As used in this chapter, the following terms shall
have the meanings indicated:
ADMINISTRATIVE PERMIT
A permit issued by the Town Engineer for certain activities in wetlands, as listed in §
167-4C, which have been determined by this chapter to be limited in scope and limited in potential impact on wetlands.
AGRICULTURAL ACTIVITY
The activity of an individual farmer or other landowner in
grazing and watering livestock; making reasonable use of water resources
for agricultural purposes; harvesting the natural products of wetlands,
excluding peat mining and timber harvesting; and selective cutting
of trees to the extent that this does not conflict with state agricultural
laws. “Agricultural activity” does not mean clear cutting
of trees; filling or deposition of soil; mining; or draining for growing
agricultural products or for any other related or unrelated purposes.
APPLICANT
Any individual, firm, partnership, association, corporation,
company, organization or other legal entity of any kind, including
municipal corporations, governmental agencies or subdivisions thereof
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, 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 to the permit is established. The approval authority shall
be:
(1)
The Planning Board of the Town of Somers for any wetlands activity requiring a permit as specified in §
167-4B and for any activity included on plans submitted to the Planning Board for approval under other procedures, such as subdivision or site plan applications.
(2)
The Town Engineer of the Town of Somers for any wetlands activity requiring an administrative permit as specified in §
167-4C.
AQUACULTURE
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, clear cutting
or the construction of any buildings or any water-regulating structures,
such as dams.
BOUNDARY OF A WETLAND
The outer limit of the soils and/or vegetation as defined
under “wetland/freshwater wetland.”
CLEARING
As defined in Chapter
156 of the Code of the Town of Somers.
CREATION
To construct a new wetland, often by excavating and/or flooding
land not previously occupied by a wetland.
DAMS and WATER CONTROL MEASURES
Barriers used or intended to or which, even though not intended
in fact, do obstruct the flow of water or raise, lower or maintain
the level of water.
DATE OF RECEIPT OF APPLICATION BY APPROVAL AUTHORITY
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 complete application and supporting plans
pursuant to the provisions of this chapter.
DEPOSIT
To fill, grade, discharge, emit, dump or place any material
or the act thereof.
DISCHARGE
The emission of any water, substance or material into a wetland
or wetland 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 codominant
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.
DRAIN
To deplete or empty of water by drawing off by degrees or
in increments.
DREDGE
To excavate or remove sediment, soil, mud, sand, shells,
gravel or other aggregate.
ECOLOGIST/ BOTANIST
A person having 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.
ENHANCEMENT
The repair of a wetland in which some functions have been
degraded or lost, such that the degraded wetland functions are restored.
EXCAVATE
To dig out and remove any material from a wetland, watercourse
or wetland buffer.
FACULTATIVE SPECIES
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% through 99%) found in wetlands, but occasionally in uplands;
a straight facultative species has basically a similar likelihood
(estimated probability of 34% through 66%) of occurring in both wetlands
and uplands; a facultative upland species is usually (estimated probability
of 67% through 99%) found in uplands but occasionally in wetlands.
FERROUS IRON
The reduced form of iron found in waterlogged soils.
FIRE POND
Pond designated by the Fire Department to serve in this capacity.
[Added 11-8-2007 by L.L. No. 11-2007]
FRESHWATER WETLANDS MAP
The final freshwater wetlands map for Westchester County
promulgated by the Commissioner of the New York State Department of
Environmental Conservation pursuant to § 24-0301.5 of the
New York State Freshwater Wetlands Act, or such map as has been amended
or adjusted, and on which are indicated the approximate locations
of the actual boundaries of wetlands regulated pursuant to Article
24 of the Environmental Conservation Law.
GRADING
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. or 41° F.) The growing season for Westchester
County is March through October.
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.”
MATERIAL
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.
MICROSITE
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
The creation or substantial improvement of wetlands in nonregulated areas, in degraded wetland areas, or in wetland buffer areas to lessen, ease or replace the functional capacity of existing wetlands that is lost as a result of the permitted activity. Wetland mitigation, referred to in this chapter as “mitigation,” requires the development and implementation of a mitigation plan, pursuant to §
167-9.
MITIGATION PLAN
The plan prepared by the applicant pursuant to §
167-9 when the applicant has demonstrated that either losses or impacts to the wetland or wetland buffer are necessary and unavoidable as defined in §
167-8D and have been minimized to the maximum extent practicable.
MUNSELL SOIL COLOR CHARTS
A soil color designation system that specifies the relative
degree of the three simple variables of color: hue, value and chroma;
produced by the Kollmorgen Corporation, 1975, or as amended or updated
from time to time.
NUISANCE
The use of land or an activity conducted on the land that
has, or is likely to have, a detrimental impact on the physical condition
of nearby land or on the health, safety, and welfare of people of
the surrounding area.
