[HISTORY: Adopted by the Town Board of the Town of Lewiston 8-23-1976 by L.L. No. 7-1976 (Ch. 11 of the 1965 Code). Amendments noted where applicable.]
This chapter shall be known as and may be cited as the "Freshwater Wetlands Law of the Town of Lewiston."
The Town of Lewiston finds that freshwater wetlands are invaluable resources for flood protection, wildlife habitat, open space, water resources, recreation and other benefits associated therewith which, if preserved and maintained in an undisturbed natural condition, constitute important assets to existing and future residents of the Town. It is the intent of the Town Board to protect the residents of the Town of Lewiston by preserving, protecting and conserving freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands and to regulate the use and development of such wetlands consistent with the general welfare and beneficial economic, social and agricultural development of the Town.
The following terms, phrases, words and their derivatives shall have the meanings given herein:
- ADJACENT AREA
- All lands within 100 feet, horizontally, of the vegetative boundary of any freshwater wetland.
- Any form of draining, dredging, excavation, removal of soil, mud, sand, shells, gravel or other aggregate, or any form of dumping, filling or depositing of any soil, stones, sand, gravel, mud, rubbish, or fill of any kind, either directly or indirectly; erecting any structures or roads, the driving of pilings or placing of any other obstructions, whether or not changing the ebb and flow of the water; any form of pollution; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom which are set forth in § 24-0105 of the New York State Environmental Conservation Law.
- Any person who files an application for any permit issued by the Town pursuant to this chapter and shall include the agent of the owner or a contract vendee.
- FRESHWATER WETLANDS
- Lands and waters of the Town, as shown on the Freshwater Wetlands Map approved by the Town of Lewiston and filed with the County Clerk, which contain any or all of the following:
- A. Lands and submerged lands, commonly called marshes, swamps, sloughs, bogs and flats, supporting aquatic or semiaquatic vegetation of the following vegetative types:
- (1) Wetland trees, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees, including, among others, red maple (Acer rubrum), willows (Salix spp.), black spruce (Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica), American elm (Ulmus americana) and larch (Larix laricina).
- (2) Wetlands shrubs, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others, alder (Alnus spp.), buttonbush (Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla) and leatherleaf (Chamaedaphne calyculata).
- (3) Emergent vegetation, including, among others, cattails (Typha spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed (Phragmites communis), wild rice (Zizania aquatica), bur reeds (Sparganium spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon verticillatus) and water plantain (Alisma plantago-aquatica).
- (4) Rooted, floating-leaved vegetation, including, among others, water lily (Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar spp.).
- (5) Free-floating vegetation, including, among others, duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.).
- (6) Wet meadow vegetation, which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other open land vegetation, including, among others, sedges (Carex spp.), rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinance), swamp loosestrife (Decodon verticillatus) and spike rush (Eleocharis spp.).
- (7) Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphe calyculata), pitcher plant (Sarrancenia purpurea) and cranberries (Vaccinium macrocarpon and V. oxycoccos).
- (8) Submergent vegetation, including, among others, pondweeds (Potamogeton spp.), navads (Najas spp.), bladderworts (Utricularia spp.), wild celery (Vallisneria americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllus spp.), muskgrass (Chara), stonewort (Nitella spp.) waterweeds (Elodea spp.) and water smartweed (Polygonum amphibium).
- B. Lands and submerged lands containing remnants of any vegetation that is not aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet, and provided further that such conditions can be expected to persist indefinitely, barring human intervention.
- PARTY IN INTEREST
- Any person who files an application pursuant to this chapter or is permitted to intervene pursuant to this chapter, or any official within whose area is located the freshwater wetland or adjacent area which is the subject of an application for a freshwater wetlands permit.
- That form of Town approval required by this chapter for the carrying on of a regulated activity.
- Any corporation, firm, partnership, association, trust, estate, one or more individuals and any unit of government or agency or subdivision thereof.
- The presence in the environment of man-induced conditions or contaminants in quantities or having characteristics which are injurious to humans, vegetation, wildlife or property.
- Any action resulting in direct or indirect physical impact on a freshwater wetland, including but not limited to any regulated activity.
- REGULATED ACTIVITY
- Any activity within a freshwater wetland or on the adjacent area which, directly or indirectly, may substantially alter or impair the natural condition of any freshwater wetland, including any form of pollution, including but not limited to installing a septic tank, running a sewer outfall or discharging sewage treatment effluent or other liquid wastes into or so as to drain into a freshwater wetland; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom.
Except as hereinafter provided, it shall be unlawful for any person, without obtaining a written permit therefor issued by the Town of Lewiston, to alter any freshwater wetland.
Each farmer or landowner who intends to conduct a regulated activity that includes grazing and watering livestock, making reasonable use of water resources, harvesting natural products of the wetlands, selectively cutting timber, draining land or wetlands for growing agricultural products and otherwise engaging in the use of wetlands or other land for growing agricultural products shall be excluded from regulated activities and shall not require a permit. Such individual shall, however, notify the Building Inspector, in writing, of the proposed activity.
