[HISTORY: Adopted by the Town Board of the
Town of Philipstown 5-2-1991 by L.L. No. 4-1991.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Conservation Board — See Ch. 10.
Environmental quality review — See Ch. 84.
Flood damage prevention — See Ch. 90.
Land development — See Ch. 112.
Timber harvesting — See Ch. 159.
Water — See Ch. 169.
Zoning — See Ch. 175.
[1]
Editor's Note: This local law also repealed
former Ch. 93, Freshwater Wetlands, adopted 8-30-1976 by L.L. No.
1-1976.
This chapter shall be known as the "Freshwater
Wetlands and Watercourse Law of the Town of Philipstown." It is a
law regulating the dredging, filling, deposition or removal of materials,
diversion or obstruction of water flow, placement of structures and
other uses in wetlands and watercourses and in certain associated
lands and waters located in the Town of Philipstown. It further sets
forth permit requirements governing such actions.
A.
The Town Board of the Town of Philipstown has determined
that the public interest, health and safety and the economic and general
welfare of the residents of the Town of Philipstown will be best served
by:
[Amended 11-1-2001 by L.L. No. 4-2001]
(1)
The preservation and the proper maintenance and use
of its wetlands and watercourses; and
(2)
The protection of these and adjacent land areas from
encroachment, spoiling, pollution or elimination resulting from population
growth attended by commercial development, housing, road construction
and disregard for natural resources.
B.
The wetlands and watercourses in Philipstown are valuable
natural resources which function and benefit the entire Town and the
surrounding region in one or more of the following ways:
(1)
Protecting subsurface water resources, watersheds
and groundwater recharge systems.
(2)
Treating pollution through chemical and biological
degradation and adsorption processes.
(3)
Providing drainage and flood control through ground
absorption, natural storage and flood conveyance.
(4)
Controlling erosion and water turbidity by serving
as sedimentation areas and filter basins, absorbing silt and organic
matter.
(5)
Providing sources of nutrients in freshwater food
cycles.
(6)
Serving as nursery grounds and sanctuaries for freshwater
fish.
(7)
Providing a suitable living, breeding, nesting and
feeding environment for many forms of wildlife, including wild fowl,
shorebirds and rare species.
(8)
Providing suitable habitat for endangered flora.
(9)
Preserving open space and aesthetic values by providing
open space in areas threatened with crowding from commercial and residential
development.
(10)
Furthering education and scientific research by providing
readily accessible outdoor biophysical laboratories, living classrooms
and vast training and education resources.
C.
Wetlands and watercourse protection is a matter of
concern to the entire Town. The establishment of regulatory and conservation
practices for these areas serves to protect the Town by ensuring review
and regulation of any activity on wetlands and watercourses that might
adversely affect the Town's residents' health, safety and welfare.
D.
Wetlands and watercourses in Philipstown form an ecosystem
that is not confined to any one property owner or neighborhood. Experience
has demonstrated that effective wetlands and watercourses protection
requires uniformity of approach to preservation and conservation efforts
throughout the Town.
E.
Interference with wetlands and watercourses can cause
or aggravate flooding, erosion and diminution and pollution of water
supply for drinking and waste treatment and may pose a threat to the
health, safety and welfare of the people of Philipstown and the surrounding
region.
[Amended 11-1-2001 by L.L. No. 4-2001]
F.
This chapter is enacted pursuant to the Municipal
Home Rule Law, the Environmental Conservation Law, including but not
limited to Articles 24 and 71 thereof, and the official compilation
of Codes, Rules and Regulations of the State of New York, including
but not limited to Title 6, Part 665 thereof (6 NYCRR 665), and any
and all applicable laws, rules and regulations of the State of New
York. This law establishes a wetlands regulatory system separate from,
and in addition to, any applicable requirements under state or federal
law. Nothing contained herein shall be deemed to conflict with any
such laws, rules and regulations.
[Amended 11-1-2001 by L.L. No. 4-2001]
A.
It is the intent of the Town of Philipstown to control
and regulate the use of wetlands and watercourses, as defined herein,
within the Town to ensure that the benefits found to be provided by
them will not be lost and to protect the important physical, ecological,
social, educational, aesthetic, recreational and economic assets of
the present and future residents of the Town so as to protect the
public interest.
B.
It is not the intent of this chapter to prevent property
owners from the reasonable use of their land. It is the intent of
this chapter to allow reasonable use of land consistent with responsible
land management and to conserve and protect freshwater wetlands and
watercourses to the extent reasonably practicable, consistent with
this objective.
C.
It is the intent of this chapter that consideration should be given to the functional significance of a wetland involved in any particular application or proceeding. Wetlands vary in their importance and value to the environment. The decisions of activities to be permitted under this chapter should consider and reflect the relative significance or importance of any particular wetland. It is intended that the methodology set forth in § 93-8, Criteria for approval, should be used in making these decisions.
As used in this chapter, the following terms
shall have the meanings defined below:
A person who appeals a decision of the Conservation Board pursuant to § 93-10.
[Added 9-25-2013 by L.L. No. 3-2013]
A person who files an application for a permit under this
chapter, who is either the owner of the land on which the proposed
regulated activity would be located, a contract vendee, a lessee of
the land, the person who would actually control and direct the proposed
activity or the authorized agent of such person.
A method of harvesting where 75% or more of the trees of
six inches in diameter or greater at breast height (4 1/2 feet)
on a controlled area on an applicant's land are to be removed.[1]
The Conservation Board of the Town of Philipstown.
[Added 9-25-2013 by L.L. No. 3-2013]
A controlled wetland, a watercourse, a wetland and/or watercourses
buffer zone or any combination thereof.
Excavating or removing sediment, soil, mud, sand, shells,
gravel or other aggregate, whether natural or artificial, except for
small samples.
The wearing away of land surface by action of wind, weathering,
water, gravity or other natural force.
Any activity listed in § 93-6.
Depositing any soil, stones, sand, gravel, mud, rubbish,
material, matter or fill of any kind.
