[HISTORY: Adopted by the Town Board of the Town of New Paltz 12-15-2011 by L.L. No.
5-2011.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Environmental Conservation Commission — See Ch. 12.
Agriculture and open space preservation and acquisition — See Ch. 44.
Flood damage prevention — See Ch. 82.
Sewers — See Ch. 113.
Subdivision of land — See Ch. 121.
Tree conservation — See Ch. 130.
Zoning — See Ch. 140.
[1]
Editor's Note: This local law also repealed former Ch.
139, Wetlands and Watercourses, adopted 9-15-2005 by L.L. No. 5-2005.
A.
This chapter shall be known as the "Wetland and Watercourse Protection
Law of the Town of New Paltz."
B.
It is the purpose of this chapter to protect the health, safety and well-being of the citizens of the Town of New Paltz and of property therein by preventing the despoliation and destruction of wetlands, waterbodies and watercourses, and associated buffer areas, collectively referred to in § 139-5 herein as "regulated areas," recognizing their varying ecological, water quality, and recreational values. The Town of New Paltz hereby regulates activities that may cause a substantial adverse effect on the function served by regulated areas or the benefits derived therefrom.
The Town Board of the Town of New Paltz has reviewed, finds
and affirms the following:
A.
The Town has the authority to conserve and protect the regulated areas described in § 139-5 pursuant to the police power vested in and granted to the Town of New Paltz under the Municipal Home Rule Law, which recognizes the right of local governments to protect the general health, safety and well-being of persons and property therein.
B.
The Town has the authority to conserve and protect certain of the regulated areas described in § 139-5 by local statute under the New York State Freshwater Wetlands Act, found in Article 24 of the Environmental Conservation Law, provided that the provisions of such local statute are at least as protective of the regulated areas as the Freshwater Wetlands Act and regulations promulgated thereunder.
C.
Federal, state, and local agencies and private researchers highlight
numerous values and beneficial services of wetlands, which are important
to the health and welfare of the people of the Town of New Paltz.
These include, but are not limited to, the following:
(1)
The protection of water quantity and quality by preserving sources
of surface water, recharging groundwater and aquifers, serving as
chemical and biological oxidation basins, serving as nutrient traps
for nitrogen and phosphorus, filtering pollutants, and/or functioning
as settling basins for naturally occurring sedimentation.
(2)
The protection of aquifers and waterbodies that are and may be used
for water supply purposes.
(3)
The protection of stream channel and stream bank stability, thereby
controlling and reducing erosion, flooding, and related property damage.
(4)
The control of floodwater and stormwater by slowing water runoff
and absorbing and temporarily storing water, thus helping to protect
downstream areas from flooding. Public health and private property
in one part of a watershed may be harmed if wetlands are destroyed
in a different part of that watershed.
(5)
The provision of important breeding, nesting, feeding, migratory,
cover, and wintering habitat for diverse fish and other wildlife species,
including many listed as "special concern," "threatened," "endangered"
and "rare" by New York State or other government entities, including
the United States Fish and Wildlife Service. The perpetuation of scores
of species depends upon them. Many of the species are migratory and
must have nesting, migration, and wintering habitat. The destruction
of one kind of wetland habitat in one place may reduce populations
of wildlife elsewhere. Vernal pools in particular are unique and critical
habitats for native species of amphibians and reptiles.
(6)
Supplying food and organic detritus that support the fish and wildlife
of adjacent waters.
(7)
The support of distinctive and less common noninvasive vegetative
associations specifically adapted for survival in low-oxygen environments.
(8)
The provision of areas of unusually high productivity that support
significant biological diversity and help to maintain ecological integrity.
(9)
The provision of recreational uses throughout the Town directly and
by supporting recreation provided by other areas. Such recreation
includes hunting, fishing, boating, hiking, bird-watching, photography,
camping and other uses, which are a social and economic value to the
Town.
(10)
The provision of outdoor laboratories and living classrooms for environmental
studies.
(11)
The provision of open space and visual relief from residential and
commercial development and sense of connection with the natural world.
D.
New Paltz is benefited by water resources that have contributed and
continue to contribute greatly to agriculture, commerce, outdoor recreation,
property values, scenery and quality of life. Adequate and suitable
water for water supply; domestic, municipal, industrial, agricultural
and commercial uses; the growth of forests; the support of fish and
wildlife; recreational enjoyment; and other uses is essential to the
health, safety and welfare of the economic growth and prosperity of
the Town.
E.
In recent years, population growth and economic and recreational
activities have made and will continue to make new and greater demands
on waterbodies and watercourses for boating, fishing, bathing and
water sports and on the lands adjacent thereto for access areas and
recreation. Urban development has in many cases resulted in the filling
in, diversion and destruction of watercourses, necessarily destroying
aquatic habitat and lessening supplies of water for multiple use purposes.
The unreasonable, uncontrolled and unnecessary interference with or
defilement and disturbance of watercourses can create hazards to the
health, safety and welfare of the people of the Town, causing great
economic loss by erosion of soil, increased costs of water purification
and treatment, flooding, the destruction and failure of natural propagation
of fish and aquatic resources and the loss of water for domestic,
industrial, navigational, municipal, agricultural, recreational and
other beneficial uses and purposes. The Town of New Paltz has the
authority and responsibility to preserve, protect and conserve such
resources from destruction and damage and to promote the natural propagation
of associated biota.
F.
The integrity of wetlands, waterbodies and watercourses, and the
maintenance of their full function and benefit, is inextricably linked
to the presence of intact surrounding natural communities on adjacent
buffer areas. As boundaries between ecosystems, such riparian zones
are exceptionally rich in biodiversity and can protect or ameliorate
water quality impacts from adjacent land uses. Among the essential
functions and values provided by riparian buffers are:
(1)
Providing important, often critical, travel corridors and wetland-to-upland
transitional habitats vital to many wetland/watercourse-dependent
species, including many amphibians, reptiles, birds and mammals. While
undisturbed adjacent buffer areas comprise a relatively small portion
of the landscape, they, in combination with wetlands and watercourses,
are irreplaceable habitat links in the life cycles of the greatest
proportion of area wildlife, including game and nongame species, a
number of which are federal-, state- and county-listed as special
concern, rare, threatened or endangered.
(2)
Serving as visual and noise barriers, protecting wetland/watercourse
wildlife from human disturbance.
(3)
Ameliorating potentially harsh environmental conditions by absorbing
wind and solar energy, facilitating the warming of surface waters
during early spring to produce water temperatures vital to the initiation
of the breeding cycles of many water-dependent invertebrates, amphibians,
reptiles and fish; and providing shade, particularly during the growing
season when the ambient heat load progresses, and allowing wetlands,
watercourses and waterbodies to maintain cool, well-oxygenated water
supplies during dry or warm periods.
(4)
Controlling flooding by slowing overland runoff and absorbing and
storing substantial amounts of sheet flow, thereby assisting wetlands
and watercourses in controlling flooding and gradually releasing flood
flows to lower watersheds.
(5)
Trapping sediments in sheet flow, removing and assimilating excess
nutrients from runoff and floodwaters, and intercepting soil-erosive
waters, thereby protecting wetlands, waterbodies and watercourses
against eutrophication (excess nutrient enrichment) and sedimentation,
which can adversely affect proper wetland and watercourse functions
and values.
(6)
Providing the first line of defense in the protection of wetlands,
waterbodies and watercourses against the adverse impacts of stormwater-borne
pollutants, including fertilizers, herbicides, pesticides, heavy metals,
viral and bacterial agents associated with septic leachate, and various
types of petroleum products. Buffer areas work synergistically with
aquatic resources to protect groundwater and surface water quality.
Buffers provide a practical and cost-effective means of protecting
wetlands and watercourses and reducing or preventing pollution.
(7)
Providing often unique wetland-to-upland transitional communities,
with their own distinctive flora and fauna, unlike the habitat of
wetlands, waterbodies and watercourses and drier uplands between which
they lie. Consequently, buffer areas are critical ecological communities
in their own right and serve as unique areas of substantial value
for passive recreation, outdoor education and scientific research.
G.
Unregulated land development activities and water withdrawals (wells
and surfacewater intakes), and sewage collection systems may alter
the hydrology of ground- and surface waters, which can lead to a substantial
adverse effect on the function served by regulated areas or the benefits
derived therefrom, thus posing a threat to the general health, safety
and well-being of the persons and property of the Town of New Paltz
and the surrounding region.
H.
Destruction of wetlands has taken place in the past in numerous land
use projects, and the present state and federal permitting system
does not adequately protect local resources. First, state and federal
permitting requirements are subject to change from time to time. The
likelihood that all state and federal regulations are followed is
undermined because local officials may not engage these regulations
on a routine basis and therefore may be ineffective in securing the
integrity of the regulated areas. Second, both state and federal permitting
systems lack adequate staffing for enforcement and compliance, which
particularly allows for the destruction of smaller wetlands because
there is no effective local presence available to monitor these resources.
I.
Considerable acreage of freshwater wetlands in the state of New York
has been lost, despoiled or impaired by unregulated draining, dredging,
filling, excavating, building, pollution or other acts inconsistent
with the natural uses of such areas. Other freshwater wetlands are
in jeopardy of being lost, despoiled or impaired by such unrelated
acts. Any loss of freshwater wetlands deprives the public of some
or all of the many and multiple benefits to be derived from wetlands.
J.
Some wetlands in New York State and adjacent buffers have no regulatory
oversight from the state or federal governments. State regulatory
jurisdiction typically extends only to wetlands of greater than 12.4
acres, unless officially recognized as of "unusual local importance,"
and recent court and administrative decisions have limited federal
regulatory jurisdiction over certain wetlands. Additionally, federal
regulations do not regulate adjacent buffers of any size around federal
wetlands. The State Legislature has not enacted legislation to close
these jurisdictional loopholes.
K.
"Mitigation" projects provide uncertain benefits and are unreliable
to replace the value inherent in a natural wetland that may be degraded.
L.
Nonpoint source pollution is the primary cause of water quality problems
in more than 90% of New York State's impaired waterbodies. Nonpoint
source pollution results from the activities of the population as
a whole, including small and large businesses, farmers, developers,
large and small landowners and individuals. Local legislation to avoid
the destructive impacts of such activities, by protecting watercourse
and wetland buffers, is warranted to reduce the damage from water-polluting
and degrading activities.
M.
The objectives of the Town of New Paltz Comprehensive Master Plan
("Master Plan") include protecting the community's many resources
for the future by enhancing the natural beauty and rural quality of
the community and protecting environmentally sensitive areas and natural
resources, waterways, floodplains and wetlands. The Master Plan also
encourages the Town to consider techniques for "protecting the unique
physical attributes of the community." State agencies such as New
York State Department of Environmental Conservation (NYSDEC) and the
Department of State encourage towns to preserve wetlands and open
spaces, including by local regulatory legislation. In the case of
wetlands, this responsibility lends itself to local legislation to
preserve, protect, and conserve wetlands currently not included under
pertinent federal and state regulatory protection.
A.
It is the intent of this chapter to conserve and protect the regulated
areas, described herein, within the municipality but outside the jurisdiction
of the incorporated Village under the police power vested in and granted
to the Town of New Paltz pursuant to Municipal Home Rule Law § 10,
to protect the general health, safety and well-being of persons and
property therein.
B.
It is the intent of this chapter to conserve and protect the regulated
areas described herein and, consistent with this objective, to avoid
the loss or impairment of the natural functions and values of regulated
areas.
C.
It is the intent of this chapter to protect areas that are not currently
regulated under state and federal programs and to provide locally
increased protection to areas currently regulated by state and federal
programs. It is also the intent of this chapter to discourage impacts
by activities that are not dependent on aquatic resources, as exemplified
in federal Environmental Protection Agency regulations prohibiting
discharges of dredged or fill material in wetlands when less damaging
alternatives are available, and presuming such alternatives to be
available if a project is not a water-dependent project.
D.
