This chapter shall be referred to as the "Freshwater Wetlands Act."
[HISTORY: Adopted by the Town Board of the Town of Newfane 8-31-1976 by L.L. No. 3-1976 (Ch. 16 of the 1971 Code). Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
The Freshwater Wetlands Appeals Board.
The outer limit of the vegetation specified in Paragraphs (a) and (b) of Subdivision 1 of § 24-0107 and the waters specified in Paragraph (c) of such subdivision.[1]
Lands and waters of the state as shown on the Freshwater Wetlands Map which contain any or all of the following:
Lands and submerged lands, commonly called marshes, swamps, sloughs, bogs and flats, supporting aquatic or semiaquatic vegetation of the following vegetative types:
Wetland trees which depend upon seasonal or permanent flooding or sufficient 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).
Wetland shrubs which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others, alder (Alnus spp.), buttonbush (Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla) and leatherleaf (Chamaedaphne calyculata).
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).
Rooted, floating-leaved vegetation, including, among others, water lily (Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar spp.).
Free-floating vegetation, including, among others, duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.).
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 spp.), rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinace), swamp loosestrife (Decodon verticillatus) and spikerush (Eleocharis spp.).
Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarrancenia purpurea) and cranberries (Vaccinium macrocarpon and V. oxycoccos).
Submergent vegetation, including, among others, pondweeds (Potamogeton spp.), naiads (Najas spp.), bladderworts (Ultricularia spp.), wild celery (Vallisneria americana), coontail (Ceratophyllum demersum), watermilfoils (Myriophyllum spp.), muskgrass (Chara spp.), stonewort (Nitella spp.), water weeds (Elodea spp.) and water smartweed (Polygonum amphibium).
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.
A map on which are indicated the boundaries of any freshwater wetlands.
A village, town, city or county.
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 characteristics which are or may be injurious to human, plant, wildlife or other animal life or to property.
Any state department, bureau, commission, board or other agency, public authority or public benefit corporation.
[1]
Editor's Note: See § 24-0107 of the Environmental Conservation Law.
A.
No person shall alter the state of any freshwater wetland of 12.4 acres or more in surface area, or adjacent areas thereto, prior to the filing of the final Freshwater Wetlands Map in the office of the clerk of each affected local government pursuant to the Act[1] without having first submitted an application and obtained an interim permit for such alteration from the Town; provided, however, that this section shall not apply to any alteration of a freshwater wetland or adjacent area:
(1)
Caused by deposition or removal of the natural products of freshwater wetlands and adjacent areas by recreational or commercial fishing, shellfishing, aquiculture, hunting or trapping, where otherwise legally permitted and regulated.
(2)
Caused by the activities of farmers and other landowners in 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 the wetlands or other land for growing agricultural products.
[1]
Editor's Note: Refers to the Freshwater Wetlands Act, Chapter 614 of the Laws of 1975, § 24-0101 et seq. of the Environmental Conservation Law.
B.
For purposes of this section, where the adjacent areas of two or more wetlands are contiguous with each other, the Town may consider those areas to be one wetland.
A.
Any person proposing to conduct or cause to be conducted a regulated activity upon any freshwater wetland shall file an application for a permit with the Town Clerk of the Town of Newfane in such form as the Town Clerk shall require. The termination of the application will be made by the Town in accordance with applicable rules as may be adopted. The 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.
B.
No sooner than 30 days and not later than 60 days after the receipt of such application and after notice of application has been published by the applicant in two newspapers having a general circulation in the area, the Town will hold a public hearing on such application at a suitable location in the Town where the affected wetland is situated, unless no notice of objection has been filed or unless the Town finds the activity to be of such a minor nature as not to affect or endanger the balance of systems within the wetlands, in which case the Town may in its discretion dispense with such hearing. Where the Town finds that a hearing is not necessary it shall publish its decision setting forth the reasons therefor. All owners of record of the adjacent land and known claimants to water rights where the proposed activity is located shall be notified by registered mail of the hearing not less than 15 days prior to the date set for such hearing. The Town shall cause notice of such hearing to be published in two newspapers having a general circulation in the area where the affected freshwater wetlands are located. All applications and maps and documents relating thereto shall be opened for public inspection at the office of the Town Clerk. At such hearing, any person or persons filing their request for a hearing or a timely notice of appearance may appear and be heard. Any notice dispensing with the necessity of a hearing or canceling a hearing which has been scheduled shall be given on the same basis as the public notice originally given.
C.
The applicant shall have the burden of demonstrating that the proposed activity will be in accord with the policies and provisions of this chapter. To the greatest extent practicable, such hearing shall be incorporated with any public hearing required by any other Town law or the State Environmental Conservation Law in accordance with approvals or permits otherwise required before commencement of regulated activities on lands containing such wetlands.
D.
Prior to the promulgation of the final Freshwater Wetlands Map and implementation of this chapter pursuant to the provisions of Article 24 of the Environmental Conservation Law, no person shall conduct or cause to be conducted any activity for which a permit is required under § 24-0701 of the Environmental Conservation Law unless he has obtained a permit from the Commissioner of Environmental Conservation.
A.