That portion of a watercourse adjacent to the channel of
the watercourse which is built of sediments deposited during the present
regimen of the watercourse and is covered with water when the watercourse
overflows its banks at flood stage, such as but not limited to those
mapped by the Federal Emergency Management Agency (FEMA) located along
Clove Creek, Foundry Brook, Canopus Creek and the Hudson River.
[Amended 11-1-2001 by L.L. No. 4-2001]
The alteration of the slope of surface or subsurface conditions
of land, lakes, ponds or watercourses by excavation or filling.
Soil that is saturated, flooded or ponded long enough during
the growing season to develop anaerobic conditions in the upper part,
and as further defined by the technical publication "Federal Manual
for Identifying and Delineating Jurisdictional Wetlands (1989)," which
manual shall be available for inspection in the office of the Town
Clerk. Hydric soils listed in Philipstown include the following listed
by numeric field symbols, names, symbol and hydrologic soil group:
[Amended 11-1-2001 by L.L. No. 4-2001]
|
Numeric Field
(nmf)
|
Name
|
Symbol (hydrologic soil group)
|
|---|---|---|
|
101
|
Carlisle
|
(Ce)D
|
|
102
|
Ipswich
|
(Ip)D
|
|
100
|
Fluvaquents
|
(Ff) flooded
|
|
311
|
Fluvaquents
|
(Ff) flooded
|
|
28
|
Fredon
|
(Fr)C
|
|
1251A
|
Leicester
|
(LcA)C
|
|
1251B
|
Leicester
|
(LcB)C
|
|
1252B
|
Leicester
|
(LcB)C
|
|
1011
|
Palms
|
(Pa)D
|
|
1101
|
Palms
|
(Pa)D
|
|
1012
|
Palms
|
(Pa)D
|
|
103
|
Aquents
|
(Pc) flooded
|
|
35
|
Raynham
|
(Ra)C
|
|
25
|
Sun
|
(Sh)D
|
|
27
|
Sun
|
(Sm)D
|
|
251A
|
Ridgebury
|
(Rd)C
|
|
251B
|
Ridgebury
|
(Rd)C
|
|
252B
|
Ridgebury
|
(Rg)C
|
Macrophytic plant life growing in water or on soils that
are at least periodically anaerobic as a result of excessive water
content, and as further defined by the technical publication "Federal
Manual for Identifying and Delineating Jurisdictional Wetlands (1989),"
which manual shall be available for inspection in the office of the
Town Clerk. Examples of hydrophytic vegetation include the following:
[Amended 11-1-2001 by L.L. No. 4-2001
Wetland trees, which depend upon seasonal or
permanent flooding or sufficiently water-logged soils to give them
a competitive advantage over other trees, including, among others,
red maple (Acer rubrum), willows (Salix species), black spruce (Picea
mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica),
black ash (Fraxinus nigra), silver maple (Acer saccharinum), American
elm (Ulmus americana) and larch (Larix laricina).
Wetland shrubs which depend upon seasonal or
permanent flooding or sufficiently water-logged soils to give them
a competitive advantage over other shrubs, including, among others,
alder (Alnus species), buttonbush (Cephalanthus occidentalis), bog
rosemary (Andromeda glaucophylla), dogwoods (Cornus species) and leatherleaf
(Chamaedaphne calyculata).
Emergent vegetation, including, among others,
cattails (Typha species), pickerelweed (Pontederia cordata), bulrushes
(Scirpus species), arrow arum (Peltandra virginica), arrowheads (Sagittaria
species), reed (Phragmites communis), wildrice (Zizania aquatica),
burr-reeds (Sparganium species), purple loosestrife (Lythrun salicaria),
swamp loosestrife (Decondon verticillatus) and water plantain (Alisma
plantagoaquatica).
Rooted, floating-leaved vegetation, including,
among others, water lily (Nymphaea odorata), water shield (Brasenia
schreberi) and spatterdock (Nuphar species).
Free-floating vegetation, including, among others,
duckweed (Lemna species), big duckweed (Spirodela polyrhiza) and watermeal
(Wolffia species).
Wet meadow vegetation which depends upon seasonal
or permanent flooding or sufficiently waterlogged soils to give it
a competitive advantage over other open land vegetation, including,
among others, sedges (Carex species), rushes (Juncus species), cattails
(Typha species), rice cut-grass (Leersia oryzoides), reed canary grass
(Phalaris arundinacea), swamp loosestrife (Decodon verticillatus)
and spikerush (Eleocharis species).
Bog mat vegetation, including, among others,
sphagnum mosses (Sphagnum species), bog rosemary (Andromeda glaucophylla),
leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea)
and cranberries (Vaccinium macrocarpon and Vaccinium oxycoccos).
Submergent vegetation, including, among others,
pondweeds (Potamogeton species), naiads (Najas species), bladderworts
(Utricularia species), wild celery (Vallisneria americana), coontail
(Ceratophyllum demersum), water milfoils (Myriophyllum species), muskgrass
(Chara species), stonewort (Nitella species), water weeds (Elodea
species) and water smartweed (Polygonum amphibium).
Any activity that does not qualify as a minor project or
which requires other permits or approvals from either the Planning
Board or the Town Board. Where multiple applications for a specific
project are involved, if at least one activity constitutes a major
project as defined herein, each proposed activity shall be treated
as a major project, notwithstanding anything contained herein to the
contrary.
[Added 9-25-2013 by L.L. No. 3-2013]
The most recent update of the map, accompanying this chapter, on file in the office of the Town Clerk entitled "Guide to Regulated Freshwater Wetlands and Watercourses, Town of Philipstown, Putnam County, New York," originally dated May 4, 1989, revised May 1, 1991, revised January 9, 2001, and all subsequent revisions, on which are indicated the approximate locations of watercourses and the boundaries of controlled wetlands. Said map is intended to be only a guide to the approximate location of wetlands and watercourses; their precise location is to be determined by field inspection in accordance with the specifications set forth in this chapter. However, any wetland which meets the definition of "controlled wetland" appearing in this § 93-4 is a controlled wetland, whether or not it appears on the map.
[Amended 11-1-2001 by L.L. No. 4-2001; 9-25-2013 by L.L. No.