It is the intent of this chapter to exercise concurrent jurisdiction
rather than to supersede that of the New York State Department of
Environmental Conservation, under Environmental Conservation Law Article
24, and the United States Army Corps of Engineers, under Section 404
of the federal Clean Water Act (33 U.S.C. § 1344), for wetland
areas within the Town. This chapter does not intend to exercise jurisdiction
over activities subject to regulation by the New York State Department
of Environmental Conservation under Title 5 of Environmental Conservation
Law Article 15.
E.
It is the intent of this chapter to establish policy and controls
reasonably necessary to avoid a substantial adverse effect on the
functions served by regulated areas or the benefits derived therefrom.
F.
It is consistent with the intent and purpose of this chapter to further
coexistence with wildlife, including beavers, to the extent that they
enhance the regulated areas described herein.
G.
It is the intent of this chapter to further the goals and objectives
stated herein by strictly regulating activities with potential to
substantially degrade the Town's wetlands, watercourses and waterbodies
and to separately strengthen and concurrently enhance a goal of the
State Environmental Quality Review Act (SEQRA) in reducing the likelihood
of significant adverse environmental impacts on important resources.
It is the intent of this chapter to avoid such impacts wherever feasible
and appropriate, particularly where a reasonable alternative to the
proposed regulated activity exists, and to favor the avoidance and
reduction of impacts over mitigative or compensatory projects.
H.
It is the intent of this chapter to administer the provisions of
this chapter to ensure administrative efficiency with the Town's
separate land use regulatory processes.
A.
Words and phrases used in this chapter shall be interpreted as defined
below and, if not listed below, then as defined in Article 16 of the
New York State Town Law, or as defined in New York State Department
of Environmental Conservation regulations promulgated in 6 NYCRR §§ 663.2
and 664.2, or as found elsewhere in the Code of the Town of New Paltz.
Where ambiguity exists, words or phrases shall be interpreted so as
to give this chapter its most reasonable application in carrying out
the regulatory purpose and intent as set forth herein.
B.
ADJACENT AREAS
AGRICULTURE
APPLICANT
APPLICATION FEE
ASSOCIATED BUFFER AREA
BANK
BEAVER DAMS
BEAVER IMPOUNDMENTS
BEAVER LODGES
BERM
BERMING
BOUNDARY OF A WETLAND
BUFFER AREA
BUILDING
CEO
CERTIFICATE OF COMPLIANCE
CHANNELIZATION
CLEARING
CONSERVATION CERTIFICATE
CONSERVATION FEE
CONSERVATION PLAN
CONSERVATION RESTRICTION
CRITICAL TERRESTRIAL HABITAT
DAMS AND WATER CONTROL MEASURES
DATE OF RECEIPT OF APPLICATION BY PLANNING BOARD
DEPOSIT or DEPOSITING
DISCHARGE
DOMINANT SPECIES
DRAIN
DREDGE
ENVIRONMENTAL CONSERVATION BOARD (ENCB)
ENVIRONMENTAL CONSERVATION LAW (ECL)
EPA
EXCAVATE
FEMA
FILL or FILLING
FLOODPLAIN
GIS
GRADIENT
GRADING
GROWING SEASON
HYDROPHYTIC VEGETATION
IN-KIND REPLACEMENT
INTERMITTENT WATERCOURSE
LAND STEWARDSHIP PLAN
LOGGING
MATERIAL
MEAN HIGH-WATER LINE
MINIMIZATION
MITIGATION PLAN
MUNSELL SOIL COLOR CHARTS
1987 FEDERAL WETLANDS DELINEATION MANUAL/U.S. ARMY CORPS OF
ENGINEERS WETLANDS DELINEATION MANUAL, JANUARY 1987 FINAL REPORT
NOTICE OF DETERMINATION
NOTICE OF REVIEW
NYCRR
NYSDEC
PERENNIAL WATERCOURSE
PERMIT
PERSON
PLANNING BOARD
POLLUTION
PROJECT
QUALITY VERNAL POOL
(1)
(2)
(3)
(4)
(a)
(b)
[1]
[2]
[3]
(c)
REGRADING
REGULATED ACTIVITY
REGULATED AREAS
REIMBURSABLE COSTS
REMOVE
ROUTINE MAINTENANCE AND LANDSCAPING
SUBSTANTIAL ADVERSE EFFECT
STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)
STEEP LAND
STRUCTURE
SUBWATERSHED AREAS
USACE
USDA
UTILITY SERVICE
VERNAL POOL
WATERBODY
WATERCOURSE
WATER TABLE
WETLAND DELINEATOR
WETLAND or FRESHWATER WETLAND
WETLAND HYDROLOGY
WETLANDS INSPECTOR
WIDENING
ZONING BOARD OF APPEALS (ZBA)
As used in this chapter, the following terms shall have the meanings
indicated:
See "associated buffer area."
Activities comprising "farm operations," as defined in § 301,
Subdivision 11, of the State of New York Agriculture and Markets Law
(AML), as the same may be amended from time to time, excepting such
activities that pose a threat to public health or safety within the
meaning of § 305-a, Subdivision 1a, of the AML.
A person, as defined herein, who files an application for
a permit under this chapter, including the owner of the property on
which the proposed regulated activity would be located, and any contract
vendee, lessee of the land, or person who would actually control and
direct the proposed regulated activity, and/or the authorized agent
of such person.
A sum paid by an applicant to accompany either a short-form
or long-form application and collected by the Town in accordance with
a fee schedule, as shall be established from time to time by action
of the Town Board and made available by the office of the Town Clerk,
the Building Department, and the Planning Board.
A regulated area surrounding or adjacent to wetlands, watercourses, or water bodies that provides benefits important in maintaining their functional integrity and protection from human activity or other encroachment associated with regulated activities. The extent of associated buffer areas is described in § 139-5, Regulated areas.
That land area immediately adjacent to, and which slopes
toward, the bed of a watercourse. For purposes of this chapter, a
bank will not be considered to extend more than 50 feet horizontally
from the mean high-water line, with the following exception: Where
a generally uniform slope of 45° (100%) or greater adjoins the
bed of the watercourse, the bank is extended to the crest of the slope
or the first definable break in slope, either a natural or constructed
(i.e., road or railroad grade) feature, lying generally parallel to
the watercourse.
Usually built along perennial streams and result in the formation
of a pond deep enough for the construction of beaver lodges. A typical
dam consists of cut tree sticks jammed into the streambed and anchored
with rocks; this foundation is then piled with branches, leaves, roots
and other debris.
The wetland area created by beaver dams. Beaver impoundments
enlarge existing wetlands or create ponded water conditions in watercourse
areas.
A dome of woody debris that is partly above the waterline,
while the foundation of the structure is deep into the watercourse
bed with hollow tunnels to allow the beavers safe entry and exit.
A lodge provides shelter for beavers, storage of nutrients, and refuge
for waterfowl, fish and other furbearers.
The land area immediately adjacent to, and which has been
constructed to slope toward, the bed of a watercourse, and which is
necessary to maintain the integrity of a watercourse.
The process of building up stream banks higher than the surrounding
floodplain elevations to contain water in the channel.
The outer limit of a regulated area characterized by wetland
soils, wetland hydrology, and wetland vegetation as defined under
"wetland/freshwater wetland."
See "associated buffer area."
The Code Enforcement Officer of the Town of New Paltz.
A certificate issued by the Wetlands Inspector to certify
that the regulated activity has been satisfactorily completed in accordance
with permit approval in consultation with the Building Inspector,
prior to the issuance of a certificate of occupancy and/or other relevant
permit for the proposed use of the property.
The process of straightening, widening, and excavating gravel,
rock and soil from a bed within a watercourse.
The Destruction and removal of areas of vegetation by manual,
mechanical, biological or chemical methods.
A certificate issued by the Wetlands Inspector to indicate
that work undertaken pursuant to a conservation plan approved by the
Planning Board, in lieu of permit denial, has been completed in a
satisfactory manner or that a bond or letter of credit has been received
by the Town to ensure performance of any work that is incomplete or
unsatisfactory prior to the issuance of a certificate of occupancy
and/or other relevant permit for the proposed use of the property.
The payment by an applicant to the Town of New Paltz of a
fee to protect or enhance regulated areas from impacts due to a regulated
activity and/or to mitigate such impacts. Among other things, a conservation
fee may ensure that an off-site regulated area will not have any regulated
activity within the Town in the future, or it may fund natural resource
protection and/or restoration projects within Town boundaries. A conservation
fee will be held by the Town of New Paltz in a dedicated account and
will correspond to the amount required to create the off-site mitigation,
including land costs, costs of maintenance and monitoring and costs
to administer the conservation plan. Such funds shall only be dispersed
by resolution of the Town Board.
A plan prepared and implemented by an applicant in accordance
with this chapter in order to mitigate a substantial adverse effect
on regulated areas.
An imposition on lands by deed restriction to preserve the
environmental, ecological, biological, hydrological, or other functional
values of regulated areas. Such a restriction shall run with the land
and bind subsequent owners and shall be documented on a survey map
or plan, which shall be filed in the office of the County Clerk in
such form as is adequate to provide notice of the restriction. A conservation
restriction does not require a dedication of lands for public use,
and the owners of the property, their successors and assigns otherwise
retain their rights to full use and quiet enjoyment of their property.
An upland area adjacent to a quality vernal pool that provides
essential habitat for amphibians during the nonbreeding season for
foraging, dispersing, and hibernating and migration to the pool during
breeding season.
Barriers that intentionally or unintentionally obstruct the
natural flow of water, either to raise it, lower it, or artificially
maintain its level.
An application shall be deemed "received" by the Planning
Board on the date of the first regular meeting of the Planning Board
following the filing of an application and supporting plans pursuant
to the provisions of this chapter.
The act of filling, grading, discharging, emitting, dumping
or the placement of any material.
The emission of any water, substance, or material into a
regulated area as defined herein.
A species that, alone or in combination with an assemblage
of other species, exhibits the greatest areal extent (ground or canopy
cover) or greatest density (number of plants per unit area) within
one or more layers (tree, shrub, or herb) of a naturally occurring
plant community.
To deplete or empty of water by drawing off by increments.
To excavate, move, or remove sediment, soil, mud, sand, shells,
gravel, or other aggregate, either by hand or machine.
The Environmental Conservation Board of the Town of New Paltz,
New York.
The Environmental Conservation Law of the State of New York.
The United States Environmental Protection Agency.
To dig out, move, or remove any material, either by hand
or machine.
The United States Federal Emergency Management Administration.
Placing material in a regulated area so as to alter its elevation
or topography, including bottom elevation or topography if submerged,
or its aquatic function.
A land area adjoining a river, stream, lake, intermittent
or perennial watercourse, waterbody or wetland, which area is inundated
by water from any source, usually associated with the one-hundred-year
storm event return interval. Flood Insurance Rate Maps, Drainage Reports,
and Flood Insurance Studies produced by the Federal Emergency Management
Administration (FEMA) are definitive for the purposes of this chapter.
Maps and data presented by Geographic Information System
technology.
The general direction of surface water flow paths which can
be inferred from local topography.
To adjust the degree or inclination of the contours of the
land, including leveling, smoothing, and other modifications of the
land surface by any means, including filling or excavation.
The portion of the year when soil temperatures are above
biologic zero (5° C.); the growing season for Ulster County is
approximately May 15 through September 15.
The readily observable plant species growing as dominant
species in inundated, saturated, or periodically inundated or saturated
soils, as listed on the United States Fish and Wildlife Service National
List of Vascular Plant Species that Occur in Wetlands: 1996 National
Summary.
A constructed mitigation or replacement wetland, watercourse
or waterbody, usually by flooding or excavating lands not previously
occupied by a wetland, watercourse or waterbody, that re-creates as
nearly as possible the type and function of the original resource
and is located on site or within the same subwatershed with the Town
of New Paltz, provided that adequate and sufficient wetland/watercourse
hydrology can be verified, under the terms of an approved conservation
plan, as defined herein.
