Chapter 89 Freshwater Wetlands

[HISTORY: Adopted by the Town Board of the Town of Carmel 12-21-1994 by L.L. No. 4-1994 (Ch. 62 of the 1972 Code). Amendments noted where applicable.]

GENERAL REFERENCES

Building construction — See Ch. 59.

Flood damage prevention — See Ch. 86.

§ 89-1 Legislative findings.

The Town of Carmel Town Board finds that rapid growth, spread of development and increasing demands upon natural resources are encroaching upon, despoiling, polluting or eliminating many of its water bodies, watercourses, wetlands, and other natural resources and processes located within the Town of Carmel which, if maintained in an undisturbed and natural condition constitute important physical, social, aesthetic, recreational and economic assets to present and future residents of the Town of Carmel.

The wetlands of the Town of Carmel are invaluable resources for flood protection, wildlife habitat, open space and the maintenance of water quantity and quality.

Considerable acreage of wetlands in the Town of Carmel has been lost, despoiled or impaired by unregulated draining, dredging, filling, excavating, building, polluting or other acts inconsistent with natural uses of such areas. Other wetlands are in jeopardy of being lost, despoiled or impaired by such unregulated acts.

Recurrent flooding aggravated or caused by the loss of wetlands or obstruction of water bodies or watercourses has a serious effect upon natural ecosystems.

Any loss of wetlands deprives the people of the Town of Carmel of some or all of the many and multiple benefits to be derived from wetlands, by:

(1)

Providing drainage, flood and stormwater control by the hydrologic absorption and natural storage capacity of wetlands;

(2)

Providing 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;

(3)

Providing protection of subsurface water resources and provision for valuable watersheds and recharging groundwater systems;

(4)

Providing recreation by providing areas for hunting, fishing, boating, hiking, bird watching, photography, camping, nature study, passive enjoyment and other uses;

(5)

Providing pollution control through biological degradation, chemical oxidation reduction, as well as physical separation, settling basins, and areas of plant uptake of certain nutrients and other pollutants;

(6)

Providing natural erosion control by serving as sedimentation areas and filtering basins, absorbing silt and organic matter and protecting channels and coves;

(7)

Preserving much needed open space which serves to satisfy man's psychological and aesthetic needs;

(8)

Providing sources of nutrients in freshwater food cycles and nursery grounds and sanctuaries for freshwater fish; and

(9)

Serving as an educational and research resource.

Wetlands protection is a matter of concern to the entire Town and adjacent areas, and the establishment of regulatory and conservation practices for these areas serve to protect the Town by insuring review and regulation of any activity in wetlands that might adversely affect the health, safety and welfare of the Town's citizens.

Wetlands in Carmel and other areas form an ecosystem that is not confined to any one property owner or neighborhood. Experience has demonstrated that effective wetlands protection requires consistency of approach to preservation and conservation efforts throughout the Town.

Loss of wetlands can cause or aggravate flooding, erosion, diminution of water supply for drinking and waste treatment.

Regulation of wetlands is consistent with the legitimate interests of preexisting farmers to graze and water livestock, make reasonable use of water resources, harvest natural products of wetlands, selectively cut timber and fuel wood and otherwise engage in the use of land for agricultural production.

§ 89-2 Intent.

It is declared to be the intent of the Town of Carmel to protect, preserve, properly maintain and require prudent use of the wetlands, bodies of water and watercourses and their associated wildlife within the Town of Carmel by preventing or minimizing erosion due to flooding and stormwater runoff, maintaining the natural groundwater supplies, preserving and protecting the purity, utility, water retention capability, ecological functions, recreational usefulness and natural beauty of all wetlands, bodies of water, watercourses and other related natural features of the terrain. No net wetlands loss should occur as the preservation and maintenance of wetlands bodies of water, watercourses, and downstream drainage areas constitute important assets necessary to promote the health, safety, general welfare, and economic welfare of the present and future residents of the Town.

It is further declared the policy of the Town of Carmel to exercise its authority pursuant to the Freshwater Wetlands Act, Article 24, § 24-0501 and § 24-0507 of the State of New York Environmental Conservation Law, which authorizes local governments to establish their own procedures for the protection and regulation of wetlands lying within their jurisdiction.