3-2013]
Any activity requiring a wetlands permit where the Wetland
Inspector has determined this activity is to be performed on an individual
residential single-family building lot, where the use of mechanical
earthmoving equipment may be permitted. It is provided, however, that
such activities shall not take place within any portion of any wetlands,
water bodies, or watercourses and also that such activities will not
require the excavation of more than 15 cubic yards or disturb more
than 1,000 square feet of any areas within 100 feet of said wetlands,
water bodies, or watercourses.
[Added 9-25-2013 by L.L. No. 3-2013]
The plan prepared by the applicant, pursuant to § 93-13, when the applicant has demonstrated that the losses or impacts to the wetland, watercourse, or wetland/watercourse buffer are necessary and unavoidable, as defined in § 93-12, and have been minimized to the maximum extent practicable.
[Added 11-1-2001 by L.L. No. 4-2001]
The Town employee or consultant appointed to review development
applications for compliance with Town environmental regulations, including
but not limited to wetlands, steep slopes, and conservation analysis
requirements of zoning. This term is synonymous with "Wetlands Inspector."
This position may be held by an official with other duties or titles,
such as the Town Planner or Town Engineer.
[Added 9-25-2013 by L.L. No. 3-2013]
The written approval issued by any Town board, agency, or
official where required for conducting any activity regulated under
the Philipstown Town Code.[3]
[Amended 9-25-2013 by L.L. No. 3-2013]
Any corporation, firm, partnership, association, trust, estate,
one or more individuals or any unit of federal, state or local government
or any agency or subdivision thereof, including any state department,
bureau, commission, board or other agency, public authority or public
benefit corporation.
Review by the Conservation Board of a major project wetlands
permit application prior to the issuance of such wetlands permit by
the Natural Resources Review Officer.
[Added 9-25-2013 by L.L. No. 3-2013]
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to human, plant or animal life or well-being or to property.
Any activity listed in § 93-5 of this chapter.
A combination of materials to form a construction that is
safe and stable, and includes, among other things, trailers, stadiums,
platforms, radio towers, sheds, storage bins, billboards, display
signs, docks, wharves, boathouses, underground lines and pipes and
apparatus for transmission of electric power and standards and towers
and lines for transmission of electrical power; it excludes poles
for local electrical power distribution lines and telephone lines
in the Town of Philipstown and underground lines and pipes and apparatus
for local distribution of electric power or telephone service in the
Town of Philipstown; it includes 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, bridges, dams, tennis courts, swimming pools, paved
surfaces and playing fields.
[Added 11-1-2001 by L.L. No. 4-2001]
The Town of Philipstown, Putnam County, New York.
Rivers, streams, brooks, ponds, lakes, reservoirs and waterways, whether running constantly or intermittently, which are delineated on the current edition of the United States Department of Interior, Geological Survey, 7.5 Minute Series (Topographic) maps bearing the date 1981 (Peekskill Quadrangle), 1981 (West Point Quadrangle) and 1979 (Oscawana Lake Quadrangle), covering the Town of Philipstown; and any other streams, brooks and waterways which are contained within, flow through, or border on the Town of Philipstown, and any additional streams, brooks and waterways which are delineated on the map as defined in this § 93-4.
[Amended 11-1-2001 by L.L. No. 4-2001]
The sum total of wetness characteristics in areas that are
inundated or have saturated soils for a sufficient duration to support
hydrophytic vegetation.
[Added 11-1-2001 by L.L. No. 4-2001]
[Amended 11-1-2001 by L.L. No. 4-2001]
All areas that comprise hydric soils, as defined in this § 93-4, that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of hydrophytic vegetation, as defined in this § 93-4; or lands and submerged lands containing remnants of any vegetation that is not aquatic or semi-aquatic that has died because of wet conditions over a sufficiently long period, provided that such conditions can be expected to persist indefinitely, barring human intervention.
For the purposes of this chapter, "wetlands"
within 50 meters of each other and hydrologically connected are considered
to be one "wetland."
Lands and waters substantially enclosed by hydrophytic vegetation, as defined in this § 93-4, the regulation of which is necessary to protect and preserve the hydrophytic vegetation; and
An individual appointed by the Town Board who shall serve
at the pleasure of the Town Board to investigate, report on, and enforce
compliance with the provisions of this chapter. This term is synonymous
with "Natural Resources Review Officer."
[Amended 11-1-2001 by L.L. No. 4-2001; 9-25-2013 by L.L. No.
3-2013]
A controlled area adjacent to a controlled wetland or watercourse or to a combination of controlled wetlands and watercourses. A "wetlands buffer zone" consists of the land adjacent to a controlled wetland, as defined in this § 93-4, that lies within 100 feet of the boundary of said controlled wetland. A "watercourse buffer zone" consists of the land adjacent to a watercourse, as defined in this § 93-4, that lies within 100 feet, measured horizontally, of the mean high-water mark of said watercourse.
[Amended 11-1-2001 by L.L. No. 4-2001]
The written approval issued by Natural Resources Review Officer/Wetlands
Inspector where required by this chapter for conducting a regulated
activity in a controlled area.
[Added 9-25-2013 by L.L. No. 3-2013]
[1]
Editor's Note: The definition of "Committee,"
which immediately followed this definition, was repealed 7-14-2005
by L.L. No. 2-2005.
[2]
Editor's Note: The former definition of "Council," added 7-14-2005
by L.L. No. 2-2005, which immediately followed this definition, was
repealed 9-25-2013 by L.L. No. 3-2013.
[3]
Editor's Note: The former definition of "permitting authority,"
which immediately followed this definition, was repealed 9-25-2013
by L.L. No. 3-2013.
Activities regulated under this chapter are:
A.
Dredging or excavation; grading; and removal of soil,
mud, sand, gravel, silt, earth material and other aggregate, either
directly or indirectly.
B.
Dumping or deposition of soil, stones, sand, gravel,
mud, rubbish, material, matter or fill of any kind, either directly
or indirectly.
C.
Construction or installation of any structure or facility,
including but not limited to roads, buildings, driveways, parking
facilities, swimming pools, tennis courts, bridges, pipes or conduits;
installation of sewage disposal systems or sewer outfall; drilling
of wells; placing of other obstructions; or driving of pilings.