A regulated area that comprises a stream, creek, or brook,
through which surface water travels in a well-defined channel on a
seasonal basis, but not continuously throughout the year, as well
as the associated bank, as defined herein. For the purposes of this
chapter, intermittent watercourses are those where water stands or
flows for at least three consecutive months in a twelve-month period,
except that waterways specifically designed and constructed to serve
a stormwater conveyance or treatment function, such as grassy swales,
drainage ditches, and other structures engineered to concentrate and
convey stormwater from development and only retain water for a short
duration after a rainstorm or spring snow-melt, are not considered
intermittent watercourses.
The commercial harvesting of live timber.
Liquid, solid, or gaseous substances, including but not limited
to soil, silt, gravel, rock, clay, peat, mud, debris, or refuse; any
organic or inorganic compound, chemical agent or matter, sewage sludge
or effluent, or industrial or municipal solid waste.
As defined in Section 608.1(r) of 6 NYCRR Part 608, Use and
Protection of Waters.
The removal or reduction, to the maximum extent feasible,
of substantial adverse effects of a regulated activity on a regulated
area.
A strategy to redress unavoidable substantial adverse effects
of a regulated activity on a regulated area.
A soils color designation system based on a collection of
color-reproduced chips that visually demonstrate the relative degree
of the three fundamental variables of color: hue, value, and chroma,
as produced by the Kollmorgen Corporation, 1975, or as amended or
updated from time to time. Each color chart shows the range and variation
in value and chroma for a specific hue.
Wetlands Research Program's Technical Report Y-87-1,
on file in the office of the Town Clerk, used for the delineation
of federally regulated wetland areas.
A written notification from the Wetlands Inspector to an
applicant issued in response to a short-form application to conduct
a regulated activity.
A formal written request to the Planning Board to review
a decision or order of the Wetlands Inspector or any officer of the
Building Department made pursuant to or within the scope of this chapter,
which shall specify the grounds for seeking review.
The New York Codes, Rules and Regulations.
The New York State Department of Environmental Conservation.
A regulated area that comprises a river, stream, creek, or
brook, through which surface water travels on a continual basis, as
well as the associated bank as defined herein.
That form of written approval required by this chapter for
the conduct of a regulated activity within a regulated area.
Any individual, firm, partnership, association, trust, corporation,
company, organization, or legal entity of any kind, including municipal
corporations, governmental agencies, or subdivisions thereof.
The Planning Board of the Town of New Paltz, New York; the
municipal board empowered to approve, approve with conditions, or
deny permits pursuant to this chapter.
The contamination or the departure from the range of normal
variation in physical or chemical factors of any wetland or watercourse,
by reason of erosion or by any waste or other materials discharged
or deposited therein.
Any proposed or ongoing action that may result in a direct
or indirect physical or chemical impact on a regulated area, including
but not limited to any regulated activity as defined by this chapter.
A regulated area that comprises a seasonally flooded, isolated
pool of standing water that is devoid of naturally occurring fish
and that persists, in a year of average precipitation, for at least
two months. (Annual precipitation in Ulster County normally ranges
from 40 inches to 48 inches).
Quality vernal pools must have an area greater than 100 square
feet to be regulated areas under this chapter.
Quality vernal pools must satisfy any of the following criteria
set forth below:
There is evidence of a naturally occurring confined basin depression,
with no permanently flowing outlet, and evidence of nonincidental
breeding by one or more species of obligate vernal pool species (wood
frog, spotted salamander, Jefferson salamander, marbled salamander,
fairy shrimp, clam shrimp, fingernail clams). Acceptable evidence
of nonincidental breeding includes:
There is evidence of:
A naturally-occurring confined basin depression with no permanently
flowing outlet; and
Standing water that dries up during the year or which, for other
reasons, does not contain reproducing fish; and
Nonincidental presence of two or more species of facultative
vernal pool species (blue-spotted salamander, spring peeper, gray
tree frog, Fowler's toad, pickerel frog, leopard frog, four-toed
salamander, red-spotted newt, spotted turtle, wood turtle, painted
turtle, snapping turtle); or
There is evidence of a naturally-occurring confined basin depression
with no permanently flowing outlet and evidence of standing water
that dries up during the year or which, for other reasons, does not
contain reproducing fish, for which:
See "grading."
Any activity, as enumerated in § 139-8 of this chapter, that may potentially have a substantial adverse effect, as defined herein, on a regulated area.
Those areas enumerated in § 139-5, pursuant to the purpose and intent of this chapter.
Those costs incurred by the Planning Board or other Town
agency for professional consultation fees (including services by the
Wetlands Inspector, as defined herein) to provide technical, biological,
and engineering services, legal fees, or other expenses in connection
with the review of a proposed permit application and/or conservation
plan that are charged to the applicant. Separate and apart from application
fees, reimbursable costs will be no higher for an applicant than they
are for the Town, subject to audit and open to inspection by the applicant.
Such sums must be paid in full prior to the issuance of a permit.
To dig, dredge, suck, bulldoze, dragline, blast, or otherwise
excavate or grade, or the act thereof.
The mowing, weeding, cultivating, planting, and trimming
of vegetation or the removal of dead or diseased trees in natural
or improved landscaped areas.
An activity that will substantially alter or impair the natural
functions or benefits of a regulated area.
Article 8 of the Environmental Conservation Law, providing
for environmental quality review of actions that may have a significant
effect on the environment, and regulations established pursuant thereto.
Any associated buffer area having a topographical gradient
(ratio of vertical distance to horizontal distance) of 15% or greater,
with a minimum horizontal dimension of 10 feet.
Anything constructed or erected, the use of which requires
location on or in the ground or attachment to something having location
on the ground, including but not limited to buildings, septic systems,
water wells, recreation courts, sheds, storage bins, reviewing and
display stands, platforms, towers, walls, fences, swimming pools,
gasoline pumps, billboards, satellite dishes, signs and mobile dwellings,
bridges, roads, impervious surfaces and paved parking areas.
Areas located within the Town of New Paltz that are tributary
drainages to the Wallkill River as identified on a Town topographic
map.
The United States Army Corps of Engineers.
The United States Department of Agriculture.
Electric, telephone or other utility service from an existing
utility distribution facility, except for activities regulated by
Article VII or VIII of the Public Service Law.
See "quality vernal pool."
A regulated area that comprises any natural or artificial
pond, lake, or other area that usually or intermittently contains
water and that has a discernible shoreline. Regulated waterbodies
do not include detention and retention, infiltration and detention
basins. For the purposes of this chapter, the associated buffer shall
be designated as if it were a wetland based on acreage, with boundary
determination of the waterbody based on the location of its banks.
A waterbody must have an area greater than 1/10 acre to be a regulated
area under this chapter.
A regulated area that comprises any natural, permanent, seasonal,
or intermittent channel or water segment, rivers, streams, brooks,
naturally occurring impoundments within such channels or other waterways
that are contained within, flow through, or border on the Town of
New Paltz. A watercourse contains a discernible channel, bed, banks
and/or berm and usually flows in a particular direction. Artificial
water segments, such as swales and ditching, shall not be considered
a regulated area.
The zone of saturation closest to the soil surface during
the wettest season.
A person having detailed scientific knowledge about the biogeophysical
structure, function, or interrelationships of terrestrial and aquatic/semiaquatic
plant and animal communities. This person must demonstrate training
and experience in the identification of regulated areas and the use
of the 1987 Federal Wetlands Delineation Manual and the New York State
Freshwater Delineation Manual (DEC 1995), including preparation of
state and federal data forms and wetland delineation reports. A qualified
wetland delineator must have a degree from an accredited university
in a related field and a minimum of two years of continuous delineation
experience as set forth herein.
A regulated area that comprises hydric soils and/or is inundated
or saturated by surface water or groundwater at a frequency and duration
sufficient to support, and that under normal circumstances does support,
a prevalence of vegetation typically adapted for life in saturated
soil conditions. Wetlands generally include swamps, marshes, bogs,
vernal pools, wet meadows, fens and similar areas. For the purposes
of this regulation, wetlands are defined in accordance with the methodology
set forth in NYCRR Part 664 and in the 1987 Federal Wetlands Delineation
Manual. Regulated wetlands do not include detention, infiltration
and retention basins. A wetland must have an area greater than 1/10
acre to be a regulated area under this chapter.
The sum total of wetness characteristics in areas that are
inundated or have saturated soils to within 18 inches of the surface
for a sufficient duration to support hydrophytic vegetation.
The agent appointed by the Town Board, upon recommendation by a committee consisting of one member of the Town Board, two members of the Planning Board, and two members of the New Paltz Environmental Conservation Board, to fulfill the designated enforcement and permit processing responsibilities set forth in this chapter. A qualified wetlands inspector shall have a degree in a related field from an accredited college or university, a minimum of two years of delineation experience, and scientific knowledge about the biogeophysical structure, function, or interrelationships of terrestrial and aquatic/semiaquatic plant and animal communities. The expenses associated with professional services provided by the Wetlands Inspector (see "reimbursable costs," as defined in § 139-4 of this chapter) and any inspection of a parcel and mapping by the Wetlands Inspector (as provided at the sole cost of the municipality) shall be incurred by the Town's "b" fund (Town-outside-village), which is funded by fees and other revenue streams that do not rely on local property taxes.
The process of increasing the width of a watercourse beyond
the natural width found up- and downstream.
The Zoning Board of Appeals of the Town of New Paltz, New
York.
Regulated areas protected under this chapter include the following:
B.
Intermittent watercourse, as defined in § 139-4 of this chapter, with an associated buffer area to include all adjacent land extending 50 feet as measured horizontally from the bank of the watercourse.
C.
Perennial watercourse, as defined in § 139-4 of this chapter, with an associated buffer area of 100 feet as measured horizontally from the bank of the watercourse as defined in § 139-4 of this chapter, except that for the Wallkill River such associated buffer shall extend for 200 feet as measured horizontally from the top of the river bank.
D.
Quality vernal pools, as defined in § 139-4 of this chapter, greater than 100 square feet in area, with an associated buffer area of 100 feet measured horizontally from the edge of such quality vernal pool. When requested by an applicant, the presence of pool-breeding amphibian habitat may be confirmed in the spring.
E.
Waterbody, as defined in § 139-4 of this chapter, with an associated buffer area designated as if the waterbody were a wetland based on its acreage. Waterbodies of less than or equal to 1/10 acre shall not be considered a regulated area.
A.
No person shall conduct a regulated activity within regulated areas
without compliance with the provisions of this chapter as of the effective
date of this chapter. To secure compliance with this chapter, the
Town of New Paltz shall provide written notice to all owners of real
property, as identified on the current tax assessment rolls, within
45 days of the enactment of this chapter and shall post a notice on
the Town's website. Such notice shall, at a minimum, contain
the following information:
B.
Mapping.
(1)
This written notice shall identify available mapping and other resources
to assist in the identification of regulated areas. It shall also
inform recipients of the notice that, after generally mapping regulated
areas throughout the municipality, the Town has adopted the official
Town of New Paltz Wetlands and Watercourse Map and that such official
map is available to the public in the Town Hall and on the Town's
website as a reference for the Town and property owners. This notice
should indicate that the Town Wetlands and Watercourse Map is an accurate
representation of the approximate boundary of these regulated resources,
but that, due to the scale of the map, the exact location of the boundary
of these resources and their buffer areas can only be determined (or
verified) in the field by the Town Wetlands Inspector or other trained
individual acting for the Town.
(2)
This notice shall request from the recipients additional information
that may assist the Town in identifying regulated areas and in developing
municipal maps.
(3)
The sources for the evolving municipal maps include, but are not
limited to, the following:
(a)
NYSDEC Freshwater Wetlands Maps;
(b)
United States Fish and Wildlife Service National Wetlands Inventory
Maps;
(c)
USDA Soil Conservation Service Revised Soil Survey for Ulster
County;
(d)
Aerial photographs, which may be obtained from the USDA Soil
Conservation Service Revised Soil Survey for Ulster County;
(e)
Flood Insurance Rate Maps, drainage reports, and flood insurance
studies produced by the Federal Emergency Management Agency;
(f)
Town of New Paltz GIS Open Space Inventory Maps;
(g)
A survey map provided by an applicant, illustrating a regulated area delineated in accordance with the methodology set forth in § 139-13, Boundary delineation methodology;
(h)
Any additional information used by the Wetlands Inspector to
investigate a regulated area, issue a notice of determination or make
a recommendation on an application, including but not limited to a
tax map, survey map, site plan, aerial photograph, site inspection
and any future mapping created during the administration of this chapter.
