Town of Brookhaven, NY Chapter 81 Wetlands and Waterways

[HISTORY: Adopted by the Town Board of the Town of Brookhaven 6-14-2011 by L.L. No. 16-2011, effective 7-5-2011.[1] Amendments noted where applicable.]

GENERAL REFERENCES

Bay and harbor bottoms — See Ch. 8.

Houseboats — See Ch. 14.

Joseph Macchia Environmental Preservation Capital Reserve Fund — See Ch. 15.

Docks — See Ch. 22.

Harbor complex waterway — See Ch. 74.

Vegetation on beach areas — See Ch. 75.

Coastal erosion hazard areas — See Ch. 76.

Water resources — See Ch. 78.

Zoning — See Ch. 85.

Subdivision regulations — See Ch. SR

[1] Editor's Note: This local law also repealed former Ch. 81, Wetlands and Waterways, adopted 1-19-1993 by L.L. No. 2-1993, effective 1-25-1993, as amended.

§ 81-1 Legislative intent.

A. Surface waters, lands underwater and tidal and freshwater wetlands are important natural resources in the Town of Brookhaven. It is hereby declared to be the policy of the Town of Brookhaven (1) to protect and preserve these natural resources with the valuable attributes and functions they provide; (2) to prevent the despoliation and destruction of these natural resources whenever practicable; and (3) to regulate the use and development of these natural resources, thereby securing their natural benefits for the existing and future residents of the Town of Brookhaven; these benefits include flood and stormwater control, commercial and recreational fishing and shellfishing opportunities, pollution treatment, wildlife habitat protection, open space and aesthetic appreciation, erosion control, sources of nutrients for marine and freshwater life, means for scientific and educational research, as well as means to protect subsurface water resources. These natural resources and their benefits shall be protected by the Town of Brookhaven pursuant to the authority conferred upon the Town through the Dongan Patent of 1686 and the authority conferred to the Town by various New York State laws and regulations, including but not limited to Articles 8 and 24 of the Environmental Conservation Law (Environmental Review and Freshwater Wetlands) and regulations thereto, Town Law and the Municipal Home Rule Law. This chapter shall apply to all lands defined as wetlands or waterways, to any activity in a jurisdictional area (as defined herein) of a wetland or waterway, or to any activity that has the potential to adversely impact wetlands or waterways. It shall be the policy of the Town of Brookhaven to:

(1) Safeguard, protect, and preserve the vegetation and fauna of all wetlands and waterways and to maintain the quality and ecological integrity of all wetlands and waterways by preserving, to the greatest extent possible, surface waters, wetland habitats, and their adjacent upland buffer areas, in order to maintain the ecological processes necessary for their perpetuation;

(2) Safeguard, protect, and enhance, when and where possible, water quality conditions in wetlands and surface waters by ensuring that applications for development, redevelopment, or the expansion of existing structures incorporate into their design: a sanitary system that meets or exceeds the standards for nitrogen and bacterial removal of the Suffolk County Department of Health Services; a system of containment for stormwater runoff; and expanding or preserving natural buffer areas, minimizing the extent of fertilizer-dependent vegetation, or the creation of vegetated recharge areas to prevent surface contamination from entering adjacent waterways.

(3) Minimize, to the greatest extent possible, the impacts to wetlands and waterways from erosion and sediment transport caused by existing development, the potential effect of new development, and those existing and proposed structures associated with development such as docks, bulkheads, gabions, and revetments on the ecological integrity of the Town's wetlands and waterways by providing adequate setbacks and buffer zones, using nonstructural shore protection devices, minimizing the impacts of existing structures and developing a site in conformance with the natural topography of the site;

(4) Minimize adverse ecological impacts to wetlands and surface waters and the flora and fauna which inhabit these areas from dredging and dredge spoil disposal activities;

(5) Safeguard, protect, and preserve the public's access to the shoreline and their continued use along it.

B. The Town's approximately 155 mile long coastline, on the north and south shores and on the south shore barrier island, is an irreplaceable natural resource and asset to Town residents, significantly adding to the quality of their life. Natural shoreline habitats are vital for a variety of wildlife species, including: baitfish, a variety of important fish species desirable to recreational and commercial fishers which find refugia in the inter-tidal shallows adjacent to and within natural shorelines; horseshoe crabs which spawn in the upper reaches of the inter-tidal zone; diamond-backed terrapins and other turtles which gain access to egg laying sites in adjacent upland areas; and wading birds such as egrets and herons which preferentially inhabit these areas for feeding. Natural shorelines provide numerous benefits, including: providing for unimpeded public access along the coastline; protection of foraging, nesting, and breeding habitat for a wide variety of wildlife species; and unimpeded movement, transport, and deposition of sediments between the shoreline and adjacent tidal areas. The Town recognizes that shoreline hardening devices can have numerous adverse impacts, including: impeding or eliminating public access to and along the coastline, deterioration in scenic and aesthetic quality, water quality deterioration associated with development occurring adjacent to the shoreline; interference with or elimination of littoral and/or depositional processes; destruction of adjacent inter-tidal and upland habitats, and severing the vital ecological linkage between these habitats. Therefore, the Town finds that bulkheads, revetments, and other shoreline hardening devices are generally incompatible with the protection and perpetuation of coastal resources, species, communities, and habitats. Thus, it shall be the policy of the Town of Brookhaven to:

(1) Protect and maintain the Town's extensive shoreline in its natural condition to the greatest extent possible;

(2) Restore, where feasible and appropriate, shorelines that are currently damaged or hardened by shoreline hardening structures;

(3) Utilize nonstructural erosion control devices in all areas where these devices are practicable and effective; and

(4) Ensure that all structural shore protection devices shall be designed, located and constructed or installed so as to minimize their potential adverse impacts upon the natural protective features found along the shoreline such as beaches, dunes, bluffs, wetlands, flats and other natural habitats and resources and that, whenever possible, nonstructural methods of erosion protection be employed instead of the construction of permanent structural devices.

§ 81-2 Title.

This chapter shall be known as and may be cited as the "Wetlands and Waterways Law."

§ 81-3 Definitions.

For the purposes of this chapter, the following terms and phrases shall be given the meanings indicated herein:

AGRICULTURAL LANDS

Lands that have historically and continuously been used as farmland as established prior to April 1976 and which maintain a continuous agricultural use to present day.

ALTERATION OF VEGETATION

Shall include, but not be limited to, the removal from trees of live limbs which originate more than six feet above the existing ground elevation, topping (the cutting of the trunk of the tree before its natural terminus), girdling and cutting, pruning of indigenous emergent, herbaceous and woody vegetation in such a manner as to cause the death of the plant or to significantly reduce its natural function or benefit thereof to the ecosystem.

APPARENT HIGH WATER LINE

For the purpose of this code, the apparent high water shall be defined as the approximate average monthly high water level for a given body of water at a given location as determined by reference to hydrogeological information concerning water levels, as identified by direct measurement of the water level or wrack line, provided the date and time of the measurement are provided, or as identified by other appropriate tests.

APPARENT LOW WATER LINE

For the purpose of this code, the apparent low water shall be defined as the approximate average monthly low water level for a given body of water at a given location as determined by reference to hydrogeological information concerning water levels, as identified by direct measurement, provided the date and time of the measurement are provided, or as identified by other appropriate tests.

APPLICANT

The owner, contract vendee or authorized agent of the owner or contract vendee of the parcel of property that is the subject of an application under this chapter.

AQUACULTURE

Controlled or partially controlled raising, breeding or growing, planting of aquatic or marine plant or animal life in any marine or aquatic hatchery or through on-bottom or off-bottom cultivation, for human consumption and resource restoration, as permitted by the County of Suffolk, NY State Fish and Wildlife Law (NYS ELC Article 11) and other applicable federal, state, and local laws and regulations.

ARTIFICIAL WETLANDS

Any water body or wetland not part of a natural system with an area of 300 square feet or more and created for the sole purpose of recreation, aesthetics, biofiltration or stormwater management, including but not limited to ponds, vegetated swales, rain gardens, and the equivalent. Artificial wetlands will include the created water body or wetlands and any natural wetlands that, because of the created feature, become established within the area around the artificial wetland. Artificial wetlands remain artificial wetlands until such time that they become a sustainable ecosystem independent of anthropogenic activities or structures as determined by the Director of the Division of Environmental Protection. Artificial wetlands will not be included in the prohibition of development described within the Town Code of the Town of Brookhaven and therefore may be moved or altered by the issuance of a wetlands and waterways permit.

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

BLUFF

Any bank or cliff with a precipitous or steeply sloped face adjoining a beach or body of water occurring along the north shore of the Town of Brookhaven with an elevation greater than 20 feet above sea level.

BOAT

Any vessel propelled by oars, paddles, sail, or fuel-powered engine which must by law be registered with New York State or documented by the United States Coast Guard, including, but not limited to: power boats, sailboats, personal watercraft, including jet skis and wet bikes.

BUFFER ZONE

The area between a wetlands boundary and the closest permitted location to such boundary for a regulated activity that is not to be disturbed and left in its natural state except for the supplemental planting of native vegetation and those activities approved by the issuance of a wetlands and waterways permit.

BULKHEAD

A vertical structure constructed as a protective barrier between a body of water and a waterfront property.

CATEGORY A PERMIT APPROVAL

A written permit, approved by the Town Board of the Town of Brookhaven, issued in response to an application to conduct a regulated activity as described in § 81-9 or issued in response to an appeal of a denial or an objection to the conditions of a permit issued by the Director of the Division of Environmental Protection.

CATEGORY B PERMIT APPROVAL

A written permit, approved by the Director of the Division of Environmental Protection, issued in response to an application to conduct a regulated activity described in § 81-4, Subsections B and C, in a wetland or within the jurisdictional area of a wetland.

CATWALK

An elevated walkway, usually built to gain access to a commercial or residential dock, built at a fixed height above grade and which is constructed landward of the apparent high water line.

COMMERCIAL DOCK

Any fixed or floating dock or extension of such, designed, used and/or intended for use other than as a residential dock, as defined in this chapter.

COMMISSIONER

The Commissioner of Planning, Environment and Land Management.

COMPLETED PROJECT

A project will be considered complete upon the issuance of a certificate of occupancy, or the equivalent; upon initiation of the project or action and its termination, or expiration of the wetlands and waterways permit; or the use of the structure by the property owner in a manner intended by its construction; whichever comes first.