It is further declared to be the policy of the Town of Carmel to state that the Town of Carmel Freshwater Wetland and Drainage Law may be amended from time to time by the Town of Carmel.

This chapter is enacted pursuant to the above referenced law and any and all applicable laws, rules and regulations of the State of New York, and nothing contained herein shall be deemed to conflict with any such laws, rules or regulations.

§ 89-3 Definitions.

Except where specifically defined herein, all words used in this chapter shall carry their customary meanings. Words used in the present tense include the future and the plural includes the singular. The word "shall" is intended to be mandatory.

As used in this chapter, the following terms shall have the meanings indicated:

ADJACENT AREA

Any land in the Town of Carmel immediately adjacent to a freshwater wetlands, lying within 100 feet; measured horizontally from the boundary of a freshwater wetlands, watercourse, or water body. In addition, the adjacent area may include up to an additional 100 feet distance upslope of the wetlands, if it is within five feet of elevation of the wetlands' normal water level and the proposed activities have the potential to significantly impact the wetlands. However, the Environmental Conservation Board may establish an adjacent area broader than 100 feet (approximately 30 meters) where necessary to protect and preserve a wetland, as defined in this section under "wetlands." Such an extension shall not become effective until the ECB has provided the opportunity for public notice and hearing. The Environmental Conservation Board shall provide a minimum of 30 days' notice to the public, affected landowners, easement owners and the Department of Environmental Conservation of the proposed extension.

AGRICULTURAL ACTIVITY

(1)

Shall mean the activity of an individual farmer or other landowner in:

(a)

Grazing and watering livestock.

(b)

Making reasonable use of water resources for agricultural purposes.

(c)

Harvesting the natural products of wetlands.

(d)

The selective cutting of trees.

(e)

The clear-cutting of vegetation, other than trees, for growing agricultural products.

(f)

Constructing winter truck roads of less than five meters (approximately 16 feet) in width for removing timber cut in accordance with Subsection A(4) above, where construction is limited to cutting vegetation and compacting ice and does not alter waterflows.

(g)

Operating motor vehicles for agricultural purposes.

(h)

Erecting fences required to enhance or maintain the agricultural productivity of the land.

(i)

Using chemicals and fertilizers according to normally accepted agricultural practices, including the application of compost, in order to grow crops for human or animal consumption or use, in or adjacent to wetlands where authorized by other state, federal or local laws.

(j)

Otherwise engaging in the use of wetlands for growing agricultural products such as crops, vegetables, fruits, or flowers; but

(2)

Does not mean:

(a)

Clear-cutting trees;

(b)

Constructing roads that require moving earth or other aggregate or that alters water flow or in any way deviates from Subsection (1)(f) above;

(c)

Filling or deposition of spoil, even for agricultural purposes;

(d)

Mining; or

(e)

Erecting structures not required to enhance or maintain the agricultural productivity of the land.

APPLICANT

Any individual or individuals, person or persons, firm, partnership, association, corporation, company, organization or other legal entity of any kind, including municipal corporations, governmental agencies or subdivisions thereof who file an application for a permit issued by the ECB pursuant to this chapter and 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.

APPROVAL

Issuance of a permit or letter of permission granted by the Environmental Conservation Board based on a majority vote.

AQUACULTURE

Cultivating and harvesting products, including fish and vegetation, that are produced naturally in freshwater wetlands, and installing cribs, racks and other in-water structures for cultivating these products; but does not include filling, dredging, peat mining or the construction of any buildings or any water-regulating structures, such as dams.

BODIES OF WATER

Any body of standing water which is wet for more than three months of the year, as computed from the average of the last two consecutive calendar years, and which, when wet, is customarily more than 500 square feet in water surface area.

CHAIRPERSON

The Chairperson of the Environmental Conservation Board as duly appointed annually by the Town Board of the Town of Carmel. "Assistant Chairperson" shall mean the assistant to the Chairperson as appointed on an annual basis at the first Board meeting of the year by the members of the Town Board.