C.
Map updates.
(1)
The Wetlands Inspector shall compile and keep a file of such information
on regulated areas gained from site inspections and other sources
in the course of administration of this chapter and shall recommend
such information, as applicable, to the map at least once per year.
(2)
The Town Board shall adopt by resolution any revisions to the Official
Map.
(3)
The Town shall provide notice by mail, within 45 days of the update,
to any property owners affected by such updated information. The update
notice shall summarize:
(4)
For any such update, a detailed map update report of any map changes
shall be prepared by the Wetlands Inspector and should be available
to the public in the Town Hall and on the Town's website.
D.
Inspections.
(1)
Owners of real property who are unsure of the existence of a regulated area on their land may request an inspection of the subject parcel by the Wetlands Inspector, at the sole cost of the municipality, by completion of a short-form application, as provided in § 139-12, Permit applications; review; notice of determination; public hearing; extensions. This is limited to one inspection per lot and is unavailable on lots that have already been provided such an inspection under this section.
(2)
The Wetlands Inspector shall reply to any such inquiry with a written
determination of the existence of regulated areas on such property
within 60 days. If weather or ground conditions do not allow for a
reliable determination of regulated areas on their property, the Wetlands
Inspector shall so inform such owners, in writing, within such sixty-day
period and shall further indicate a time as early as practicable when
such determination may take place.
A.
Activities and uses in regulated areas, as defined in § 139-5 of this chapter, that shall be regulated under this chapter are those that have the potential to cause a substantial adverse effect, as defined in § 139-4 of this chapter, and those that are not specifically exempted in § 139-9, Exemptions for preexisting lawful actions, and § 139-10, Activities allowed without permits.
B.
It shall be unlawful for any person to engage in a regulated activity, as described in § 139-8 herein, without first having obtained:
C.
If a person wishing to conduct an activity is in doubt about whether the activity is exempt or about which procedural requirements may apply, or if he or she wishes to discuss with the Wetlands Inspector any phase of the proposed project as it relates to the activity or to the permit, that person may contact the Inspector to schedule a preapplication conference at a reimbursable cost (fee) as defined in § 139-4 of this chapter and as shall be established, when appropriate, by action of the Town Board.
Activities, other than those specifically exempted in §§ 139-9 and § 139-10 of this chapter, that have the potential to cause substantial adverse effect in regulated areas, as described in § 139-5 of this chapter, include those prescribed in 6 NYCRR 663.2, as well as, but not limited to, the following:
A.
Any form of mining, dredging or excavation and any grading or removal
of soil, mud, sand, gravel, peat, silt or any other earth material
from any regulated area, either directly or indirectly;
B.
Any form of dumping, filling or depositing of any soil, stones, sand,
gravel, mud, rubbish or fill of any kind in any regulated area, either
directly or indirectly;
D.
Placing any other obstructions within any regulated area, channelization or berming, as defined in § 139-4 of this chapter, whether or not the same affect the ebb and flow of water;
E.
The introduction or storage of any substance, sewage effluent, the runoff of pesticides, or the disposal of toxic material, including chemicals, dyes, fertilizers or other organic materials, fuels, herbicides; pesticides, de-icing materials, or similar materials in any regulated area, if such materials are likely to cause the pollution of waters, except as provided in § 139-10K and where necessary for the public health, safety, and well-being of persons and property therein;
F.
Draining or ditching within any regulated area;
G.
Introducing any influents of high thermal content, such that the
same are capable of causing deleterious ecological effects on any
regulated area;
H.
Installing septic disposal systems or swimming pool drainage systems
or installing any pipe or other conduit for the same;
I.
Withdrawing, diverting, detaining or retaining groundwater or surface
water in excess of 2,500 gallons per day for more than seven days
in the course of one year, which may cause an increase or decrease
in the flow, velocity or volume of water (excluding the natural seasonal
fluctuations of the subject watercourse or waterbody);
J.
Clearing, as defined in § 139-4 of this chapter, within any regulated area, except routine maintenance or landscaping, as defined in § 139-4 of this chapter. Any activity regulated pursuant to Chapter 130, Tree Conservation, of the Code of the Town of New Paltz shall be regulated under this chapter as well if such activity occurs in a regulated area;
K.
Except as lawfully permitted pursuant to ECL § 11-0505,
displacement or destruction of that proportion of beaver lodges and
beaver dams that would result in deleterious changes to the hydrology
of wetlands, watercourses and beaver impoundments and/or negative
impacts to wetland vegetation, flora and fauna, except in cases in
which beaver impoundments are impacting or threatening to impact existing
structures, roads, and driveways. Nonlethal approaches to beavers
should be encouraged as the preferred solution, but this chapter shall
not supersede NYSDEC jurisdiction over beaver trapping permits;
L.
Any other activity that is determined by the Wetlands Inspector,
with concurrence by the Planning Board, to have the potential for
substantial adverse effects on the regulated areas.
A.
The provisions of this chapter shall not apply to the following preexisting
actions, including uses and structures lawfully approved, or lawfully
approved and constructed prior to the effective date of this chapter,
provided that those actions that occurred in regulated areas subject
to NYSDEC jurisdiction under ECL Article 24, the Freshwater Wetlands
Act, were established in compliance with 6 NYCRR Parts 663 through
664.
(1)
Activities pursuant to a preliminary subdivision plat, or site plan,
special exception permit or clearing and grading permit that has been
duly approved following an environmental review, as provided under
SEQRA, by the Planning Board, which permit or approval remains valid
on the date of the action or construction of the structure;
(2)
Activities pursuant to a valid building permit and/or certificate
of occupancy that has been lawfully issued by the Building Department;
(3)
Activities pursuant to a use variance, area variance or special exception
permit following an environmental review, as provided under SEQRA,
that has been duly issued by the Zoning Board of Appeals (ZBA) and
which permit or approval remains valid on the effective date of this
chapter.
B.
The activities enumerated above shall not be expanded, changed, enlarged
or altered, except in accordance with the provisions of this chapter.
Should preexisting activities or uses be discontinued, said activities
shall no longer be permitted as a preexisting lawful action under
this section and shall be subject to the requirements of this chapter.
C.
The construction of a septic system specified in a preliminary subdivision plat, described in Subsection A(1) of this section, shall be permitted without any further review by the Wetlands Inspector or Planning Board if said septic system has received approval from the Ulster County Health Department, pursuant to § 17-1505 of the Environmental Conservation Law. The construction of all other septic systems specified in preexisting permits and approvals described in Subsections A through C of this section shall be subject to review by the Wetlands Inspector as provided in § 139-12A(5)(a)[5][h] of this chapter.
D.
Actions, activities or uses in regulated areas as depicted on a valid
site plan or a subdivision plan granted preliminary approval by the
Planning Board on or before the effective date of this chapter must
be completed within three years from the date of approval, provided
that the action, activity or use conforms to such valid site plan
or subdivision plan, including any conditions or restrictions thereon,
any representations relating to the proposed activity submitted by
the applicant pursuant to SEQRA, including but not limited to the
environmental assessment form and draft and final environmental impact
statements, and any finding, determination, requirement or condition
made under SEQRA by the lead agency at the time of approval.
E.
Actions, activities or uses in a regulated area for which a valid
building permit or special exception permit has been issued on or
before the effective date of this chapter shall expire if the work
to be performed on the project is not begun within 12 months of the
date of approval. Such approval may be extended by the Planning Board
or, if applicable, the ZBA upon Planning Board referral before such
approval expires, for an extension of not more than six months for
good cause shown. The construction activities must be completed within
24 months.
The following activities are exempt from the permitting requirements
for regulated areas as set forth herein:
A.
The deposition or removal of natural products of wetlands and watercourses
for the purpose of recreational or commercial fishing, shell fishing,
hunting, or trapping where lawfully permitted.
B.
The ordinary maintenance and repair of existing functional structures,
facilities, or improved areas, including but not limited to septic
systems, water wells, bridges, highways and paved streets, driveways,
walkways, walls, fences, railroad beds, bulkheads, docks, piers, or
pilings, which maintenance and repair does not involve the expansion
of such structures, facilities, or improved areas. For the purposes
of this subsection, paving an existing driveway shall constitute ordinary
maintenance and repair, so long as such paving does not raise the
surface of such driveway by more than six inches or expand its horizontal
boundaries.
C.
The normal grounds maintenance of existing natural or improved landscaped
areas, including gardening, mowing and trimming of vegetation, the
removal of nonnative vegetation or the removal of dead or diseased
trees.
D.
The reasonable application of de-icing compounds on roads, driveways
and sidewalks for pedestrian and vehicular safety.
E.
The operation, maintenance and replacement, but not the expansion
or enlargement, of dams, retaining walls, terraces, sluices, culverts,
or other water-control structures or devices, involving the adjustment
of water elevations of no greater than two inches from existing levels.
F.
Agriculture, as defined in § 139-4 of this chapter, on lands located within an established agricultural district, as certified by the New York State Commissioner of Agriculture pursuant to Article 25-AA of the AML.
G.
The activities of landowners, other than those engaged in agriculture
and farm operations as identified above, in grazing and watering livestock
and domestic animals, making reasonable use of water resources.
H.
Establishing scenic, historic, wildlife and scientific preserves
where no substantial adverse effect is involved.
I.
Boating, hiking, swimming, camping, picnicking, and other similar
outdoor activities, including the establishment of walking trails
and individual recreational moorings, where no substantial adverse
effect is involved, except for the intensive, organized and repetitive
use of all-terrain vehicles, air- and motorboats and snowmobiles.
J.
Conducting educational and scientific research activities where no
substantial adverse effect is involved.
K.
Emergency activities for the protection of public health and safety,
including the following:
(1)
Activities and uses essential to ensure adequate police, fire, and
rescue functions undertaken either by the Town of New Paltz or by
a nonprofit organization authorized by contract with the Town to provide
these public services;
(2)
Essential activities to promote public health, safety, and the well-being
of persons and property and to implement orders and regulations of
the Ulster County Department of Health and/or the New York State Department
of Health, with notification to the Town Board and Planning Board;
(3)
Any actual and ongoing emergency activity that directly addresses
an imminent threat to public health or safety, property or structures,
established roads or driveways, or natural resources. Such emergency
activities may include, but are not limited to:
(a)
Search-and-rescue operations;
(b)
Preventative or remedial activities related to the mitigation,
cleanup, or control of contamination of groundwater and surface water;
(c)
Preparation for or response to floods, hurricanes, and other
storms that follows established emergency response plans for a watercourse
or that secures access reasonably necessary to public health and safety;
(d)
Firefighting and other public health concerns.
A.
The Town of New Paltz Highway Department shall be exempt from the
procedural requirements of this chapter upon filing a memorandum of
understanding (MOU), along with the annual 284 Agreement, pursuant
to the provisions of § 284 of the New York State Highway
Law, with the Town Board.
B.
Such MOU shall be as protective as the provisions of this chapter
and shall be subject to annual review, requiring practices in keeping
with the substantive purpose, intent and spirit of this chapter. Such
MOU shall, at a minimum, contain the following provisions:
(1)
The Highway Department shall select and apply practices that reduce
the amount of total runoff and associated pollution, including sediment
and gravel. Such practices shall include the avoidance of curbing
to the maximum extent consistent with public health and safety.
(2)
The Highway Department shall adopt the following practices to reduce
potential pollution from roadside ditches:
(a)
When possible, discontinue the practice of scraping to remove
excess vegetation;
(b)
Utilize mowing to manage vegetation;
(c)
If scraping is necessary, utilize hydroseed immediately after
scraping to reestablish vegetative cover;
(d)
Divert ditch outflows to infiltration basins, constructed wetlands
or similar structures to limit direct discharges to streams, and regularly
maintain such devices.
