nature study, recreation and other benefits associated therewith which, if preserved and maintained in an undisturbed natural condition, constitute important assets to present and future residents of the Village.

All areas adjacent to freshwater wetlands for a distance of 100 feet from the boundary thereof are essential components of the freshwater wetlands ecosystem and also act as buffers to reduce the direct and indirect impacts of adjacent activities upon the freshwater wetlands, which activities, if carried on directly adjacent to such wetlands, would tend to degrade them and impair their natural biological and physical functions. This adjacent area is an ecological transition zone from uplands to freshwater wetlands which is an integral portion of the freshwater wetland ecosystem, providing temporary refuge for freshwater wetlands fauna during high-water episodes, critical habitat for animals dependent upon but not resident in freshwater wetlands and slight variations of freshwater wetland boundaries over time due to hydrologic or climatologic effects and a sediment and stormwater control zone to reduce the impacts of development upon freshwater wetlands and freshwater wetlands species.

Growth and development is placing increasing demands upon natural resources that may result in the encroachment into and the despoiling, polluting and/or elimination of wetlands and watercourses, with serious consequent effects upon natural ecosystems and the health, safety, welfare and property of the people of the Village.

Adverse effects of development on wetlands, watercourses and areas adjacent thereto can only be prevented through the establishment of preservation, protection and conservation practices which are therefor essential to the public health, safety and welfare of the residents of the Village.

§ 91-2 Definitions.

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

ADJACENT AREA

Includes the area surrounding the freshwater wetland for land for a horizontal distance of 100 feet from the boundary thereof and all land surfaces that drain into and are located within 50 feet, measured horizontally from the ordinary high waterline of a watercourse.

AGRICULTURE

Cultivating and harvesting products, including fish and vegetation, that are produced naturally in freshwater wetlands and installing cribs, racks and other in-water structures for cultivating these products, but does not include filling, dredging, peat mining or the construction of any buildings or any water-regulating structures such as dams.

ALTER

Any form of draining, dredging, excavation, removal of 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 structure, road or impervious surface; the driving, piling or placing of any other obstructions, whether or not so as to change the ebb and flow of water; any form of pollution; and any other activity which, whether or not it occurs upon the wetland or watercourse itself but is located not more than 100 feet from the boundary of the wetland or drains into and is located not more than 50 feet from the ordinary high waterline of a watercourse, impinges upon or otherwise substantially impairs any of the several functions served by freshwater wetlands or watercourses or the benefits derived from wetlands which are set forth in the New York State Environmental Conservation Law or in § 91-1 of this chapter.

APPLICANT

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

BOARD

Planning Board of the Village of Kings Point.

BOUNDARY OF WETLAND

The outer limit of vegetation and soils specified herein in the definition of "freshwater wetlands."

CLEAR-CUTTING

Cutting or harvesting of trees over two inches in diameter at breast height (4.5 feet up from the lowest point where the tree meets the ground) over an area or stand of trees of one acre or more.

CONTROLLED AREA

Includes all freshwater wetlands and all watercourses.

DITCH

A linear topographic depression with bed and banks of human construction in a previous upland area which conveys water to or from a site. This does not include channelized or redirected natural watercourses.

FRESHWATER WETLANDS

Lands and waters within the Village of Kings Point with an area of one acre or more which meet one or more of the descriptions set forth hereinbelow under A, B, C, D, or E:

Lands and submerged lands commonly called "marshes," "sloughs," "wetlands," "swamps," "bogs" and "flats" supporting aquatic or semiaquatic vegetation but not limited to the following types:

Wetland trees which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees, including, among others, red maple (Acer rubrum), willows (Salix species), black spruce (Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica), black ash (Fraxinus nigra), silver maple (Accer saccharinum), American elm (Ulmus americana), Larch (Larix laricina), river birch (Betula nigra), white cedar (Thuja occidentalis), black gum (Nyssa sylvatica) and American sycamore (Platanus occidentalis).

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), leatherleaf (Chamaedaphne calyculata), spicebush (Lindera benzoin), highbush blueberry (Vaccinium corymbosum), dogwoods (Cornus species) and serviceberry (Amelanchier canadensis).

Emergent vegetation, including, among others, cattails (Typha species), pickerelweed (Pontederia cordata), bulrushes (Sciurpus species), arrow arum (Peltandra virginica), arrowheads (Saggitaria species), reed (Phragmites communis), wild rice (Zizania aquatica), bur reeds (Sparaganium species), purple loose strife (Lythrum), swamp loosestrife (Decodon verticillatus), water plantain (Alisma plantagoaquatica), skunk cabbage (Symplocarpus foetidas) and false hellebore (Veratrum viride).