[Added 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

DEVELOPED LAND

A parcel of land that contains residential and/or commercial structures that have been issued certificates of occupancy or the equivalent from the Chief Building Inspector of the Town of Brookhaven. Land that contains structures constructed without valid building permits or other approvals and/or which have not been issued a certificate of occupancy or its equivalent and which do not qualify for a certificate of existing use shall be considered to have no development.

DEVELOPMENT

The construction of a primary structure in accordance with the Town of Brookhaven zoning code.[1]

DIRECTOR

The Director of the Division of Environmental Protection of the Town of Brookhaven or, when no Director exists, that person appointed by the Commissioner to act as the administrator of the Wetlands and Waterways Code.

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

DISCHARGE

The emission or release of any water, substance, or material into a wetland or waterway, whether or not such substance causes pollution.

DOCK LENGTH

The distance as measured from the apparent low water line to the seaward-most portion of the fixed or floating dock or the seaward-most mooring pile, whichever distance is greater.

DREDGING

The removal or excavation of any sand, gravel, aggregate, soil, mud, or sediment from the land lying beneath any waterway or contiguous to any waterway.

EDGE OF A WATERWAY

For waters under tidal influence, the apparent high water line will be considered the landward limit of a waterway. For waters not under tidal influence, the edge will be the maximum landward limit of the surface water as determined by either field survey and/or historical information.

FIXED DOCK

An elevated walkway which is constructed at a fixed height above grade and which extends seaward from the apparent high water line.

FLOATING DOCK

Any structure, raft or floating platform which is designed to float upon the surface of a water body and is secured in place by poles, pilings, anchors, or any other type of mooring system that provides access to the water. A floating dock shall include the float itself, any pilings or mooring system designed to keep the dock at a fixed point and the ramp, which spans the distance from a fixed structure (fixed dock or bulkhead) or shoreline to the floating dock.

FLOATING HOME

Any vessel in fact used, designed or occupied as a dwelling unit, business office or source of any occupation or for any private or social club of whatsoever nature, including but not limited to a structure constructed upon a barge primarily immobile and out of navigation which functions substantially as a land structure while the same is moored or docked within the municipal limits of the Town of Brookhaven, whether such vessel is self-propelled or not.

FRESHWATER WETLANDS

The lands and waters in the Town of Brookhaven including but not limited to those lands and waters as shown on the Freshwater Wetlands Map prepared by or for the State of New York pursuant to § 24-0301 of the New York State Freshwater Wetlands Act and filed with the Suffolk County Clerk on or after May 26, 1993, and entitled "New York State Freshwater Wetlands Maps" or any future revisions thereof, which contain a significant number of the following:

A. Lands and submerged lands, commonly called marshes, swamps, sloughs, bogs, flats, stream banks, riverine systems, and the like, supporting aquatic or semiaquatic vegetation of the following vegetative types:

(1) Wetland trees which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees, including, among others: red maple (Acer rubrum), willows (Salix spp.), swamp white oak (Quercus bicolor), black gum (Nyssa sylvatica) and sweet gum (Liquidambar styraciflua), Atlantic white cedar (Chamaecyparis thyoides), black ash (Fraxinus nigra), green ash (Fraxinus pennsylvanica), river birch (Betula nigra), and yellow birch (Betula alleghanensis).

(2) Wetland shrubs which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others: alder (Alnus spp.), buttonbush (Cephalanthus occidentalis), sweet pepperbush (Clethra alnifolia), swamp honeysuckle (Rhododendron viscosum), spicebush (Lindera benzoin), sheep laurel (Kalma angustifolia), highbush blueberry (Vaccinium corymbosum), crimson eyed rose mallow (Hibiscus moscheutos), winterberry (Ilex verticillata), arrow-wood (Viburnum dentatum), common elderberry (Sambucus canadensis), inkberry (Ilex glabra), wild-raisin (Viburnum opulus), serviceberry (Amelanchier spp.), red chokeberry (Aronia arbutifolia), swamp rose (Rosa palustris) and witch-hazel (Hamamelis virginiana).

(3) Emergent vegetation, including, among others: cattails (Typha spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed (Phragmites australis), wild rice (Zizania aquatica), bur reeds (Sparganium spp.), swamp loosestrife (Decodon verticillatus) and water plantain (Alisma plantago-aquatica), sweet flag (Acorus calamus), skunk cabbage (Symplocarpus foetidus), jewelweed (Impatiens spp.), blue flag (Iris versicolor), marsh marigold (Caltha palustris), horsetails (Equisetum spp.), swamp milkweed (Asclepias incarnata), and yellow flag (Iris pseudacorus).

(4) Rooted, floating leaved vegetation, including, among others: water lily (Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar advena).

(5) Free-floating vegetation, including, among others: duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.).

(6) Wet meadow vegetation which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give it a competitive advantage over other open land vegetation, including, among others: sedges (Carex and Cyperus spp.), rushes (Juncus spp.), cattails (Typha spp.), rice cutgrass (Leersia oryzoides), reed canary grass (Phalaris arundinacea), purple loosestrife (Lythrum salicaria), spotted joe-pye weed (Eupatorium maculatum), beggar ticks (Bidens spp.), cinnamon fern (Osmunda cinnamomea), marsh fern (Dryopteris thelypteris), ostrich fern (Pteretis pennsylvanica), royal fern (Osmunda regalis), sensitive fern (Onoclea sensibilis), spike rushes (Eleocharis spp.), and switch grass (Panicum virgatum).

(7) Bog mat vegetation, including, among others: sphagnum mosses (Sphagnum spp.), pitcher plant (Sarracenia purpurea), cranberries (Vaccinium macrocarpon and V. oxycoccos), sundew (Drosera rotundifolia), and leatherleaf (Chamaedaphne calyculata).

(8) Submergent vegetation, including, among others: pondweeds (Potamogeton spp.), naiad family (Najas spp.), Bladderworts (Utricularia spp.), wild celery (Valisneria americana), coontail (Ceratophyllum demursum), water milfoils (Myriophyllum spp.), muskgrass (Chara), stonewort (Nitella spp.), water weeds (Elodea spp.) and water smartweed (Polygonum amphibium).

B. Lands and submerged lands containing remnants of any vegetation that is not aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, and provided further that such conditions can be expected to persist indefinitely, barring human intervention.

C. Lands underwater and surface waters substantially enclosed by aquatic or semiaquatic vegetation as set forth herein in Subsection A above and/or dead vegetation as set forth in Subsection B above.

D. Those geologic formations commonly known as "perched ponds" or vernal ponds, a seasonally flooded depression void of fish.

E. Land forms in which the predominant type of soils are considered hydric soils.

F. Artificial wetlands with an area greater than or equal to 300 square feet.

G. The waters overlying the areas set forth in Subsections A, B, D, E, and F above.

HYDRIC SOILS

Soils that are formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part of the soil profile.

INCOMPATIBLE ACTIVITIES

Any regulated activity described in § 81-7 or a regulated activity that is not compatible with the standards of approval or with the type of wetland involved or with the preservation, protection or enhancement of the present and potential values of the waterway, wetland or adjacent area.

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

INNOVATIVE AND ALTERNATIVE ON-SITE WASTEWATER TREATMENT SYSTEM (IAOWTS)

An on-site wastewater treatment system that discharges into the ground no more than 19 milligrams of nitrogen per liter of effluent (19 mg/L), or the lowest possible level as approved by the Suffolk County Department of Health Services (SCDHS), on average as measured over 12 samples taken one per month for a year.

[Added 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

JURISDICTIONAL AREA

That area that shall be subject to regulations under this chapter of the Town Code and shall include all wetlands and waterways of the Town of Brookhaven and the land area that extends 150 feet landward of and parallel to the wetland boundary or the edge of the waterway with the exception of an artificial wetlands, where the jurisdictional area shall not extend beyond 25 feet of the limit of the artificial wetland.

LANDS UNDERWATER

Those lands lying beneath or subject to predictable or regular immersion by fresh, brackish or saline waters.

MAINTENANCE AND REPAIR

The customary, usual and normal activity to restore the sound and good state of a structure after normal decay or degradation from normal use or exposure to the elements. This includes the routine maintenance necessary from time to time to keep a structure in a state of good repair, including, but not limited to: the incidental replacement of decking lumber for a dock, catwalk, deck or walkway; renovations which do not require a building permit, increase the habitable floor area of an existing structure, or replace structural supports that are anchored or installed firmly into the ground or provide load-bearing support for decking; painting of primary and accessory structures; lawn maintenance activities, including, but not limited to, the mowing of turf grasses, the maintenance of existing landscaping, the mulching of beds or the planting of landscape vegetation within an existing landscaped area and outside of an established buffer zone (if applicable), or the top dressing of lawn areas made up of turf grasses with topsoil, provided no more than two inches of soil are involved and no wetland vegetation is covered.

MAINTENANCE DREDGING

Any dredging action which occurs in a location where dredging has been historically performed to maintain navigational access or which occurs within 10 feet of any bulkhead.

MAJOR LAND DIVISION

The division of a parcel of land that requires the installation of a new Town roadway and/or proposes to create more than four lots.

MINOR LAND DIVISION

The division of a parcel of land that does not require the installation of a new Town roadway and proposes to create no more than four lots.

MITIGATION MEASURES

Those measures used to offset impacts associated with the erection of a structure, clearing of natural vegetation, or the excavation, filling or grading of soils within the jurisdictional area of a wetland.

NAVIGABLE WATERWAY

Any water body that maintains a minimum water depth of three feet as measured at the lowest part of the tidal cycle from a point of origin and then continuously to open water. Channels that undergo routine maintenance dredging shall be considered to be part of a navigable waterway.

NONSTRUCTURAL SHORE PROTECTION DEVICE

Any nonpermanent device, including but not limited to choir logs, jute matting, sacrificial dunes, and vegetative plantings installed to protect upland property from wave action.

PERSON

Any corporation, firm, partnership, association, trust, estate or one or more individuals and any unit of government or agency or subdivision thereof.

POLLUTION

The presence in the environment of man-induced conditions or contaminants in quantities or characteristics which are or may be injurious to human, plant, marine or freshwater life, wildlife or other animal life, or to property; or unreasonably interferes with the comfortable enjoyment of life and property.

POND

A shallow inland body of standing water that exists either permanently or seasonally.

PORT JEFFERSON HARBOR COMPLEX

The waters and lands underwater of Port Jefferson Harbor, Setauket Harbor, Little Bay, the Narrows, Conscience Bay and all tributaries to and embayments thereof.