C.
The Town Board shall refer said MOU to the Planning Board and the
Wetlands Inspector for review and comment.
A.
Short-form applications.
(1)
A short-form application shall be made to the Building Department for all regulated activities that are listed in § 139-8, Regulated activities, and are not specifically exempted in § 139-9 or 139-10 of this chapter. For regulated activities where the applicant has submitted or will submit an application to the Planning Board for an approval or permit authorized by provisions of the Town Code other than this chapter, the short-form application shall be submitted to the Planning Board. The short-form application shall be submitted on forms provided by the Building Department and shall include the following:
(a)
The name, address and telephone number of the applicant and,
if the applicant is not the owner, the written consent of the owner.
(b)
The street address and Tax Map designation of the property involved.
(c)
A description of the proposed work and the purpose thereof,
and an explanation why the proposed activity cannot be located outside
of regulated areas.
(2)
The application shall include any pertinent documentation deemed
appropriate by the applicant and a fee, as shall be established from
time to time by action of the Town Board.
(3)
The short-form application shall be referred to the Wetlands Inspector.
The Wetlands Inspector shall determine, within 14 business days of
the receipt of such a referral, whether any additional documentation
or information is necessary.
(4)
The Wetlands Inspector shall be authorized to conduct a site visit
whenever deemed necessary for the purpose of evaluating the short-form
application.
(5)
Upon review of the application, if the proposed activity is determined to be within a regulated area, as described in § 139-5, Regulated areas, the Wetlands Inspector shall make either of the following two determinations:
(a)
The proposed activity does not have the potential to cause substantial
adverse effects on a regulated area, or would otherwise be authorized
to proceed as enumerated below by a notice of determination, as defined
herein, without a permit.
[1]
Said determination shall include the date of the review of the
referral, any site inspection, finding and conditions deemed necessary
by the Wetlands Inspector to ensure compliance with the purpose and
intent of this chapter, and the supporting reasons for the determination.
No further review or action is required.
[2]
The notice of determination shall indicate that the applicant
must be in strict conformance with the submitted plans and project
description, as they may be adapted by the Wetlands Inspector, and
any conditions specified by the Wetlands Inspector, including, without
limitation, the establishment and maintenance of silt fencing.
[3]
The notice of determination may also require a limits-of-construction
line to be located on the ground before any construction activities
begin.
[4]
The notice of determination and findings shall be filed with
the offices of the Building Inspector and the Town Clerk, and a copy
shall be sent to the applicant. The notice of determination and findings
shall also be filed with the Planning Board if there is a pending
application before the Planning Board relating to the proposed activity.
[5]
Notices of determination are authorized for, but not limited
to, the following activities:
[a]
The new construction of structures or facilities or the expansion of any preexisting lawfully permitted functional structures or facilities located within an associated buffer area, as defined in § 139-4 of this chapter, provided that it shall result in an as-built footprint of less than 600 square feet of ground surface.
[i]
Such activity may not create any new noncompliance or increase
the degree of existing noncompliance with the provisions of this chapter
and may not be associated with any application for subdivision or
site plan approval before the Planning Board.
[ii]
Such activity shall disturb the minimum area reasonably necessary
for its completion, and the Wetlands Inspector shall have the authority
to require remediation of any area disturbed during construction,
including best management practices, necessary to accomplish the purposes
of this chapter.
[iii]
No notice of determination shall be issued under
this Subsection A(5)(a)[5][a] for activities in areas regulated by
the NYSDEC under Article 15 or 24 of the State Environmental Conservation
Law. No notice of determination shall be issued under this Subsection
A(5)(a)[5][a] for any exceedance of 600 square feet of cumulative
as-built footprint in regulated areas on any individual lot by all
regulated activities subsequent to the effective date hereof. No notice
of determination shall be issued under this Subsection A(5)(a)[5][a]
for any regulated activity in a watercourse or waterbody, including
any bank associated therewith.
[b]
The restoration, reconstruction or modification of any preexisting lawfully permitted functional structure or facilities located within an associated buffer area, as defined in § 139-4 of this chapter.
[i]
Such activity shall disturb the minimum area reasonably necessary
for its completion, and the Wetlands Inspector shall have the authority
to require remediation of any area disturbed during construction,
including best management practices, necessary to accomplish the purposes
of this chapter.
[ii]
Such activity may not create any new noncompliance or increase
the degree of existing noncompliance with the provisions of this chapter.
[iii]
No notice of determination shall be issued under this Subsection A(5)(a)[5][b] for activities in areas regulated by the NYSDEC under Article 15 or 24 of the State Environmental Conservation Law or any regulated activity in the bank of a watercourse or waterbody, as defined in § 139-4 of this chapter.
[c]
Drilling a well for potable water to serve a preexisting
individual residence on land located within an associated buffer area,
pursuant to a permit issued by the Ulster County Department of Health.
[d]
The installation of utility service, as defined in § 139-4 of this chapter, within an associated buffer to serve a preexisting structure.
[e]
Cutting vegetation, other than trees, in the associated
buffer area.
[f]
Cutting no more than two trees in an associated buffer area in any one calendar year, such that the functions and benefits of the regulated areas are not adversely affected or environmentally impacted, except where such activities are regulated pursuant to Chapter 130, Tree Conservation, of the Code of the Town of New Paltz or are allowed under § 139-10C of this chapter.
[g]
The application of a pesticide to the ground within
an associated buffer area within 50 feet of a private residence when
such use is by the owner or his/her agent.
[h]
The construction of a septic system specified in
an approval or permit that predates the effective date of this chapter,
or the reconstruction or repair of an existing septic system. The
Wetlands Inspector shall issue a notice of determination pursuant
to this Subsection A(5)(a)[5][h] upon a showing that such septic system
and associated leachfield will not have any impact on regulated areas
or will avoid impact on regulated areas to the maximum extent practicable.
(b)
The proposed activity is a regulated activity, as enumerated in § 139-8, that has the potential to cause substantial adverse effects on regulated areas and requires a long-form permit application prepared by the applicant. Said determination shall include the date of the review of the application, any site inspection, and the supporting reasons for the determination. This determination shall identify the potential substantial adverse effects on the regulated areas and shall consider the biological quality, values, functions and benefits of the regulated area, the potential impact on the regulated area, and the availability of a reasonable alternative. This finding shall be filed with the offices of the Planning Board and the Building Inspector, and a copy shall be sent to the applicant.
B.
Long-form applications.
(1)
An application for a long-form wetland permit shall be filed with
the Planning Board on forms furnished by the Secretary of the Planning
Board and accompanied by a fee, as shall be established from time
to time by action of the Town Board.
(2)
The application shall be accompanied by a number of copies thereof
as shall be established from time to time by action of the Planning
Board. These copies and a copy of the application in a digital format
authorized by the Planning Board shall be filed with the offices of
the Planning Board, Building Inspector, and the EnCB, in accordance
with the standards and procedures set forth herein, and shall include
a copy of the short-form and the following information:
(a)
A completed environmental assessment form (EAF) as required
by SEQRA, with particular specificity regarding the potential substantial
adverse environmental impacts on the function of regulated areas.
The Wetlands Inspector or the Planning Board may, at their option,
require submittal of a full (long-form) EAF, as specified in 6 NYCRR
617.20, Appendix A, to accompany the application.
(b)
A project location map that indicates the approximate boundaries
of the property in relation to surrounding land and roadways on a
United States Geological Survey or New York State Department of Transportation
topographic map having a scale of no less than one inch equals 2,000
feet.
(c)
A detailed survey map, at a scale no greater than one inch equals
100 feet, which shall be certified by an engineer, architect, land
surveyor, or landscape architect licensed in the State of New York,
to include:
[1]
All existing structures and improvements, natural features such
as woodlands, and stone walls, drainage structures, wells and septic
systems located on the property within 250 feet of proposed regulated
activities;
[2]
Contour lines at two-foot intervals in the regulated area to
be disturbed, depicting existing and proposed topographic conditions;
[3]
The boundaries of any one-hundred-year floodplain; and
[4]
All proposed site improvements, including structures and roads,
grading, drainage, and excavation plans.
(e)
Copies of all applicable local, county, state, and federal permits
or other permit applications required for proposed activities.
C.
Based on the scope of the project and comments from the Wetlands
Inspector, Town Engineer or other professional consultant, the Planning
Board may require, as is necessary for the proper review of the application,
the following additional information:
(1)
The boundaries of all regulated areas, as identified and delineated in accordance with standards set forth in § 139-13 of this chapter no more than 18 months prior to the date of filing of the application, on a topographic survey of the property, containing notation documenting the field delineation.
(2)
The description of the vegetative cover of the regulated area shall include the dominant species, as defined in § 139-4 of this chapter, and their wetland classified status.
(3)
Groundwater table elevations indicating depth to groundwater, direction
of groundwater flow and hydrologic connections with surface water
features.
(4)
The location of the construction area and area proposed to be disturbed,
and its relation to property lines, roads, buildings, and regulated
areas within 250 feet.
(5)
The locations and specifications for any proposal to drain, fill,
grade and dredge, and to clear vegetation, including areas and quantities
proposed for deposition or removal, the procedures to be used and
dominant species of vegetation to be removed.
(6)
The locations and details of any existing and proposed stormwater
drainage facilities, including any point discharges, artificial inlets,
or other conveyances that would discharge into regulated areas, and
measures proposed to control erosion or other potential adverse effects
on the regulated areas both during and after the proposed work, including
a schedule for installation and maintenance for such measures.
(7)
Where the creation of a lake, pond, detention or other water impoundment
is proposed, details of the construction of any dam, berm, embankment,
spillway, outlet or other water-control device.
(8)
An analysis of hydrologic systems located within and connected to
the regulated areas and a narrative to explain how the regulated areas
will be affected by the proposed action, including water retention
capacity, water flow and other drainage characteristics. Applications
for projects affecting the water retention capacity, water flow, or
other drainage characteristics of any pond, lake, reservoir, natural
drainage system or wetland shall include a statement and numerical
calculations of the impact of the project on upstream and downstream
areas, giving appropriate consideration to other than normal levels
of watercourses and amounts of rainfall, specifically the one-hundred-year-storm
event.
(9)
A habitat assessment done in accordance with the Habitat Assessment Guidelines of the Town of New Paltz (April 2006), including critical terrestrial habitat, as defined in § 139-4 of this chapter, and a narrative to explain how on-site habitats will be affected by the proposed action, with particular emphasis on federal and New York State endangered, threatened, or special-concern species and regionally declining and ecologically sensitive species, as identified in Hudsonia's Biodiversity Assessment Manual for the Hudson River Estuary Corridor. This assessment can be based on existing information available from the Natural Heritage Program at the NYSDEC in Albany or from other sources. In cases where no site-specific information is available, an original assessment may be required. For quality vernal pools, the following sources will be considered guidance for the determination of critical terrestrial habitat: from the Metropolitan Conservation Alliance, Best Development Practices: Conserving Pool-Breeding Amphibians in Residential and Commercial Developments in the Northeastern United States (Calhoun & Klemens 2002), and from Hudsonia, Biodiversity Assessment Manual for the Hudson River Estuary Corridor (Kiviat & Stevens 2001). Copies of all guidance cited in this Subsection C(9) shall be available for reference in the office of the Town Clerk.
D.
The Planning Board may waive any application information requirements
as set forth herein, provided that the decision and reasons for any
such waiver shall be clearly set forth in the official record and
shall be no less protective of regulated areas.
E.
Within 32 days of the receipt of an application for a wetland permit,
the Planning Board shall determine whether such application is complete
or if additional information is required. The Planning Board shall
refer a complete application to the EnCB and the Wetlands Inspector
for review and comment. The EnCB and the Wetlands Inspector shall
submit comments to the Planning Board within 62 days of the date of
referral.