Rooted, floating leaved vegetation, including, among others, waterlily (Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar species).

Free-floating vegetation, including, among others, duckweed (Lemna species), bid duckweed (Spirodela polyrhiza) and watermeal (Wolffia species).

(6)

Wet meadow vegetation which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other open land vegetation, including, among others, sedges (Carex species), rushes (Juncus species), cattails (Typha species), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinancea), swamp loosestrife (Decodon verticillatus), spikerush (Eleocharis spp.) and skunk cabbage (Symplocarpus foetidus).

(7)

Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum species), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea) and cranberries (Vaccinium macrocarpon and Vaccinium oxycoccos).

(8)

Submergent vegetation, including, among others, pondweeds (Potamogeton species), naiads (Najas species), bladderworts (Utricularia species), wild celery (Vallisneria americana), coontail (Ceratophyllum demersum), watermilfoils (Myriophyllum species), muskgrass (Chara species), stonewort (Nitella species), water weeds (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 that such conditions can be expected to persist indefinitely, barring human intervention.

Lands and waters encompassing aquatic or semiaquatic vegetation as set forth herein in Subsection A above or 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.

An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as "hydrophytic vegetation"; provided, however, that the determination is made using the three-parameter approach (that is, hydrology, soils and vegetation) enumerated in the 1987 United States Army Corps of Engineers Manual and any subsequent amendments thereto incorporated herein by reference.

PERMIT

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

PERSON

Any corporation, firm, partnership, association, trust, estate; one or more individuals; any unit of federal, state or local government; or any agency or subdivision thereof, including any state department, bureau, commission, board or other agency, public authority or public benefit corporation.

POLLUTION

The presence in the environment of human-induced conditions or contaminants in quantities or characteristics which are or may be injurious to humans, plants, animals or property.

PROJECT

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

WATERCOURSES

Any of the following:

Rivers, streams, brooks and waterways which are delineated on the most recent edition of the United States Geological Survey Topographic Maps of the Village.

Any other streams, brooks and waterways containing running water for a total of nine months a year.

Lakes, ponds, marshes, swamps, bogs, natural springs and all other natural bodies of water which are fed by or have discharge to another wetland or watercourse.

Channelized streams that were formed as a result of relocation, filling or altering of a natural stream or wetlands.

Ditches are not "watercourses."

§ 91-3 Regulated activities.

Except as herein provided, it shall be unlawful for any person to alter any freshwater wetland or watercourse protected by this chapter without a written permit therefor issued by the Village.

Activities subject to regulation under this chapter shall include any of the following:

Any form of dredging or excavation and any grading or removal of soil, mud, sand, gravel, silt or any other earth material from any controlled or adjacent area, either directly or indirectly.

The intensive utilization of lands in an adjacent area.

Any form of dumping, filling or deposition of any soil, stones, sand, gravel, mud, rubbish or fill of any kind in any controlled or adjacent area, either directly or indirectly.

Erecting any building or other structure, construction of any road, driveway or motor vehicle parking facility, paving, installation of sewage disposal systems or sewer outfalls or swimming pools, discharge of sewage treatment effluent or other liquid wastes, drilling and digging of wells, installation of any pipe or other conduit or the placing of any other obstructions within a controlled or adjacent area, whether or not the same affect the ebb and flow of water.

The use of any chemicals, dyes, fertilizers, herbicides, pesticides or similar materials in any controlled or adjacent area such that the same may cause pollution of waters.

(6)

Creating an increase or decrease in the flow, velocity or volume of water in any watercourse, excluding customary seasonal raising and/or lowering of said watercourse.

(7)

Creating a diversion of water flow on any watercourse, including but not limited to constructing dams, docks or bridges.

(8)

Introducing any influents of high thermal content such that the same are capable of causing deleterious ecological effect.

(9)

Any logging operation, including clear-cutting within an adjacent area. These actions shall be reviewed by the Village Engineer so as to determine if such acts affect the prevailing surface water runoff conditions, directly or indirectly.

(10)

Any alteration or other activity which substantially impairs or is likely to impact any of the functions of the wetlands and watercourses or the benefits derived therefrom as set forth in the New York State Environmental Conservation Law or in § 91-1 of this chapter.

§ 91-4 Excluded activities.