PRACTICABLE ALTERNATIVE

An alternative which is both available to the applicant and capable of fulfilling the overall purpose of the project. "Available and capable of being done" shall mean that the alternative is feasible, in terms of reasonable costs, existing technology and best available measures (i.e., most up-to-date technology or the best designs, measures or engineering practices that have been developed or are commercially available), proposed use and project purpose. "Project purposes" shall be defined generally (e.g., construction of a single-family home).

PROJECT PROPERTY

The property that is the subject of a wetlands and waterways permit and any adjacent properties under common ownership.

RESIDENTIAL DOCK

Any fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles.

RESIDENTIAL HOUSEBOAT

A vessel not designed primarily for residential dwelling units, designed primarily for pleasure craft, recreation and for independent navigation and not considered a floating home, in accordance with the definition set forth above, and which is being used for residential purposes.

RETAINING WALL

A vertical structure constructed as a protective barrier between two land areas of different elevations.

RIPARIAN RIGHT

The right of a waterfront property owner to access the adjoining waterway by the installation of a dock or other means, provided the necessary permits are issued by the Town of Brookhaven. Access to a water body through a deeded right-of-way or easement across a waterfront property does not constitute a riparian right for a non-waterfront lot. The minimum width necessary for a property to have a riparian right, as measured along a straight line parallel to the shoreline between the property boundaries perpendicular to the shoreline, is 44 feet.

STRUCTURAL SHORE PROTECTION DEVICE

Any permanent device, including but not limited to a bulkhead, gabion, revetment, and riprap installed to protect upland property from wave action.

STRUCTURE

Anything constructed or erected which requires location in or upon the ground or attached to something having location in or upon the ground. The word "structure" shall be construed as though followed by words "or part thereof."

TIDAL WETLANDS

The lands and waters in the Town of Brookhaven (including but not limited to those lands and waters in the Town which are included in the inventory of tidal wetlands prepared by or for the State of New York and filed with the Suffolk County Clerk as of September 28, 1982, last revised November 16, 1982, and entitled "Tidal Wetlands Maps") which include a significant number of the following:

A. Those areas which border on or lie beneath tidal waters, such as but not limited to banks, bogs, salt marshes, swamps, meadows, flats or other low lands subject to tidal action, including those areas now or formerly connected to tidal waters.

B. All banks, bogs, meadows, flats and tidal marshes subject to such tides and upon which grow or may grow some of but not limited to the following: salt meadow grass (Spartina patens), saltgrass (Distichlis spicata), black grass (Juncus gerardi), saltworts (Salsola spp.), sea lavendar (Limonium carolinianum), glassworts (Salicornia spp.), big cordgrass (Spartina cynosuroides), prairie cordgrass (Spartina pectinata), marsh elder (Iva frutescens), sea-blite (Suaeda maritima), groundsel-tree (Baccharis halimifolia), crimson-eyed rose mallow (Hibiscus palustris), seaside goldenrod (Solidago sempervirens) and the intertidal zone including salt marsh cordgrass (Spartina alterniflora).

C. The Common Reed (Phragmites australis) shall be considered a tidal wetlands indicator when found with other tidal wetlands indicators in hydric soils.

D. Those areas under tidal influence that contain hydric soils.

UNDEVELOPED LAND

A parcel of land that does not contain residential and/or commercial structures that have been issued certificates of occupancy or the equivalent from the Chief Building Inspector of the Town of Brookhaven. Land that contains structures constructed without valid building permits or other approvals and/or which have not been issued a certificate of occupancy or the equivalent and which do not qualify for a certificate of existing use shall be considered to be undeveloped.

WATERFRONT PROPERTY

A property in which the location of the apparent high water line intersects at least one property boundary that borders a waterway, thus providing the owner of such property riparian rights.

WATERWAY

Any body of water commonly known as streams, rivers, creeks, lakes, ponds, estuaries, bays, harbors, oceans, and the like. A waterway includes those areas defined as lands underwater.

WETLAND BOUNDARY

The landward limit of wetlands as specified in the definitions of "freshwater wetlands" and "tidal wetlands" above.

WETLANDS

Those areas defined in this chapter as tidal or freshwater wetlands, including all waterways.

WETLANDS AND WATERWAYS PERMIT

That form of written Town approval required to conduct a regulated activity as specified under this chapter, hereinafter referred to as a "permit."

WIDTH OF A WATERWAY

The shortest linear distance in feet as measured at the point of construction for a proposed or existing structure from the apparent low water line to the apparent low water line on the opposite shoreline.

WORK RELEASE

A written permit, approved by the Director of the Division of Environmental Protection or the designee of the Director, issued in response to an application to conduct a regulated activity described in § 81-4, Subsections B and C, in a wetland or within the jurisdictional area of a wetland and which conforms to the issuance standards described in § 81-8.

[1] Editor's Note: See Ch. 85, Zoning.

§ 81-4 Regulated activities.

A. No regulated activity as set forth in Subsections B and D of this section within a freshwater or tidal wetland, waterway, or jurisdictional area shall occur without first obtaining a permit issued by the Town of Brookhaven.

B. Regulated activities. Activities subject to regulation shall include any activity within a wetland or within the jurisdictional area of a wetland, including, but not limited to:

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017; 8-10-2017 by L.L. No. 21-2017, effective 8-18-2017]

(1) Any form of drainage, dredging, excavation or removal of soil, mud, sand, shells, gravel, or other aggregate, and grading activities that change the contours or drainage patterns of existing land or lands under water;

(2) The draining of a marsh, pond or other enclosed natural body of water and/or any other action that would alter the hydrogeologic characteristics of a regulated wetland or water body;

(3) Any direct or indirect form of dumping or filling or depositing of any material;

(4) Erecting any buildings or structures, the replacement of buildings or structures in-place and/or in-kind, enlarging of existing structures or other physical improvements to property such as the installation of accessory structures, swimming pools, tennis courts, driveways, constructing roads and bridges, the construction of bulkheads, retaining walls, pilings, docks, catwalks, boat davits, the installation of a fence that does not qualify as an exempt activity, or other activities not considered to be normal maintenance or repair;

(5) The placement of a structural or nonstructural shore protection device;

(6) The removal or demolition of any existing structure, accessory structure, dock, bulkhead, swimming pool or the like;

(7) Building, creating or installing any cesspool, septic tank, leaching field or other in-ground sewage or other waste disposal or storage system, whether new or as part of an existing sanitary system, including any pipe, conduit or other part thereof, but shall not include disturbance that is solely limited to the installation of an I/A OWTS approved by Suffolk County which does not disturb any naturally vegetated land area;

(8) Any form of pollution or discharge, including, but not limited to: the spraying or wicking of invasive or natural vegetation with herbicides, running a sewer outfall, discharging sewage treatment or stormwater effluent, stormwater runoff or other liquid wastes into or so as to drain into a wetland, waterway or jurisdictional area;

(9) The clearing and/or alteration of vegetation within a wetland, established buffer area or jurisdictional area;

(10) The mooring of a residential houseboat or floating home;

(11) Any other activity which impairs any of the several functions served by surface waters, lands under water and/or tidal or freshwater wetlands or the benefits derived therefrom, which are set forth in § 81-1 of this chapter if they occur upon the wetland, waterway, jurisdictional area, or the lands under water, or if they impinge upon or otherwise substantially affect the wetlands and waterways;

(12) Any aquaculture activity that takes place on or within the jurisdictional area of a wetlands or waterway;

(13) Agricultural activities not previously issued a wetland and waterway permit and which take place on lands that do not meet the definition of agricultural lands as defined in § 81-3. The creation of new agricultural lands, whether or not the lands are adjacent to existing agricultural lands by, but not limited to, clearing of existing vegetation, grading, tilling or filling of land, shall be subject to regulation if undertaken within the jurisdictional area; and

(14) The excavation, construction and installation of stormwater abatement measures, specifically leaching pool systems, stormwater retention basins or detention ponds, used to control and trap road runoff, sediments and contaminants.

C. All activities occurring on a project site are subject to review by the Division of Environmental Protection if any of the activity on a project property is subject to regulation.

D. Subdivisions, site plans, land divisions. Any parcel of land which is waterfront property and/or contains wetlands or is within the jurisdictional area of a wetland or waterway and is the subject of a minor or major subdivision, land division or site plan is subject to regulation.

§ 81-5 Exempt activities.

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017; 8-10-2017 by L.L. No. 21-2017, effective 8-18-2017]

The following activities shall not require the issuance of a wetlands and waterways permit:

A. Any activity that occurs within the boundaries of an incorporated village, with the exception of those regulated activities that occur upon Town-owned upland or underwater land;

B. Fishing, hunting and related activities. The deposition or removal of the natural products of lands under water, surface waters, tidal wetlands or freshwater wetlands, by recreational or commercial fishing, shellfishing, hunting or trapping, where otherwise legally permitted and regulated;

C. Public health activities of the Suffolk County Department of Public Works, including mosquito control activities that require the physical change to the wetlands;

D. Repair and maintenance of existing roadways and bridges that do not require approvals of state and federal agencies, undertaken by the Suffolk County Department of Public Works, the New York State Department of Transportation or the Town of Brookhaven Highway Department;

E. Maintenance and repair activities;

F. The finishing of basements, cellars, and/or the conversion of an attached garage into living area;

G. Any interior construction or renovation (other than the finishing of basements, cellars, and/or the conversion of an attached garage into living area), exterior renovation, or repair of an existing residential or commercial structure which does not increase the existing footprint and/or habitable living area for a residential structure, or does not increase the existing footprint or floor area of a commercial structure;

H. Any exterior modification, renovation, or repair of an existing residential or commercial structure which does not increase the existing footprint and/or habitable living area for a residential structure or increase the existing footprint or floor area for a commercial structure;

I. Operation and maintenance of existing dams, sluices, culverts or other water-control structures or devices which legally existed on the effective date of this chapter by the Suffolk County, the New York State Department of Transportation or the Town of Brookhaven Highway Department;

J. Conservation, preservation or ecologically sound management activities relating to soil, water, vegetation, fish, shellfish and wildlife, undertaken by federal, state and local governments or subdivisions thereof;

K. Fences. The erection of a fence shall be excluded from the regulated activities requiring a permit herein, provided the following apply:

(1) The fence is elevated six inches above the elevation of the ground in all areas identified as wetlands, within 100 feet of wetlands, or designated as a buffer area as per the issuance of a permit or approval from the Town of Brookhaven;

(2) The fence is located landward of the edge of a waterway;

(3) The fence conforms to all requirements of Chapter 85; and

(4) No clearing of trees and only the minimal disturbance of native shrubs and emergents will take place during the installation.

