This chapter shall be known and may be cited as the "Tidal and
Freshwater Wetlands Law of the Town of Riverhead."
The following terms, phrases, words and their derivatives shall
have the meanings given herein:
AGRICULTURAL ACTIVITY
A.
The activity of an individual farmer or other landowner in:
(1)
Grazing and watering livestock;
(2)
Making reasonable use of water resources for agricultural purposes;
(3)
Harvesting the natural products of wetlands;
(4)
The selective cutting of trees;
(5)
The clear-cutting of vegetation, other than trees, for growing
agricultural products;
(6)
Constructing winter truck roads of less than five meters (approximately 16 feet) in width for removing timber cut in accordance with Subsection
A(4) of this definition, where construction is limited to cutting vegetation and compacting ice and does not alter water flows;
(7)
Operating motor vehicles for agricultural purposes;
(8)
Draining for growing agricultural products;
(9)
Erecting structures, including fences, required to enhance or
maintain the agricultural productivity of the land;
(10)
Using chemicals and fertilizers according to normally accepted
agricultural practices, in order to grow crops for human and animal
consumption or use, in or adjacent to wetlands, where authorized by
other state, federal or local laws, including application of stabilized
sludge as fertilizer wherein applied at agronomic loading rates in
accordance with a valid 6 NYCRR Part 360 or Part 364 landspreading
permit; or
(11)
Otherwise engaging in the use of wetlands for growing agricultural
products such as crops, vegetables, fruits or flowers; but
B.
Does not mean:
(2)
Constructing roads that require moving earth or other aggregate or that alter water flow in any way deviates from Subsection
A(6) of this definition;
(3)
Filling or deposition of spoil, even for agricultural purposes;
(5)
Erecting structures not required to enhance or maintain the
agricultural productivity of the land.
CLEARING
[Added 4-17-2007 by L.L. No. 10-2007]
A.
As applied to the act of clearing, the act of removing trees
or any part thereof, brush, or other vegetation and/or ground cover
from land, whether by any means, including but not limited to digging,
scraping, cutting, brush hogging, bulldozing, burning, chemical removal
or by any form of mechanical actions. As used herein, the term "ground
cover" shall include naturally occurring understory vegetation (e.g.,
low bush blueberry or huckleberry) as well as leaf litter and other
organic detritus.
B.
As applied to an area of land, all land which has been altered
from its natural state by the removal of trees, brush, or other vegetation
and/or ground cover. As used herein, the term "natural state" shall
mean and refer to the natural condition of land without substantial
alteration by human activity.
COMPREHENSIVE PLAN
That Comprehensive Master Plan of the Town for the development
of the entire area of the municipality showing existing and proposed
facilities, endorsed by the Planning Board and adopted by the Town
Board.
ECOLOGICALLY SENSITIVE AREAS
Those areas with one or more of the following characteristics:
[Added 4-17-2007 by L.L. No. 10-2007]
A.
High biological productivity and/or relatively intact natural
processes. Examples include wetlands, creeks and areas within bays
and harbors, and near-shore areas of widgeon grass and eelgrass.
B.
High-quality breeding or habitat value to wildlife or plants.
C.
Habitat that supports New York State protected species (endangered,
threatened, rare).
D.
Areas identified in the regional or local plans as having exceptional
aesthetic or scenic quality.
E.
Areas immediately adjacent to those identified in Subsection
A,
B or
C. Changes in characteristics of these adjacent areas caused by direct or indirect activity can significantly impact the integrity of target systems.
FLOODPLAIN
Any land area susceptible to being inundated by a one-hundred-year
or five-hundred-year flood event as indicated on a Flood Insurance
Rate Map for the Town of Riverhead as promulgated by the Federal Emergency
Management Agency.
FRESHWATER WETLANDS
Lands and waters as indicated on, but not limited to, the
Freshwater Wetlands Map for Suffolk County promulgated by the Department
of Environmental Conservation pursuant to the Freshwater Wetlands
Act and the Riverhead Freshwater Wetlands Inventory (1979), as may
be amended from time to time, which contain any or all of the following:
[Amended 4-17-2007 by L.L. No. 10-2007]
A.