OBLIGATE UPLAND SPECIES
Plant species that, under natural conditions, always occur
in uplands (i.e., greater than 99% of the time). The less-than-one-percent
difference allows for anomalous wetland occurrences (i.e., occurrences
that are the result of human-induced disturbances and transplants).
Obligate upland species for the northeast are listed in the Wetland
Plants of the State of New York 1986, published by the United States
Fish and Wildlife Service in cooperation with the National and Regional
Wetland Plant List Review Panels, and as updated from time to time.
OBLIGATE WETLAND SPECIES
Plant species that, under natural conditions, always occur
in wetlands (i.e., greater than 99% of the time). The less-than-one-percent
difference allows for anomalous upland occurrences (i.e., occurrences
that are the result of human-induced disturbances and transplants).
Obligate wetland species for New York State are listed in Wetland
Plants of the State of New York 1986, published by the United States
Fish and Wildlife Service in cooperation with the National and Regional
Wetland Plant List Review Panels, and as updated from time to time.
ON-LINE POND
Any pond constructed over a stream.
[Added 11-8-2007 by L.L. No. 11-2007]
PERMIT
The form of written approval issued by the Town of Somers
under this chapter for the conduct of a regulated activity within
a wetland or wetland buffer. A permit will include a wetland activity
permit issued by the Planning Board and an administrative wetland
activity permit issued by the Town Engineer.
PHYSICAL COMPLETION
The actual completion of construction activities related
to a regulated activity, including filling, erecting structures, or
other improvements or development activities.
POLLUTION
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.
PROJECT
Any proposed or ongoing action which may result in direct
or indirect physical or chemical impact on a wetland, watercourse
or wetland or watercourse buffer, including but not limited to any
regulated activity.
REMOVE
To dig, dredge, suck, bulldoze, dragline, blast or otherwise
excavate or grade.
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.
RESTORATION
To reclaim a disturbed or degraded wetland or watercourse
in order to bring back one or more functions that have been partially
or completely lost by such actions as draining or filling.
SILVICULTURE
The art and the science of controlling the establishment,
growth, composition, health, and quality of forest to meet diverse
needs and values of the many landowners, societies and cultures.
[Added 9-10-2009 by L.L. No. 8-2009]
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 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.
STRUCTURE
Anything constructed or erected, the use of which requires
location on or in the ground or attachment to something having location
on the ground, including but not limited to buildings, tennis courts,
in-ground swimming pools and other recreational facilities that create
impervious surfaces.
SUBDIVISION
The division of any parcel of land into two or more lots,
blocks or sites, with or without the creation of new streets, for
the purpose, whether immediate or future, of transfer of ownership
or building development, and includes resubdivision.
TOWN ENGINEER
Any person employed by the Town of Somers as the Town Engineer
or engineering consultant.
WATERCOURSE
Any natural or artificial or permanent or intermittent public
or private water body or water segment, such as ponds, lakes, reservoirs,
rivers, streams, brooks or waterways, that are contained within, flow
through, or border on the Town of Somers. For the purposes of this
definition, “intermittent” shall mean that water stands
or flows for a total of three months in a consecutive twelve-month
period. A drainage ditch, swale or surface feature that contains water
only during and immediately after a rainstorm or a snow melt shall
not be considered to be a watercourse.
WATER QUALITY STANDARDS
As defined by federal and state water standards, including
but not limited to New York State, 6 NYCRR Part 703, Surface Water
and Groundwater Quality Standards, and US EPA Clean Water Act Section
303(c).
WATER TABLE
The zone of saturation at the highest average depth during
the wettest season.
WETLAND BUFFER
The wetland buffer is a specified area surrounding a wetland
that is intended to provide some degree of natural protection to and
separation from the wetland from human activity and other encroachment
associated with development. The wetland buffer shall be subject to
the regulations for wetlands as defined in this chapter and shall
be determined to be the area extending 100 feet horizontally away
from and paralleling the outermost wetland boundary or bank of the
watercourse or greater than 100 feet where designated by the approval
authority.
WETLAND/FRESHWATER WETLAND
(1)
Areas of at least 5,000 square feet that comprise
hydric soils or are inundated or saturated by surface or ground water
at a frequency and duration sufficient to support and, under normal
circumstances, do support a prevalence of hydrophytic vegetation and,
that under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions, as further
defined by the Federal Manual for 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.
(2)
Watercourses shall be encompassed under the
term “wetland” as used in this chapter. For purposes of
identification, the minimum area requirement of 5,000 square feet
for the “wetland” definition shall not apply.
(3)
"Wetland/freshwater wetland," as defined and regulated under this chapter, shall include lands and waters that meet the definition provided in § 24-0107, Subdivision 1, of the New York State Freshwater Wetlands Act (Article 24 and Title 23 of Article 71 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, Subdivision 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, Subdivision 5, or such a map that has been amended or adjusted pursuant to § 24-0301, Subdivision 6, of Title 23. The amendment to this subsection which extends the provisions of this Chapter
167 to wetlands regulated by the New York State Department of Environmental Conservation shall be subject to the applicability provisions of §
167-2 of this chapter.
