As used in this chapter, the following terms shall have the meanings indicated:
ADMINISTRATIVE PERMITA 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.
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.
APPLICANTAny 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 AUTHORITYThe 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.
The Town Engineer of the Town of Somers for any wetlands activity requiring an administrative permit as specified in §
167-4C.
AQUACULTURECultivating 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 WETLANDThe outer limit of the soils and/or vegetation as defined under “wetland/freshwater wetland.”
CLEARINGAs defined in Chapter
156 of the Code of the Town of Somers.
To construct a new wetland, often by excavating and/or flooding land not previously occupied by a wetland.
DAMS and WATER CONTROL MEASURESBarriers 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 AUTHORITYAn 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.
DEPOSITTo fill, grade, discharge, emit, dump or place any material or the act thereof.
DISCHARGEThe emission of any water, substance or material into a wetland or wetland buffer, whether or not such substance causes pollution.
DOMINANT(S) or DOMINANCEA 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.
DRAINTo deplete or empty of water by drawing off by degrees or in increments.
DREDGETo excavate or remove sediment, soil, mud, sand, shells, gravel or other aggregate.
ECOLOGIST/ BOTANISTA 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.
ENHANCEMENTThe repair of a wetland in which some functions have been degraded or lost, such that the degraded wetland functions are restored.
EXCAVATETo dig out and remove any material from a wetland, watercourse or wetland buffer.
FACULTATIVE SPECIESVegetative 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 IRONThe reduced form of iron found in waterlogged soils.
FIRE PONDPond designated by the Fire Department to serve in this capacity.
[Added 11-8-2007 by L.L. No. 11-2007]
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.
GRADINGTo adjust the degree of inclination of the contours of the land, including leveling, smoothing and other modification of the natural land surface.
GROWING SEASONThe 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 SOILA 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.”
MATERIALLiquid, 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.
MICROSITEA 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 SOILA soil consisting predominantly of and having its properties determined predominantly by mineral matter. Mineral soils usually contain less than 20% organic matter by weight.
MITIGATIONThe 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.
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.
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.
NUISANCEThe 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 SPECIESPlant 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 SPECIESPlant 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 PONDAny pond constructed over a stream.
[Added 11-8-2007 by L.L. No. 11-2007]
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 COMPLETIONThe actual completion of construction activities related to a regulated activity, including filling, erecting structures, or other improvements or development activities.
POLLUTIONAny 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.
PROJECTAny 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.
REMOVETo dig, dredge, suck, bulldoze, dragline, blast or otherwise excavate or grade.
RENDERING UNCLEAN OR IMPUREAny 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.
RESTORATIONTo 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.
SILVICULTUREThe 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]
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.
STRUCTUREAnything 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.
SUBDIVISIONThe 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 ENGINEERAny person employed by the Town of Somers as the Town Engineer or engineering consultant.
WATERCOURSEAny 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 STANDARDSAs 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 TABLEThe zone of saturation at the highest average depth during the wettest season.
WETLAND BUFFERThe 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.
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.
"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]
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.
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.
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.
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;
Soils that are ponded for seven continuous days or more during the growing season; or
Soils that are frequently flooded for seven continuous days or more during the growing season.
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.
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.
Matrix is not gleyed:
| {1} | Matrix chroma is less than or equal to two: hydric. |
| {2} | Matrix chroma is greater than two: not hydric. |
Soil is not mottled:
[A] Matrix is gleyed: hydric.
Matrix is not gleyed:
| {1} | Matrix chroma is less than or equal to one: hydric. |
| {2} | Matrix chroma is greater than one: not hydric. |
Iron or manganese concretions occurring as small aggregates near the soil surface.
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.
Visual observation of inundation.
Visual observation of soil saturation within the upper 12 inches of soil.
Sediment deposits as a result of flooding.
Drift lines as a result of flooding.
Surface scouring as a result of flooding.
Wetland drainage patterns, such as meandering.
WETLAND HYDROLOGYThe sum total of wetness characteristics in areas that are inundated or have saturated soils for a sufficient duration to support hydrophytic vegetation.