Lands and submerged lands commonly called "marshes," "swamps,"
"sloughs," "bogs," "streams" (whether natural or altered), and "flats"
supporting aquatic or semiaquatic vegetation of the following 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.), tupelo (Nyssa sylvatica), black spruce (Picea
mariana), swamp white oak (Quercus bicolor), green ash (Fraxinus pennsylvanica),
black ash (Fraxinus nigra), silver maple (Acer saccharinum), American
elm (Ulmus americana) and larch (Larix laricina);
(2)
Wetland shrubs, which depend upon seasonal or permanent flooding
or sufficiently waterlogged soils to give them a competitive advantage
over other shrubs, including, among others, alder (Alnus spp.), buttonbush
(Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla),
dogwoods (Cornus spp.), leatherleaf (Chamaedaphne calyculata), swamp
azalea (Rhododendron viscosum), sweet pepperbush (Clethra alnifolia),
and spice bush (Lindera benzoin);
(3)
Emergent vegetation, including, among others, cattails (Typha
spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.),
arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed
(Phragmites australis), wildrice (Zizania aquatica), bur-reeds (Sparganium
spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon
verticillatus), water plantain (Alisma plantago-aquafica) and sedges
(Carex spp.);
(4)
Rooted, floating-leaved vegetation, including, among others,
waterlily (Nymphaea odorata), watershield (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 soil to give it a competitive
advantage over other open land vegetation, including, among others,
sedges (Carex spp.), rushes (Juncus spp.), cattails (Typha spp.),
rice cutgrass (Leersia oryzoides), reed canarygrass (Phalaris arundinacea),
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
(Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea), and
cranberries (Vaccinium macrocarpon and V. oxycoccos);
(8)
Submergent vegetation, including, among others, pondweed (Potamogeton
spp.), naiads (Najas spp.), bladderworts (Utricularia spp.), wild
celery (Vallisneria americana), coontail (Ceratophyllum demersum),
watermilfoils (Myriophyllum spp.), muskgrass (Chara spp.), 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 sufficient 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;
C.
Lands and waters substantially enclosed by aquatic or semiaquatic vegetation as set forth in Subsection
A or by dead vegetation as set forth in Subsection
B, the regulation of which is necessary to protect and preserve the aquatic and semiaquatic vegetation; and
D.
The waters overlying the areas set forth in Subsections
A and
B and the lands underlying the areas in Subsection
C.
INVASIVE VEGETATION
Vegetation that possesses both of the following traits:
[Added 4-17-2007 by L.L. No. 10-2007]
A.
Nonnative (or alien) to the ecosystem under consideration.
B.
Capable of moving aggressively into a habitat and monopolizing
resources such as light, nutrients, water and space to the detriment
of other species.
LOT AREA
The total horizontal area contained within and enclosed by
the outer boundary lines of any lot; "lot area" shall not include
that portion of a lot which contains a tidal or freshwater wetland
as defined herein.
MATERIAL
Includes but is not limited to soil, sand, gravel, clay,
bog, peat, mud, debris and refuse or any other material, organic or
inorganic.
NATIVE VEGETATION
Vegetation comprised of plant species which are indigenous
to Long Island and that under ordinary circumstances have proved to
be locally noninvasive and which reasonably can be expected to naturally
occur on a site.
[Added 4-17-2007 by L.L. No. 10-2007]
NATURAL DRAINAGE SYSTEM
Consists of those uplands and watercourses, including but
not limited to those tidal wetlands designated on the New York State
Department of Environmental Control Official Tidal Wetlands Map, freshwater
wetlands designated on the Freshwater Wetlands Map for Suffolk County
and the Riverhead Freshwater Wetlands Inventory (1979), as amended
from time to time. Such lands and waters may include but are not limited
to all uplands exhibiting 15% or greater slopes, all fresh, salt or
brackish water, swamps, bogs, marshes, streams, vernal ponds, ponds
and lakes, whether intermittently or permanently saturated or covered
by ground, surface or tidal waters.
[Amended 4-17-2007 by L.L. No. 10-2007]
OPERATION
Use or activity, removal, deposition or construction operations,
or all of these.
PEAK LUNAR TIDES
Those excessively high tides or spring tides caused by lunar
gravitational phenomena.