[Amended 11-1-2001 by L.L. No. 4-2001]
D.
Alteration or diversion of any flow of watercourse
or wetland. This includes but is not limited to docks, dams, pilings
and bridges.
E.
Use of chemicals, dyes, fertilizers, animal waste,
herbicides, pesticides, deicing materials or similar materials.
F.
Influents of high thermal content capable of causing
harmful ecological effects unless water is properly treated in recycling,
including but not limited to groundwater heat pumps for other than
one-family dwellings.
G.
Clear cutting or other vegetation removal affecting
surface water runoff.
H.
Establishment of trails for such purposes as, but
not limited to, walking, skiing, horseback riding, bicycling, motorcycling,
snowmobiling and off-road vehicle travel.
I.
Installation of service lines, cable conduits or utilities.
[Added 11-1-2001 by L.L. No. 4-2001]
J.
Introduction of any form of pollution, by means including,
but not limited to, the installation of a septic system, running of
a sewer or stormwater outfall, or discharge of sewage treatment or
other solid waste into or so as to drain into a controlled area.
[Added 11-1-2001 by L.L. No. 4-2001]
K.
Installation of drainage or water supply pipes or
wells.
[Added 11-1-2001 by L.L. No. 4-2001]
L.
Installation of dry wells, retention basins, filters,
open swales or ponds.
[Added 11-1-2001 by L.L. No. 4-2001]
The following activities are excluded from regulation
under this chapter.
A.
The depositing or removal of the natural products
of freshwater wetlands by recreational or commercial fishing, shellfishing,
hunting or trapping.
B.
Public
health activities, orders and regulations of the Putnam County Department
of Health or New York State Department of Health, provided that copies
of all such orders or regulations affecting wetlands are filed with
the Department of Environmental Conservation in advance and are for
emergencies only.
[Amended 9-25-2013 by L.L. No. 3-2013]
C.
Any activity for which, prior to the effective date
of this chapter, the Planning Board has otherwise granted approval
of a preliminary plat, conditional or otherwise, or the Building Inspector
has granted a building permit, or, in the case of any activity not
requiring action by the Planning Board or the Building Inspector,
any otherwise necessary permit has been granted by the Town official
or agency responsible for review of the activity.
D.
Any routine road, highway, street or driveway maintenance,
if the activity will not cause pollution or erosion of a watercourse
or a controlled wetland, or interfere with natural drainage.
[Amended 11-1-2001 by L.L. No. 4-2001]
E.
Normal grounds maintenance, gardening, selective trimming,
pruning or bracing of vegetation, removal of dead or diseased vegetation,
and decorative landscaping and planting, incidental removal of vegetation,
addition of vegetation, but not including the use of fertilizers and
pesticides within a controlled area.
[Amended 11-1-2001 by L.L. No. 4-2001]
G.
Mosquito control projects approved in writing by the
New York State Department of Environmental Conservation.
H.
The operation, maintenance and repair of dams, retaining
walls, docks and water control structures that were in existence on
the effective date of this chapter.
I.
Emergency
work which is immediately necessary to protect health and safety or
prevent damage to property, provided that the Natural Resources Review
Officer is given written notice within 48 hours after commencement
of such work and within 48 hours after completion of the work, and
provided that such work is limited to alleviation of the emergency
condition.[1]
[Amended 9-25-2013 by L.L. No. 3-2013]
[1]
Editor's Note: Former Subsection J, regarding tree maintenance
and decorative landscaping, which subsection immediately followed
this subsection, was repealed 11-1-2001 by L.L. No. 4-2001.
[Amended 11-1-2001 by L.L. No. 4-2001; 9-25-2013 by L.L. No. 3-2013]
The Natural Resources Review Officer or Conservation Board may, at their discretion, waive any or all parts of § 93-9C, D, E and F if they determine that a proposed regulated activity is an activity of minor significance.
A.
A proposed regulated activity may be designated an
activity of minor significance if it is:
(1)
An activity that entails no building or other structure, no sewage
system, no sewage disposal system or no well in a controlled area;
or
(2)
Removal of water-deposited silt or debris in order to restore the
controlled area to the condition existing before the deposit, where
the work does not involve use of any machinery within a controlled
wetland or a watercourse.
B.
Provided that said activity:
(1)
Does not require a site plan, subdivision plat, or
construction plans, grading plans and/or plot plans for grading and
removal of earth;
(2)
Is not to be conducted on a floodplain; and
(3)
Will not result in a change or modification to a controlled
area that will affect adjoining property, increase pollution or affect
water flow upstream or downstream from the proposed activity.
[Amended 11-1-2001 by L.L. No. 4-2001; 7-14-2005 by L.L. No.
2-2005; 9-25-2013 by L.L. No. 3-2013]
A.
The following are criteria applicable to the approval
of wetlands permits for proposed regulated activities in controlled
areas:
(1)
The activity will not have a substantial adverse effect upon the natural function and benefits of a wetland or watercourse as set forth in § 93-2B;
(2)
The activity will not substantially change the natural
channel of a watercourse or substantially inhibit the dynamics of
a watercourse system;
(3)
The activity will not result in the degrading or pollution
of waters;
(4)
The activity will not increase the potential for flooding;
(5)
Sufficient provision has been made for control of
pollution, erosion, siltation and sedimentation during and after conduct
of the activity;
(6)
No practicable alternative location is available on
the subject parcel; and
(7)
No additional technical improvements or safeguards
can reasonably be added to the plan or activity which would minimize
the impact on a controlled area; or
(8)
The activity will alleviate or remove a hazard to
the public health or safety.
B.
In evaluating the criteria and the determination required in § 93-8A above, the Natural Resources Review Officer and Conservation Board shall utilize the objective methodology for determining the functions of a wetland set out in the publication entitled "A Rapid Procedure for Assessing Wetland Functional Capacity," dated May 1998, by Magee and Hollands, a copy of which is on file in the office of the Town Clerk of the Town of Philipstown.
[Amended 4-2-1992 by L.L. No. 3-1992; 3-10-1993 by L.L. No.