CLEAR-CUTTING

Any cutting of trees over six inches in diameter at breast height over any ten-year cutting cycle where the average remaining base area of such trees after such cutting is less than 30 square feet per acre, measured within the area harvested; provided, however, that where regeneration is assured by stand conditions such that after such cutting, the remaining base area of trees at least one inch in diameter at breast height is at least 30 square feet per acre, measured within the area harvested, a clear-cut will not be deemed to have taken place unless the average remaining base area of trees over six inches in diameter at breast height is less than 10 square feet per acre, similarly measured.

CRITICAL ENVIRONMENTAL AREA (CEA)

A specific geographic area designated by a state agency or the ECB having exceptional or unique characteristics that make the area environmentally important. Any Unlisted Action located in a CEA must be treated as a Type I action by any involved agency.

DATE OF RECEIPT OF APPLICATION FOR PERMIT OR LETTER OF PERMISSION

An application shall be deemed "received" by the ECB on the date of its first regular meeting where it accepts the application as complete.

DEPOSIT

To fill, place, eject or dump any material or the act thereof.

DEPUTY WETLANDS INSPECTOR

The Deputy Wetlands Inspector of the Town of Carmel appointed annually by the Town Board of the Town of Carmel.

DIRECTOR OF CODES ENFORCEMENT

The Director of Codes Enforcement of the Town of Carmel.

DREDGING

Excavating or removing sediment, soil, mud, sand, shells, gravel, or other aggregate.

ENVIRONMENTAL CONSERVATION BOARD (ECB)

The Environmental Conservation Board of the Town of Carmel.

FILLING

Depositing any soil, stones, sand, gravel, mud, rubbish or fill in any manner.

LETTER OF PERMISSION (LP)

A written approval by the ECB to a person, issued in response to a written request to conduct an activity in a wetland or its adjacent area, indicating that the proposed activity meets the description and standards identified in the minimum land use regulations for that activity. These activities have been determined by the Environmental Conservation Board as being compatible with freshwater wetlands and not having a significant adverse impact on wetlands or their functions and benefits.

MATERIAL

Liquid, solid or gaseous substances, including but not limited to: soil, gravel, rock, sand, clay, peat, mud, debris and refuse; any organic or inorganic compound, chemical agent, or matter (excluding pesticides, herbicides, algaecides and agricultural or radioactive wastes to the extent that the same are exempt from local regulation or regulated exclusively by the State of New York); sewage, sewage sludge or effluent; and any other solid waste.

NO NET WETLANDS LOSS

That the applicant must demonstrate to the satisfaction of the Environmental Conservation Board that replacement wetlands will provide benefits equal to or greater than those of the replaced wetlands and will mitigate the impact of the proposed activity on any effected wetlands.

PLANNING BOARD

The duly appointed Planning Board of the Town of Carmel appointed by the Town Board of the Town of Carmel.

POLLUTION

The presence in the environment of natural or humanly induced conditions or contaminants in quantities or characteristics which are or may be injurious to humans, plants, wildlife, fish or property.

PUBLIC HEALTH DEPARTMENT

The Putnam County Health Department.

RAINFALL DRAINAGE SYSTEMS

Construed as those existing interconnected networks of tributaries and enlargements which by virtue of their location convey surface water runoff from its source to and including its ultimate point of discharge wholly or partially within Town boundary limits. The controlled area shall include the greater part of:

(1)

All adjacent contributary surfaces of elevation less than five feet above the high-water mark from a once-in-ten-year storm.

(2)

All adjacent contributory surfaces within 100 feet measured horizontally in all directions from the high-water mark from a once-in-ten-year storm.

REGULATED ACTIVITY

Any form of draining, dredging, excavating, or mining, either directly or indirectly; any form of dumping or filling, either directly or indirectly; erecting any structures, constructing roads, driving pilings, or placing 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, discharging sewage treatment effluent or other liquefied wastes into or so as to drain into a wetland; or any other activity which substantially impairs any of the several functions or benefits of wetlands which are set forth in § 89-1 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 wetland and are located within the adjacent area.