PERSON
Any person, firm, partnership, association, corporation,
company, organization or legal entity of any kind, including municipal
corporations, governmental agencies or subdivisions thereof.
REMOVE
Includes dig, dredge, suck, bulldoze, dragline or blast.
TIDAL WETLANDS or WETLANDS
Any lands delineated as tidal wetlands on the Tidal Wetlands
Map of Riverhead promulgated by the New York State Department of Environmental
Conservation. Such lands shall comprise the following classifications
as delineated on such map:
A.
COASTAL FRESH MARSHThe tidal wetland zone, designated FM on the Tidal Wetlands Map for Riverhead, found primarily in the upper tidal limits of river systems where significant freshwater inflow dominates the tidal zone. Species normally associated with this zone include narrowleaf cattail (Typha angustifolia), the tall brackish water cordgrasses (Spartina pectinata and/or S. cynosuroides), and the more typically emergent freshwater species such as arrow arum (Peltandra), pickerelweed (Pontederia), and cutgrass (Leersia).
B.
INTERTIDAL MARSHThe vegetated tidal wetland zone, designated IM on the Tidal Wetlands Map for Riverhead, lying generally between average high and low tidal elevation. The predominant vegetation in this zone is low marsh cordgrass (Spartina alterniflora).
C.
COASTAL SHOALS, BARS AND FLATSThe tidal wetland zone, designated SM on the Tidal Wetlands Map for Riverhead, that at high tide is covered by water, at low tide is exposed or is covered by water to a maximum depth of approximately one foot, and is not vegetated by low marsh cordgrass (Spartina alterniflora), except as otherwise determined in a specific case as provided in § 661.26 of the Tidal Wetlands-Land Use Regulations as promulgated by the Department of Environmental Conservation.
D.
LITTORAL ZONEThe tidal wetlands zone, designated LZ on the Tidal Wetlands Map for Riverhead, that includes all lands under tidal waters which are not included in any other category, except as otherwise determined in a specific case as provided in § 661.26 of the Tidal Wetlands-Land Use Regulations as promulgated by the Department of Environmental Conservation, provided there shall be no littoral zone under waters deeper than six feet at mean low water.
E.
HIGH MARSH or SALT MARSHThe normal uppermost tidal wetland zone, designated HM on the Tidal Wetlands Map for Riverhead, usually dominated by saltmeadow grass (Spartina patens) and spike grass (Distichlis spicata). This zone is periodically flooded by spring and storm tides and is often vegetated by low-vigor marsh grass (Spartina alterniflora) and seaside lavender (Limonium carolinianum). Upper limits of this zone often include blackgrass (Juncus gerardi), chairmarker's rush (Scirpus sp.), marsh-elder (Iva frutescens), and groundsel bush (Baccharis halimifolia).
F.
FORMERLY CONNECTED TIDAL WETLANDSThe tidal wetlands zone, designated FC on the Tidal Wetlands Map for Riverhead, in which normal tidal flow is restricted by man-made causes. Typical tidal wetland plant species may exist in such areas although they may be infiltrated with common reed (Phragmites australis).
[Amended 4-17-2007 by L.L. No. 10-2007]
UPLAND
Includes all lands at elevations above the most landward
edge of the tidal marsh and/or above peak lunar tides or peak storm
tides of record.
WATERCOURSES
All permanent or intermittent water bodies other than tidal
waters, including freshwater streams, marshes, swamps, bogs, vernal
ponds, ponds and lakes.
[Amended 4-17-2007 by L.L. No. 10-2007]
WATERSHED LANDS
All land surface areas bounded peripherally by a water parting
and draining ultimately to a particular watercourse. Such lands shall
include all surface water catchment areas or drainage basins from
which the watercourses are drawn via surface drainage.
WETLANDS DELINEATOR
A wetlands delineator shall have the following qualifications:
either a bachelors degree in wildlife management, fisheries management,
forestry, ecology, hydrology or a closely related field; an associates
degree in one of the above fields and two years' full-time experience
in work closely associated with wetlands protection; and any other
training and experience which assures a technical knowledge of wetlands
and their functions and benefits.
