[HISTORY: Adopted by the Board of Trustees of the Village of Maybrook
9-9-2002 by L.L. No. 4-2002. Amendments noted where applicable.]
A.
Purpose. It is the purpose of this chapter to protect
and conserve natural wetland and watercourse resources for the benefit of
the entire community, thereby ensuring their continued functions as containing
stormwater, contributing to the natural recharge of groundwater and thereby
reducing net stormwater runoff, and acting as natural channels for dissipating
stormwater through natural channels.
B.
Findings of fact. In their natural state, wetlands and
watercourses are valuable natural resources and serve multiple functions,
including:
(1)
Protecting water resources by providing sources of surface
water, recharging groundwater and aquifers, serving as chemical and biological
oxidation basins and/or functioning as settling basins for naturally occurring
sedimentation.
(2)
Controlling flooding and stormwater runoff by storing
or regulating natural flows.
(3)
Providing unique vegetative associations specifically
adapted for survival in low-oxygen environments.
(4)
Providing unique nesting, migratory, and wintering habitats
for diverse wildlife species, including many of those listed on the New York
State and federal endangered species list.
(5)
Providing areas of unusually high plant productivity
which support significant wildlife diversity and abundance.
(6)
Serving as nutrient traps for nitrogen and phosphorous
and as filters for surface water pollutants.
(7)
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 pollutant and return them to the atmosphere as an inert nitrogen
gas.
C.
Intent. It is the intent that activities in and around wetlands and watercourses conform to all applicable building codes, sediment control regulations, and other regulations and that such activities not hinder the value of wetlands (set forth in Subsection B) or threaten public safety or impair the natural environment or cause nuisance by:
(1)
Impeding flood flows, reducing flood storage areas or
destroying storm barriers, thereby resulting in increased flood heights, frequencies
or velocities on other lands.
(2)
Increasing water pollution through location of domestic
waste disposal system in wet soils; inappropriate siting of stormwater control
facilities; unauthorized application of fertilizers, pesticides, herbicides
and algaecides; 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.
(3)
Increasing erosion and subsequent sedimentation.
(4)
Decreasing breeding, nesting and feeding areas for many
species of waterfowl and shorebirds, including those rare and endangered.
(5)
Decreasing habitat for fish, reptiles, amphibians and
other forms of wildlife.
(6)
Adversely altering the recharge or discharge functions
of wetlands, thereby impacting groundwater or surface water supplies.
A.
Wetlands, watercourses and wetland/watercourse buffers; new projects. This chapter shall apply to all land defined as a wetland, watercourse or wetland or watercourse buffer in § 196-3 and to all proposed regulated activity as defined in § 196-4B. Developed lots of less than 0.5 acre in size shall be exempt from these regulations.
B.
Rules for establishing and interpreting wetland and watercourse boundaries. The boundaries of a wetland or watercourse shall be determined by field investigation and delineation by a qualified environmental professional and subsequent survey and mapping by a licensed lands surveyor unless waived by the approval authority. The approval authority may consult, and/or may require the applicant to consult with biologists, hydrologists, soil scientists, ecologists, botanists, or other experts as necessary to make this determination pursuant to the criteria defined in § 196-3.
A.
Word usage. 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 intent and policy provided in § 196-1.
B.
APPLICANT
APPROVAL AUTHORITY
BOUNDARY OF A WETLAND
DISCHARGE
FACULTATIVE SPECIES
HYDRIC SOIL
OBLIGATE WETLAND SPECIES
WATERCOURSE
WETLAND
WETLAND PLANTS
WETLAND/WATERCOURSE BUFFER
Definitions As used in this chapter, the following terms
shall have the meanings indicated:
A person or entity that files an application for a permit under this
chapter and that is either the owner of land on which the proposed regulated
activity would be located, a contract vendee, a lessee of the land, the person
who would actually control and direct the proposed activity, or the authorized
agent of any such person.
The Building Inspector shall be the approval authority with respect
to any application that requires the issuance of any permit or approval, unless
such application also requires Planning Board or Village Board of Trustees
approval. The Village Board of Trustees shall be the approval authority with
respect to any application that requires the issuance of any permit or approval
by it, unless such application also requires Planning Board approval, in which
case the Planning Board shall be the approval authority.