L. The selective clearing of natural vegetation by the use of hand-held tools to facilitate the surveying or inspection process as required by federal, state and local agencies shall be excluded from the regulated activities requiring a permit, provided:

(1) The clearing is necessary for the preparation of a survey required for the submission of a wetlands and waterways permit application to the Division of Environmental Protection and the establishment of the paths is necessary for access to the site;

(2) All clearing is completed by hand-held tools;

(3) No trees are removed from the wetland or jurisdictional area;

(4) No wetlands are disturbed unless specifically requested in writing by authorized individuals of the Division of Environmental Protection;

(5) No path is more than three feet in width; and

(6) No more than three paths are cut per property or as directed by the Division of Environmental Protection.

M. Selective clearing activities completed either by hand or machine and approved as part of a test hole permit issued by the Town of Brookhaven's Division of Environmental Protection or Division of Planning;

N. The roof-mounted installation of any energy-generating device such as solar panels (photovoltaic cells), or passive energy-saving devices such as solar hot water heaters. The installation of ground-secured systems shall be exempt when such systems are installed at a location:

(1) Greater than 50 feet from a wetland or a waterway; and

(2) Where no clearing of natural vegetation, grading of existing soils is required to complete the installation.

O. The continued tilling or cultivation of existing agricultural lands;

P. The filling or removal of an artificial pond having an area less than 300 square feet within a residential property and located outside of the jurisdictional area of wetlands;

Q. The installation, repair, or replacement of: an outside shower and/or shower enclosure, a freestanding hot tub placed upon a previously approved deck or patio, an emergency generator placed within 10 feet of the primary residential structure and not within an established buffer area, an air conditioning unit placed within 10 feet of the primary residential structure and not within an established buffer area, including the concrete pads upon which the air conditioning units and generators are placed, and the installation of cellar or basement entrances; and

R. Projects solely limited to the installation of an I/A OWTS within the existing cleared area of the subject property.

§ 81-6 Application for permits.

A. Any person proposing to conduct or cause to be conducted a regulated activity upon any wetland, waterway or jurisdictional area shall file a permit application, on such forms as shall be supplied by the Division of Environmental Protection for the activity, with the Director or the designee of the Director. Such application shall include a:

(1) Completed wetlands and waterways application form signed by either the applicant or owner of the property;

(2) Statement of authority from the owner for any agent making application;

(3) Complete project plans for the proposed activity, which shall be a stamped survey or plan certified by an engineer, architect or landscape architect, or any other professional licensed or authorized to prepare such plan under Education Law Article 130 unless said certification is waived by the Director or the designee of the Director, drawn to a suitable scale, as determined by the Director or the designee of the Director. The following shall be indicated on the project plan and/or a survey, as applicable:

(a) The location of all wetlands, including the date they were flagged, if different than the date of the survey, and by whom and their affiliation. The wetland areas will be denoted on the survey by an appropriate vegetative symbol; the name of the adjoining waterway (if applicable), the apparent high water line and apparent low water line, if tidally influenced, on the project property as they existed no earlier than 36 months prior to the date of filing the application unless waived by the Director or the designee of the Director;

(b) For any new residential structure or additions to structures that increase habitable living area, a cross-section of a test hole or boring (not less than five years old) indicating the location of the boring on the survey, the elevation at the site of the boring, the depth to groundwater and the types of soils identified;

(c) For any new residential structure or the addition to such that increases habitable living area, a cross-sectional view of the existing and/or proposed septic system. All new systems must be in conformance to the rules and regulations of the Suffolk County Department of Health Services and, at the discretion of the Director or the designee of the Director, an existing septic system may require cross-sectional diagrams certified by an engineer;

(d) The location of the construction area and the associated area that may be disturbed during construction, and their relation to property lines, roads, buildings and watercourses located adjacent to the project;

(e) The locations, elevations, depth of excavation and specifications for all proposed draining, fill, grading, dredging and vegetation removal activities and the procedures to be used;

(f) For structures located within a waterway such as docks, the width of the waterway as measured from the apparent low water mark on one shoreline to the opposite apparent low water mark shoreline at the point of construction, and soundings, corrected for low tide (verified by indicating the time and date taken on the project plan or survey) every 10 feet along the entire length of the structure, including any mooring pile, and the location of any significant ecological features such as tidal wetlands vegetation or submerged aquatic vegetation;

(g) Existing and proposed contours in Town, USGS or NGV datum at a minimum of two-foot intervals for the proposed project property, and to a distance of 20 feet beyond the limit of the property unless otherwise specified by the Director or the designee of the Director;

(h) A drainage system capable of holding and recharging two inches of rainfall from all structures and impervious surfaces on the project site in addition to the capacity necessary for the overflow of any swimming pool (above ground or in-ground) and filter back flush;

(i) Properties located in a flood zone as defined by Chapter 33 (Flood Damage Protection) of the Town Code must annotate the flood zone designation, the requirements of said flood zone and if multiple zones cross the property, the boundary and the base flood elevation of each flood zone must be indicated; and

(j) Complete construction details prepared and certified by a licensed engineer or architect unless waived by the Director or the designee of the Director.

(4) A completed full environmental assessment form as required pursuant to Part 617, Section(s) 617.6 of the SEQRA (State Environmental Quality Review Act, 6 NYCRR Part 617) regulations;

(5) Copies of all applicable federal, state, county, or village permits or proof of permit applications that are required for such work;

(6) All permit applicants shall submit to the Director or the designee of the Director a notarized affidavit signed by the owner of the project property and the contract vendee, if applicable, which indemnifies and holds harmless the Town of Brookhaven from any claims arising out of or connected with operations under the permit and from all acts, omissions, commissions or negligence on the part of the applicant, his agents or employees, in such form as shall be approved by the Town Attorney;

(7) For those actions that are listed in § 81-7, § 81-9, or any proposed action which does not conform to the standards for approval listed in § 81-14, the applicant must propose and agree to, in writing, mitigation measures as described in § 81-15I, or other practicable alternatives acceptable to the Director that will offset the environmental impacts associated with the proposed activity;

(8) Applications to install a new structural shore protection device must include a narrative that:

(a) Describes the applicability to utilize nonstructural shore protection devices in lieu of a structural shore protection device;

(b) Details why the use of nonstructural shore protection devices are not practical and will not be effective in the proposed location; and

(c) Describes how the proposed structural shore protection devices are designed, located and installed in a manner that best minimizes the potential adverse impact of the structure to the shoreline and adjacent area, provides for the conservation of fish and plant habitat, and is practical and effective.

(9) The applicant shall submit such further application requirements as specified by the Director or the designee of the Director as are deemed necessary to effectuate the provisions and intent of this chapter. Said requirements may include, but are not limited to, permission to physically inspect the subject parcel by personnel of the Town of Brookhaven prior to, during and following completion of the permitted activity. Furthermore, the applicant shall have the burden of demonstrating that the proposed activity will be in accordance with the policies and provisions of this chapter.

B. The Director or the designee of the Director shall determine the adequacy and completeness of the application.

§ 81-7 Incompatible and prohibited activities.

[Amended 1-22-2013 by L.L. No. 4-2013, effective 2-6-2013]

A. The following activities are incompatible with the standards for approval:

(1) Any activity that would cause or allow the filling or excavation of a tidal or freshwater wetland or within a waterway except for applications to dredge an existing waterway or create wetland habitat.

(2) Clearing of natural vegetation, the excavation and/or grading of soils within 25 feet of the landward boundary of a tidal or freshwater wetland or water body.

(3) Any action that would violate the condition(s) of a covenanted buffer zone or a buffer zone established by conditions of a permit or approval.

(4) Any proposed new residential structure and any additions to an existing residential structure, land divisions and subdivisions, new commercial structures or any additions made to an existing commercial structure, residential and commercial docks, and/or shore protection devices that do not conform to the standards for approval described in § 81-14.

(5) The construction of private structural shore protection devices on Town-owned upland or lands underwater unless previously approved through an encroachment agreement or its equivalent with the Town of Brookhaven.

(6) The construction of any structure, other than docks, structural and nonstructural shore protection devices, and the installation of pilings, dolphins or the like; or the installation of any fence seaward of the apparent high watermark of any shoreline.

(7) Regulated activities initiated or completed without the issuance of a wetlands and waterways permit may be deemed an incompatible activity if the offending structure or activity fails to comply with the standards set forth by § 81-14.A through E or if the Director or his designee makes a determination that the offending action will cause, caused or continues to cause a significant impairment to a wetland, waterway or jurisdictional area.

(8) Construction of a new bulkhead when:

[Added 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

(a) No existing bulkhead is located within 200 feet of either side of the proposed bulkhead. In the event that one side of the proposed bulkhead is located within 200 feet of another and the other side is not bulkheaded within 400 feet, the proposed bulkhead will be considered incompatible; or

(b) The bulkhead does not conform to the standards of approval.

B. The following activities shall be prohibited by this code:

(1) The construction of new primary and accessory structures, the clearing of natural vegetation, and the application of fertilizers, pesticides and herbicides within 20 feet of the landward edge of all wetlands that occur along the Carmans River.

§ 81-8 Work release.

