A.
Application required. No regulated activity shall
be conducted without the issuance of a written permit from the approval
authority. Application for a permit shall be made to the approval
authority on forms furnished by the Planning and Engineering Departments.
When a wetland permit is required for improvements associated with
a subdivision or a site plan application, a separate wetland application
form is not required; however, a fee for wetland application review
is to be submitted in accordance with a fee schedule adopted by the
Town Board. The approval authority shall review the subdivision or
site plan applications using the standards established by this chapter.
B.
Notice to agencies.
[Amended 5-17-2012 by L.L. No. 3-2012]
(1)
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.
(2)
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
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:
(1)
Name and address of the owner and applicant if different.
(2)
Street address and Tax Map designation of the property.
(3)
A statement of authority from the owner for any agent
making application.
(4)
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.
(5)
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.
(6)
A description of all functions currently provided
by the wetland under review.
(7)
A completed environmental assessment form.
(8)
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:
(a)
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.
(b)
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.
(c)
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.
(d)
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.
(e)
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.
B.
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:
(1)
Name and address of the owner and applicant if different.
(2)
Street address and Tax Map designation of the property.
(3)
Statement of authority from the owner for any agent
making application.
(4)
Statement of proposed work and purpose thereof.
(5)
A completed environmental assessment form.
(6)
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.
(7)
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:
(a)
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.
(b)
Location of the construction area or area proposed
to be disturbed and its relation to property lines, roads, buildings
and watercourses and wetlands.
(c)
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.
(d)
Location of any existing structures, well(s)
and septic system(s), other improvements, easements or encumbrances
as required by the Town Engineer.
C.
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.
D.
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.
A.
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.
B.
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.
C.
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.
D.
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.
A.
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:
(1)
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:
(a)
Infilling of a wetland or other modification
of natural topographic contours.
(b)
Disturbance or destruction of natural flora
and fauna.
(c)
Influx of sediments or other materials causing
increased water turbidity or substrate aggradation.
(d)
Removal or disturbance of wetland soils.
(e)
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.
(2)
Any existing wetland impacts and the cumulative effect
of reasonably anticipated future wetland activities in the wetland
subject to the application.
(3)
The impact of the proposed activity and reasonably
anticipated similar activities upon flood flows, flood storage and
water quality.
(4)
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.
(5)
The adequacy of water supply and waste disposal for
the proposed use.
(6)
Consistency with all applicable statutes or regulations
of comprehensive land use plans.
(7)
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.
(8)
The adequacy of the proposed mitigation plan in minimizing
the potential impacts of the activity.
B.
Basis for denial. The approval authority shall deny
a permit if:
(1)
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.
(2)
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.
(3)
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:
(a)
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.
(b)
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.
(4)
There is a viable alternative to the proposed activity's
placement in or encroachment upon the wetland or wetland buffer area.
C.
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.
D.
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.
(2)
For the purposes of this chapter, wetland impacts
are necessary and unavoidable only if all of the following criteria
are satisfied:
A.
Mitigation required.
(1)
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.
(2)
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.
(3)
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.
B.
Mitigation plans, developed to compensate for the
loss of wetlands, shall include the following baseline data:
(1)
Hydrologic data.
(a)
Small projects (losses of less than two acres):
land use history, topography, general superficial geology and stream
flow measurements, groundwater levels and groundwater quality.
(b)
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.
(c)
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).
(2)
Soils.
(a)
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.
(b)
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.
(c)
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.
(3)
Vegetation.
(a)
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.
(b)
Moderate projects (losses of two to 10 acres):
data for small projects plus comprehensive animal species list, potential
phosphorous uptake and potential nitrogen uptake.
(c)
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.
(4)
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.
(5)
Mitigation types. Mitigation may take the following
forms, either singularly or in combination, for disturbances in wetlands
and wetland buffers:
(a)
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.
(b)
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.
C.
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:
(1)
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;
(2)
Baseline data as needed to adequately review the effectiveness
of this plan.
(3)
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;
(4)
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;
(5)
Details on construction, including:
(a)
Diking, excavation, or other means by which
the wetland will be restored or created, including existing and proposed
topographical contours.
(b)
Construction schedule.
(c)
Measures to control erosion and sedimentation
during construction.
(d)
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.
(e)
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.
(6)
Details on management of the mitigation site, including:
(a)
Measures to assure persistence of the wetland
(e.g., protection against predation by birds and other animals).
(b)
Vegetative management.
(c)
Sediment and erosion control.
(d)
Plans for monitoring site during and after construction,
including methods and schedule for data collection and provisions
for midcourse corrections.
(e)
Provision for bonding or other financial guarantees.
(7)
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
(8)
Identify the name, qualifications, and experience
of the person(s) implementing the mitigation plan (i.e., contractor
who will restore or construct the wetland).
A.
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.
B.
Required conditions. Every permit issued pursuant
to this chapter shall be in written form and shall contain the following
conditions:
(1)
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]
(2)
The permit shall expire on a specified date.
(3)
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.
(4)
The approval authority's permit shall be prominently
displayed at the project site during the undertaking of the activities
authorized by the permit.
C.
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:
(1)
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.
(2)
Modification of waste disposal and water supply facilities.
(3)
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.
(4)
Dedication of easements to protect wetlands.
(5)
Erosion control measures.
(6)
Setbacks for structures, fill, deposit of soil and
other activities from the wetland.
(7)
Modifications in project design to ensure continued
water supply to the wetland and circulation of waters.
(8)
Replanting of wetland vegetation and construction
of new wetland areas to replace damaged or destroyed areas.
A.
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.
B.
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.
A.
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.
B.
Requirements of monitoring. The requirements for monitoring
shall be specified in the permit or mitigation plan and shall include
but not be limited to:
(1)
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.
(2)
Field measurements to verify the size and location
of the impacted wetland area and the restored/replacement wetland
area.
(3)
The date of completion of the restoration/replacement.
(4)
Field verification of the vegetative, hydrologic and
soils criteria as specified in the mitigation plan and permit.
A.
The Town Engineer may suspend and/or the approval
authority may suspend or revoke a permit in the form of a stop-work
order if it finds that the applicant or permittee has not complied
with any or all of the conditions of such permit issued by the Planning
Board, has exceeded the authority granted in the permit or has failed
to undertake the project in the manner set forth in the permit approval
document.
B.
The Town Engineer may suspend or revoke a permit in
the form of a stop-work order if it finds that the applicant or permittee
has not complied with any or all of the conditions of an administrative
permit, has exceeded the authority granted in the permit or has failed
to undertake the project in the manner set forth in the permit approval
document.
C.
The approval authority shall set forth in writing
in the file it keeps regarding a permit application its findings and
reasons for revoking or suspending a permit pursuant to this section.
No permit granted pursuant to this chapter shall
remove an applicant's obligation to comply in all respects with the
applicable provisions of all other applicable statutes or regulations,
including but not limited to the acquisition of any other required
permit or approval.
In order to carry out the purposes and provisions
of this chapter and in addition to the powers specified elsewhere
in this chapter, the approval authority shall have the following powers:
A.
To adopt procedures and policies that relate solely
to the organization or internal management of the approval authority
that are necessary or convenient to carry out the policy and intent
of this chapter.
B.
To adopt, amend and repeal, after public hearing,
such additional rules and regulations consistent with this chapter
as it deems necessary to administer its provisions and to do any and
all things necessary or convenient to carry out the policy and intent
of this chapter.
C.
To consult or contract with expert persons or agencies
in reviewing a permit application.