REMOVE

To dig, dredge, suck, bulldoze, dragline, blast or otherwise excavate or regrade or the act thereof.

SELECTIVE CUTTING

The annual or periodic removal of trees, individually or in small groups, in order to realize the yield and establish a new stand and to improve the forest. This area shall be less than three acres in size.

STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)

The law pursuant to Article 8 of the New York Environmental Conservation Law providing for environmental quality review of actions which may have a significant effect on the environment.

STOP-WORK ORDER

An order issued by the Director of Codes Enforcement or the Codes Enforcement Officer to cease work immediately when a wetland law violation has been observed. The stop-work order is usually requested by the Wetlands Inspector or the Deputy Wetlands Inspector.

TOWN BOARD

The duly elected Town Board of the Town of Carmel.

TOWN CLERK

The duly elected Town Clerk of the Town of Carmel.

TOWN ENGINEER

Any person employed by the Town of Carmel as the Town Engineer.

WATERCOURSE

Any feature through which water flows continuously or intermittently in an identifiable course.

WETLANDS

All lands and all waters of the Town of Carmel, naturally or historically wet, which exceed 5,000 square feet in total area, which contain any or all of the following:

(1)

Class I Wetlands:

(a)

It is resident habitat of an endangered or threatened animal or plant species;

(b)

It is tributary to a body of water which could subject a substantially developed area to significant damage from flooding or from additional flooding should the wetland be modified, filled or drained;

(c)

It is adjacent or contiguous to a reservoir or other body of water that is used primarily as a community or public water supply, or it is hydraulically connected to an aquifer which is used for community or public water supply; or

(d)

It contains four or more of the enumerated Class II characteristics.

(2)

Class II Wetlands:

(a)

Inland wet meadows.

(b)

Inland fresh marshes.

(c)

Shrub swamps (see Subsection (2)(f)[2]).

(d)

Wooded swamps (see Subsection (2)(f)[1])

(e)

Bogs and other areas of wetness in which shallow ponds may also be present.

(f)

Submerged lands commonly called marshes, swamps, sloughs, 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 rubum), willows (salix spp.), black spruce (picea mariana), swamp white oak (quercus bicolor), red ash (fraximus pennsylvanica), 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.), button bush (cephalanthus occidentalis), bog rosemary (andromeda glaucophylla), and leatherleaf (chamaedaphne calyculata).

[3]

Emergent vegetation; including, among others, cattails (typha ssp.), pickerelweed (pontederia cordata), bulrushes (scriptus spp.), arrow arum (peltandra virginica), arrowheads (sagittaria spp.) reed (phragmites communis), wild rice (zizania aquatica), bur-reeds (sparganium ssp.) purple loosestrife (lythrum salicaria), swamp loosestrife (decodon verticillatus), and water plantain (alisma plantage-aquatica).

[4]

Rooted, floating-leaved vegetation; including, among others, water lily (numphaea odorata), water shield (brasenia schreiperi), and spatter-dock (nuphar spp.).

[5]

Free-floating vegetation; including, among others, duckweed (lemma ssp.), big duckweed (spriodela polyrhiza), and watermeal (wolffia ssp.).

[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 (cares ssp.), rushes (juncus ssp.), cattails (typha ssp.), rice cut-grass (leersia oryzoides), reed canary grass (phalaris arundinace), swamp loosestrife (decodon verticillatur), and spike rush (elecocharis ssp.).

[7]

Bog mat vegetation; including, among others, sphagnum mosses (sphagnum ssp.) bog rosemary (andromeda glaucophylla), leatherleaf (chamaedaphne calyculata), pitcher plant (sarrancenia purpurea), and cranberries (vaccineum macrocarpon and v. ocycoccos).

[8]

Submergent vegetation; including, among others, pond weeds (potzmoziton ssp.), navads (majas ssp.), bladderworts (ulticulmaria ssp.), wild celery (vallisneria americana), coontail (ceratophyllum demersum), water milfoils (myriophyllum ssp.), muskgrass (chara), stonewort (nitella ssp), water weeds (elodea ssp.), and water smartweed (polygonum amphibium).