The following activities may, at the discretion of the Director or the designee of the Director, be deemed exempt from the Category A or Category B permit process and be undertaken upon the issuance of a work release subject to limiting conditions and/or mitigation measures:

A. Emergency work which is deemed to be immediately necessary in order to protect public health and/or safety or to prevent significant damage to personal or real property;

B. Activities located within the jurisdictional area of a tidal or freshwater wetland or waterways that conform to the standards for approval and do not significantly impinge or impair the adjoining wetland or waterway or their function, including, but not limited to:

(1) A subdivision or land division that does not exceed the yield calculations of the Wetlands Overlay District (Chapter 85, § 85-621), and which, through the design of the yield, preliminary and/or final subdivision or land division map or survey, will maintain a structural setback (excluding docks, retaining walls, bulkheads, and access walks) from the wetland boundary a distance greater than 120 feet, and will cause no disturbance to the soils or vegetation within 100 feet of the wetland boundary;

[Amended 5-6-2014 by L.L. No. 8-2014, effective 5-22-2014]

(2) A site plan which, through the phases of design, will maintain a structural setback (excluding docks, retaining walls, bulkhead, and access walks) from the limit of the wetland boundary a distance greater than 120 feet, and will cause no disturbance to the soils or vegetation within 100 feet of the wetland boundary;

(3) The construction of a new commercial or residential structure with a structural setback from the wetland boundary a distance greater than 120 feet, and the action of construction will cause no disturbance to the soils or vegetation within 100 feet of the wetland boundary;

(4) The construction in kind and in place of an existing commercial or residential structure with a valid certificate of occupancy or the equivalent;

(5) The addition to an existing commercial or residential structure with a valid certificate of occupancy or the equivalent of less than 10% of the existing floor area that: maintains a setback from the wetlands boundary of 75 feet or the existing setback, whichever is less, involves no or minimal removal of indigenous vegetation, shall not cause any construction within a wetland or waterway, and which will not impair local groundwater or surface water quality;

(6) The construction of accessory structures or parts thereof and nonstructural activities (filling, excavating, etc.) that involve no or minimal removal of indigenous vegetation, do not cause any construction within a wetlands or a waterway, and which will not impair local groundwater or surface water quality;

(7) Any action upon or within the jurisdictional area of an artificial wetland, provided that a management plan is on file with the Division of Environmental Protection and the proposed action preserves the design function of the artificial wetland; and

(8) Minor removal or pruning of wetlands vegetation or natural vegetation within an established buffer area or jurisdictional area to gain access to a waterway, provided such access path does not exceed four feet in width.

(9) The alteration, maintenance, dredging, or any activity on or within 25 feet of an artificial wetlands that has an approved management plan and where the proposed activity is included as an acceptable management practice within the management plan.

[Added 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

C. The construction, repair or replacement of a primary or accessory structures or parts thereof which is necessitated as a result of an unusual storm, ice event or other catastrophic event, provided:

(1) An application is received by the Division of Environmental Protection within 60 days of the event;

(2) The applicant provides proof that the structure previously existed and that the structure's destruction was a direct result of the storm or ice event or other catastrophic event; and

(3) That the structure had previously been issued a wetlands and waterways permit under Chapter 81 or a certificate of occupancy under Chapter 85 of the Town Code; and

D. The installation of a nonstructural shoreline protection device; and

E. Structures or activities subject to regulation and initiated or completed without the issuance of a wetlands and waterways permit may, at the discretion of the Director or the designee of the Director, be issued a work release subject to limiting conditions and mitigation measures. The Director may also pursue civil and criminal penalties as set forth in § 81-26.

§ 81-9 Category A permits.

The following projects shall be required to receive a Category A permit:

A. Appeals of decisions issued by the Director of the Division of Environmental Protection.

B. New residential construction on undeveloped land that fails to maintain a natural buffer zone of 25 feet and/or request construction of a primary structure within 50 feet of a tidal or freshwater wetland or waterway.

C. New commercial construction on undeveloped land that fails to maintain a natural buffer zone of 25 feet and/or request construction of a primary structure within 50 feet of a tidal or freshwater wetland or waterway.

§ 81-10 Category B permits.

A. All actions listed in § 81-4 and not listed in § 81-7, § 81-8, § 81-9, or which are not considered an exempt activity shall be required to receive from the Director of Environmental Protection a Category B permit.

B. Category B permits may be issued for all projects that conform to the standards for approval as set forth in § 81-14.

C. Incompatible activities as described in § 81-7 and those projects that do not conform to the standards of approval listed in § 81-14 may, at the discretion of the Director of the Division of Environmental Protection, be issued a Category B permit, provided the applicant provides and agrees to mitigation measures listed in § 81-15I or other practicable alternatives acceptable to the Director that will offset the environmental impacts associated with the incompatible activity.

§ 81-11 Completion notice and local notification, Category A permits.

A. The Director shall notify the applicant in writing when the application is deemed complete.

B. Upon notification of a complete Category A permit application by the Director, the Town Board shall schedule a public hearing on such application. The Town Board shall cause notice of such hearing to be published at least once in at least one newspaper having a general circulation in the area where the affected wetland is located. The notice of hearing shall be published not more than 28 days nor less than 14 days prior to the date set for the hearing.

C. Not less than 15 days prior to the date of the public hearing, the applicant shall conspicuously place along each road frontage of the property which is the subject of the application at least one poster, on such form as shall be supplied at a fee set by the Town Board. Such posters shall contain the following information, printed in letters no less than 1 1/2 inches high:

(1) A brief description of the proposed project as approved by the Director.

(2) That any person interested in this application and who wishes to become a party of interest may contact the Division of Environmental Protection prior to the Town Board meeting.

(3) That a public hearing will be held before the Town Board at a specified date and the time and place with regard to the proposed hearing.

D. Said poster must remain, in a readable condition, in place until the public hearing has been completed and must be removed no later than seven days thereafter.

E. The applicant shall also notify all owners of record as shown on the current Town of Brookhaven Assessor's roll of lands within 500 feet of the project property and known claimants to water rights, by registered or certified mail, not less than 15 days prior to the date set for the hearing.

F. Proof of posting and mail notification must be submitted to the Division of Environmental Protection to determine adequacy at least three days prior to the public hearing.

G. If the applicant fails to comply with the requirements set forth in Subsections C, D, and E, the Town Board shall have the right to cancel the public hearing and require the applicant to complete the notification process at a later date. The cost to reset a public hearing will be determined by the Town Board.

§ 81-12 Completion notice and local notification, Category B permits.

A. The Director shall notify the applicant in writing when the application is deemed complete. The notice shall include any additional requirements necessary for the issuance of a permit.

B. Within six months of being notified by the Director or the designee of the Director that the application is complete, the applicant shall conspicuously place along each road frontage of the property which is the subject of the application at least one poster, in such form as shall be supplied by the Division of Environmental Protection at a fee set by the Town Board. Such posters shall contain the following information, in readable condition:

(1) A brief description of the proposed project as approved by the Director; and

(2) That any person interested in this application and who wishes to become a party of interest may contact the Division of Environmental Protection within 10 business days of the poster being set.

C. Said poster must remain in place for a minimum of 14 consecutive days after the application is deemed complete and must be removed no later than seven days after the posting period is completed. Proof of posting, including two pictures of the poster, one indicating the wording on the poster and the second indicating the location of the poster in front of the property, along with an affidavit of posting, must be submitted to the Division of Environmental Protection.

D. Within 10 days of the posting of the property and during the time that the poster is visible, the applicant shall notify all owners of record as shown on the current assessment roll of the Town of Brookhaven Assessor of parcels within 200 feet of the project property, by registered or certified mail, that written comments will be accepted by the Director for a period of not less than five days and not later than 21 days.

§ 81-13 Standards for approval: Category A permit application.

The Town Board, based upon the information received at the public hearing, any written comments regarding the proposed action received by the Town Clerk or the Division of Environmental Protection during the public comment period, and the recommendations of the Director, will establish the standards for individual approval for all Category A permit applications.

§ 81-14 Standards for approval: Category B permit applications.

A. Standards for residential and commercial docks.

(1) The standards for a residential dock shall be as follows:

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

(a) All lots requesting a permit for a dock must have a riparian right to a navigable waterway as defined in § 81-3. Parcels located on a non-navigable waterway may request a dock for nonpowered watercraft access. The standards of approval for this type of dock will be determined by the Director of the Division of Environmental Protection.

(b) All areas except the Port Jefferson Harbor Complex: In no case shall the dock length be in excess of the minimum length necessary to reach a water depth of three feet below the apparent low water line [For this provision only, the dock shall exclude pilings not attached to the fixed dock or any floating dock(s).], but in any event not to exceed 150 feet in length, or exceed 15% of the width of the waterway, whichever of these provisions is less;

(c) Port Jefferson Harbor Complex only: In no case shall the dock length be in excess of the minimum length to reach a water depth of three feet below the apparent low water line [for this provision only, the dock shall exclude pilings not attached to the fixed dock or any floating dock(s).], except in cases where the vessel, because of its draft, requires deeper water and adequate depth is within 10 feet of the minus three-foot below the apparent low water line (-3' ALWL), the dock may be extended 10 feet from this point, but in any event may not exceed 150 feet in length, or exceed 15% of the width of the waterway, whichever of these provisions is less;

(d) Only one residential dock may be constructed on a residential lot that has a riparian right;

(e) A residential dock and any part thereof, or any vessel tied to a dock, may not be located within or impinge upon that area located within 10 feet of the seaward extension of any property line;

(f) No more than two boats may be berthed, tied or secured to any residential dock;

(g) The width of a catwalk, dock or ramp leading to a floating dock may not exceed four feet. All portions of a catwalk or fixed dock that traverse any vegetated tidal or freshwater wetland must utilize open-grate decking as specified by the Director or designee of the Director;

(h) The width of any single float shall not exceed eight feet in width or 20 feet in length and shall be secured or installed in such a manner that the float shall maintain a six-inch separation from the bottom of the floating dock to the bottom of the water body at any time during the tidal cycle. No more than two floats may be incorporated into a residential dock unless permitted by a previously approved wetlands and waterways permit;

(i) A dock shall not be permitted in areas of high vessel traffic or vessel congestion where there is a likelihood that the dock will significantly jeopardize public safety or create a public nuisance;

(j) A dock shall be designed and sited so as to minimize habitat loss and/or fragmentation, and to not impinge or impair upon access to shellfish resources;

(k) A dock shall be designed and sited so as to not hinder public access to public trust lands and surface waters; and

(l) A dock and its associated floats and piles shall have adequate lighting and markings.

(2) The standards for commercial docks shall be as follows:

(a) In no case shall the dock length, excluding that portion landward of the apparent high water line, be in excess of 150 feet nor exceed 40% of the width of the waterway, whichever is less;

(b) The width of a catwalk or dock may not exceed eight feet and must be elevated a minimum of four feet above the apparent high water line, and a minimum of four feet above grade when traversing any tidal or freshwater wetlands;

(c) The width of any single float may not exceed eight feet and shall be secured or installed in such a manner that the float shall maintain a six-inch separation from the bottom of the floating dock to the bottom of the water body at any time during the tidal cycle;

(d) All marinas that provide fuel to private vessels must also provide pump-out facilities for vessel sanitary waste;

(e) No dock shall be permitted in areas of high vessel traffic or vessel congestion where there is a likelihood that the dock will significantly jeopardize public safety or create a public nuisance;

(f) A dock shall be designed and sited so as to: minimize habitat loss and/or fragmentation, and not impinge or impair access to shellfish resources;

(g) A dock shall be designed and sited so as to not hinder public access to public trust lands and surface waters;

(h) A dock and its associated floats and piles shall have adequate lighting and markings; and

(i) The principals or corporate officers of any commercial dock placed above Town-owned underwater land shall either enter into a lease agreement with the Town of Brookhaven (if applicable) or provide to the Town Clerk, on a yearly basis, an affidavit of indemnity and agreement to provide insurance in such form as required by the Town of Brookhaven Town Attorney or her/his designee.