2-1993; 11-1-2001 by L.L. No. 4-2001; 7-14-2005 by L.L. No. 2-2005; 9-25-2013 by L.L. No. 3-2013]
A.
No
person shall undertake, permit, conduct or cause to be undertaken,
permitted or conducted a regulated activity in a controlled area without
applying for and obtaining a wetlands permit therefor as provided
in this chapter. All wetlands permits shall be written, issued, and
enforced by the Natural Resources Review Officer/Wetlands Inspector.
Applications for minor projects shall be reviewed only by the Natural
Resources Review Officer/Wetlands Inspector. For major projects, the
Natural Resources Review Officer shall transmit the application to
the Conservation Board for plan review. Once the Conservation Board
has approved a plan for a wetlands permit, with appropriate conditions
as deemed necessary, the Natural Resources Review Officer shall issue
the wetlands permit subject to the conditions adopted by the Conservation
Board in its plan approval. Approval of a plan by the Conservation
Board shall be by a majority vote of the members of the Board present
at a duly constituted meeting in which a quorum is in attendance.
Any person is encouraged to confer with the Conservation Board and/or
Natural Resources Review Officer for advice as to whether or not an
activity proposed to be undertaken, permitted or conducted is a regulated
activity in a controlled area.
B.
Application.
Any person proposing to conduct or cause to be conducted a regulated
activity in a controlled area shall file an application for a wetlands
permit with the Natural Resources Review Officer, in such form and
with such information as the Conservation Board may from time to time
prescribe. The application shall be accompanied by a fee as set by
the Town Board, which fee may be amended from time to time by resolution
of the Town Board. It is the intention of this chapter that any such
application for a wetlands permit shall be filed at the same time
as an application for any other permit or approval sought from any
Town official, agency, or board in connection with the same activity
or project. If an application for a wetlands permit has not been filed
under this chapter and the board or official reviewing an application
for any other permit or approval determines that such other application
involves a regulated activity in a controlled area, then an application
for a wetlands permit under this chapter shall promptly be filed with
the Natural Resources Review Officer in order to ensure proper coordination
of all related applications.
C.
The number of copies of the application to be submitted under § 93-9B shall be established by the Conservation Board as part of its rules of procedure and shall take into consideration the need to transmit the application to other agencies, officials, or boards with permitting jurisdiction over the same project. Each copy of the application shall include the following information:
(1)
A detailed description of the proposed activity and a comparison of the activity to the criteria for approval specified in § 93-8.
(2)
A map showing the controlled area affected, any wetland or watercourse
therein and the location thereof and the location, extent and nature
of the proposed activity, prepared by a licensed surveyor or engineer.
If showing sufficient information, any map, plat or plan acceptable
to the Natural Resources Review Officer and required to be submitted
for any other permit or approval in connection with any regulated
activity may be used for the required map.
(3)
The names of claimants of water rights in the wetland or watercourse
of whom the applicant has record notice.
(4)
A completed short form environmental assessment form.
(5)
If a major project application affects the water retention capacity,
water flow or other drainage characteristics of any pond, lake, reservoir,
natural drainage system or wetland, it shall include a statement prepared
by a professional engineer licensed in the State of New York stating
the impact of the project on upstream and downstream areas, giving
appropriate consideration to flood or drought levels of watercourses
and amounts of rainfall.
(6)
Copies of all applicable county, state or federal permits or permit
applications that are required for such work, unless the granting
of such permits or the submission of such permit applications is conditioned
upon first obtaining a permit under this chapter.
D.
Request
for additional information. The Conservation Board or Natural Resources
Review Officer may identify additional information that may be needed
in order to make a determination. Such information may include but
not be limited to the following:
(1)
Complete plans for the proposed activity, which shall be certified
by an engineer, architect, land surveyor or landscape architect licensed
in the State of New York, drawn to a scale no less detailed than one
inch equals 20 feet, and showing the following:
(a)
The location of all controlled wetlands, watercourses and wetland and watercourse buffer zones as determined no earlier than 12 months prior to the date of filing the application. The boundaries of a wetland and the mean high-water mark of a watercourse shall be determined by field investigation and as defined in § 93-4;
(b)
A description of the vegetative cover of the controlled area, including
dominant species;
(c)
A description of the on-site soil types;
(d)
The location of the construction area or the area proposed to be
disturbed and its relation to property lines, roads, buildings, wetlands
and watercourses within 250 feet of the proposed activity;
(e)
The exact locations, specifications and amount of all proposed draining,
filling, grading, dredging and vegetation removal or displacement,
and the procedures to be used to do the work;
(f)
The location of any wells and depths thereof, and any disposal system;
(g)
The existing and proposed contours at two-foot intervals in the proposed
disturbed area and to a distance of 50 feet beyond, and elevations
of the site and adjacent lands within 200 feet of the proposed activity;
(h)
Details of any temporary or permanent drainage system proposed both
for the conduct of the work and after completion thereof; including
locations of discharges, artificial inlets, or other human-made conveyances
that would discharge into the controlled area, and measures proposed
to control erosion both during and after work;
(i)
Where creation of a lake or pond is proposed, details of the construction
of any dams, embankments, outlets or other water control devices,
and analysis of the wetland hydrologic system, including seasonal
water fluctuation, inflow/outflow calculations and subsurface soil,
geology and groundwater conditions;
(j)
Where creation of a detention basin is proposed, with or without
excavation, details of the construction of any dams, berms, embankments,
outlets or other water control devices, and analysis of the wetland
hydrologic system, including seasonal water fluctuation, inflow/outflow
calculations and subsurface soil, geology and groundwater conditions;
(k)
Details of erosion and sediment control practices, including a diagram
showing what and where erosion and sediment control practices will
be implemented and a schedule for their installation and maintenance;
(l)
Functional analysis of the wetlands to be affected, showing existing
wetlands formation and impacts to those functions from the proposed
activity;
(m)
A completed long form environmental assessment form when required
by the New York State Environmental Quality Review Act.
E.
Transmittal
of application. In the case of a regulated activity within 500 feet
of the Town line on a watercourse that crosses the Town line, or any
regulated activity on a wetland that crosses the Town line, the Natural
Resources Review Officer shall, if the application is not one for
an activity of minor significance, transmit a copy of the application
to the Clerk of the relevant abutting municipality.