(g)

Lands, submerged lands and overlying waters containing remnants of any vegetation that has died because of wet conditions over a sufficiently long period, providing that such conditions can be expected to persist indefinitely, barring human intervention.

(h)

Underlying lands and waters enclosed by aquatic or semiaquatic vegetation as set forth herein or dead vegetation as set forth above.

(i)

Soil types that are poorly drained, very poorly drained, alluvial or floodplain soils as defined by the USDA Soil Conservation Service and the Putnam County Soil and Water District such as (but not limited to) the following: sun silt loam, sun extremely stony silt loam, Fredon loam, Raynham silt loam, Carlisle muck, Freshwater marsh, Udorthents wet substratum, Ridgebury loam, Ridgebury very stony loam, Fluvaquents, Rippowam, Rumney, Palms muck, Leicester loam, Leicester very stony loam.

(j)

It is within a publicly owned recreation area.

(3)

Class III Wetlands:

(a)

Seasonally or continuously flooded basins, flats, or watercourses which normally flow three months or more of the year.

(b)

Bodies of water.

(4)

Class IV Wetlands:

(a)

A wetland shall be a Class IV wetland if it does not have any of the characteristics listed as criteria for Class I, II, or III wetlands.

(b)

Watercourses which flow normally less than three months of the year.

(c)

Land bordering a stream, built up by sediment from overflow of the stream and subject to inundation when the stream is in flood stage.

WETLANDS BOUNDARIES

The outer limits of all lands and waters defined under "wetlands."

WETLANDS INSPECTOR

The Wetlands Inspector of the Town of Carmel appointed by the Town Board of the Town of Carmel or a consultant hired by the Town Board of the Town of Carmel to be the Wetlands Inspector.

WETLANDS MAP

The official map most recently adopted by the Town Board of the Town of Carmel on which are indicated the boundaries of any known wetland within the Town of Carmel and said map shall be used for informational purposes only. Said map may be amended from time to time by the Town of Carmel Town Board to incorporate any newly identified regulated wetlands or to delete wetlands no longer in existence: Said map shall not be considered to determine the absolute boundaries or locations of wetlands. Absolute boundaries and locations shall be determined by the Town of Carmel Wetlands Inspector on the basis of the outer limits of the lands and waters as defined in "wetlands" below and by the presence and extent of vegetation as listed below and/or by the presence of soil types listed below.

WETLANDS PERMIT

The written approval issued by the ECB where required for conducting a regulated activity in a wetland or adjacent area.

§ 89-4 General regulations.

Concurrently with the Planning Board review and approval process, the Planning Board shall refer to the Town of Carmel Environmental Conservation Board any application for approval of a site plan or subdivision that may impact or include any wetlands, as defined above, and would require a wetland permit under this chapter.

(1)

To further protect wetlands from erosion and siltation and to mitigate the possibility of non-point source pollution, where the details of erosion and siltation control measures on the subdivision plan submitted by the applicant to the Planning Board are obscured by other details of the planned site improvement, or they are insufficient to assure the protection of wetlands, the ECB may request the Planning Board to require the applicant to prepare a separate siltation and erosion control plan for inclusion in the conditional final approval of the proposal.

(2)

The ECB shall prepare a written report and submit it to Planning Board to identify activities that would require a wetlands permit.

None of the activities set forth below shall be commenced or carried out in or within 100 feet of any wetland, body of water, watercourse or intermittent stream or adjacent area within the Town of Carmel until, except as provided herein, a permit or letter of permission has been duly issued in accordance with the procedures set forth in this chapter:

(1)

Depositing directly or indirectly, or permitting to he deposited, or removing or permitting to be removed, excavating, mining, dredging or filling, any material, debris, chemical waste or effluent.

(2)

Constructing or permitting to be constructed any building or structure or part thereof of any kind, including roads and dwellings.

(3)

Creating a decrease or increase or diversion in the flow velocity or volume of water.

(4)

Creating any extension to or expansion of any rainfall drainage system.

(5)

Destroying or permitting to be destroyed trees five inches or greater in diameter.