(3) The Town shall have the right to seek removal of any dock constructed without a permit described herein or built in violation of these standards and/or restrictions established by a permit issued by the Director or the designee of the Director or the Town Board of the Town of Brookhaven.

(4) Municipal docks are not required to conform to the regulatory dimension of a commercial or residential dock described herein.

(5) When a bulkhead is used as a residential docking facility:

(a) Only two boats may be tied within the confines of the seaward extension of the property lines;

(b) No vessel or mooring pile may be located within 10 feet of the seaward extensions of the property boundary;

(c) When two bulkheads meet at an angle less than 180° and the bulkhead is used as a mooring facility, the area of control for each adjacent property owner will be determined by a line drawn at the median of the angle formed by the two bulkheads. No vessel, dock or mooring pile will be permitted outside the property owners area of control; and

(d) If tied perpendicular to the bulkhead, no vessel or mooring pile may protrude into the waterway more than 15% of the total width of the waterway.

B. Standards for shore protection devices:

(1) The standards for structural shore protection devices constructed along the South Shore of the Town of Brookhaven shall be as follows:

(a) New bulkheads or other structural shore protection devices shall be prohibited except in those cases that the Director of Environmental Protection deems the structure or device necessary in order to protect public health and safety or to prevent significant damage to personal or real property and must be located at or above the apparent high water mark;

(b) New or reconstructed bulkheads or any other structural shore protection device may not be constructed upon the underwater lands of the Town of Brookhaven unless, at the discretion of the Town Board of the Town of Brookhaven, an encroachment agreement is first issued;

(c) No bulkhead shall be constructed, as measured from the apparent high water mark to the top plate or sill of the bulkhead, with a height greater than three feet; and

(d) Upon completion of the construction of the shore protection device, a ten-foot-wide buffer area, unless a larger buffer area already exists by covenant or previous permit restriction, which does not contain turf grasses or nonindigenous vegetation, must be established landward of the device.

(2) The standards for structural shore protection devices along the North Shore of the Town of Brookhaven, including those areas surrounding the North Shore Harbors, shall be:

(a) New bulkheads or other structural shore protection devices shall be prohibited except in those cases that the Director of Environmental Protection deems the structure or device necessary in order to protect public health and safety or to prevent significant damage to personal or real property and must be located at or above the apparent high water mark;

(b) In locations where there is a substantial bluff or beach scarp, new bulkheads or structural shore protection devices must be constructed no further seaward than 10 feet from the existing toe of the bluff, unless otherwise permitted by the Director or his designee;

(c) New or reconstructed bulkheads or other structural shore protection devices may not be constructed upon beaches or the underwater lands of the Town of Brookhaven unless, at the discretion of the Town Board of the Town of Brookhaven, an encroachment agreement is first issued;

(d) No bulkhead shall be constructed where the top plate or sill of the bulkhead exceeds an elevation of 13 feet as measured in Town, USGS or NGV datum;

(e) Upon completion of the construction of any shore protection device, all denuded or eroded areas landward of the device shall be stabilized with coastal tolerant vegetation; and

(f) New bulkheads or other structural shore protection devices facing Long Island Sound must install stone armoring, consisting of one ton stone (minimum weight) with a two stone base and two stone height, along the entire length, or if determined by the Director or the designee of the Director, must, at minimum, be installed 20 feet of either side of a point of intersection between two bulkheads or a bulkhead face and a return where the angle created is not equal to 180°.

(3) Nonstructural shore protection devices.

(a) Nonstructural shore protection devices must be installed at or above the apparent high water line. For applications that are considered demonstration projects by the NY State Department of Environmental Conservation (DEC) and are issued DEC tidal or freshwater wetlands permits for nonstructural shore protection devices below the apparent high water line, the Director, at his discretion, may approve such application without mitigation measures indicated in § 81-15I.

(4) The Town shall have the right to seek removal of any shore protection device constructed or installed without a permit described herein or built in violation of these standards and/or restrictions established by a permit issued by the Director or the Town Board of the Town of Brookhaven.

C. Standards for development: residential structures and additions thereto.

(1) The buffer zone and structural setback requirements for the construction of primary residential structures on undeveloped land within the jurisdictional area of this code shall be as follows:

(a) New residential structures constructed on lots with subdivisions or land divisions approved on or after August 11, 2003, must provide a minimum one-hundred-twenty-five-foot setback for all primary and accessory structures, excluding driveways and access roadways, landward of the wetlands boundary and a one-hundred-foot buffer zone landward of the wetland boundary;

(b) New residential structures constructed on lots with subdivisions or land divisions approved before August 11, 2003, must provide a minimum seventy-five-foot buffer area landward of the wetland boundary; with the following exceptions:

[1] When the wetland area is located, in relation to the proposed primary structure, in or adjacent to the front or side yard, the natural buffer area required for any primary or accessory structures (excluding driveways and utility access) will exceed, to the greatest extent practicable, the setback requirements established for a Category A permit application in § 81-9.

[2] When the wetland area is located, in relation to the proposed primary structure, in or adjacent to the rear yard, and the shortest distance from the front property line to the wetland area is less than 175 feet, then the greatest extent of the buffer zone will be established minimally from the most landward wetland point a distance equal to 70% of the difference of the linear distance measured from the front property line to the nearest point of wetland and 70 feet. In the event that an easement exists on the front of the property, the distance across the easement will be excluded from the calculation. In no case may the width of the buffer zone be less than 25 feet. The primary structure must be set back a minimum of 25 feet from the edge of the buffer zone.

[3] Mitigation measures may be used to reduce the width of the buffer areas but in no case may they have a width less than 50% of the difference of the linear distance measured from the front property line to the nearest point of wetland and 70 feet or 25 feet, whichever is greater.

(2) The buffer zone and structural setback requirements for the construction of new primary residential structures on previously developed land within the jurisdictional area of this code shall be as follows:

(a) When an existing buffer area has been established by conditions of a previously issued wetlands and waterways permit, a required covenant filed with the County Clerk as part of an approval issued by the Planning Board, Town Board, or Zoning Board of Appeals, that buffer zone and setback requirements shall be maintained.

(b) When a natural buffer within the jurisdictional area exists, as verified by existing or historical surveys or aerial photography, that buffer area will be maintained to the greatest extent practicable. The building setback line for the primary structure will be at a minimum 25 feet landward of the limit of the buffer zone.

(c) If no buffer area exists landward of the wetlands because of legally approved clearing activities or clearing that took place prior to April 1976, a buffer zone of indigenous vegetation, with a minimum width of 20 feet, shall be established adjacent to the wetlands area. The building setback of the primary structure shall be 75 feet landward of the limit of wetlands or at the greatest extent practicable as established by the Director.

(3) All new residential structures and additions to existing residential structures that exceed 10% of the floor area of the original structure as indicated on the earliest certificate of occupancy or the equivalent or which have undergone more than one addition since the issuance of the earliest certificate of occupancy or the equivalent must:

(a) Have an existing sanitary system in conformance to, or propose to install a new sanitary system in conformance with, the current standards of the Suffolk County Department of Health Services.

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017; 11-30-2017 by L.L. No. 23-2017, effective 12-8-2017]

[1] New residential structures within the jurisdictional area must install an innovative and alternative on-site wastewater treatment system.

[2] Residential structures within the jurisdictional area constructed on or before December 31, 1986, which propose additions that increase the number of bedrooms or bathrooms, or increase the floor area of the existing structure as indicated on the earliest certificate of occupancy by an area greater than 10%, including the sum of the area of any previous additions, must install an innovative and alternative on-site wastewater treatment system.

[3] Residential structures within the jurisdictional area constructed on or after January 1, 1987, which propose additions that increase the number of bedrooms, or increase the floor area of the existing structure as indicated on the earliest certificate of occupancy by an area greater than 50%, including the sum of the area of any previous additions, must install an innovative and alternative on-site wastewater treatment system.

[4] Innovative and alternative on-site wastewater treatment systems installed within the Town of Brookhaven must be approved by the Suffolk County Department of Health Services and must be designed using the best available technology.

(b) Maintain the maximum setback practicable as determined by the Director or the designee of the Director;

(c) Install drywells to capture a minimum two-inch rainfall event from the entire house, including the proposed addition and any other impervious surfaces such as patios, driveways and the like; and

(d) Limit landscaping with nonindigenous vegetation to no more than 15% of the total lot area.

(e) Revegetate previously cleared areas adjacent to the wetlands with local indigenous vegetation species as directed by the Director or his designee.

(4) Other actions for residential properties.

[Added 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

(a) Elevation for homes to conform to FEMA standards.

[1] Homes that are being elevated using federal, state, or local funds or grants must upgrade the sanitary system to conform to the current standards of the Suffolk County Department of Health Services.

[2] Homes in which the sanitary system is located within 150 feet of open water must upgrade to an innovative and alternative on-site wastewater treatment system. Innovative and alternative on-site wastewater treatment systems installed within the Town of Brookhaven must be approved by the Suffolk County Department of Health Services and must be designed using the best available technology.

(b) Accessory structures.

[1] Accessory structures must conform to the setbacks of the underlying zoning.

[2] Accessory structures are prohibited within a buffer zone that exists as a condition of a previously issued wetlands or waterways permit or a covenant required by either the Town Board, Planning Board or Zoning Board of Appeals of the Town of Brookhaven.

[3] On an undeveloped lot, new accessory structures must be set back a minimum of 50 feet from any wetland line or waterway.

[4] On a developed property, new accessory structures must be set back a minimum distance of 10 feet from any waterways, and a minimum distance of 10 feet landward of the edge of any waterway.

