Article II Permit Procedure

Where the Planning Board is the approval authority, upon submission of a completed application, the Engineering Department shall forward the application and plans to all interested agencies required by applicable statutes, the Town Board, the Open Space Committee and any agency so designated by resolution of the Town Board for an opportunity to provide comment. A thirty-day comment period shall be provided after the first acceptance of the complete application.

Where the Town Engineer is the approval authority, upon submission of the completed application, the Engineering Department shall notify all applicable agencies having an interest in the subject matter and the Town Board, Planning Board and Open Space Committee for informational purposes.

SEQRA compliance. An application shall not be deemed complete until and unless the applicant has complied fully with the procedures of the State Environmental Quality Review Act.

Maintenance of files. All information relating to a permit application, including but not limited to the application itself, additional required materials or information, notices, record of hearings, written comments and findings shall be maintained on file in the Engineering Department.

Site inspections. The approval authority, its agents or employees may enter upon any lands or waters for good cause shown so as to undertake investigations, examinations, surveys or other activity, including the review of applications and determinations of compliance with permits, all for the purpose of administering and enforcing this chapter.

Expiration of approval. All permits shall expire on completion of 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 legal agent. The approval authority may require a new hearing if, in its judgment, the original intent of the permit is altered or extended by the renewal or if the applicant has failed to abide by the terms of the original permit in any way. The request for renewal of a permit shall follow the same form and procedure as the original application, except that the approval authority shall have the option of not holding a hearing if the original intent of the permit is not altered or extended in any significant way.

§ 167-6 Application for permit.

Required data for a Planning Board application. An application for a wetland activity permit shall be filed with the Planning and Engineering Departments and shall contain the following information:

Name and address of the owner and applicant if different.

Street address and Tax Map designation of the property.

A statement of authority from the owner for any agent making application.

Statement of proposed work and purpose thereof and an explanation why the proposed activity cannot be located at another site, including an explanation of how the proposed activity is dependent on wetlands or water-related resources.

A 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 or within 100 feet of the boundary of the property on which the proposed regulated activity will be located.

A description of all functions currently provided by the wetland under review.

A completed environmental assessment form.

Copies of all applicable permits or permit applications that are required for such work or, if application has not yet been made, a list of all permits that will ultimately be required.

(9)

Complete plans for the proposed site improvements, which shall be certified by an engineer, architect, land surveyor or landscape architect licensed in the State of New York, drawn to a scale no less detailed than one inch equals 50 feet. Plans shall be submitted in 14 sets. The plans shall show:

The location of all wetlands, as determined by a qualified individual identified on the plans (i.e., ecologist, botanist, soil scientist), no earlier than 12 months prior to the date of filing the application.

The location of the construction area or area proposed to be disturbed and its relation to property lines, roads, buildings and watercourses within 250 feet.

The exact locations, specifications and amount of all proposed draining, cut and fill, grading, dredging and vegetation removal or displacement and procedures to be used to do the work.

Existing and adjusted contours at two-foot intervals in the proposed disturbed area and to a distance of 50 feet beyond or greater as may be required by the approving authority.

Elevations of the site and adjacent lands within 200 feet of the site at contour intervals of no greater than five feet.

(f)

A description of the vegetative cover of the regulated area, including dominant species.

(g)

A description of the soil types on site.

(h)

Location of any wells and depths thereof and any disposal system within 200 feet of areas to be disturbed.

(i)

Details of any temporary or permanent drainage system proposed both for the conduct of work and after completion thereof, including locations at any point discharges, artificial inlets or other human-made conveyances which would discharge into the wetland or wetland buffer and measures proposed to control erosion, both during and after the work.

(j)

Where creation of a lake or pond is proposed, details of the construction of any dams, embankments, outlets or other water control devices and analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations (using Westchester County Soil Conservation Service method), subsurface soil, geology and groundwater conditions.

(k)

Where creation of a detention basin is proposed, with or without excavation, details of the construction of any dams, berms, embankments, outlets or other water control devices and analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations (using Westchester County Soil Conservation Service method), subsurface soil, geology and groundwater conditions.