[Added 11-8-2006 by L.L. No. 43-2006]
[Amended 4-17-2007 by L.L. No. 10-2007]
It shall be unlawful for any person, without obtaining a written
permit issued by the Town of Riverhead, to:
A. Place or deposit, or permit to be placed or deposited, debris, fill
or any materials, including structures, into or within 150 feet of
the boundary of any freshwater wetlands, natural or altered drainage
systems, or other watercourses, or within 300 feet of the boundary
of any tidal water or tidal wetlands.
B. Dig, dredge, clear any vegetation or in any other way alter or remove
any material in or within 150 feet of any freshwater wetlands, natural
or altered drainage systems, or other watercourses, or within 300
feet of the boundary of any tidal water or tidal wetlands.
C. Plant, seed, cultivate or maintain, with the use of fertilizer or pesticide, any lands other than those exempted under §
295-5B(6), unless the occupier of the land maintains a natural buffer of at least 75 feet from any tidal water, tidal wetlands, freshwater wetlands, natural or altered drainage systems, or other watercourses.
D. Construct groins, docks, bulkheads, dwellings, roads, or other nonaccessory
use structures in or within 150 feet of the boundary of any freshwater
wetlands, natural or altered drainage systems, or other watercourses,
or within 300 feet of the boundary of any tidal water or tidal wetlands.
E. Build, create, or install any new cesspool, septic tank, leaching
field or other in-ground sewage or other waste disposal or storage
system, including any pipe, conduit or other part thereof, or any
aboveground or in-ground holding tank for any liquid other than water,
upon, under, or within 150 feet of the boundary of freshwater wetlands,
natural or altered drainage systems, or other watercourses, or within
300 feet of the boundary of any tidal water or tidal wetlands.
[Added 4-17-2007 by L.L. No. 10-2007]
A. The Conservation Advisory Council shall use the following criteria when evaluating an application for a permit under §
295-7 to clear native vegetation, unless the applicant demonstrates that the proposed clearing:
[Amended 9-3-2014 by L.L. No. 12-2014]
(1) Will not result in net loss of wetland functions and
values;
(2) Will not adversely affect the conservation of fish
or wildlife or their habitats, or adversely affect recreational fisheries
or their habitats;
(3) Will not adversely impact protected species or their
habitat;
(4) Incorporates into the design alternatives and modifications
to avoid or mitigate impacts to native vegetation;
(5) Complies fully with the preservation and restoration priorities of Chapter
287 of the Riverhead Town Code;
(6) Includes all reasonable mitigation measures to ensure
that native vegetation and/or its benefits will not be adversely affected;
and
(7) Stormwater runoff shall not be diverted so as to impact
existing or natural altered drainage systems, create flooding, cause
erosion or cause the need for additional drainage facilities on other
private or public real property.
B. Nothing shall preclude the Town from requiring reasonable measures
to avoid, minimize or mitigate adverse impacts to native vegetation
created by the proposed use or activity as it deems necessary to implement
the intent of this chapter.
Any structures, dwellings, construction or operations existing
within tidal waters, tidal wetlands, freshwater wetlands, natural
drainage systems, or other watercourses shall be exempt from this
chapter and permitted to continue, provided that:
A. No new construction, structures, dwellings or operations will be
permitted after the effective date of this chapter, except by permit
as provided herein.
B. Where damage or hazardous conditions exist, the landowner may be
required by the Town Board to repair such damage or remedy such hazardous
conditions as the Town Board may direct.
Notwithstanding anything in this chapter to the contrary, no permit in accordance with §
295-4 shall be required for:
A. The placement, restoration or rehabilitation, in place and in kind,
of a documented existing coastal erosion structure, dock, piling or
dolphin which has been damaged or destroyed, provided that a building
permit is first obtained for such repair, replacement, restoration,
or rehabilitation, and provided further that application for such
building permit has been made within one year of the occurrence of
the damage or destruction necessitating the proposed work, and providing
the materials to be used, method of installation and disposal of material
removed are approved in writing by the Building Department.
B. Minor maintenance, in place and in kind, to any documented existing
coastal erosion structure or dock, provided that each of the following
conditions are satisfied:
(1) The maintenance work proposed does not exceed an aggregate of 25%
of the total existing dock or linear footage of bulkhead;
(2) The materials to be used, method of installation and disposal of
material removed are approved in writing by the Building Department;
(3) A building permit is first obtained incorporating such reasonable
conditions as may be necessary; and
(4) No minor maintenance building permits totaling an aggregate of more
than 25% have been issued within the prior three years.