D. Standards for land divisions and subdivisions: The standards for the design of land divisions and subdivisions within the jurisdictional area of this code shall be as follows:

(1) Yield maps submitted to the Division of Environmental Protection must incorporate into their design, in addition to all of the requirements set forth in Chapter 85 of the Town Code:

(a) A minimum adjacent buffer area of 100 feet extending landward from a wetland shall be required on applications for a subdivision or land division for all lots on undeveloped land;

(b) Lot numbers consistent with the yield calculations as determined under the constraints of the Wetlands Overlay District described in § 85-626 of the Town Code of the Town of Brookhaven; and

(c) The yield map will determine the total number of waterfront lots. Flags, narrow portions of land attached to a larger wider parcel, leading to the adjacent water body with a width less than 44 feet are prohibited.

(2) Preliminary and final subdivision maps submitted to the Division of Environmental Protection must incorporate into their design, in addition to all of the requirements set forth in Chapter 85 of the Town Code:

(a) A minimum adjacent buffer area of 75 feet extending landward from a wetland shall be required on each lot within the jurisdictional area of a wetland or waterway;

(b) The number of lots must be consistent with the yield calculations as determined under the constraints of the Wetlands Overlay District described in § 85-624 of the Town Code of the Town of Brookhaven; and

(c) The yield map will determine the total number of waterfront lots. Flags, narrow portions of land attached to a larger wider parcel, leading to the adjacent water body with a width less than 44 feet are prohibited.

(3) Minor land division requests for undeveloped lots submitted to the Division of Environmental Protection must incorporate into their design:

(a) Yield calculations restricting the number of lots in conformance to the Wetlands Overlay District described in § 85-626 of the Town Code of the Town of Brookhaven;

(b) No reverse flags to the waterfront. Flags are narrow portions of land attached to a larger wider parcel, leading to the adjacent water body with a width less than 44 feet; and

(c) A minimum adjacent buffer area of 75 feet extending landward from a wetland shall be required on each lot within the jurisdictional area of a wetland or waterway.

(4) Developed land which is subject to an application for a major or minor land division or subdivision may be exempt from the minimum adjacent buffer area of 100 feet if: a buffer area was established under a previously issued wetland and waterways permit or is required by a covenant and/or other restrictions established by a previous (made prior to the date of the application) approval of the Town Board, Planning Board, or the Zoning Board of Appeals of the Town of Brookhaven.

(5) Developed land undergoing a subdivision or land division application and are proposing concurrently or proposing in the future the construction of a new residential structure; an addition, alteration or relocation of the existing primary residential structure; or the installation of any new impervious surfaces (i.e., roads, driveways, accessory structures) will be required to establish a natural and undisturbed buffer area of 100 feet. However, the width of the buffer area may be reduced if, at the discretion of the Director or the designee of the Director:

(a) The size of the lot or the expansiveness of the wetlands does not allow for a one-hundred-foot buffer and the applicant proposes or offers adequate mitigation; or

(b) The buffer area was disturbed by previously permitted actions or by past actions undertaken prior to April 1976. In this case, the width of the buffer area shall not be less than 50 feet for a new residential structure or 30 feet for an existing residential structure or other impervious surface.

(6) Disturbed buffer areas must be vegetated with local indigenous vegetation species as directed by the Director or his designee.

E. Standards for development: commercial structures. The standards for the construction of commercial structures within the jurisdictional area of this code shall be as follows:

(1) New commercial structures constructed on undeveloped land must provide a minimum one-hundred-foot buffer zone;

(2) Improved commercially zoned lots or developed land which are subject to an application for a site plan may be exempt from the minimum adjacent buffer area of 100 feet if: a buffer area was established under a previously issued wetland and waterways permit or is required by a covenant and/or other restrictions established by a previous (made prior to the date of the application) approval of the Town Board, Planning Board, or the Zoning Board of Appeals of the Town of Brookhaven;

(3) Previously developed land undergoing a site plan application and are proposing concurrently or proposing in the future the construction of a new structure; an addition, alteration or relocation of the existing primary structure; or the installation of any new impervious surfaces (i.e., roads, driveways, accessory structures) will be required to establish a natural and undisturbed buffer area of 100 feet. However, the width of the buffer area may be reduced if, at the discretion of the Director or the designee of the Director:

(a) The size of the lot or the expansiveness of the wetlands does not allow for a one-hundred-foot buffer; or

(b) The buffer area was disturbed by previously permitted actions or by anthropogenic actions undertaken prior to April 1976. In this case, the width of the buffer area shall not be less than 50 feet for a new commercial structure or 30 feet for an existing structure or other impervious surface.

(4) Disturbed buffer areas must be vegetated with local indigenous vegetation species as directed by the Director or his designee.

§ 81-15 Granting, denying or limiting projects, Category A and Category B.

A. Within 60 days of the closing of the public hearing for a Category A project and/or the completion of any pre-issuance requirements set forth by the Town Board, the Town Board shall, in writing, approve, approve with conditions, or deny the application in accordance to findings issued by the Town Board.

B. Within 60 days of the applicant fulfilling all the necessary conditions of the completion notice for a Category B project application, the Director or the designee of the Director shall, in writing, approve, approve with conditions, or deny the application in accordance to findings prepared by the Division of Environmental Protection.

C. In considering the granting, the conditional granting, or denial of any permit application, it shall be the policy of the Town, through the Town Board in the case of Category A permit applications and the Director in the case of Category B permit applications, to:

(1) Safeguard, protect, and preserve the vegetation and fauna of all wetlands and waterways and to maintain the quality and ecological integrity of all wetlands and waterways by preserving, to the greatest extent possible, surface waters, wetland habitats, and their adjacent upland buffer areas, in order to maintain the ecological processes necessary for their perpetuation;

(2) Safeguard, protect, and enhance, when and where possible, water quality conditions in wetlands and surface waters by ensuring that applications for development, redevelopment, or the expansion of existing structures incorporate into their design: a sanitary system that meets or exceeds the standards for nitrogen and bacterial removal of the Suffolk County Department of Health Services; a system of containment for stormwater runoff; and expanding or preserving natural buffer areas, minimizing the extent of fertilizer-dependent vegetation, or the creation of vegetated recharge areas to prevent surface contamination from entering adjacent waterways.

(3) Minimize, to the greatest extent possible, the impacts to wetlands and waterways from erosion and sediment transport caused by existing development, the potential effect of new development, and those existing and proposed structures associated with development such as docks, bulkheads, gabions, and revetments on the ecological integrity of the Town's wetlands and waterways by providing adequate setbacks and buffer zones, using nonstructural shore protection devices, minimizing the impacts of existing structures and developing a site in conformance with the natural topography of the site;

(4) Minimize adverse ecological impacts to wetlands and surface waters and the flora and fauna which inhabit these areas from dredging and dredge spoil disposal activities;

(5) Safeguard, protect, and preserve the public's access to the shoreline and their continued use along it.

D. In considering the granting, the conditional granting, or denial of any permit application for residential and commercial docks, the Town of Brookhaven shall also consider the following:

(1) The dock shall be located on the property so as to minimize the obstruction of surface waters, reduce hazards to navigation, minimize the reduction in uses of public trust lands and waters, and minimize negative impacts to natural resources;

(2) The dock shall be for riparian access for a waterfront lot and shall not impinge or impair the riparian rights of the adjacent waterfront property owners;

(3) The construction of the dock shall be allowable within the underlying zoning of the project site; and

(4) The cumulative impacts of a residential and commercial dock shall be considered and the design, construction, and location of the dock shall minimize cumulative impacts.

E. In considering the granting, the conditional granting, or denial of any permit application for structural or nonstructural shore protection devices, the Town of Brookhaven shall also consider the following:

(1) That the structural shore protection devices are located on the property so as to minimize the erosive effects of the device on the project property, the adjacent properties, and any adjacent wetland areas;

(2) That the structural shore protection devices are sited to minimize the reduction in use of and access to public trust lands and waters, and minimize adverse impacts to natural resources;

(3) That the potential cumulative impacts of the approval of the structural shore protection devices or, if applicable, the precedence set by the approval of the device, shall be evaluated and the design, construction, and location of the device shall minimize cumulative impacts; and

(4) That the extent to which the structural shore protection devices are necessary to protect personal property from the effects of erosion; in assessing the degree to which the shore hardening device meets this criteria.

F. In considering the granting, the conditional granting, or denial of any permit application, the Town Board or the Director shall evaluate and consider all comments from the public received during the application process and subsequent public comment period, if applicable, and consider practicable alternatives that reduce or mitigate the identified issues.

G. In considering the granting, the conditional granting, or denial of any permit application, the Town Board or the Director shall evaluate practicable alternatives that minimize negative impacts to the wetland. The practicable alternative analysis may reduce the scale of the activity, consistent with the project purpose, proposed use and permit issuance standards set forth in § 81-14.

H. In considering the granting, the conditional granting, or denial of any permit application, the Town Board or the Director shall impose conditions or constraints designed to carry out the intent of this chapter, which may include the imposition of restrictive covenants and/or performance bonds. Such conditions or limitations shall be incorporated in the permit. If the proposed activity causes an unavoidable loss of wetlands or unavoidably adversely impacts a waterway, said impacts having been minimized to the extent practicable, the applicant shall develop a mitigation plan which shall specify mitigation measures that provide the replacement of the resources which are lost due to the proposed activity. If mitigation is required, the mitigation plan will be a condition of the permit and shall be completed prior to the expiration of the permit and maintained for the life of the permitted structure. Any wetland created pursuant to this provision shall be protected and regulated.

I. In considering the granting, the conditional granting, or denial of any permit application, the Town Board or the Director shall, in consultation with the applicant, impose or accept mitigation measures to provide relief from mandatory restrictions, setbacks and buffer zones established in § 81-7 and § 81-14. The decision to accept or reject a mitigation measure is at the sole discretion of the Town Board for a Category A project or the Director for all other projects.

(1) For applications that propose development or the construction of accessory structures on upland property, the mitigation measures may include, but are not limited to:

(a) A one-time payment of $4 per square foot for each square foot of buffer zone that the proposed project lacks to meet the minimum setback as required;

(b) The donation to the Town of Brookhaven, Suffolk County, the NY State Department of Environmental Conservation, or an approved not-for-profit environmental group of a property that has, at a minimum, an equal amount of upland property needed to conform to the buffer area requirements;

(c) The donation to the Town of Brookhaven, Suffolk County, the NY State Department of Environmental Conservation, or an approved not-for-profit environmental group of a property that has, at a minimum, three times the amount of wetlands needed to conform to the buffer area requirements; and

(d) The purchase of Pine Barrens or Town TDR credits, complete or partially, to provide sufficient yield, as calculated by the methodology of the Wetlands Overlay District, to provide the lot a yield of one unit.