F.
Public
hearing. For major projects, a joint public hearing shall be held
by the Conservation Board and any other local board or agency with
permit or approval jurisdiction over the same project, whenever a
public hearing is required for the granting of such other permit or
approval pursuant to statute or the local laws and ordinances of the
Town of Philipstown. Such joint public hearing shall be held at such
time, under such circumstances and upon such notice as may be required
for the granting of such other permit or approval.
G.
Approval
or disapproval of wetlands permit.
(1)
On major project applications for which no public hearing is required,
the Conservation Board shall make a determination to approve, approve
with modifications or disapprove the issuance of a wetlands permit
within 30 days following receipt of a completed application therefor.
(2)
On major project applications for which a public hearing is required,
the Conservation Board shall make a determination to approve, approve
with modifications or disapprove the issuance of a wetlands permit
prior to or simultaneously with the determination by the permitting
board for the other permit or approval for which application was made.
(3)
For minor project applications, the Natural Resources Review Officer
shall issue or deny a wetlands permit within 15 days of receiving
a complete application.
(4)
The Conservation Board, or Natural Resources Review Officer in connection with their determination to approve or approve with modifications the issuance of such a wetlands permit, may impose such conditions as the Conservation Board or Natural Resources Review Officer deems necessary to conform the activity to the criteria for approval in § 93-8 and to fulfill the purposes of this chapter. In connection with such wetlands permit, the Conservation Board or Natural Resources Review Officer may establish time periods within which the regulated activity, or phases thereof, shall be commenced and/or be completed. The Conservation Board or Natural Resources Review Officer may extend such time periods and the permit for good cause demonstrated to the satisfaction of the Conservation Board or Natural Resources Review Officer and when it is shown that the regulated activity is or will be conducted in accordance with the wetlands permit as originally issued and an extension fee has been paid as set by the Town Board in accordance with § 93-14B.
(5)
The Conservation Board or Natural Resources Review Officer may determine
to approve or issue an amended wetlands permit, upon application made
in the same manner as required for the original application.
(6)
Copies of all determinations by the Conservation Board or Natural
Resources Review Officer shall be filed in the office of the Town
Clerk and mailed to the applicant by certified mail, return receipt
requested.
H.
Extension
of time. The applicant may, by mutual consent with the Conservation
Board or Natural Resources Review Officer, extend any of the time
periods specified herein.
I.
Transfer
of permits. Permits may be transferred to new legal owners of the
affected property so long as the conditions and plans as approved
remain unchanged. Notice of such transfer of permit must be filed
with the Wetland Inspector within 30 days of the transfer.
[Added 9-25-2013 by L.L. No. 3-2013]
Any person aggrieved by a decision of the Conservation Board
or Natural Resources Review Officer under this chapter may appeal
such decision to the Town Board as provided below.
A.
Such appeal shall be submitted to the Town Clerk within 14 days of
the filing of the Conservation Board's or Natural Resources Review
Officer's decision in the office of the Town Clerk, on forms
approved by the Town Board and provided by the Town Clerk.
B.
The Town Board shall apply the same criteria in its review of an
approval as the Conservation Board or Natural Resources Review Officer
is required to apply by this chapter. However, the Town Board shall
not require the submission of additional information unless the appellant
alleges that insufficient information was available to the Conservation
Board or Natural Resources Review Officer when the decision was made.
The Town Board shall defer to the judgment of the Wetlands Inspector
or Natural Resources Review Officer with respect to matters of technical
and scientific judgment. In the case of an appeal of the Natural Resources
Review Officer's determination to issue or deny a wetlands permit
for a minor project, the Conservation Board shall have an opportunity
to review and comment on the appeal before or at the time of the Town
Board's public hearing.
C.
The Town Board shall hold a public hearing on the appeal within 31
days of its submission to the Town Clerk. The Board shall publish
notice of such hearing in the official newspaper at least five days
prior to the date thereof. The cost of giving all notices shall be
charged to the appellant.
D.
The Town Board shall render its decision within 31 days of the public
hearing and file such decision in the office of the Town Clerk immediately
thereafter. The decision shall also be mailed to the appellant and
the applicant (if different) by certified mail, return receipt requested.
[1]
Editor's Note: Former § 93-10, Wetlands Advisory
Committee, as amended, was repealed 7-14-2005 by L.L. No. 2-2005.
[Amended 3-10-1993 by L.L. No. 2-1993; 11-1-2001 by L.L. No.
4-2001; 7-14-2005 by L.L. No. 2-2005; 9-25-2013 by L.L. No. 3-2013]
A.
This chapter shall be enforced by the Wetlands Inspector and/or Natural
Resources Review Officer. The Town Board may also designate a Deputy
Wetlands Inspector who shall also serve at the pleasure of the Town
Board. The Wetlands Inspector and/or Natural Resources Review Officer
shall coordinate his activities with the Building Inspector. The Wetlands
Inspector, Natural Resources Review Officer, and the Deputy Wetlands
Inspector may not be members of the Conservation Board.
B.
Qualifications for Wetlands Inspector. The Wetlands Inspector, Deputy
Wetlands Inspector, and any Natural Resources Review Officer performing
the duties of the Wetlands Inspector must have training and experience
adequate to:
(1)
Identify, locate and stake or flag wetlands and watercourses
in the field, and verify the identification, location and mapping
thereof done by others;
(3)
Determine whether the proposed use is consistent with applicable minimum land use regulations weighed against criteria for permit issuance set forth in § 93-8A;
(4)
Assess an applicant's proposals to enhance, mitigate
or compensate for the functions and benefits of existing wetland(s)
and watercourse(s);
(5)
Prepare a recommendation to grant, deny or condition
a permit; and
(6)
Enter his/her findings and supporting rationale in
the public record.
(8)
Perform all administrative functions of the Conservation Board, including
but not limited to acceptance and review of applications, coordinating
technical review as necessary with other Town departments and consultants,
monitoring compliance with wetlands permit conditions and mitigation
plans, and inspecting projects to ensure compliance with the terms
of wetland permits.