F.
Upon a determination by the Planning Board that an application is
complete, a public hearing shall be scheduled as follows:
(1)
The public hearing shall commence no later than 32 days after the
determination by the Planning Board that an application for a wetland
permit is complete. Any public hearing on the application may be held
concurrently and coordinated with any other required public hearing
held pursuant to any other law, including SEQRA.
(2)
All application documents, including maps and findings relating to
the proposed regulated activity, shall be open for public inspection
in the office of the Planning Board at least 10 days prior to the
public hearing.
(3)
Notice of the public hearing shall be advertised at least once in the official newspaper of general circulation in the Town at least five days before such hearing. A copy of said notice shall also be mailed by the Secretary of the Planning Board, at the expense of the applicant, to all owners of property contiguous to the parcel containing the proposed regulated activity and to all owners of property within a distance of 500 feet up-gradient and down-gradient from the subject regulated area within the same subwatershed area, as defined in § 139-4 of this chapter, regardless of municipal boundaries, at least 10 days before the opening of such hearing. A list of such property owners shall be obtained by the applicant from the current tax rolls and supplied to the Secretary of the Planning Board, along with addressed, stamped, business-sized envelopes, for this purpose. The Planning Board may, at its discretion, require that the list of property owners also include those properties within or contiguous to the subject regulated area for a distance of 1,000 feet up-gradient and/or down-gradient within the same subwatershed area, as defined in § 139-4 of this chapter, where the regulated activity clearly has the potential to significantly impact such properties.
G.
The Planning Board may waive public hearing requirements as set forth
herein, provided that the decision and reasons for any such waiver
pursuant to this Subsection shall be clearly set forth in the official
record and shall be no less protective of regulated areas.
H.
Notwithstanding any other provision of this section, whenever the
Planning Board is reviewing an application for an approval or permit
authorized by provisions of the Town Code other than this chapter,
for any activity for which an application has also been filed under
this chapter, the Planning Board shall combine and integrate all permitting
procedures to the maximum extent practicable, including but not limited
to the public hearing and public notice procedures under this section
and SEQRA procedures.
I.
The applicant and Planning Board may, by mutual consent, extend the
time for any determination or decision on the application. Any such
extension must be in writing and must be recorded in the minutes of
a noticed meeting of the Planning Board.
A.
If a long-form permit application is required by the Wetlands Inspector pursuant to § 139-12, Permit applications; review; notice of determination; public hearing; extensions, the applicant shall identify the boundaries of regulated areas according to the methodology set forth below. Such boundaries will be permanently marked when appropriate in a manner to be defined in consultation with the Planning Board.
(1)
Wetland boundaries.
(a)
Wetland boundaries for those wetlands regulated under this chapter
which are also mapped and regulated by the NYSDEC under ECL Article
24, known as the State Freshwater Wetlands Act, shall be delineated
by methodology at least as protective as that specified in such Act
and in the New York State Freshwater Delineation Manual (DEC 1995).
(b)
Wetland boundaries for all other wetlands regulated under this
chapter shall be delineated by methodology at least as protective
as that set forth in the 1987 Federal Wetlands Delineation Manual
or any future approved wetlands delineation manual adopted by action
of the Town Board.
(c)
The methodology for the delineation of NYSDEC-regulated wetlands
shall conform with the hydrophytic vegetation specified in Subdivision
1(a) and (b) of § 24-0107 of the Freshwater Wetlands Act
of the ECL and of the lands and waters specified in Subdivision 1(c)
and (d) of § 24-0107 of the Act.
(d)
The methodology for the delineation of all other wetlands regulated
under this chapter shall employ positive wetland indicators of all
three parameters that are normally present in wetlands: hydrophytic
vegetation; hydric soils; and wetland hydrology, as more particularly
described hereafter:
[1]
Hydrophytic vegetation: the frequency of vegetation occurrence
in wetlands, as referred to in the New York State Freshwater Delineation
Manual (DEC 1995) and ECL § 24-0107, Subdivision 1, for
NYSDEC-regulated wetlands. For the delineation of federally regulated
wetland areas, refer to the vegetation criteria of the federal 1987
Federal Wetlands Delineation Manual.
[2]
Hydric soils: soils that are saturated, flooded or ponded long
enough in the growing season to develop anaerobic conditions that
support the growth of hydrophytic vegetation. Hydric soils are soil
types that are poorly drained, very poorly drained, alluvial or floodplains
soils, as documented in Lawrence A. Tornes' Soil Survey of Ulster
County, New York, United States Department of Agriculture Soil Conservation
Service and Cornell University Agricultural Experiment Station, June
1979, on file in the office of the Town Clerk.
[3]
Wetland hydrology: all hydrologic characteristics of areas that
are periodically inundated or have soil saturated to the surface during
the growing season, as more particularly specified in the 1987 Federal
Wetlands Delineation Manual. Indicators of wetland hydrology may be
used to confirm that a site without apparent hydrophytic vegetation
and hydric soils still exhibits hydrologic conditions typically associated
with such vegetation and soils. Such indicators include, but are not
limited to the following:
[a]
Recorded data, such as stream gauges, flood predictions,
aerial photographs or other historical data;
[b]
Visual observation of inundation;
[c]
Visual observation of soil saturation within the
upper 12 inches of soil;
[d]
Sediment deposits as a result of flooding;
[e]
Drift lines as a result of flooding;
[f]
Surface scouring as a result of flooding; and
[g]
Meandering drainage patterns.
(e)
Wetland boundaries shall be identified by field investigation and flagging by a qualified wetland delineator, as defined in § 139-4 of this chapter, in accordance with the methodology above, as follows:
[1]
The boundaries of a wetland that is subject to the jurisdiction
of the USACE or NYSDEC may be established by an existing jurisdictional
and/or boundary determination issued by the USACE or NYSDEC at any
time prior to 90 days of the effective date of this chapter. Such
delineation shall be valid for a period not to exceed five years from
the date the delineation.
[2]
The boundaries of a wetland that is subject to the jurisdiction
of the USACE or NYSDEC may also be established by a jurisdictional
and/or boundary determination issued by the USACE or NYSDEC after
90 days of the effective date of this chapter following field investigation,
provided that the Wetlands Inspector is notified, in writing, of a
boundary inspection by the applicant at least five business days prior
to the inspection and had an opportunity to participate in the field
investigation by USACE or NYSDEC staff. Such delineation shall be
valid for a period not to exceed five years from the date of the delineation.
[3]
All wetlands without a USACE jurisdictional determination or NYSDEC boundary determination shall be delineated by field investigation and flagging by a qualified wetland delineator. Such delineation shall be based upon standards and criteria at least as protective as that established in Subsection A(1)(e)[1] of this section, and shall be in accordance with the standards set forth above, and shall be shown on a survey or site plan of the property prepared by a licensed land surveyor, landscape architect or professional engineer at any time prior to 90 days of the effective date of this chapter, or after 90 days of the effective date of this chapter following field investigation, provided that the Wetlands Inspector is notified, in writing, of a boundary inspection by the applicant at least five business days prior to the inspection and had an opportunity to participate in the field investigation. Such delineation shall be valid for a period not to exceed five years from the date of delineation.
(2)
A watercourse boundary shall be delineated by field investigation
and flagging by a qualified wetland delineator, through locating the
banks of the watercourse in the manner described in 6 NYCRR Part 608,
Use and Protection of Waters, and with reference to average annual
rainfall conditions.
(3)
A quality vernal pool boundary shall be identified by a qualified
wetland delineator through field investigation and aerial photo interpretation,
where available, as well as through any information available from
the New York Natural Heritage Program.
B.
All boundary determinations, whether by the USACE or NYSDEC or by
a qualified wetland delineator, shall be subject to review by the
Wetlands Inspector, who may consult with biologists, hydrologists,
soil scientists, ecologists, botanists or such other experts as are
necessary to confirm that the boundary determination complies with
the requirements of this chapter and the intent and purpose of this
chapter. The reasonable and necessary costs of such consultations,
including the preparation of an additional survey, shall be the responsibility
of the applicant for the permit.
If a public hearing held by the Planning Board is scheduled in conjunction with a public hearing required for any other permit, SEQRA action, or approval, the Planning Board shall take action on the permit application for regulated areas within the time frame provided for other such permit or approval. Otherwise, within 62 days following the close of a public hearing or decision to waive a public hearing pursuant to this chapter, the Planning Board shall approve/approve with conditions, approve with modification of associated buffer areas, issue a notice of intent to deny (See § 139-16, conservation plan in lieu of permit denial), or deny the application, as provided below.
A.
No permit approval shall be considered for the proposed regulated
activity by the Planning Board unless and until the applicant has
demonstrated by clear and convincing data and analysis:
(1)
That there is no reasonable alternative to the proposed regulated
activity, including a reduction in the density, intensity of use,
or scope of the proposed use, or alternative site plan, which would
avoid substantial adverse effects on the regulated areas; and
(2)
That the substantial adverse effect of the proposed regulated activity
on the function served by the regulated areas, or the benefits derived
therefrom, has been minimized to the maximum extent feasible.
B.
To determine if the applicant has complied with criteria above, the
Planning Board, in consultation with the Wetlands Inspector and the
Town Engineer, shall evaluate the adverse effect of the proposed regulated
activities upon regulated area functions and land uses within the
same subwatershed, as enumerated below:
(1)
Depositing fill in a regulated area, or other modification of topographic
contours;
(2)
The disturbance or destruction of flora and fauna, endangered and
threatened species, ecologically sensitive species, and significant
habitats in a regulated area;
(3)
The influx of sediments or other materials causing increasing water
turbidity and/or substrate aggradations in a regulated area;
(4)
The removal or disturbance of regulated area soils;
(5)
The destabilization of a regulated area channel or bank;
(6)
The reductions and/or increases in regulated area water supply;
(7)
The reductions and/or increases in an associated buffer area;
(8)
Interference with the circulation of water within or through a regulated
area;
(9)
Damaging thermal changes and/or nutrient levels in the water supply
within or through a regulated area;
(10)
Alterations to flood flows, flood storage, stormwater, upstream
and downstream channel and bank stability, storm barriers, and water
quality of regulated areas;
(11)
The impacts of flooding, erosion, hurricane winds, soil limitations,
and other hazards, such as fire or landslides, on regulated areas;
(12)
The impacts on the water supply and waste disposal of regulated
areas;
(13)
The cumulative adverse effect of any proposed or reasonably
anticipated future activities on regulated areas subject to the application;
(14)
Consistency with public health and safety, as well as with any
existing federal, state, county, and local comprehensive land use
plans and regulations;
(15)
Consideration of the biological quality, values, functions and
benefits of the regulated areas and any other considerations that
the Planning Board deems pertinent to the function of regulated areas
and land uses in the same subwatershed area.
C.
Decision alternatives.
(1)
Approval of the permit/approval with conditions.
(a)
Following an evaluation as set forth above, and after finding
that the application will eliminate any substantial adverse effects
on the regulated areas, the Planning Board may approve a permit application
or approve with such conditions as may be deemed necessary to assure
compliance with the purposes and intent of this chapter.
(b)
Prior to any site disturbance, clearing or grading or other work on the property, when appropriate, a maintenance bond or letter of credit, as provided in § 139-15M, is required, which bond or letter of credit shall remain in effect until the Wetlands Inspector has certified that the regulated activity has been completed in accordance with permit approval.
(c)
The Planning Board shall incorporate the necessary conditions
within its written findings with respect to the proposed regulated
activity and shall repeat those conditions on the face of the permit
itself.
(2)
Approval with modification of associated buffer areas.
(a)
The Planning Board, in consultation with the Wetlands Inspector,
Town Engineer, and EnCB, may decrease the width of the associated
buffer area (i.e., the distance from the protected wetland, watercourse,
or waterbody to the edge of the regulated area) if, after such reduction,
there is no substantial adverse effect on the function of such buffer,
and, where appropriate, may increase the size of the associated buffer
area to compensate for any potential loss in such function, in due
consideration of the features of the buffer, as follows:
[1]
Slope. The greater the slope of the buffer zone area, the larger
the area must be to adequately slow runoff velocities into the wetland.