This chapter will apply to and incorporate the Freshwater Wetlands Map, as such map may be from time to time amended, prepared pursuant to § 24-0301 of the Act and filed with the local government by the Department of Environmental Conservation, pursuant to § 24-0301, on which map are indicated the boundaries of freshwater wetlands regulated by the Act.
B.
This chapter will regulate all those activities subject to regulation under § 24-0701 with permissible exceptions for the following:
(2)
Emergency work which is immediately necessary to protect the health, safety and well-being of any person or prevent damage to any personal or real property.
(3)
Ordinary maintenance and repair of existing structures or improved areas which do not involve expansion or substantial restoration, reconstruction, rehabilitation or modification, including but not limited to bridges, roads, highways, railroad beds, bulkheads, docks, piers, pilings or paved areas.
C.
This chapter will regulate a one-hundred-foot wide area adjacent to the boundary of any freshwater wetland or such lesser or greater distance as the Town may determine appropriate. For any Town proposal to regulate an area less than 100 feet from such boundary of the freshwater wetland, the Department of Environmental Conservation will be provided with a statement from the Town justifying such proposal in terms of specific environmental, social, economic and other pertinent factors.
D.
This chapter may not regulate those activities exempted from regulation under § 24-1305, as added by Chapter 771 of the Laws of 1976, and under § 24-0701, Subdivisions 3, 4 and 5, of the Act. For activities excluded from regulation under § 24-0701, Subdivision 4, a written notification of intent by the owner to the local government must be required prior to the undertaking of the activity, which notice must include the approximate acreage to be affected, the type and location of the activity, the use or uses to be made of the affected land and the methods to be employed; provided, however, that filing of the soil and water conservation plan prepared by a soil and water conservation district must be deemed to satisfy this notification requirement.
E.
This chapter may not regulate activities located on any wetland that is located in more than one town.
F.
Structures not required for enhancement or maintenance of the agricultural productivity of the land in any agriculture-related filling activities shall be included hereunder, and the use of land designated as a freshwater wetland upon the Freshwater Wetlands Map, at the effective date thereof and as it may be amended from time to time, for uses other than those referred to in this subsection shall be subject to the provisions of this chapter.
A.
In granting, denying or limiting any permit, the Town shall consider the effect of the proposed activity with reference to the public health and welfare; fishing; flood, hurricane and storm dangers; and protection or enhancement of the several functions of the freshwater wetlands and the benefits derived therefrom, which are set forth in § 24-0103 of the Environmental Conservation Law.
B.
Duly filed notice in writing that the state or any agency or subdivision thereof is in the process of acquiring any freshwater wetlands by negotiation or condemnation shall be sufficient basis for denial of any permit.
C.
In granting a permit, the Town may limit the same or impose conditions or limitations designed to carry out the public policy set forth in this chapter. The Town may require a bond, in an amount and with surety and conditions satisfactory to it, securing to the state or Town, as the case may be, compliance with the conditions and limitations set forth in the permit. The Town may suspend or revoke a permit if it finds that the applicant has not complied with any of the conditions or limitations set forth in the permit or has exceeded the scope of the activity as set forth in the application. The Town may suspend the permit if the applicant fails to comply with the terms and conditions set forth in the application.
D.
The Town shall state upon the record findings and reasons for all actions taken pursuant to this section.
E.
Review of the determination of the Town shall be within a period of 30 days after the filing thereof, pursuant to the provisions of Title 11 of Article 24 of the Environmental Conservation Law[1] or Article 78 of the Civil Practice Law and Rules. Any owner of the wetland affected and any resident or citizen of the Town shall be deemed to have the requisite standing to seek review.
[1]
Editor's Note: Title 11 of Art. 24 of the Environmental Conservation Law was repealed by L. 2012, c. 60.
F.
In the event that the court finds the action reviewed constitutes a taking without just compensation and the land so regulated merits protection under this chapter, the court may, at the election of the Town, either set aside the order or require the Town to proceed under the condemnation law to acquire the wetlands or such less than fee rights therein as have been taken.
No permit will be issued unless it is consistent with the policy of § 24-0103 of the Act. This policy is to preserve, protect and conserve freshwater wetlands and the benefits derived therefrom to prevent the despoliation and destruction of freshwater wetlands and to regulate use and development of such wetlands to secure the natural benefits of freshwater wetlands consistent with the general welfare and beneficial economic, social and agricultural development of the state.
Upon completion of the Freshwater Wetlands Map of the State of New York, the Town shall implement a plan which shall contain a general environmental review standard for the issuance of permits requiring proposed activities to be consistent with such land use regulations as may be applicable or as may be amended from time to time in such local government pursuant to § 24-0903 of the Act.
The Town will provide and implement administrative sanctions consistent with § 71-2303, Subdivision 1, the sanctions of § 71-2303, Subdivision 2, and the enforcement provisions of § 71-2305 of the Environmental Conservation Law.
The granting of a permit under this chapter by the Town does not remove any person's obligations to acquire any other required permit or approval under any other federal, state or local law.
The Town of Newfane reserves jurisdiction of all areas which would qualify as freshwater wetlands except as they are not designated as such on the Freshwater Wetlands Map and except as otherwise provided in Article 24 of the Environmental Conservation Law as such article from time to time may be amended.