Required data for the administrative application. An application for a wetland activity permit shall be filed with the Engineering Department and shall contain the following information:

Name and address of the owner and applicant if different.

Street address and Tax Map designation of the property.

Statement of authority from the owner for any agent making application.

Statement of proposed work and purpose thereof.

A completed environmental assessment form.

Copies of all applicable permits or permit applications that are required for such work or, if application has not yet been made, a list of all permits that will ultimately be required.

Complete plans for the proposed lot improvements, which may be certified by an engineer, architect, land surveyor or landscape architect licensed in the State of New York, drawn at the scale one inch equals 50 feet. Ten sets of such plans shall be submitted with each application and show:

The location of the wetlands as they exist in the field or as shown on the Town of Somers environmental maps and field-verified by the Engineering Department.

Location of the construction area or area proposed to be disturbed and its relation to property lines, roads, buildings and watercourses and wetlands.

Existing and proposed contours at two-foot intervals in the proposed disturbed area as may be required at the sole discretion and request of the Town Engineer.

§ 167-8 Standards for application for permit decisions.

Location of any existing structures, well(s) and septic system(s), other improvements, easements or encumbrances as required by the Town Engineer.

Application fee. An application fee, permit renewal fee and engineering inspection fee shall be paid by the applicant in amounts set forth in a fee schedule established by resolution of the Town Board.

Additional data. The approval authority may require additional information deemed necessary to evaluate the proposed activity in terms of the goals and standards of this chapter, such as the study of flood, erosion or other hazards at the site and the effect of any protective measures that might be taken to reduce such hazards.

§ 167-7 Public hearing and notice.

Scheduling of hearing. The Planning Board shall conduct a public hearing on each application for a wetland activity permit that requires action by the Board. Such hearing shall be scheduled no sooner than 30 days and not later than 60 days after receipt of a complete application as defined in § 167-6.

Notice requirements. A notice of a public hearing on an application for a wetland activity permit shall be published in the Town's official newspaper no less than 10 days prior to the date set for such hearing. All owners of record of land contiguous to the lot that is the site of the proposed activity and all known claimants to water rights of the subject wetland shall be mailed notice of the hearing no less than 10 days prior thereto. All applications, maps and documents relating thereto shall be open for public inspection at the office of the approval authority.

Coordination with other reviews. To the greatest extent practicable, the public hearing on an application for a wetland activity permit shall be incorporated with any other public hearing required by the Town in connection with other aspects or related components of the proposed activity.

Public hearing. All hearings shall be open to the public. At such hearing, any person may appear and be heard. A record of each hearing shall be made. The record of any hearing shall become part of the permanent record of a permit application.

Criteria to be considered. In granting, granting subject to conditions, or denying any application for a permit under this chapter, the approval authority shall evaluate wetland functions and the role of the wetland in the hydrologic and ecological system and shall determine the impact of the proposed activity upon public health and safety, rare and endangered species, water quality and the additional wetland functions listed in § 167-1. In this determination, the approval authority shall consider the following factors and shall issue written findings with respect to:

The impact of the proposed activity and existing and reasonably anticipated similar activities upon neighboring land uses and wetland functions as set forth in § 167-1, including but not limited to the:

Infilling of a wetland or other modification of natural topographic contours.

Disturbance or destruction of natural flora and fauna.

Influx of sediments or other materials causing increased water turbidity or substrate aggradation.

Removal or disturbance of wetland soils.

Reductions in wetland water supply.

(f)

Interference with wetland water circulation.

(g)

Reduction or increases in wetland nutrients.

(h)

Influx of toxic chemicals or heavy metals.

(i)

Thermal changes in the wetland water supply.

(j)

Changes affecting natural aesthetic values.

Any existing wetland impacts and the cumulative effect of reasonably anticipated future wetland activities in the wetland subject to the application.

The impact of the proposed activity and reasonably anticipated similar activities upon flood flows, flood storage and water quality.

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.

The adequacy of water supply and waste disposal for the proposed use.

Consistency with all applicable statutes or regulations of comprehensive land use plans.