Activities excluded from regulation under this chapter shall include the following:

The deposition or removal of the natural products of freshwater wetlands and adjacent areas by recreational or commercial fishing, shellfishing, aquiculture, hunting or trapping where otherwise legally permitted.

The implementation of any orders and regulations of the New York State Department of Health and/or the Nassau County Department of Health or orders and regulations of any other duly authorized agency, provided that copies of such orders and regulations have been filed with the Village Clerk of the Village of Kings Point and that the Village Engineer may request modifications of such orders if he or she deems it necessary to implement the policy embodied in this chapter.

Any actual and ongoing emergency activity which is necessary for the protection and preservation of life or property or the protection or preservation of natural resource values. Such emergency activities include but are not limited to: search and rescue operations; preventative or remedial activities related to large scale contamination of streams or other bodies of water; response to floods, hurricanes and other storms; fire fighting and public health concerns. Within five days of the end of any such emergency that involved the undertaking of any activity under this chapter, the person chiefly responsible for undertaking such emergency activity shall send a written statement to the Village Engineer setting forth the pertinent facts regarding said emergency, including an explanation of life, property or resource value which such activity was designed to protect or preserve.

Ordinary maintenance and repair of existing structures or improved areas which do not involve expansion or substantial restoration, reconstruction, rehabilitation or modification, including but not limited to bridges, roads, highways, railroad beds, bulkheads, docks, piers, pilings or paved streets.

Trimming, pruning and bracing of trees, decorative landscaping, including the addition of trees and plants, and incidental removal of trees and brush.

§ 91-5 Duties of Village Engineer.

The Village Engineer will review all wetlands permit applications, periodically inspect Village wetlands and permitted projects for unregulated activities and make recommendations to the Board and any other regulatory agencies of the Village which also regulate such project.

§ 91-6 Application for permit.

Any person who proposes to perform any regulated activities within the Village at the following locations, for the following purposes, shall first file a permit application together with the filing fee established from time to time by the Board: upon a lot containing any controlled area or adjacent area, whether or not within the controlled area or adjacent area, for any purpose other than the building of a single-family dwelling; upon any controlled area or adjacent area, for any purpose, including the building of a single-family dwelling. No such activity shall be commenced until said permit has been issued. No application shall be considered complete until the application fee has been received by the Village. The Board shall immediately inform the Village Engineer. Projects for which an environmental assessment form (EAF) has not been required by any other agency shall file an EAF under this permit application. Projects for which an EAF have been filed that do not address the requirements of this chapter shall be amended to do so.

[Amended 8-28-2000 by L.L. No. 8-2000]

All permit applications must include the following information:

Name/address. The name, address and telephone number of the applicant, and, if the applicant is not the owner, the written consent of the owner must be attached.

Tax Map designation. The street address and Tax Map designation of the property involved.

List of property owners. A list of adjacent and nearby property owners whose rights or interests may or will be affected by the proposed action. Such list shall include all those property owners within the controlled or adjacent area and 100 feet from the perimeter thereof and those property owners 100 feet upstream and 500 feet downstream. Notification of adjacent property owners shall be by certified mail.

(d)

Plans/specifications. Detailed plans and specifications for the proposed wetlands activity, drawn to a scale of not smaller than one inch equals 100 feet, showing the following:

Location of disturbed area. The location of all areas proposed to be disturbed by the development and its relation to property lines, buildings, roads and controlled and adjacent areas within 500 feet.

[2]

Quantity of material. Estimated quantities of material to be deposited or removed.

[3]

Location of wells/septics. The location of any well and the depth thereof and of any waste disposal system within 250 feet of the proposed operation or project.

[4]

Drainage system details. Details of any drainage system proposed both for the construction process of the system and the final development and maintenance of the system.

[5]

Construction details/deposition of spoil. Where creation or enlargement of a lake or pond is proposed, details of the construction of any dams, embankments, outlets or other water-control devices and of deposition of the spoil material.

[6]

List of affected functions. A list of all beneficial functions of the wetland which will be affected by the application.

[7]

Details of protection procedure. A diagram showing the proposed erosion controls and, if applicable, as in the case of development of the property for use other than a single-family dwelling, the proposed controls over access to the adjacent areas accompanied by a schedule for their installation and maintenance.

[8]

Topographic details. Existing and proposed contours shall be shown at an interval of two feet in the area of the proposed operation or project and to a distance of 50 feet beyond the boundaries thereof.

Impacts upstream and downstream. Applications affecting the water-retention capacity, water flow or other drainage characteristics of any pond, lake, reservoir, natural drainage system or wetland shall include a statement and numerical calculations of the impact of the project on upstream and downstream areas, giving appropriate consideration to other than normal amounts of rainfall and levels of watercourses including, specifically, the one-hundred-year storm.