C.
Suitable qualifications include either a bachelor's
degree in wildlife management, fisheries management, forestry, ecology,
hydrology or a closely related field; an associate degree in one of
the above fields and two years' full-time experience in work closely
associated with wetlands protection; or any other training and experience
which assures a technical knowledge of wetlands and their functions
and benefits sufficient to perform the tasks identified above.
D.
Services. The Wetlands Inspector shall investigate, report on and enforce compliance with the provisions of this chapter and provide the services identified in § 93-11B, coordinating such enforcement activities and services with the responsibilities of the Town Board, the Conservation Board, the Building Inspector, and all other Town officials and agencies with permitting jurisdiction.
[Amended 3-10-1993 by L.L. No. 2-1993; 9-25-2013 by L.L. No.
3-2013]
The Conservation Board shall have the authority to grant and deny approval of plans for major project wetland permits as provided in § 93-9 of this chapter and such other authority as may be provided in other chapters of the Town Code.
[Added 11-1-2001 by L.L. No. 4-2001;
amended 9-25-2013 by L.L. No. 3-2013]
No major project wetlands permit shall be approved by the Conservation Board pursuant to this chapter unless the Conservation Board finds that the proposed regulated activity is consistent with the intent of this chapter as set forth in § 93-3.
A.
Permit conditions. Any major project wetlands permit issued pursuant
to this chapter shall be issued with conditions deemed necessary by
the Conservation Board or Natural Resources Review Officer. The Conservation
Board shall set forth in writing findings and reasons for all conditions
attached to any major project permit. Permits issued pursuant to this
chapter shall be in written form and shall contain, at a minimum,
the following conditions:
(1)
Work conducted under said permit shall be open to inspection by the
Natural Resources Review Officer, Code Enforcement Officer, or Conservation
Board or its designated representative, at any time, including weekends
and holidays;
(2)
The permit shall expire on a specified date that is one year from
its issuance if work has not commenced.
(3)
The permit holder shall notify the Natural Resources Review Officer
of the date on which the work is to begin at least five days in advance
of such date.
(4)
The permit shall be maintained and prominently displayed at the project
site during the time that the activities authorized by the permit
are being carried on.
B.
Mitigation plan requirements.
(1)
The Conservation Board may require the applicant to prepare and implement
a mitigation plan for major projects when the applicant has demonstrated
that losses or significant impacts to a controlled wetland or wetland
buffer are necessary and unavoidable. In determining whether and to
what degree to impose such requirement, the Conservation Board shall
consider the following:
(a)
Whether there is no reasonable on-site alternative to the proposed
activity, including but not limited to reduction in density, change
in use, revision of road and layout, and related site planning considerations
that would accomplish the applicant's objective; and
(b)
Whether there is a reasonable alternative to the proposed activity
on another site available to the applicant that is not a controlled
area.
(2)
Mitigation for intrusion into wetlands shall be adequate to ensure
that there will be no overall net loss of wetlands in terms of ecological
characteristics and function, geographic location and setting and
size. To ensure no net loss, mitigation measures must provide for
replacement wetland at a ratio of at least 1.0 to 1.0.
(3)
The Conservation Board may require additional information if the
plan does not provide sufficient detail to evaluate its effectiveness.
(4)
On-site mitigation shall be the preferred approach. Off-site mitigation
shall be permitted only when on-site alternatives are not possible;
in these instances, emphasis shall be placed on mitigation within
the same watershed as the original wetland.
(5)
The Conservation Board shall monitor or cause to have monitored projects,
in accordance with the conditions set forth in the permit, to determine
whether the elements of the mitigation plan have been met. The Conservation
Board may retain qualified professionals, at the expense of the applicant,
to discharge its obligation hereunder. The time period for all monitoring
activities shall be a minimum of three years. The requirements for
monitoring shall be specified in the permit and/or mitigation plan.
They may include, but not necessarily be limited to:
(a)
Field measurements to verify the size and location
of the impacted wetland area and of the restored/replacement wetland
area;
(b)
The date of completion of the work or restoration/replacement;
(c)
Field verification of the structural details,
best management practices, mitigation measures, and vegetative, hydrologic
and soils criteria specified in the permit and/or mitigation plan.
[Added 11-1-2001 by L.L. No. 4-2001 [1]; amended 7-14-2005 by L.L. No. 2-2005; 9-25-2013 by L.L. No. 3-2013]
In order to carry out the purposes and provisions of this chapter,
the Conservation Board and the Town Board shall have the following
powers and duties, in addition to those specified above:
A.
The Conservation Board shall have the power and duty to prepare forms designated in this chapter for the purpose of administration of this chapter and may amend the same from time to time. The Conservation Board shall hold regular meetings no less frequently than once per month and shall hold such additional meetings as shall be necessary for the timely processing of applications. The Conservation Board may contract for professional and technical assistance and advice, not exceeding any budget appropriation that may be made therefor by the Town Board, and may, in addition, require escrow deposits pursuant to § 71-3 of the Town Code for such professional and technical assistance.
No permit granted pursuant to this chapter shall
remove any person'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(s) or approval(s).
[Amended 7-14-2005 by L.L. No. 2-2005; 9-25-2013 by L.L. No.
3-2013]
The Conservation Board may determine that, prior to commencement
of work under any major project permit issued pursuant to this chapter
and as a condition thereof, the applicant should post a bond, cash
or otherwise, or letter of credit, conditioned upon the faithful compliance
with the terms of such permit and for the indemnification of the Town
of Philipstown for restoration costs which may result from failure
to so comply. If the Conservation Board so determines, it shall make
such recommendation to the Town Board. The Town Board shall fix the
conditions and amount of such bond or letter of credit within its
sole discretion. The same shall remain in effect until the Conservation
Board certifies that the work has been completed in compliance with
the terms of the permit and the bond is released by the Town Board
or a substitute bond or letter of credit is provided that is acceptable
to the Town Board.
A.
The Wetlands Inspector/Natural Resources Review Officer shall make
such on-site inspections during the conduct of the permitted activity
as are necessary to determine whether the activity is being carried
on in conformity with the provisions of the permit.
