This chapter shall be entitled and may be cited as "An Ordinance of the Town of East Greenbush, County of Rensselaer, State of New York, Protecting Freshwater Wetlands in Said Town."
[HISTORY: Adopted by the Town Board of the Town of East Greenbush 9-21-1976 (Ch. 15B of the 1991 Code). Amendments noted where applicable.]
This chapter is promulgated in accordance with Article 24 of the Environmental Conservation Law. It is hereby declared to be in the public interest of the Town of East Greenbush to preserve, protect and conserve freshwater wetlands and to regulate the 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 Town of East Greenbush.
A.
The freshwater wetlands of the Town of East Greenbush are invaluable resources for flood protection, wildlife habitat, open space and water resources.
B.
Considerable acreage of freshwater wetlands in the Town of East Greenbush has been lost, despoiled or impaired by unregulated draining, dredging, filling, excavating, building, pollution or other acts inconsistent with the natural uses of such areas. Other freshwater wetlands are in jeopardy of being lost, despoiled or impaired by such unrelated acts.
C.
Recurrent flooding aggravated or caused by the loss of freshwater wetlands has serious effects upon natural ecosystems.
D.
Any loss of freshwater wetlands deprives the people of the Town of East Greenbush of some or all of the many and multiple benefits to be derived from wetlands, e.g.:
(1)
Flood and storm control by the hydrologic absorption and storage capacity of freshwater wetlands.
(2)
Wildlife habitat by providing breeding, nesting and feeding grounds and cover for many forms of wildlife, wildfowl and shorebirds, including migratory wildfowl and rare species, such as the bald eagle and osprey.
(3)
Protection of subsurface water resources and provision for valuable watersheds and recharging groundwater supplies.
(4)
Recreation by providing areas for hunting, fishing, boating, hiking, bird watching, photography, camping and other uses.
(5)
Pollution treatment by serving as biological and chemical oxidation basins.
(6)
Erosion control by serving as sedimentation areas and filtering basins, absorbing silt and organic matter and protecting channels and harbors.
(7)
Education and scientific research by providing readily accessible outdoor biophysical laboratories, living classrooms and vast training and education resources.
(8)
Open space and aesthetic appreciation.
(9)
Sources of nutrients in freshwater food cycles and nursery grounds and sanctuaries for freshwater fish.
E.
Regulation of freshwater wetlands, in accordance with the agricultural exemption established in § 51-5D hereof, is consistent with the legitimate interests of farmers and other landowners to graze and water livestock, harvest natural products of the wetlands, selectively cut timber and otherwise engage in the use of land for agricultural production.
As used in this chapter, the following terms shall have the meanings indicated:
The State Freshwater Wetland Appeals Board.
The outer limit of the vegetation specified in Subsections A and B of the definition of "freshwater wetlands" in this section and of the waters specified in Subsection C of such definition.
Lands and waters of the Town of East Greenbush of not less than 0.5 acre as shown on the Freshwater Wetlands Map filed in the office of the Clerk, 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 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).
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 them 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 canary grass (Phalaris arundinace), swamp loosestrife (Decodon verticillatus) and spike rush (Eleocharis spp.).
Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), pitcher plant (Sarrancenia purpurea), leatherleaf (Chamaedaphne calyculata) and cranberries (Vaccineum macrocarpon and V. oxycoccos).
Submergent vegetation, including, among others, pondweeds (Potamoziton spp.), naiads (Naias spp.), bladderworts (Utricularia spp.), wild celery (Vallisneria americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum spp.), muskgrass (Chara), stonewort (Nitella spp.), waterweeds (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.
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 or may be injurious to human, plant or wildlife, other animal life or property.
Any state department, bureau, commission, board or other agency, public authority or public benefit corporation.
The Town of East Greenbush, Rensselaer County, New York.
The legislative body of the Town of East Greenbush, Rensselaer County, New York.
A.
After issuance of the Official Freshwater Wetlands Map of the state, as filed with the Clerk of the Town of East Greenbush, any person desiring to conduct on freshwater wetlands, as so designated therein, any of the regulated activities set forth in Subsection B of this section must obtain a permit as provided in this chapter.
B.
Activities subject to regulation shall include any form of draining, dredging, excavation, removal of soil, mud, sand, shells, gravel or other aggregate from any freshwater wetland, either directly or indirectly; and 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, 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, including but not limited to installing a septic tank, running a sewer outfall or discharging sewer treatment effluent or other liquid wastes into or so as to drain into a freshwater wetlands; 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 § 51-3 of this chapter. These activities are subject to regulation, whether or not they occur upon the wetland itself, if they impinge upon or otherwise substantially affect the wetlands; provided, however, that no regulation shall apply to any area more than 100 feet from the boundary of such wetland.
C.