[Amended 6-10-2004 by L.L. No. 7-2004]
(4)
The criteria below shall be used to determine
the presence of hydrophytic vegetation, hydric soils and wetland hydrology:
(a)
Hydrophytic vegetation.
[1]
The presence of obligate wetland species, particularly
as dominant, in a vegetation unit shall be considered diagnostic of
wetlands. Facultative species may be present but naturally occurring
obligate upland species cannot be present on other than microsites.
[2]
Plants with adaptations to inundation or saturated
soil conditions shall be considered diagnostic of wetlands. Such adaptations
include but are not limited to pneumatophores, buttressed tree trunks,
floating stems, floating leaves, multiple trunks, hypertrophied lenticels
and inflated leaves, stems or roots.
[3]
Any combination of the three categories of facultative
species (i.e., facultative wetland, straight facultative and facultative
upland) shall be considered indicative of a wetland if the vegetation
unit in which they occur has hydric soils and one or more hydrologic
indicators are at least periodically present during the growing season.
In addition, naturally occurring obligate upland species must either
be absent or present only on microsites or larger similar inclusions.
(b)
Hydric soil.
[1]
Technical definition. A “hydric soil”
is a soil that is saturated, flooded or ponded long enough during
the growing season to develop anaerobic conditions in the upper part
and includes all soil defined by the following criteria:
[b]
Mineral soils that are somewhat poorly drained
and have a water table less than 6.0 inches from the surface for a
significant period (usually one week or more) during the growing season,
or poorly drained or very poorly drained and have either a water table
at less than 1.0 foot from the surface for a significant period (usually
one week or more) during the growing season if permeability is equal
to or greater than 6.0 inches per hour in all layers within 20 inches
or a water table at less than 18 inches from the surface for a significant
period (usually one week or more) during the growing season if permeability
is less than 6.0 inches per hour in any layer within 20 inches;
[c]
Soils that are ponded for seven continuous days
or more during the growing season; or
[d]
Soils that are frequently flooded for seven
continuous days or more during the growing season.
[2]
Field evidence of hydric soils. The presence
of one or more of the following indicators shall be diagnostic of
the presence of hydric soils:
[a]
Organic soils (histosols) or mineral soils with
a histic epipedon. Histosols are organic soils (mostly peats and mucks)
that have organic materials in more than half (by volume) the upper
32 inches of the soil profile unless the depth to bedrock or fragmental
materials is less than 32 inches or the bulk density is very low.
A histic epipedon is an eight-to-sixteen-inch soil layer at or near
the surface that is saturated for 30 consecutive days or more during
the growing season in most years and contains a minimum of 20% organic
matter when no clay is present or a minimum of 30% organic matter
when 60% or greater clay is present. In general, a histic epipedon
is a thin horizon of peat or muck if the sod has not been plowed.
[b]
Gleying or mottling with a soil matrix chroma
of less than or equal to two in mineral soils, determined as follows:
Soil samples shall be taken at approximately 18 inches in depth or
immediately below the A horizon, whichever is higher in the soil profile,
and the sample shall be moistened if dry at the time of examination.
Munsell soil color charts shall be used to record soil matrix color
and mottle color (i.e., hue, value and chroma). Munsell soil charts
shall be used to establish the presence or absence of gleying. The
following diagnostic soil key shall be applied to confirm whether
the colors in the soil matrix are indicative of hydric soil conditions:
[i]
Soil is mottled:
[A]
Matrix is gleyed: hydric.
[B]
Matrix is not gleyed:
|
{1}
|
Matrix chroma is less than or equal to two:
hydric.
|
|
{2}
|
Matrix chroma is greater than two: not hydric.
|
[ii]
Soil is not mottled:
[A]
Matrix is gleyed: hydric.
[B]
Matrix is not gleyed:
|
{1}
|
Matrix chroma is less than or equal to one:
hydric.
|
|
{2}
|
Matrix chroma is greater than one: not hydric.
|
[d]
Iron or manganese concretions occurring as small
aggregates near the soil surface.
(c)
Hydrologic indicators. The following indicators
of wetland hydrology may be used to confirm that a site with hydrophytic
vegetation and hydric soils still exhibits hydrologic conditions typically
associated with such vegetation and soils but shall not be used to
determine wetland boundaries:
[1]
Recorded data, such as tide gauges, stream gauges,
flood predictions, aerial photographs or other historical data.
[2]
Visual observation of inundation.
[3]
Visual observation of soil saturation within
the upper 12 inches of soil.
[4]
Sediment deposits as a result of flooding.
[5]
Drift lines as a result of flooding.
[6]
Surface scouring as a result of flooding.
[7]
Wetland drainage patterns, such as meandering.
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.