[Added 11-8-2006 by L.L. No. 43-2006]
The Town of Riverhead Freshwater Wetlands Inventory may be amended
from time to time either by Town Board initiative or at the request
of the property owner or his/her authorized agent. The procedures
and criteria for amending the Town of Riverhead Freshwater Wetlands
Inventory are set forth below.
A. Amendment through Town Board initiative. The Town may undertake amendments
to its Freshwater Wetlands Inventory (1979) on its own initiative
when the Town Board receives verifiable information and adopts a resolution
indicating that:
(1) New wetlands exist within the Town which were inadvertently excluded
from the Town's Freshwater Wetlands Inventory; or
(2) Technical adjustments to the boundaries of existing mapped wetlands
are required due to significant changes in the nature of the wetland;
or
(3) It is appropriate to delete wetland areas shown on the Freshwater
Wetlands Inventory that no longer meet the statutory definition of
a "wetland."
B. Amendment requested by property owner. Amendment to the Town's Freshwater
Wetlands Inventory may be requested by a property owner or by an authorized
agent requester thereof by submitting a formal request in writing
to the Riverhead Town Clerk. The Riverhead Town Clerk shall supply
a form for such requests. Said form request shall include the following
information:
(1) Name, address and telephone number of property owner and agent (if
any).
(2) A photocopied Tax Map identifying the area to be investigated.
(3) A copy of the deed to property.
(4) A copy of the current tax bill for the subject property.
(5) A list of the names and addresses of all adjoining property owners.
(6) An indication as to whether the requester wishes to be present for
the field visit or for a field review of flagged boundary.
(7) An authorization and hold harmless agreement authorizing the Town
of Riverhead to enter upon the subject property.
(8) A completed short environmental assessment form.
C. The procedure for amending the Freshwater Wetlands Inventory by local
law is as follows:
(1) Upon receipt of a request pursuant to Subsection
A, the Town shall notify the owner of the property upon which the reputed wetland exists (or no longer exists) of the request. The notification to the property owner shall include a copy of the Town Board's request for permission to enter upon the property to examine the reputed wetland area.
(2) Upon receipt of permission as set forth in Subsection
C(1) above or a request pursuant to Subsection
B above, the Town Board shall engage a qualified wetlands delineator who shall examine the wetland(s) proposed to be included on the Town's Freshwater Wetlands Inventory who shall prepare a report indicating his or her findings with respect to the reputed wetland and a determination as to whether the area examined meets the definition of a "freshwater wetland" as set forth in this chapter.
(3) Should the report and findings of the wetlands delineator reveal
that an amendment to the Freshwater Wetlands Inventory is appropriate,
the Town Board shall cause a survey to be prepared showing the wetland(s)
proposed to be included in or deleted from the Freshwater Wetlands
Inventory. The survey shall contain all required survey data and indicate
topography with two-foot contour intervals as well as the location
of other mapped wetlands existing on the subject property and any
structures (including drainage or other infrastructure) existing on
the property.
(4) Upon completion of the wetland survey, the Town Board shall cause
a public hearing to be held to consider the proposed Freshwater Wetlands
Inventory Map amendment. Written notice of the public hearing together
with a brief description of the action proposed to be taken and a
copy of the survey shall be published in the official newspaper of
the Town and mailed by certified mail to all adjoining property owners
and the Department of Environmental Conservation Division of Freshwater
Wetlands at least 10 days prior to the scheduled hearing date.
D. Adoption of amendments to Freshwater Wetlands Inventory.
(1) Following the public hearing and review of the information supplied
in the request, the investigation, report and findings of the wetlands
delineator, the survey, the testimony given at the public hearing,
and any other relevant information, the Town Board may adopt a local
law amending the Freshwater Wetlands Inventory Map of the Town.
(2) Notice of the adoption of the local law amending the Freshwater Wetlands
Inventory shall be published as required by law and shall be delivered
to the owner of the property on which the subject wetland is located
on and the Department of Environmental Conservation by certified mail.
The local law shall also be filed with the Secretary of State of the
State of New York as required by law.