[2]
Depth to bedrock. Steep land, as defined in § 139-4 of this chapter, with shallow soil type of less than three feet requires a larger buffer zone area to address rapid storm flow.
[3]
Ground cover. The less vegetative cover and associated organic
debris a buffer zone has, the more area is needed to successfully
dissipate the energy of rainfall and runoff.
[4]
Soil erodability. If the soil of the area adjacent to a wetland
bears high erosion potential, a larger buffer zone is needed to separate
the disturbed area from the wetland.
[5]
Wetland value or sensitivity. The higher the quality of the
wetland, in terms of habitat and species present, and the more sensitive
it is to potential impacts, the greater the need for a buffer area
large enough to assure its viability and to provide adequate protection
for a wetland species and its critical terrestrial upland habitat.
(b)
Approval with modification of associated buffer areas under this Subsection C(2) shall not apply to wetlands or associated buffer areas subject to NYSDEC jurisdiction under ECL Article 24, the Freshwater Wetlands Act, or to regulated activities in a waterbody, watercourse or bank associated therewith, as defined in § 139-4 of this chapter.
(3)
Notice of intent to deny a permit.
(a)
The Planning Board shall issue a written notice of intent to deny a permit if it finds that the proposed regulated activity will have a substantial adverse effect on the function of regulated areas, despite the applicant's due diligence to comply with the standards and criteria above, and it shall invite the applicant to devise a conservation plan in compliance with § 139-16, conservation plan in lieu of permit denial, within 60 days.
(b)
The basis for the Planning Board's issuance of a notice
of intent to deny shall be included within the written findings with
respect to the regulated activity and on the face of the notice of
intent itself.
(4)
Denial of the permit.
(a)
Should the applicant fail to exercise due diligence to comply
with the standards and criteria above, the Planning Board shall deny
the permit application to avoid substantial adverse effects on the
regulated areas by the proposed regulated activity.
(b)
The basis for the Planning Board's decision to deny the
permit, as enumerated above, shall be included within the written
findings with respect to the regulated activity and on the face of
the permit denial itself.
General standards applicable to the issuance of notices of determination
and permits are as follows:
A.
Site access. The Wetlands Inspector and Planning Board and its agents
or employees may enter upon any lands or waters for good cause shown
so as to undertake investigations, examinations, surveys, or other
activity, including the review of applications and determinations
of compliance, all for the purpose of administering and enforcing
this chapter. For any parcel that is not the subject of an application
under this chapter, no entry onto any such parcel under this subsection
shall occur, absent the agreement of the landowner.
B.
File documents. All information relating to a permit application,
including but not limited to the application itself, additional required
materials or information, notices, record of hearings, written comments,
and findings, shall be maintained on file in the office of the Planning
Board.
C.
Protection of waters jurisdiction. No notice of determination or
permit shall be required under this chapter for any regulated activity
for which a permit is required under Article 15, Title 5, of the Environmental
Conservation Law; provided, however, that to the extent that such
regulated activity is conducted in a regulated area for which no permit
is required under Article 15, Title 5, of the Environmental Conservation
Law, a notice of determination or permit shall be required hereunder.
D.
Sound management and practices. The Wetlands Inspector and Planning
Board shall provide information to assist applicants and shall issue
guidelines and opinions on sound management practices and permissible
activities in regulated areas. Updated compilations of such guidelines
and opinions will be periodically printed and made available to the
public.
E.
Construction fencing and erosion control. For all projects that receive
a notice of determination or permit, the limits of disturbance to
any regulated areas will be identified by construction fencing prior
to the issuance of a building permit, and erosion control measures
as are appropriate to protect regulated areas shall be installed,
and such protection shall remain in place and in good condition until
all construction activities are completed and a certificate of occupancy
is issued.
F.
Written issuance, inspection, expiration and posting. All notices
of determination by the Wetlands Inspector and permits approved by
the Building Inspector following compliance with the sections of this
chapter shall be issued in written form in accordance with the following:
(1)
Work conducted under a notice of determination or permit shall be
open to inspection at any time by the Wetlands Inspector, Building
Inspector, and Planning Board and its agents or employees.
(2)
The notice of determination or permit expiration date shall be clearly
noted and shall be pursuant to the time periods specified by this
chapter.
(3)
The notice of determination or permit shall be prominently displayed
at the project site during the undertaking of the authorized activities.
G.
Other laws and regulations. No notice of determination or permit
granted pursuant to this chapter shall remove an applicant's
obligation to comply in all respects with the applicable provisions
of any other federal, state, or local law or regulation, including
but not limited to the acquisition of any other required permit or
approval.
H.
Payment of fees and reimbursable costs. Application fees and other reimbursable costs, as defined in § 139-4 of this chapter, and any conservation fee required pursuant to § 139-14, shall be charged to the applicant. In no event shall a notice of determination or permit be issued until all such sums have been paid in full.
I.
Inactive applications or renewals. Applications must be diligently
pursued by the applicant. Should any application before the Planning
Board remain inactive for one year pending the submission of required
information, the application shall be considered withdrawn. Withdrawn
applications may be resubmitted as renewal applications within one
year from the date of withdrawal, subject to a permit renewal fee,
determined by resolution of the Town Board, and the applicable review
requirements of this chapter, provided that the applicant demonstrates
that such renewal is warranted by good cause. Inactive applications
do not include those where the applicant is actively preparing a report
at the request of the Planning Board or Wetlands Inspector.
J.
Expiration and extensions. Notices of determination and permits shall
remain in effect until the termination of the activities specified
and, unless otherwise indicated, shall be valid to commence the permitted
activities for a period of one year from the date of issue. Upon written
request of the applicant prior to the expiration date of a notice
of determination or permit, the Planning Board may extend the commencement
of the permitted activity for a time not to exceed two additional
periods of 90 days each, provided that the applicant demonstrates
that such extension is warranted by good cause.
K.
Documents filed by the Planning Board. A wetlands permit approval, approval with conditions, approval with modification of associated buffer areas, notice of intent to deny, or permit denial shall be filed by the Secretary of the Planning Board in the offices of the Wetlands Inspector, Building Inspector, EnCB and Town Clerk. A notice of intent to deny a permit, absent the applicant's compliance with § 139-16, conservation plan or fee in lieu of permit denial, will be filed by the Secretary of the Planning Board in the offices of the Wetlands Inspector and Building Inspector.
L.
Certificate of compliance. A certificate of compliance, as defined in § 139-4 of this chapter, shall be issued by the Wetlands Inspector to certify that the regulated activity has been satisfactorily completed in accordance with permit approval. Failure to comply with the conditions specified in a notice of determination or permit shall result in a revocation.
M.
Maintenance bond or letter of credit required. A maintenance bond
or irrevocable letter of credit shall be in the amount of the cost
of the work to be performed pursuant to the permit approval to ensure
performance of any work that is not complete or satisfactory to the
Wetlands Inspector. If a sufficient bond or letter of credit has already
been filed for site improvements associated with the project, the
Planning Board has the discretion not to require a separate maintenance
bond or letter of credit. A bond or letter of credit shall remain
in effect until the issuance and filing of a certificate of compliance,
or shall continue, when appropriate, until a certificate of occupancy
is issued by the Building Department. If a bond has been filed to
allow the issuance of a temporary certificate of occupancy, it shall
be a condition of such certificate that the work be completed within
two years.
N.
Certificates of occupancy. A certificate of occupancy may be issued
after the Wetlands Inspector has issued a certificate of compliance,
as provided above.
A.
Planning Board findings.
(1)
In the event that the Planning Board issues a notice of intent to deny a permit for a regulated activity pursuant to § 139-14, an applicant may submit to the Planning Board a conservation plan after the Planning Board finds, by clear and convincing data and analysis, that all reasonable efforts were undertaken to comply with the criteria set forth in § 139-14 A(1) and (2) and that:
(a)
The proposed project satisfies a compelling need of the community
related to the health, safety and well-being of persons and property
therein and clearly and substantially outweighs the loss or detriment
to the function served by the regulated area and the benefits derived
therefrom; or
(b)
A court of competent jurisdiction may reasonably find that a
denial of the permit would preclude substantially all uses for which
a property is zoned and suitable, so as to deny the owner all economically
beneficial or productive use of his or her property, or that the economic
effect of the regulation is so substantial as to work a regulatory
taking of property.
(2)
Failure to comply with at least one of these conditions shall result in a permit denial that shall be filed in accordance with § 139-15, Standards for issuance of notices of determination and permits. For the purposes of this subsection, connecting roads other than principal roads or thoroughfares with each other, so as to permit travel between neighborhoods without utilizing such principal roads and thoroughfares, shall constitute a compelling need of the community.
(3)
The applicant may request such findings from the Planning Board at
any time during the Planning Board's consideration of the application,
up to six months after the Planning Board issues a notice of intent
to deny a permit.
(4)
The Planning Board shall issue a written determination of its findings
and shall include such findings in its notice of intent to deny if
it makes such findings prior to issuing such notice of intent to deny
or shall separately issue such findings and provide a copy to the
applicant if said findings are subsequent to such notice of intent
to deny.
B.
Conservation plan.
(1)
A conservation plan, as defined in § 139-4 of this chapter, is a narrative that shall explain the nature of the substantial adverse effects on the regulated area and associated natural resources by the proposed regulated activity and shall propose a strategy to mitigate the impacts. The narrative shall address any impacts on up-gradient and down-gradient property in the same subwatershed and shall explain the degree to which the proposed mitigation will attempt to redress the adverse environmental impacts on the regulated area. The plan must include a schedule for implementing the proposed work.
(2)
The conservation plan may include, but is not limited to, the following
mitigation activities, individually or in combination, to redress
adverse effects by the regulated activity:
(a)
The establishment of a conservation restriction, as defined in § 139-4 of this chapter, to permanently protect the natural condition and functions of the remaining regulated areas of the subject parcel up-gradient or down-gradient in the same subwatershed as the area subject to the regulated activities that do not comply with the permit approval standards established in § 139-14 C(1) and (2) by precluding any future regulated activities within those areas pursuant to this section.
(b)
The restoration or enhancement of native vegetation (for example,
improving the density and diversity of native woody plant species)
in adjacent associated buffer areas to offset the impacts on the affected
regulated area.
(c)
The repair or restoration of degraded or disturbed regulated areas, similar to those that have been or are proposed to be filled, drained, or damaged, or the construction of new regulated areas by in-kind replacement, as defined in § 139-4 of this chapter, of at least twice the area as the replaced wetland, watercourse or waterbody.
(d)
The construction of infiltration basins and the utilization
of bioretention and detention techniques to maximize stormwater infiltration
on-site, or the retrofitting of existing stormwater infrastructure
to the extent not otherwise required by applicable law.
(e)
The increase of the width of other associated buffer areas to offset the adverse impacts that will have resulted from a regulated activity, in accordance with the criteria set forth in § 139-14C(2).
C.
The Planning Board will conduct a preliminary review within 32 days of receipt of the draft conservation plan to determine whether the plan is sufficiently complete, will set a date for a public hearing on the same in accordance with § 139-12F, and will forward a copy of the application, draft plan and notice of hearing to the Wetlands Inspector, the EnCB, and the Town Board.
D.
The Wetlands Inspector and EnCB shall, within 62 days of referral of a proposed conservation plan, report to the Planning Board the extent to which the draft conservation plan mitigates substantial adverse effects on the regulated areas. The reasonable costs of review, as defined in § 139-4 of this chapter, incurred by the Wetlands Inspector, the EnCB and the Planning Board for private consultation fees shall be reimbursed by the applicant.
E.
After the lapse of the sixty-two-day referral period, the Planning Board shall determine whether the applicant has satisfactorily complied with this section and shall make one of the following decisions, which shall be issued and filed in accordance with § 139-15, Standards for issuance of notices of determination and permits:
(1)
Approve the conservation plan/approve the plan with modifications.