The outer limit of the soils and/or vegetation as defined in "wetland."
The emission of any water, substance, or material into a wetland,
watercourse, or wetland or watercourse buffer, whether or not such substance
causes pollution.
Vegetative species that can occur in both upland and wetland systems.
There are three subcategories of facultative species: facultative wetland,
straight facultative, and facultative upland. Under natural conditions, a
facultative wetland species is usually (estimated probability of 67% to 99%)
found in wetlands, but occasionally found in uplands. A straight facilitative
species has a similar likelihood (estimated probability of 34% to 66%) of
occurring in both wetlands and uplands. A facultative upland species is usually
(estimated probability of 67% to 99%) found in uplands, but occasionally in
wetlands.
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 "wetlands."
Plant species that, under natural conditions, always occur in wetland
areas (i.e., greater than 99% of the time). The less-than-one-percent difference
allows for anomalous upland occurrences.
A water channel that may flow intermittently (at a minimum of three
months a year) or constantly, and that is 100 feet or more in length. Man-made
ditches or swales shall not constitute watercourses.
Any area that meets the U.S. Army Corps of Engineers or N.Y.S. Department
of Environmental Conservation definition of "wetland"; in addition, all areas
in excess of 500 square feet 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 further defined by the Federal Manual for Identifying and Delineating
Jurisdictional Wetlands (January 1989) prepared by the Federal Interagency
Committee of the U.S. Army Corps of Engineers, U.S. Environmental Protection
Agency, U.S. Fish and Wildlife Service, and the U.S.D.A. Natural Resources
Conservation Service Cooperative Technical Publication.
The list of obligate and facultative wetland plant species developed
by the United States Department of Interior Fish and Wildlife Service in cooperation
with the National and Regional Wetland Plant List Review Panels, as amended
and updated from time to time.
A buffer that is intended to provide some degree of protection to
a wetland or watercourse from human activity and other encroachment associated
with development. The wetland or watercourse buffer shall be subject to the
regulations for wetlands and watercourses as defined in this chapter and shall
be determined to be the areas extending 100 feet horizontally away from and
paralleling the outermost boundary of a wetland or watercourse, or greater
than 100 feet where designated by the approval authority.
No regulated use or activity shall be conducted in wetland, watercourse,
or wetland or watercourse buffer without a written permit from the approval
authority and full compliance with the terms of this chapter or other applicable
regulations. All uses and activities that are not permitted as-of-right or
by permit shall be prohibited.
A.
Permitted uses. The following uses shall be permitted
as-of-right within a wetland, watercourse, or wetland or watercourse buffer
to the extent that they are not prohibited by any other ordinance, and to
the extent that they do not constitute a pollution or erosion hazard or interfere
with proper drainage, and provided they do not require structures, grading,
filling, draining, or dredging except as authorized by permit:
(1)
Normal ground maintenance, including mowing, trimming
of vegetation and removal of dead or diseased vegetation around a residence.
(2)
Repair of existing structures, including walkways, walls,
fences, decks, driveways and roadways.
(3)
Deposition or removal of natural products of wetlands in the process of recreational or commercial fishing, aquaculture, hunting or trapping, but excluding excavation and removal of peat or timber, except as provided in Subsection B.
(4)
Agricultural activities.
B.
Regulated activities. Regulated activities, including
all uses and activities within a wetland, watercourse, or wetland or watercourse
buffer, may be permitted upon written application to the approval authority
and upon demonstration by the applicant that no reasonable alternative exists
to the proposed activity, including but not limited to redesign of the site
plan or subdivision. Regulated uses or activities, to the extent that they
are not prohibited by any other ordinance, include but are not limited to:
(1)
Placement or construction of any structure, driveway
or roadway.
(2)
Any form of drainage, dredging, excavation, or removal
of material either directly or indirectly.
(3)
Any form of dumping, filling, or depositing of material
either directly or indirectly.
(4)
Installation of any service lines, cable conduits, or
other utilities.
(5)
Alteration or modification of natural features and contours.
(6)
Alteration or modification of natural drainage patterns.
(7)
Removal or cutting of any vegetation.
A.
Procedures for permits.