The availability of preferable alternative locations on the subject parcel or, in the case of an activity which cannot be undertaken on the property without disturbance to wetlands, the availability of other reasonable locations for the activity, whether or not such locations are under the ownership or control of the applicant.

The adequacy of the proposed mitigation plan in minimizing the potential impacts of the activity.

Basis for denial. The approval authority shall deny a permit if:

The proposed activity may significantly threaten public health and safety, result in fraud, cause nuisances, impair public rights to the enjoyment and use of public waters, threaten a rare or endangered plant or animal species, violate water quality standards or violate other federal, state or local regulations.

It finds that the detriment to the public, 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.

Both the affected landowner and the local government have been notified by a duly filed notice, in writing, that the state or any agency or political subdivision of the state is in the process of acquiring the subject freshwater wetland by negotiation or condemnation with the following provisions:

The written notice must include an indication that the acquisition process has commenced, such as that an appraisal of the property has been prepared or is in the process of being prepared.

If the landowner receives no offer for the property within one year of the permit denial, this ban to the permit lapses. If its negotiations with the applicant are broken off, the state or any agency or political subdivision must, within six months of the end of negotiation, either issue its findings and determination to acquire the property pursuant to § 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to § 206 of the General Domain Procedure Law or this ban to permit lapses.

There is a viable alternative to the proposed activity's placement in or encroachment upon the wetland or wetland buffer area.

Consideration of relationship of activity to wetland site. The approving agency shall give consideration to the necessity for a proposed activity to have a shoreline or wetland location in order to function and that will have as little impact as possible upon the wetland buffer. In general, permission will not be granted for dredging or ditching solely for the purpose of draining wetlands, controlling mosquitoes, lagooning, creating ponds or stormwater detention basins, constructing residences or commercial buildings, providing spoil and dump sites, or building roadways that may be located elsewhere. The regulated activity must, to the extent feasible, be confined to the portion of a lot outside of a wetland and wetland buffer. All reasonable measures must be taken to minimize impact upon the wetland.

Determination of unavoidable impacts. When an applicant has demonstrated that either losses or impacts to the wetland or wetland buffer are necessary and unavoidable and have been minimized to the maximum extent practicable, the approval authority shall require preparation of a mitigation plan by the applicant pursuant to § 167-9.

The following is the order of preference for mitigation plans:

Avoidance.

Minimization.

Rectification by repairing or restoring.

Reduction through preservation and operation maintenance.

Compensation.

For the purposes of this chapter, wetland impacts are necessary and unavoidable only if all of the following criteria are satisfied:

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

There is no feasible on-site alternative to the proposed activity, including reduction in density, change in use, revision of road and lot layout and related site planning considerations.

There is no feasible alternative to the proposed activity on another site available to the applicant that is not a wetland or wetland buffer.[1]

[1]

Editor's Note: Former Subsection E, Conservation Board report, which immediately followed, was repealed 5-17-2012 by L.L. No. 3-2012.

§ 167-9 Mitigation policy.

Mitigation required.

After it has been determined by the approval authority pursuant to § 167-8D 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 wetlands in terms of type, function, geographic location and setting.

All mitigation measures shall balance benefits of regaining new wetland areas with the loss to other natural areas due to wetland creation. On-site mitigation shall be the preferred approach; off-site mitigation shall be permitted only in cases where an on-site alternative is not possible.

Mitigation includes, but is not limited to, remediating activities that limit environmental damage, associated wetlands design, civil engineering, surveying, plan development, earthwork, plantings, maintenance, monitoring, evaluation of success, and replanting, as necessary.

Mitigation plans, developed to compensate for the loss of wetlands, shall include the following baseline data:

Hydrologic data.

Small projects (losses of less than two acres): land use history, topography, general superficial geology and stream flow measurements, groundwater levels and groundwater quality.

Moderate projects (losses of two to 10 acres): data required for small projects, plus bedrock geology, superficial geology, stream flow velocity measurements, if appropriate, soil pore water storage (organic soils) and direct precipitation measurements.