The Planning Board may approve or approve with such modifications
or conditions as the Planning Board determines are necessary to mitigate
the substantial adverse effects on the function of the regulated areas
by the proposed regulated activity. Upon approval of a conservation
plan, a permit shall be issued. The applicant may be required to issue
a maintenance bond or letter of credit as provided herein, prior to
any site disturbance, clearing, grading or other work on the property
that may adversely affect regulated areas.
(2)
Disapprove the conservation plan. The Planning Board may disapprove
the conservation plan when the applicant has failed to mitigate the
adverse effects of the proposed regulated activity despite available
opportunities and strategies to mitigate the impacts. Disapproval
of a plan shall result in a permit denial.
(3)
Notice of intent to deny the conservation plan. When a plan is not feasible, despite the applicant's due diligence to comply with the standards and criteria above, the Planning Board may invite the applicant to pay a conservation fee, as defined in § 139-4 of this chapter, in lieu of plan denial.
G.
Conservation fee.
(1)
To avoid disapproval of the conservation plan and permit denial when
the Planning Board determines that there are no feasible mitigation
strategies available to the applicant, despite the applicant's
due diligence, or that available mitigation measures are inadequate
alone, the applicant may, in its sole discretion, propose the payment
of a conservation fee.
(2)
Upon such application, the Planning Board shall establish the conservation
fee in an amount necessary to mitigate the substantial adverse effects
or to replace the resources lost as a result of the proposed regulated
activity. In determining the conservation fee, the Planning Board
shall duly consider the costs of land, construction, maintenance,
monitoring and program administration.
(3)
Upon the applicant's agreement to pay the conservation fee established
by the Planning Board pursuant to the applicant's proposal hereunder,
and upon the applicant's payment of the conservation fee, the
Planning Board shall issue a permit with such conditions as it finds
necessary to effect the purposes of this chapter.
H.
Maintenance bond or letter of credit required.
(1)
Prior to any site disturbance, clearing or grading or other work
on the property, the applicant shall file a maintenance bond or letter
of credit in the amount of the cost of the work to be performed pursuant
to the conservation plan to ensure performance of any work that is
not complete or satisfactory to the Wetlands Inspector.
(2)
If a sufficient bond or letter of credit has already been filed for
site improvements associated with the project, the Planning Board
has the discretion not to require a separate maintenance bond or letter
of credit.
(3)
A bond or letter of credit shall remain in effect until the issuance
and filing of a conservation certificate or shall continue, where
appropriate, until a certificate of occupancy can be issued by the
Building Department.
(4)
If a bond has been filed to allow the issuance of a temporary certificate
of occupancy, it shall be a condition of such certificate that the
work be completed within two years.
I.
Conservation certificate. Upon satisfactory completion of a project authorized under the terms of a conservation plan and/or upon payment of a conservation fee, a conservation certificate, as defined in § 139-4 of this chapter, shall be issued by the Wetlands Inspector. The Wetlands Inspector shall issue a conservation certificate stating that the work of the authorized conservation plan has been completed in a satisfactory manner.
J.
Certificates of occupancy. A certificate of occupancy may be issued
after the Wetlands Inspector has issued a conservation certificate
as provided above.
To ensure administrative efficiency with the Town's separate
land use development regulatory processes, applications for zoning
variance made to the Zoning Board of Appeals (ZBA) affecting a regulated
area and concerning a regulated activity shall be referred to the
Wetlands Inspector for application, review, comment and administration
under the provisions of this chapter.
A.
Administrative sanctions.
(1)
Any person who undertakes any regulated activity without a required
permit or notice of determination issued under this chapter, or who
violates, disobeys, or disregards any provision of this chapter, including
any provision of any permit issued, any condition set or fee required
by the Planning Board or Town pursuant to this chapter, shall be liable
to the Town of New Paltz for a civil penalty of not more than $5,000
for every such violation. Each consecutive day of the violation will
be considered a separate offense. Such civil penalty may be recovered
in an action brought by the Town at the request and in the name of
the Planning Board in any court of competent jurisdiction. Such civil
penalty may be released or compromised by action of the Town Board,
and any action commenced to recover the same may be settled and discontinued
by the Town Board.
(2)
The Town Board shall have the power, following a hearing, to direct
the violator to restore the regulated area to its condition prior
to the violation, insofar as that is possible, within a reasonable
time and under the supervision of the Planning Board or its designee.
Any such order of the Town Board shall be enforceable in an action
brought in any court of competent jurisdiction. Any civil penalty
or order issued by the Town Board pursuant to the criteria set forth
herein shall be reviewable in a proceeding pursuant to Article 78
of the State Civil Practice Law and Rules.
B.
Criminal sanctions.
(1)
Any person who undertakes any regulated activity without a notice
of determination or required permit issued under this chapter, or
who violates, disobeys, or disregards any provision of this chapter,
including any provision of any permit issued, any condition set or
fee required by the Planning Board or Town pursuant to this chapter,
shall, in addition, for the first offense, be guilty of a violation
punishable by a fine of not less than $500 and not more than $1,000.
For a second and each subsequent offense, he/she shall be guilty of
a misdemeanor, punishable by a fine of not less than $1,000 nor more
than $2,000, or by a term of imprisonment of not less than 15 days
nor more than six months, or both. Each violation shall be a deemed
a separate and distinct offense, and in the case of continuing violation,
each day in continuance thereof shall be deemed a separate and distinct
offense.
(2)
In addition to these punishments, any offender may be ordered by
the court to restore the affected wetland, watercourse, or buffer
area to its condition prior to the offense, insofar as that is possible.
The court shall specify a reasonable time for the completion of such
restoration, which shall be effected under the supervision of the
Planning Board or its designee.
A.
The Building Inspector and CEO, as defined in § 139-4 of this chapter, shall have the authority and responsibility to enforce the requirements of this chapter. The Wetlands Inspector shall inform the Building Inspector or CEO of any potential violations of this chapter that he or she is aware of:
B.
Whenever the Building Inspector or CEO becomes aware of any potential
violation of this chapter, either of them may, in addition to any
other action authorized under any other state or local law, undertake
further investigation, or request the Wetlands Inspector to undertake
further investigation, of such potential violation.
C.
Stop-work and compliance orders.
(1)
Whenever the Building Inspector or CEO has reasonable grounds to
believe that any person has violated any provision of this chapter,
has failed to undertake a project in the manner set forth in a permit
or notice of determination issued pursuant to this chapter, or has
violated any condition or exceeded the authority granted in any such
permit or notice of determination, he/she may, in addition to any
other action authorized under any other state or local law:
(a)
Issue and serve one or more stop-work orders to abate such violations
and/or to halt any work that is contrary to any applicable provision
of this chapter or any requirement, limitation or condition in such
permit or notice of determination; and/or
(b)
Issue a compliance order, requiring the remedying of any such
violation and/or the restoration of the physical condition of the
site of any such violation. The compliance order shall:
[1]
Be in writing;
[2]
Be dated and signed by the CEO;
[3]
Specify the condition or activity that violates this chapter;
[4]
Specify the provision or provisions of this chapter or any such
permit or notice of determination that are violated by the specified
condition or activity;
[5]
Specify the period of time that the Building Inspector or CEO
deems to be reasonably necessary for achieving compliance;
[6]
Direct that compliance be achieved within the specified period
of time; and
[7]
State that an action or proceeding to compel compliance may
be instituted if compliance is not achieved within the specified period
of time.
(2)
The Building Inspector or CEO shall cause the stop-work or compliance
order, as the case may be, or a copy thereof, to be served on the
owner of the affected property personally or by certified mail, return
receipt requested, and by regular first-class mail. The CEO is authorized,
but not required, to cause a copy of the stop-work or compliance order
to be served on any builder, architect, tenant, contractor, subcontractor,
construction superintendent, or their agents, or any other person
taking part or assisting in work being performed at the affected property,
personally or by mail, and is further authorized, but not required,
to post such stop-work or compliance order on the site of the violation;
provided, however, that the failure to serve any person mentioned
in this sentence or to post such stop-work or compliance order shall
not affect the effectiveness or the enforceability of such order.
The stop-work or compliance order may state the conditions under which
work may resume, if any.
D.
The Building Inspector and CEO are hereby authorized to issue appearance
tickets before the Town Justice and to enforce the provisions of this
chapter, including the conditions of the permit approval, conservation
plan or conservation fee approved by the Planning Board. A copy of
the appearance ticket shall be filed with the Planning Board.
E.
The Town of New Paltz is specifically empowered to seek injunctive
relief restraining any violation or threatened violation of any provisions
of this chapter and/or to compel the restoration of the affected regulated
area to its condition prior to the violation of the provisions of
this chapter.
F.
Whenever a violation of this chapter is alleged, any person may file
a complaint in regard thereto. The CEO shall record such complaints
and shall promptly investigate and take enforcement action against
such violation under this section if appropriate and/or shall report
thereon to the Town Board for appropriate action.
Any decision or order of the Wetlands Inspector or any officer of the Building Department made pursuant to or within the scope of this chapter (other than to issue an appearance ticket), including the identification or mapping of a regulated area, as provided in § 139-6, notice of regulations; mapping; map updates; inspections, a notice of determination for any activity, as provided under § 139-12, Permit applications; review; notice of determination; public hearing; extensions, may be reviewed by the Planning Board at the request of any person affected thereby, including but not limited to the owner of the affected regulated area; any resident or owner of property contiguous to the subject parcel; any resident or owner of property within or contiguous to the subject regulated area for a distance of 1,000 feet up-gradient and down-gradient, regardless of municipal boundaries; or any person who uses or is directly affected by the regulated area, provided that such review is commenced upon filing with the Town Clerk or filing in the office of the Planning Board a notice of review within 30 days after filing of such with the Town Clerk. Such notice shall specify the grounds for seeking review and shall include a description of any new proof, if applicable. A review decision by the Planning Board shall be filed in accordance with § 139-15, Standards for issuance of notices of determination and permits.
Persons who may be individually, jointly or severally aggrieved
by any permit approval, permit denial, conservation plan, or conservation
fee may apply to the Supreme Court of the State of New York for review
of such decision under Article 78 of the Civil Practice Law and Rules
of the State of New York.
The Planning Board shall submit an annual report to the Town
Board not later than the 10th day of December of each year concerning
the administration, efficacy and enforcement of this chapter. The
EnCB and the Wetlands Inspector shall provide to the Planning Board
such information as the Planning Board may request to assist it in
compiling the annual report required under this section. Such reports
and recommendations shall assist the Town Board in monitoring and
evaluating the extent to which the intent and purpose of this chapter
have been served.
This chapter or any part thereof may, from time to time, be
amended, in accordance with the procedures and requirements of the
laws of the State of New York and the Code of the Town of New Paltz
and as new information concerning soils, hydrology, flooding, stream
channel geometry, or animal or botanic species peculiar to regulated
areas becomes available. Every such proposed amendment shall be referred
to the Planning Board and the EnCB for written reports before any
public hearing, which may be held by the Town Board pursuant to the
Municipal Home Rule Law. The Town Board shall not take action on any
such amendment without such reports from the Planning Board and New
Paltz Environmental Conservation Board unless 90 days have passed
from the date of referral by the Town Board.
Prior to any decision under § 139-14, Review of applications; permit decisions or § 139-20, Administrative Review, of this chapter, the Planning Board shall first comply with the provisions of the State Environmental Quality Review Act (SEQRA) under Article 8 of the Environmental Conservation Law and its implementing regulations.
Where the standards and management requirements of this chapter
are in conflict with other land use development regulations and policies
regarding streams, steep slopes, clearing and grading, erodible soils,
wetlands, floodplains, timber harvesting, land disturbance activities,
or other environmental protective measures, the more restrictive shall
apply.
All laws, regulations, maps and documents referenced in this
chapter shall be filed with the Town Clerk and shall be available
to the public for review upon request. Subsequent amendments to those
laws and regulations and subsequent editions of those documents shall
only apply to this chapter upon their adoption by the Town Board.