(2) For structures that are placed upon or within Town-owned underwater land, the mitigation measures may include, but are not limited to:

[Amended 4-11-2019 by L.L. No. 9-2019, effective 4-18-2019]

(a) For structures constructed prior to 1976, a one-time payment of $1 per square foot for each foot of occupied Town-owned land that exceeds the requirements of §§ 81-7 and 81-14 shall be made to the Division of Environmental Protection.

(b) For structures constructed after 1976, a one-time payment of $10 per square foot for each foot of occupied Town-owned land that exceeds the requirements of §§ 81-7 and 81-14 shall be made to the Division of Environmental Protection.

(3) Any funds paid to the Town of Brookhaven pursuant to § 81-15I(1)(a) and § 81-15I(2)(a) shall be deposited into an account established by the Division of Environmental Protection for wetland and shellfish restoration projects.

J. Any decision by the Director to grant, deny or place conditions upon a wetland permit or to revoke or suspend any permit previously issued pursuant to this chapter shall be supported by written findings giving the reason for such decisions.

§ 81-16 Withdrawal of application.

A. An application shall be deemed withdrawn in the following circumstances:

(1) By the applicant upon the filing of a written request to withdraw at any time prior to the time the Director makes a determination to grant, deny or issue the permit with conditions;

(2) Upon the applicant failing to comply with a written request for additional information by the Division of Environmental Protection within six months of the date of such request;

(3) Upon the applicant failing to supply to the Town Clerk and/or the Director with written covenants, deeds and/or a title report within six months of the date of the notice of completion, if covenants or deeds are imposed or required by the Director as a condition of receiving approval of a wetlands permit or notice by the Town Clerk requesting the same, whichever is later; and

(4) Upon the applicant failing to supply to the Director or the designee of the Director any additional pre-issuance permit requirement(s) established by the Town Board or the Director within six months of the date of notification from either the Town Clerk or the Director.

B. The Director or the designee of the Director may extend such period of time for good cause upon written application.

§ 81-17 Permit requirements: Category A, Category B permits and work releases.

A. All permit placards shall be clearly posted on the project site during all work activities and all applicants, their agents or construction crews proceeding with approved operations shall have on site or have readily available the approved permit conditions and shall show same to any authorized inspector of the Town of Brookhaven whenever requested.

B. The property that is subject of a permit shall be open to inspection at any time by any authorized inspector of the Town of Brookhaven.

C. The Director or Chief Building Inspector may revoke or suspend any permit where any condition of the permit has been violated.

§ 81-18 Expiration of wetlands and waterways permit.

A. All activities undertaken pursuant to a Category A or Category B wetlands and waterways permit must be completed within a period of two years of the date of issuance, except dredging permits and aquaculture permits, which shall, at the discretion of the Director or the designee of the Director, be in effect for a period of five years from the date of issuance.

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

B. All activities undertaken pursuant to a work release because the activity undertaken is described as emergency work, necessary repair due to a storm or other catastrophic event, or permits issued after-the-fact, shall expire within 120 days of permit issuance. All other work releases shall be valid for a period not to exceed one year from the date of issuance.

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

C. Notwithstanding the foregoing, in the event that the applicant has obtained a building permit for the work authorized by any form of a wetlands and waterways permit or other administrative approval, the time for completing a permitted activity shall expire simultaneous with the expiration of the building permit or any renewal thereof.

D. Wetlands and waterways permits for regulated activities which require the additional approval of either the Planning Board (land divisions, subdivisions and site plans) or the Board of Zoning Appeals shall expire with the latter of the following:

(1) The expiration date of the wetlands and waterways permit; or

(2) The expiration date of the Board's approval.

E. Structures constructed under a valid wetland and waterways permit shall be constrained by all conditions of that permit for the life of the structure.

§ 81-19 Amending and extending permits.

A. The Director or the designee of the Director may, at the request of the permittee or property owner, amend any permit. The Director or the designee of the Director may also amend any permit previously issued, provided all changes are appurtenant to previously permitted structures, result in no substantitive changes to the project description and/or it is determined by the Director or the designee of the Director that the changes proposed will not result in an increased impact to the local environment.

B. In the event a wetlands or waterways permit is due to expire, the Director or the designee of the Director may issue a renewal thereon. In the event that the permit expires and work has not commenced, the Director or the designee of the Director may, at his discretion, renew the permit or require a new application to be filed. Permits which have been expired for more than three years and dredging permits are not renewable.

C. Minor alterations to a survey which do not alter the footprint of the permitted structure(s), existing or conditioned setbacks and buffer zones and which do not require additional environmental review may, at the discretion of the Director or the designee of the Director, be accepted without alteration of the permit conditions or payment of additional fees.

§ 81-20 Building permit.

A. All buildings and structures as defined in Chapter 85 (Zoning) of the Town of Brookhaven Code and regulated herein shall, upon the issuance of a wetland permit by the Director or the designee of the Director, be required to apply for and receive a building permit from the Chief Building Inspector.

B. No structure or building, or part thereof erected or altered and regulated under Chapter 81 of the Brookhaven Town Code shall be occupied or used until a certificate of occupancy or the equivalent has been issued by the Chief Building Inspector.

§ 81-21 Fees.

The Town Board shall reserve the right to require an application fee for all permit applications as well as a permit or license fee for any operations or uses permitted pursuant to this chapter. Such fees shall be collected by the Division of Environmental Protection.

§ 81-22 Jurisdiction of other agencies.

A permit approved by the Town of Brookhaven does not relieve the applicant of the necessity to obtain authorization or other permits from other agencies, which have jurisdiction over the proposed project.

§ 81-23 Appeal of decisions by Division of Environmental Protection.

A. The Town Board of the Town of Brookhaven is hereby authorized to affirm and/or modify and/or annul any findings of denial, hear and decide appeals on the Director's interpretation of this chapter and to affirm the requirements, decisions or determinations of the Director, by written decision.

B. Appeals shall be filed with the Town Clerk within 30 days of the date of the issuance of the decision of the Director.

C. Appeals shall be in writing in such form as may be prescribed by the Division of Environmental Protection, with a copy thereof simultaneously served upon the Division of Environmental Protection, and shall include ground(s) upon which they are based, including but not limited to the relevant provisions of this chapter and/or the disputed interpretation thereof.

D. Within 90 days of the submission of a request for an appeal to the Town Clerk, the Town Board will set a public hearing. Upon setting a date for the public hearing, both the Town of Brookhaven and the applicant shall follow the completion notice and local notification requirements set forth in § 81-11B, C, D, E, and F.

E. In making a determination to annul and/or modify the decision of the Division of Environmental Protection, the Town Board must find that:

(1) No practicable alternative is available;

(2) The proposed project is compatible with the purposes and legislative intent of this chapter;

(3) All reasonable means and mitigation measures limiting adverse impacts to the wetlands and waterways and their functions and/or values thereof have been implemented or incorporated into the project design;

(4) The proposed conditions limiting the project or potential mitigation measures required by the Director were neither reasonable nor practicable and/or would not have protected the natural resource in accordance to the legislative intent of this chapter; and

(5) The denial of the application by the Director was not a result of the applicant's failure or unwillingness to utilize methods and employ mitigation measures to reduce the overall impact to the system.

F. In the event that the Town Board does not make a determination to annul or modify the decision of the Director and upholds the findings of the Division of Environmental Protection, the relief mechanism shall be as provided in § 81-24 for all wetlands.

§ 81-24 Appeals of decisions regarding wetlands.

An applicant may appeal a decision by the Town Board regarding a wetlands or waterways permit pursuant to Article 78 of the Civil Practice Law and Rules or any other remedies available by law.

§ 81-25 Violations of permits/restrictive covenants.

A. It shall be a violation to undertake any regulated activity that does not comply with the conditions set forth by a wetlands or waterways permit or work release.

B. It shall be a violation to undertake any regulated activity that does not comply with a restrictive covenant required as part of the approval of the Town of Brookhaven Town Board, Planning Board, Zoning Board of Appeals and the Division of Environmental Protection.

§ 81-26 Penalties for offenses; corrective action.

A. Criminal sanctions.

(1) Any person who violates any provision of this chapter or the conditions imposed by the Town Board, the Director or the designee of the Director, upon an approved permit, shall, in addition to administrative sanctions, be guilty of a violation punishable by a fine of not less than $1,000 nor more than $3,000 and for a second and each subsequent offense be guilty of a misdemeanor, punishable by a fine of not less than $3,000 nor more than $10,000 or a term of imprisonment of not less than 15 days nor more than six months, or both.

(2) Each offense shall be a separate and distinct offense, and, in the case of a continuing offense, each day's continuance thereof shall be deemed a separate and distinct offense.

B. Any person who violates any provision of this chapter or the conditions imposed by the Town Board, the Director or the designee of the Director upon an approved permit may, in lieu of administrative and criminal sanctions, enter into an order of consent with the Director of Environmental Protection. Such order may:

(1) Include a payment to the Joseph P. Macchia Environmental Trust Fund in an amount determined by the Director or the designee of the Director but not to exceed $10,000; and/or

(2) Restoration of the damaged wetland or waterway.

C. Equitable relief. The Town of Brookhaven shall have the right to seek equitable relief to restrain any violation or threatened violation of any of the provisions of this chapter.

§ 81-27 Stop-work orders.

[Added 11-22-2011 by L.L. No. 23-2011, effective 12-6-2011]

A. Whenever the Director of the Division of Environmental Protection or the designee of the Director has reasonable grounds to believe that a regulated activity as described in § 81-4 of this code is being performed: (i) in violation of the provisions of the applicable codes or regulations; or (ii) not in conformity with the provision of an application, plans, specifications or other documents upon the basis of which a permit was issued; he shall notify the owner of the property or the owner's agent or the person performing the work to suspend all work, and any such persons shall forthwith stop such work and suspend all regulated activities until the stop-work order has been rescinded. Such order and notice shall be in writing, shall state the conditions under which the work may be resumed and may be served upon a person to whom it is directed either by delivering it personally to him or by posting the same upon a conspicuous portion of the primary structure, or the project site, or the structure under construction, and sending a copy of the same by certified mail to the property owner.

B. It shall be a violation to allow or cause to be continued a regulated activity on the subject premises after the issuance of a stop-work order pursuant to this chapter.

C. A stop-work order may be rescinded only by the Director or his designee upon evidence of compliance with this chapter.