The depositing or removal of the natural products of the freshwater wetlands by recreational or commercial fishing, shellfishing, aquiculture, hunting or trapping shall be excluded from the regulated activities, where otherwise legally permitted and regulated.
D.
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 wetlands or other land for growing agricultural products shall be excluded from regulated activities and shall not require a permit under Subsection A hereof, except that structures not required for enhancement or maintenance of the agricultural productivity of the land and any filling activities shall not be excluded hereunder, and provided that the use of land designated as a freshwater wetland upon the Freshwater Wetlands Map at the effective date thereof for uses other than those referred to in this subsection shall be subject to the provisions of this chapter. Each farmer or landowner who intends to conduct an activity described in this subsection which would otherwise be regulated shall notify the Department of Environmental Conservation, in writing, of his intention to engage in such activity, stating the approximate acreage to be affected, the general location thereof, the use or uses to be made of such land and the methods to be employed.
E.
Public health activities, orders and regulations of the Department of Health shall be excluded from regulated activities. Copies of all such public health orders and regulations affecting wetlands shall be filed with the Department of Environmental Conservation. The Commissioner of the Department of Environmental Conservation may request modification of such orders or regulations if he deems such necessary to implement the policy of this chapter.
F.
The Commissioner of the Department of Environmental Conservation shall review all current mosquito control projects to determine whether they are having any adverse impact on freshwater wetlands. Where any adverse impact is found, the Commissioner may require modification of such projects if he deems such necessary for the implementation of the policies of this chapter.
G.
Where dredging or filling is in navigable waters of the state or is for the reconstruction or repair of certain dams and docks, and where such activity also affects freshwater wetlands, any person undertaking such activity must seek permission under this chapter as well as under any other applicable law.
H.
On any land that is being developed pursuant to a planned unit development ordinance or other applicable local law where freshwater wetlands are to remain as open space, development activities shall be permitted in areas contiguous to such wetlands if such activities will not despoil said 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 Clerk of the Town of East Greenbush. 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. All applications shall be accompanied by a fee of $5.
B.
Within five days of the receipt of such application, the Clerk of the Town of East Greenbush shall refer the application to the Conservation Board or Commission and the Planning Board for advisory review and comment.
C.
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 of East Greenbush shall hold a public hearing on such application, 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 of East Greenbush finds that a hearing is not necessary, the Town shall publish the decision setting forth the reasons therefor, which shall be a matter of public record. 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 of East Greenbush 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 open for public inspection at the office of the Clerk of the Town of East Greenbush. At such hearing, any person or persons filing a 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.
D.
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 municipal laws or the Environmental Conservation Law in connection with approvals or permits otherwise required before commencement of regulated activities on lands containing such wetlands.
A.
In granting, denying or limiting any permit, the Town of East Greenbush 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 Section 24-0103 of the Freshwater Wetlands Act of the State of New York.[1]
[1]
Editor's Note: See Environmental Conservation Law § 24-0103.
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 of East Greenbush may limit the same or impose conditions or limitations designed to carry out the public policy set forth in this chapter. The Town will require a bond in an amount and with surety and conditions satisfactory to the Town securing to the Town of East Greenbush 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 of East Greenbush may suspend the permit if the applicant fails to comply with the terms and conditions set forth in the application.
D.
The Town of East Greenbush shall state upon the record findings and reasons for all actions taken pursuant to this section.
Any person aggrieved by the action of the Town of East Greenbush concerning issuance of a permit for a regulated activity on a freshwater wetland may seek review of the determination of the Town within a period of 30 days after the filing thereof, pursuant to the provisions of the New York State Freshwater Wetland Protection Law and Article 78 of the Civil Practice Law and Rules. Any owner of the wetland affected and any resident or citizen of the Town of East Greenbush shall be deemed to have the requisite standing to seek review.
A.
Any person found violating any provision of this chapter, or the terms and conditions of any permit granted hereunder, shall be served with a written notice at the direction of the Code Enforcement Official stating the nature of the violation and providing a specific time for the satisfactory correction thereof, which time shall not be less than five days.
[Amended 9-3-1980]
B.
Any person who fails to take satisfactory corrective action shall, for the first offense, be guilty of a violation punishable by a fine of not less than $1,000 nor more than $1,500; for a second and each subsequent offense, he shall be guilty of a misdemeanor punishable by a fine of not less than $1,500 nor more than $2,500.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
C.
The Town of East Greenbush shall have the right to seek equitable relief to restrain any violation or threatened violation of any provisions of this chapter.
If any provision of this chapter shall be found to be in conflict with any other ordinance or local law of the Town of East Greenbush or any law of the State of New York, the provisions of the more restrictive law shall apply.
If any section, subsection, paragraph, phrase or word of this chapter is determined to be invalid by any court of competent jurisdiction, such invalidity shall not affect the validity of any other part of this chapter which can be given effect without such invalid part or parts.