(1)
No regulated use or activity shall be conducted without
issuance of a permit from the approval authority. Application for a permit
shall be made in duplicate to the approval authority on forms furnished by
the Building Department.
(2)
The applicant shall submit a mailing list of all contiguous
property owners and involved persons and agencies (as defined by SEQRA) to
be notified of such applications. Upon receipt of the completed application,
and its certification by the approval authority as complete, the applicant
shall notify the individuals and agencies, including federal, state, and local
agencies having jurisdiction over the subject matter, by certified mail, to
provide such individuals and agencies with a minimum ten-day comment period
before any public hearing or decision by an administrative officer.
(3)
An application shall not be deemed complete unless an
applicant has submitted an environmental assessment form pursuant to Article
8 of the State Environmental Conservation Law.
(4)
The approval authority, its agents or employees may enter
upon any lands or waters for good cause shown to undertake investigations,
examinations, surveys or other activities, including the review of applications
and determinations of compliance with permits, all for the purpose of administering
and enforcing this chapter.
(5)
All permits shall expire on completing the acts specified
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.
(6)
The approval authority, in the review of any application
for permit approval, may refer, at the expense of the applicant, such application
presented to it to such planner, engineer, legal/environmental expert, soil
scientist, ecologist or biological scientist or other professional as the
approval authority shall deem reasonably necessary to assist it in the review
of such application as required by law. Fees charged by such professional(s)
shall be in accord with fees usually charged for such services and pursuant
to a contractual agreement between the municipality and such professional.
All such charges shall be paid by the applicant through an escrow account
established for such purposes with the municipality.
B.
Permit applications.
(1)
Procedure for permits through an application to the Building
Inspector for a building permit on a single lot, to the Highway Superintendent
for a driveway permit, or to the Zoning Board of Appeals for a variance or
special permit.
(a)
If the Building Inspector or Highway Superintendent or Zoning Board of Appeals determines that proposed work may require a permit, the respective official or board shall require an application to be prepared and may request a site inspection by a professional as defined in Subsection A(6).
(b)
At the conclusion of the permit application review and/or
site inspection, if the proposed activity is found to be within a wetland,
watercourse, or wetland or watercourse buffer, one of two findings shall be
made by the approval authority:
[1]
The proposed action is of such minor scope or the land
area is of such small size that there will be no impact on the viability of
the wetland or watercourse; no further action under this chapter is required.
[2]
The proposed action may have an impact on wetland/watercourse
functions as well as public health and welfare and/or be of general public
concern.
(c)
In the event that a permit is required, the applicant
shall submit the completed application to the Wetland Inspector and post a
filing fee in accordance with the fee schedule as adopted by the Village Board.
(2)
Procedures for permit through an application to the Planning
Board for subdivision or site plan approval. A wetland or watercourse disturbance
permit shall be considered in the context of the overall subdivision or site
plan approval application, and such application shall be heard in conjunction
with all other applications. Approval of the subdivision or site plan application
shall require the issuance of a separate wetland/watercourse activity permit.
(3)
Any application for a permit which shall be filed with
the approval authority shall contain the following information:
(a)
Name and address of the owner.
(b)
Street address and Tax Map designation of the property.
(c)
Statement of authority from the owner for any agent making
application.
(d)
Statement of the proposed work and purpose thereof, and
an explanation for why the proposed activity cannot be located at another
site, including an explanation of how the proposed activity is dependent on
wetlands, watercourses, or other water resource(s).
(e)
A list of the names of the owners of record of lands
adjacent to the wetland or wetland buffer in which the project is to be undertaken,
and the names of known claimants of water rights, of whom the applicant has
notice, which relate to any land within 100 feet of the boundary of the property
on which the proposed regulated activity would be located.
(f)
Complete plans and estimates 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 square inch equals 50 feet, and showing the following:
[1]
The location of all wetlands, watercourses, and wetland
and watercourse buffers as determined by a qualified ecologist/botanist and/or
soil scientist no earlier than 12 months prior to the date of filing the application.
[2]
A description of the vegetative cover of the regulated
area, including dominant species.
[3]
A description of the on-site soil types.
[4]
Location of the construction area or area proposed to
be disturbed, and its relation to the property lines, roads, buildings, and
watercourses with 100 feet of the proposed activity.