[Amended 9-25-2013 by L.L. No. 3-2013]
B.
The Wetlands Inspector and/or the Conservation Board may, on written
notice to the applicant, suspend or revoke a permit issued pursuant
to this chapter where it finds that the applicant has not complied
with any or all terms or conditions of such permit, has exceeded the
authority granted in the permit or has failed to undertake the project
in the manner set forth in the application.
[Amended 9-25-2013 by L.L. No. 3-2013]
C.
The Conservation Board and/or the Wetlands Inspector shall set forth
in writing, in the file kept regarding a permit application, the findings
and reasons for revoking or suspending a permit pursuant to this section.
[Amended 9-25-2013 by L.L. No. 3-2013]
D.
The Wetlands Inspector is authorized to issue a stop-work order if, in his judgment, a regulated activity, as defined in § 93-5 of this chapter, is not being carried out in compliance with this chapter. He shall withdraw such stop-work order when he determines that there is compliance with this chapter. The Wetlands Inspector is authorized to order, in writing, the remedying of any condition found to be in violation of this chapter.
[Amended 4-2-1992 by L.L. No. 3-1992]
E.
All powers granted herein to the Wetlands Inspector are also granted
to the Natural Resources Review Officer.
[Added 9-25-2013 by L.L. No. 3-2013]
A.
Civil sanctions; cease-and-desist order. In addition,
the Town Board shall have the power, after a hearing or opportunity
to be heard upon due notice and with the rights to specification of
the charges and representation by counsel at such hearing, to direct
the violator to cease his or her violation of this chapter and to
restore the affected freshwater wetland to its condition prior to
the violation, insofar as that is possible, within a reasonable time
and under the supervision of the Wetlands Inspector and/or the Conservation
Board. Any such order of the Town Board shall be enforceable in an
action brought by the Town in any court of competent jurisdiction.
[Amended 9-25-2013 by L.L. No. 3-2013]
B.
Criminal sanctions.
(1)
Criminal fine and imprisonment. Any person who violates any provision
of this chapter or an order, permit, rule or regulation of the Conservation
Board regulating controlled areas pursuant to this chapter shall,
in addition to any other civil sanctions, be guilty of a violation
punishable by a fine of not more than $1,000 or a term of imprisonment
of not more than 15 days, or both.
[Amended 9-25-2013 by L.L. No. 3-2013]
(2)
Restoration order. Instead of these punishments, any offender may
be punishable by being ordered by the court to restore the affected
controlled 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 Wetlands Inspector and/or the Conservation Board.
[Amended 9-25-2013 by L.L. No. 3-2013]
(3)
Continuing offense. For the purposes of criminal sanctions
only, each offense shall be a separate and distinct offense and, in
the case of a continuing offense, each day's continuance thereof shall
be deemed a separate and distinct offense.
C.
Equitable relief. The Town Board shall have the right
to seek equitable relief to restrain any violation or threatened violation
of any provisions of this chapter in any court of competent jurisdiction.
D.
Judicial review. Any decision or order of the Town Board made on
an appeal from the Conservation Board or Natural Resources Review
Officer pursuant to or within the scope of this chapter may be reviewed
at the request of any person aggrieved by such decision or order,
in accordance with Article 78 of the New York Civil Practice Law and
Rules, provided that such review is commenced within 30 days of the
later of the filing of such Town Board decision or order in the office
of the Town Clerk and the mailing of the same to the appellant and
the applicant by certified mail, return receipt requested.
[Amended 9-25-2013 by L.L. No. 3-2013]
[Added 7-14-1994 by Res. No. 110-94;
amended 11-3-1994 by Res. No. 158-94; 6-3-1999 by Res. No. 119-99]
A.
Wetland and watercourse determination by the Wetlands
Inspector, regarding whether activity will be in a controlled area
and describing permit application requirements: $125.
[Amended 7-7-2003 by Res. No. 125-03]
B.
Dwelling unit and accessory buildings and structures
(including well and septic system if constructed contemporaneously
with dwelling unit) or other structures (for example, stream crossing)
in or containing a controlled area or portion thereof on a residential
lot: $225.
C.
Dredging or removal of soil, mud, sand, gravel, silt,
or earth material and other aggregate from a controlled area, or dumping
or deposition of any material in a controlled area, when such activity
is not associated with any of the other activities specified in this
schedule and is not an activity of minor significance: $250.
[1]
Editor's Note: This local law also provided
for the redesignation of former Subsections C through G as D through
H, respectively.
D.
Residential subdivision: $225 for each lot in which
a regulated activity is proposed to be conducted in a controlled area.
|
NOTE: If a wetlands permit is granted for the
proposed regulated activity in the proposed location and an owner
of the lot later wants to change the location of the regulated activity,
a new wetlands permit application will be required and an additional
fee will be charged if the regulated activity is proposed to take
place in a controlled area. However, the Wetlands Inspector may find
the modification of the approved regulated activity is a minor field
adjustment for which a new application is not required.
|
E.
Road, pipeline or in-ground utility: $750 for the
first 500 linear feet or fraction thereof in a controlled area and
$1.50 for every linear foot over 500 feet in a controlled area.
[Amended 11-1-2001 by L.L. No. 4-2001]
H.
Application for dry fire hydrants by fire districts
or fire companies serving fire protection districts: no fee.
[Amended 11-1-2001 by L.L. No. 4-2001]
I.
Wetland delineations performed by Wetlands Inspector.
[Added 11-1-2001 by L.L. No. 4-2001;
amended 7-7-2003 by Res. No. 125-03]
(1)
The applicant may elect to have the Wetlands Inspector
locate and flag the controlled wetlands and watercourses on the subject
parcel. The fees to perform this service shall be as follows and shall
be deposited by separate check into the Town's escrow fund at the
time of application:
|
Acres
|
Fee
| |
|---|---|---|
|
Less than 2
|
$425
| |
|
2 to 10
|
$675
| |
|
10 or more
|
Estimate to be provided at time of application
|
(2)
The fees will be released to the Wetlands Inspector
when the delineation and flagging have been completed. The fees for
this service shall be separate from all other application fees.