Large projects (losses of greater than 10 acres): data for small and moderate projects, plus water balance analysis (one-year study), groundwater storage, groundwater flow rates and soil pore water level and flow (organic soils).

Soils.

Small projects (losses of less than two acres): soil profile descriptions, general soil survey data, bulk density, porosity, hydraulic conductivity, pH, cation exchange capacity, redox potential, total phosphorous, total nitrogen, nitrate nitrogen and organic carbon.

Moderate projects (losses of two to 10 acres): data required for small projects plus fiber content (organic soils), phosphorous retention, pore water analysis (seasonally), alkalinity, exchangeable acidity, seed bank capacity and soil organisms.

Large projects (losses of greater than 10 acres): data required for small and moderate projects plus clay mineralogy, microbial assessment (seasonally), heavy metals content, pesticides residues, gas/toxin analysis (seasonally), peat features and soil temperature regime.

Vegetation.

Small projects (losses of less than two acres): areal wetland extent and qualitative measurement of percent plant cover, plant species list, vegetation cover type, relative stem density, animal species list, slope, microtopography, plant vigor, surface water connections, habitat structure, vegetation/open water ratio and surrounding terrestrial cover type.

Moderate projects (losses of two to 10 acres): data for small projects plus comprehensive animal species list, potential phosphorous uptake and potential nitrogen uptake.

Large projects (losses of greater than 10 acres): data for small. and moderate projects, plus quantitative measurement of stem density, evapotranspiration data and net primary productivity.

Monitoring schedule. A monitoring schedule for a specified period of time as agreed to by the approval authority, and which shall be in accordance with the provisions of § 167-12.

Mitigation types. Mitigation may take the following forms, either singularly or in combination, for disturbances in wetlands and wetland buffers:

For disturbance in a wetland buffer:

[1]

Implementation of preventative practices to protect the natural condition and functions of the wetland; and/or

[2]

Restoration or enhancement (e.g., improving the density and diversity of native woody plant species) of remaining or other upland buffer to offset the impacts to the original buffer.

For disturbance in a wetland:

[1]

Restoration of areas of significantly disturbed or degraded wetlands, at a minimum ratio of 1.5 (restored wetland) to 1.0 (impacted wetland), by reclaiming significantly disturbed or degraded wetland to bring back one or more of the functions that have been partially or completely lost by such actions as draining or filling, provided that the area of proposed mitigation occurs in a confirmed disturbed or degraded wetland having significantly less functional value as a result of disturbance or degradation; and/or

[2]

The in-kind replacement of impacted wetland by the construction of new wetlands, usually by flooding or excavating lands in upland areas, that recreates as nearly as possible the original wetland in terms of type, function, geographic location, and setting and that is larger than the original wetland by a ratio of a minimum ratio of 1.5 to 1.0. If the wetland area impacted is greater than 500 square feet, it is to be larger than the original wetland by a minimum ratio of 2.0 to 1.0.

Mitigation plan becomes part of permit. Any mitigation plan prepared pursuant to this section and accepted by the approval authority shall become part of the permit for the application. All mitigation plans shall include:

A map with sufficient detail and at a scale that makes it possible to determine where the wetland and/or wetland buffer is located, its size, its boundaries, and its topographical features;

Baseline data as needed to adequately review the effectiveness of this plan.

A narrative which describes the goals and specific objectives for the mitigation wetland or wetland buffer, including the functions and benefits to be provided and clear performance standards and criteria for assessing project success;

A description of the physical, hydrological, and ecological characteristics of the impacted wetland and/or wetland buffer and proposed restoration and/or created wetland and/or buffer in sufficient detail to enable the approval authority to determine whether wetland or buffer impacts will be permanently mitigated;

Details on construction, including:

Diking, excavation, or other means by which the wetland will be restored or created, including existing and proposed topographical contours.

Construction schedule.

Measures to control erosion and sedimentation during construction.

Plantings: source of stock, procedures for transplanting/seeding the stock, area(s) to be planted, and planting schedule. If vegetation from the wild is to be used, identify the source and measures to prevent introduction of undesirable exotics.