[5]
Existing and proposed contours at two-foot intervals
in all proposed areas to be disturbed and to a distance of 50 feet beyond.
[6]
Details of any drainage system proposed both for the
conduct of work, and after completion thereof.
[7]
Existing and proposed contours at two-foot intervals
in all proposed areas to be disturbed and to a distance of 50 feet beyond;
at the discretion of the approval authority, the existing contours of the
remaining portion of the site owned or controlled by the applicant or owner
at contour intervals no greater than five feet.
[8]
Details of any 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 that
would discharge into the wetland, watercourse, or wetland or watercourse buffer,
and measures proposed to control erosion both during and after the work.
[9]
Where creation of a detention basin, lake, or pond is
proposed, details of the construction of any dams, berms, 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.
[10]
Details of erosion and sediment control practices, including
a plan detailing what and where erosion and sediment control practices will
be implemented and a schedule for their installation and maintenance.
[11]
Completed environmental assessment form as required by
the New York State Environmental Quality Review Act (SEQRA).
(g)
Copies of all applicable county, state, or federal permit
applications that are required for such work.
(4)
An application fee and engineering and inspection fee
shall be charged according to the schedule established by the Village Board
and shall be presented at the time the application is filed.
C.
Public hearings and notice. A public hearing(s) and required
notice(s) shall be held in conjunction with and to the standards required
for associated site plan or subdivision applications.
D.
Standards for permit decisions.
(1)
In granting, denying, or conditioning any permit application, the approval authority shall evaluate wetland and watercourse functions and the role of the wetland in the hydrological and ecological system and shall determine the impact of the proposed activity upon pubic health and safety, rare and endangered species, water quality, and additional wetland/watercourse functions listed in § 196-1 of this chapter. In this determination, it shall consider the following factors and shall issue findings with respect to:
(a)
The overall impact of the proposed activity, and existing and reasonably anticipated similar activities, upon neighboring land uses and wetland functions as set forth in § 196-1 of this chapter.
(b)
The effect of the proposed activity and reasonably anticipated
similar activities upon flood flows, flood storage, shoreline protection,
and water quality.
(c)
The safety of the proposed activity from flooding, erosion,
hurricane winds, soil limitations, and other hazards, and possible losses
to the applicant and subsequent purchasers of the land.
(d)
Consistency with federal, state, county, and municipal
comprehensive land use plans, and regulations.
(e)
The availability of practicable alternative locations
on the subject parcel or, in the case of an activity which cannot be undertaken
on the property without disturbance to wetlands or watercourses, the availability
of other reasonable locations for the activity whether or not such locations
are under the ownership of control of the applicant.
(2)
The approval authority shall deny a permit if:
(a)
The proposed use or activity threatens public health,
safety or welfare, results in fraud, causes nuisances, impairs public rights
to the enjoyment and use of public lands and waters, threatens rare or endangered
plant or animal species, violates pollution control standards, or violates
other local, state, or federal regulations.
(b)
It finds that the detriment to the public, as measured
by the factors listed in this section, that would occur on issuance of the
permit outweighs the nonmonetary public benefits associated with the activity.
(3)
The approval authority shall give consideration to uses
and activities that must have shoreline or water resources location to function
and that will have as little impact as possible upon the wetland, watercourse,
and wetland or watercourse buffer.
(4)
The approval authority shall require preparation of a mitigation plan by the applicant pursuant to Subsection E. Before mitigation will be considered, the applicant must demonstrate that all alternatives have been explored, that losses or impacts to the wetland, watercourse or wetland/watercourse buffer are necessary and unavoidable, and that any impact on wetlands and watercourses has been minimized to the maximum extent practicable. The following is the order of preference for mitigation plans:
(5)
For the purposes of this chapter, wetland impacts are
necessary and unavoidable only if all of the following criteria are satisfied:
(a)
The proposed activity is compatible with the public health,
safety, and welfare.
(b)
There is no feasible on-site alternative to the proposed
activity, including reduction in density, change in use, revision of road
and land layout, relocation, elimination or consolidation of proposed structure
and/or related site planning consideration that could accomplish the applicant's
objectives.