Miscellaneous information. Applications should also contain such design specifications, engineering studies, hydrogeologic studies or impact considerations as the Kings Point Planning Board and the Village Engineer may deem necessary.

Burden of proof.

The applicant shall submit information sufficient to demonstrate that the proposed activity will not be adverse to the general health, safety or economic and general welfare of the residents of the Village of Kings Point.

The applicant shall demonstrate that alternatives that minimize the disturbance to wetlands, watercourses and their adjacent areas have been fairly evaluated and that there will not be any significant adverse ecological impacts.

A significant adverse impact shall be deemed to exist where it is determined that a modification of a wetland and/or its adjacent area will negatively affect the ecological integrity of the wetland and its biotic components. Such modifications may include but are not limited to:

An alteration of the water table or hydrologic patterns in the wetland or its subwatershed.

[2]

An increase in erosion resulting in increased sedimentation in the wetland or watercourse.

[3]

A change in the natural chemistry of the groundwater or surface water in the wetland.

[4]

A reduction in wetland habitat diversity.

[5]

A change in wetlands species composition.

[6]

A significant disturbance of areas used by indigenous and migratory wildlife for breeding, nesting or feeding.

Submission of 10 copies of application. Ten completed copies of the application, together with 10 copies of the specified supporting plans and documentation, including an environmental assessment form, application fee and deposit, shall be filed with the Village Clerk. Applications under this law that involve a subdivision, site development plan, special permit or variance shall be submitted concurrently with the application for such other relief. The supporting documentation shall include a bound wetlands delineation report which shall include all requested information, including:

Copies of all correspondence with NYSDEC and USACOE relating to wetlands and watercourses and the current status of any and all applications.

Consecutively numbered flagpoints delineating the wetlands field at distances no greater than 75 feet apart and shown on the topographic map submitted.

Unconditional written consent by the owner of the subject property to allow access to the site by representatives or agents of the Village Engineer for the purpose of conducting a site inspection or survey of the freshwater wetlands, watercourses or adjacent areas thereon.

(d)

Listing of qualifications of person(s) performing the field delineation and preparing the application. As part of the overall process, prior notice to the Village of all other agency field wetland reviews is expected.

(6)

Professional preparation/certification of applications. Plans and specifications for all wetlands permit applications requiring Board approval shall be prepared and certified by an engineer licensed by the State of New York, unless this requirement is waived by the Board, upon recommendation of the Village Engineer. A waiver of the requirement for certified plans shall not relieve the applicant of the need to submit reproducible plans that are neat, complete and fully descriptive of all details of the proposed operation or project.

(7)

Should the Board, after review of said application and of any recommendations of the Village Engineer, determine that a proposed regulated activity is insignificant, a permit and/or public hearing waiver shall be issued and the permitting process suspended for the action.

(8)

Fees and deposits. Upon filing an application under this chapter, the applicant shall pay to the Village a fee as shall be established from time to time by resolution of the Board of Trustees.[1] Any applicant may withdraw his or her application at any time prior to the Village Engineer's final recommendation on it. Any application fee shall not be refunded to any applicant who so withdraws his or her application, except where the review completed by the Village Engineer has been insubstantial.

[Amended 11-27-2007 by L.L. No. 8-2007]

Editor’s Note: See Ch. A162, Fees.

The Village shall publish notice of the filing of the application in the official newspaper of the Village, which notice shall be in a form approved by the Village Clerk.

This chapter does not relieve any applicant from the necessity to obtain such approval or permit as may be required by any other Village law or other applicable local, state or federal permits or authorizations, including wetlands permits under Article 24 of the New York State Environmental Conservation Law.

Where a regulated wetland lies within two or more jurisdictions:

The Village Engineer must provide copies of the application to the other sharing jurisdictions; and

The processing of the application by the Village Engineer will include consultation with the other entities in order to achieve a mutually satisfactory determination.

§ 91-7 Hearing; decision on permit.

A public hearing shall be held by the Board regarding all applications for a wetlands permit.

Within 60 days following a public hearing under this chapter, the Village Engineer shall render a recommendation to the Board regarding approval, denial or approval with conditions of any application for a wetlands permit. The Board shall render its decision within 45 days following receipt of the Village Engineer's report. If the application is approved, a permit shall be issued by the Village Engineer.