Public health activities, orders and regulations of the Department of Health shall not be excluded from regulated activities. Such agency shall make application for a permit in the same manner as any other person.
The Town Board of the Town of Lewiston is hereby empowered to promulgate and adopt freshwater wetlands land use regulations, which will become a part of the Town of Lewiston Land Use Master Plan.
Any person proposing to conduct a regulated activity upon any freshwater wetland shall file an application for a permit with the Building Inspector. Determination of the application shall be made by the Building Inspector or the Zoning Board of Appeals in accordance with this chapter. Such application shall include a detailed description of the proposed activity and a map showing the area of freshwater wetland directly affected, with the location of the proposed activity thereon.
A permit approved and issued by the Town does not relieve the applicant of the necessity to obtain authorization from other agencies which have jurisdiction over the project proposal.
The Building Inspector may dispense with a public hearing and issue the permit if no notice of objection has been filed and if he finds that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within the freshwater wetland. If the Building Inspector finds that a hearing is not necessary, the Building Inspector shall, within 30 days thereafter, publish his decision setting forth his reasons therefor. Unless the Building Inspector makes such findings and issues the permit, the application must be forwarded to the Zoning Board of Appeals for public hearing and determination.
No sooner than 10 days and not later than 60 days after the receipt of such application, and after notice of application and public hearing thereon has been published at least once in the official newspaper of the Town, the Zoning Board of Appeals shall hold a public hearing on such application. The notice of application and hearing shall be published not more than 30 days nor less than 10 days prior to the date set for the hearing. The Town shall also notify all owners of record of adjacent lands and known claimants to water rights by registered mail not less than 10 days prior to the date set for the hearing.
In granting, denying or limiting any permit, the Zoning Board of Appeals or the Building Inspector, as the case may be, shall consider the effect of the proposed activity with reference to the public health and welfare, flood, hurricane and storm dangers, and protection or enhancement of other functions of freshwater wetlands and the benefit derived therefrom. In no case shall a permit be issued which does not meet the standards set forth in any land use regulations promulgated pursuant to this chapter.
If a permit is approved, approved with conditions or denied and the decision is unacceptable to any person after public hearing, an appeal may be made to the New York State Freshwater Wetlands Board of Appeals. Subsequent appeal and review may be made in accordance with Article 78 of the New York State Civil Practice Law and Rules.
The permit applicant or his agent proceeding with approved operations shall carry on his person or have readily available the approved permit and shall show same to the Building Inspector or any of the Building Inspector's agents whenever requested.
Operations conducted under permit shall be open to inspection at any time by the Building Inspector.
The permit applicant, upon approval of the permit, shall file with the Building Inspector a performance bond, if required, in an amount, with sureties and in a form approved by the Building Inspector or the Zoning Board of Appeals, as the case may be.
The bond and sureties shall be conditioned upon compliance with all provisions of this chapter and conditions imposed upon permit approval.
Liability insurance. The applicant shall certify that he has public liability insurance against any liability which might result from proposed operations or use covering any and all damage which might occur within three years of completion of such operations.
The applicant shall also submit to the Building Inspector an affidavit which indemnifies and saves harmless the Town, or any agency or agent thereof, from any claims arising out of or connected with operations under the permit and from all acts, omissions, commissions or negligence on the part of the applicant, his agents or employees.
The Building Inspector and the Zoning Board of Appeals shall require a permit or license fee for the permit application processing and any operation or uses permitted pursuant to this chapter. A schedule of fees shall be promulgated and may be changed from time to time by the Zoning Board of Appeals.
Any person, firm, corporation or entity found violating any provision of this chapter or conditions imposed by the Building Inspector or Zoning Board of Appeals upon an approved permit shall be served with a written notice, at the direction of the Zoning Board of Appeals, stating the nature of the violation and providing a specified time within which the violation shall cease and satisfactory corrective action shall be taken by the violator.
Any person who violates, disobeys or disregards any provision of this chapter shall be liable to the people of the Town for a civil penalty not to exceed $3,000 for every violation, to be assessed after a hearing or opportunity to be heard, upon due notice and with the right to specification of the charges and representation by counsel at such hearing.
The Zoning Board of Appeals shall have the power, following a hearing, to direct the violator to cease his violation of the act and satisfactorily restore the affected freshwater wetland to its condition prior to the violation.
Any person who violates any order of the Zoning Board of Appeals regulating freshwater wetlands shall, in addition, for the first offense be guilty of a violation punishable by a fine of not less than $250 and/or a period of imprisonment not to exceed 15 days. For a second and each subsequent offense, such person shall be guilty of a Class A misdemeanor punishable by a fine of not more than $1,000 and/or a term of imprisonment of not more than one year.
The Town Attorney shall prosecute persons alleged to have violated the provisions of this chapter and shall seek equitable relief to restrain any violation or threatened violation of its provisions.