(c)
There is no feasible alternative to the proposed activity
on another site that is not a wetland, watercourse, or wetland or watercourse
buffer.
E.
Mitigation policy; plan requirements.
(1)
After it has been determined by the approval authority pursuant to Subsection D(4) that losses of wetland or wetland buffer 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 that recreate as nearly as possible the original wetland in terms of types, functions, geographic location and setting.
(2)
The approval authority shall monitor projects (or shall
have projects monitored) according to the specifications set forth in the
permit. Through the monitoring process the approval authority shall determine
whether the elements of the mitigation plan and permit conditions have been
met and whether the wetland acreage created replaces the wetland acreage lost.
The requirements for monitoring shall be specified in the mitigation plan
and shall include but not be limited to:
(a)
The time period over which compliance monitoring shall
occur.
(b)
Field measurements to verify the size and location of
the impacted wetland area and the mitigation (restored or replacement) wetland
area.
(c)
The date of completion of the restoration and/or replacement.
(d)
Field verification of the vegetation, hydrologic, and
soils criteria as specified in the mitigation plan and permit.
(3)
Any mitigation plan prepared pursuant to this section
and accepted by the approval authority shall become part of the permit for
the application.
F.
Permit conditions. Any permit issued pursuant to this
chapter may be issued with conditions. Such conditions may be attached as
the approval authority deems necessary to assure the preservation and protection
of affected wetlands/watercourses and to assure compliance with the policy
and provisions of this chapter and the provisions of the approval authority's
rules and regulations adopted pursuant to this chapter.
G.
Performance bond. The approval authority may require
that, prior to commencement of work under any permit issued pursuant to this
chapter, the applicant or permittee shall post a bond to be approved and acceptable
to the Village Board in an amount and with surety and conditions sufficient
to secure satisfactory completion of the project and 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 approval authority releases the bond or a substitute bond
is provided.
H.
Other laws and regulations.
(1)
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.
(2)
The Building Inspector may suspend or revoke a permit
and issue a stop-work order if he finds that the applicant or permittee has
not complied with any or all of the terms of such permit, has exceeded the
authority granted in the permit, or has failed to undertake the project in
the manner set forth in the approval application.
I.
Monitoring and inspection. The approval authority shall
monitor activities granted permits (or shall have the activities monitored).
To this end, the approval authority may contract with an academic institution,
an independent research group or other qualified professionals, at the expense
of the applicant, or may use its own staff expertise.
J.
Notice of violation and enforcement.
(1)
Stop-work order. The Building Inspector is empowered
to issue a stop-work order to any person who has violated or threatens to
violate any provision of this chapter, has proceeded to work on wetlands and
watercourses protection without a valid permit to do so or who has failed
to comply with any condition or requirement of a permit issued pursuant to
this chapter. Such stop-work order shall be in writing and specify the violation(s)
of this chapter. If circumstances require, a notice of violation may be served
with a stop-work order, or a notice of violation may be served prior to the
issuance of a stop-work order. Such notices shall be served on the owner or
owner's agent, personally or by certified mail.
(2)
Failure to stop work. Any person who fails to stop work
upon receipt of a stop-work order shall be guilty of a misdemeanor.
(3)
Violations of permit requirements. Any person who, after
having been served with a notice of violation pursuant to this chapter, fails
to cure all such violations shall be guilty of a misdemeanor. The Building
Inspector is hereby empowered to issue an appearance ticket to the owner,
contractor or tenant.
(4)
Notwithstanding the provisions of Subsection J(1) and (2) of this chapter, the Building Inspector is authorized, upon a resolution of consent by the Village Board, to apply for injunctive, declaratory and other ancillary relief to the Supreme Court to compel compliance with this chapter, in addition to other remedies permitted by law.
(5)
Fines and penalties.
(a)
The maximum penalty for conviction of a misdemeanor pursuant
to this chapter shall be a fine not to exceed $500, or 30 days' imprisonment,
or both;
(b)
Where the Supreme Court finds that a defendant has violated
this chapter, a civil penalty may be imposed for each full week that such
violation(s) are not cured, the maximum weekly civil penalty being $1,000,
in addition to reasonable attorneys' fees and expert witness costs incurred
by the Village of Maybrook to enforce this chapter against the defendant(s).