Chemicals: If applicable, explain why chemicals will be used and precautions to be taken to minimize their application. Always protect the wetland and/or wetland buffer from excessive chemicals.

Details on management of the mitigation site, including:

Measures to assure persistence of the wetland (e.g., protection against predation by birds and other animals).

Vegetative management.

Sediment and erosion control.

Plans for monitoring site during and after construction, including methods and schedule for data collection and provisions for midcourse corrections.

Provision for bonding or other financial guarantees.

A description of the periodic reporting, including at the end of construction, during the monitoring period, and at the end of the monitoring period; and

Identify the name, qualifications, and experience of the person(s) implementing the mitigation plan (i.e., contractor who will restore or construct the wetland).

§ 167-10 Action to grant permits.

Action may be subject to 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 ensure the preservation and protection of affected wetlands and to ensure compliance with the policies and provisions of this chapter and the provisions of the approval authority's rules and regulations, if any, adopted pursuant to this chapter.

Required conditions. Every permit issued pursuant to this chapter shall be in written form and shall contain the following conditions:

Work conducted under a permit shall be open to inspection at any time, including weekends and holidays, by the approval authority, Town officials, the Open Space Committee, the Town Engineer or their designated representatives.

[Amended 5-17-2012 by L.L. No. 3-2012]

The permit shall expire on a specified date.

The permit holder shall notify the approval authority of the date on which the work is to begin at least five days in advance of such date.

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

Additional conditions. The approval authority shall set forth in writing and maintain on file its findings and reasons for all conditions attached to any permit. Such conditions may include but shall not be limited to:

Limitation on the total portion of any lot or the portion of the wetland on the lot that may be graded, filled or otherwise modified.

Modification of waste disposal and water supply facilities.

Imposition of operation controls, sureties and deed restrictions concerning future use and subdivision of lands, such as preservation of undeveloped areas in open space use and limitations on vegetation removal.

Dedication of easements to protect wetlands.

Erosion control measures.

Setbacks for structures, fill, deposit of soil and other activities from the wetland.

Modifications in project design to ensure continued water supply to the wetland and circulation of waters.

§ 167-11 Performance and/or erosion control bonds.

Replanting of wetland vegetation and construction of new wetland areas to replace damaged or destroyed areas.

The approval authority may require posting of a performance bond as a condition of a permit, the amount, surety and form of such bond to be approved by the Town Board. Such bond is intended to ensure the proper completion of the proposed activity in accordance with the approved plans, the restoration of the area to its natural condition as far as practicable and consistent with the mitigation plan and protection of adjoining property owners from damage resulting therefrom. It shall remain in effect until the approval authority certifies that the work has been completed in compliance with the terms of the permit, whereupon the bond shall be released or reduced by the approval authority after authorization of the Town Board. A substitute form of guaranty may be provided as approved by the Town Board.

The approval authority may require posting of an erosion control bond as a condition of a permit, the amount, surety and form of such bond to be approved by the Town Board. The erosion control bond is intended to ensure the proper installation and maintenance of the erosion control measures during the permitted activity period. It shall remain in effect until the approval authority certifies that the work has been completed in compliance with the terms of the permit, whereupon the bond shall be released by the approval authority after authorization of the Town Board.

§ 167-12 Monitoring and inspection.

Monitoring required. The approval authority shall monitor or shall cause to have monitored activities granted permits according to the specifications set forth in the permit to determine whether the elements of the permit and mitigation plan have been met and whether the wetland acreage or buffer created replaces the wetland acreage or buffer lost. To this end, the approval authority may contract with an academic institution and independent research group or other qualified professionals at the expense of the applicant or may use its own staff expertise. Where the approval authority deems monitoring to be necessary, an applicant shall be required to post a bond.

Requirements of monitoring. The requirements for monitoring shall be specified in the permit or mitigation plan and shall include but not be limited to:

The time period over which compliance monitoring shall occur. Monitoring of mitigation plans shall be, at a minimum, five years after completion of all construction activity on site.

Field measurements to verify the size and location of the impacted wetland area and the restored/replacement wetland area.

The date of completion of the restoration/replacement.