Extension of time. The applicant and the Board may mutually consent, in writing, to extend the time for a determination on the application. Any such extension of time must be in writing or recorded in the minutes of the Board meeting at which the project was reviewed.

Standards for permit decisions.

In deciding to approve, deny or condition any permit, the Board shall consider the effect of the proposed activity with reference to public health and welfare, fishing, flood, hurricane and storm dangers and protection or enhancement of the several functions of freshwater wetlands and adjacent areas and the benefits therefrom which are as set forth in § 91-1 of this chapter. Due consideration will also be given to the benefit which the applicant and/or the public may derive from the completion of the proposed activity. The Board will consider the freshwater wetlands permit requirements promulgated by the rules and regulations of the State of New York.

No recommendation or approval of a permit shall be rendered by the Board unless:

The proposed regulated activity is consistent with the policy of this chapter to preserve and protect freshwater wetlands and the benefits derived therefrom consistent with the general welfare and the beneficial economic and social development of the Village of Kings Point by preventing the despoliation and destruction of freshwater wetlands and adjacent areas and by regulating the development and use of such wetlands and adjacent areas.

The proposed regulated activity is compatible with the public health and welfare.

The proposed regulated activity is reasonable and necessary and all significant adverse impacts thereof, if any, have been mitigated to the maximum reasonable extent.

(d)

No practicable alternative is available to the applicant for the proposed regulated activity on a site which is not a controlled or adjacent area.

(e)

The applicant has demonstrated that the proposed regulated activity will be in accord with the standards set forth in this chapter.

A duly filed written notice that the state or any agency or political subdivision thereof is in the process of acquiring a certain freshwater wetland by negotiation or condemnation authorizes but does not require denial of an otherwise appropriate permit, but only if the affected landowner and local government have been so notified.

§ 91-8 Permit conditions.

Every permit issued pursuant to this chapter shall contain the following general conditions:

The Village Engineer shall have the right to inspect the project from time to time.

The permit holder shall notify the Village Engineer, in writing, of the date on which project construction is to begin at least five business days in advance of such date.

The permit shall be prominently displayed at the project site during the undertaking of the activities authorized by the permit.

The boundaries of the project shall be clearly staked or marked. In addition, any wetlands and watercourses contained within the boundaries of the project shall also be staked or marked by snow fencing, as specified by the Village Engineer.

§ 91-12 Suspension or revocation of permit.

All permits shall expire on completion of the acts specified and, unless otherwise indicated, shall be valid for a period of one year.

Any permit issued pursuant to this chapter may be issued with special conditions if the Board deems it necessary to assure the preservation and protection of affected freshwater wetland and adjacent areas and to assure compliance with the policy and provisions of this chapter and the provisions of the Board's rules and regulations adopted pursuant to this chapter.

§ 91-9 Findings on permit decision.

Decisions on permit applications shall be supported by written findings and reasons.

§ 91-10 Renewal of permit.

Upon request of the applicant and pursuant to approval by the Board, the Village Engineer may renew a permit for a period of one year. The fee for a permit renewal will be set by the Board.

§ 91-11 Bond.

This Board may require posting of a performance bond or letter of credit as a condition of approval in such amount as it may determine to be adequate security. The form and surety or bank will be subject to acceptance by the Board.

Where the Village Engineer finds that the permittee has not complied with one or more terms of such permit, has exceeded the authority granted in the permit or has failed to undertake or complete the project in the manner set forth in the application, he or she shall suspend the permit and submit the matter forthwith for review by the Board setting forth, in writing, the findings and reasons supporting any recommended suspension of a permit pursuant to this section. Upon review of these findings, the Board shall make its decision regarding the lifting, suspension or revocation of the permit.

§ 91-13 Penalties for offenses.

Administrative sanctions.

Any person found violating any provision of this chapter or the conditions imposed by the Board upon an approved permit shall be served with a stop-work order by the Village Engineer, stating the nature of the violation and providing a reasonable and specified time within which corrective action shall be completed by the violator to restore or correct, insofar as is possible, the affected wetland to its condition prior to the violation. The Village Engineer shall supervise any restoration under the direction of the Board.

Any person who violates, disobeys or disregards any provisions of this chapter, in addition to a criminal sanction, shall be liable to the people of the Village for a civil penalty consistent with the costs of the corrective action.

Criminal sanctions.

Any person violating any order of the Village issued pursuant to Subsection A above shall be guilty of a violation punishable by a fine of not more than $1,000.

Where the affected area has not been restored to a condition existing prior to the unpermitted activity, each day's continued violation shall constitute a separate additional violation.

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