(6)

Restoring land elevations that have been altered by erosion or storm damage.

(7)

Introducing any effluent of sufficiently high thermal content so as to cause deleterious ecological effect.

(8)

Introducing any form of pollution, including but not limited to installing a septic tank or a storm drain, running a sewer or industrial outfall into a wetland or water body, discharging sewage treatment effluent or other liquid wastes directly into or so to drain into a freshwater wetland or adjacent area.

(9)

Any other activity which substantially impairs any of the several functions served by freshwater wetlands and watercourses or the benefits derived therefrom which are set forth in § 89-1 of this chapter.

Exceptions. No permit or letter of permission shall be required for the following activities:

(1)

Hunting, trapping, fishing, passive recreational activities, and harvesting of natural wetland products with the exception of trees and shrubs as defined by this chapter.

(2)

Public health activities, orders, and regulations of the Putnam County Health Department, as defined in this chapter.

(3)

Activities subject to the review jurisdiction of the New York Public Service Commission or the New York State Board on Electric Generation Siting and the Environment under Article VII or Article VIII, respectively, of the Public Service Law. The standards and restrictions of this chapter will be applied by said bodies in determining whether to issue a certificate of environmental compatibility and public need under such articles.

(4)

Emergency activities.

(a)

Any actual and ongoing emergency activity which is immediately necessary for the protection and preservation of life or property or the protection or preservation of natural resource values. Such emergency activities include, for example:

[1]

Search and rescue operations;

[2]

Preventive or remedial activities related to contamination of streams or other large bodies of water;

[3]

Floods, hurricanes, and other storms; and

[4]

Public health concerns.

(b)

Emergency activities shall be reported to the Environmental Conservation Board as soon as they go into effect, as soon as they begin, or as soon as they are anticipated so that the Board can oversee operations, lend assistance, and/or involve state agencies, as necessary.

(c)

Within two days of the commencement of such an emergency involving the undertaking of any activity which would otherwise be treated as a regulated activity under this chapter, the person chiefly responsible for undertaking such emergency activity shall either send a written statement to the ECB, or appear before the ECB, setting forth the pertinent facts regarding such emergency, including an explanation of the life, property or resource values such activity was designed to protect or preserve. After completion of the emergency measures (if it was not done before) this information must be submitted in writing.

(5)

Ordinary maintenance and repair of existing structures or improved areas which does 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 streets.

(6)

Any land use, improvement or development for which final approval shall have been obtained prior to September 1, 1976, from the Town of Carmel or the Town of Carmel authorities having jurisdiction over such land use, improvement or development. As used in this subsection, the term "final approval" shall mean:

(a)

In the case of the subdivision of land, conditional approval of a final plat as term is defined in § 276 of the Town Law;

(b)

In the case of a site plan not involving the subdivision of land, approval by the appropriate body or office of the Town of Carmel of the site plan; and

(c)

In those cases not covered by Subsection C(6)(a) or (b) above the issuance of a building permit or other authorization for the commencement of the use, improvement or development for which such permit or authorization was issued.

(7)

"Agricultural activities" as defined above in § 89-3 are not regulated under the Freshwater Wetlands Law or this chapter. However, land altered by an agricultural activity after its original designation as a wetland upon an official map is still protected under the Freshwater Wetlands Law or this chapter, and other appropriate parts pursuant to the Freshwater Wetlands Law, so that any other activities are subject to the provisions of this chapter.

§ 89-5 Application for a permit.

Any person proposing to conduct or cause to be conducted a regulated activity requiring a permit under this chapter upon any freshwater wetland or adjacent area shall file an application with the Clerk of the Town of Carmel together with the appropriate filing fee as set by the Town of Carmel Town Board. The Clerk shall forward a copy of such application to the Director of Codes Enforcement, the Wetlands Inspector, the Environmental Conservation Board, the Planning Board and the Town Engineer.

An application for a permit shall be filed by the applicant on a form prescribed by the ECB. Such application shall set forth the purpose, nature and extent of the proposed regulated activity. The application shall include a detailed description of the regulated activity being applied for, equipment used, quantities of material required, schedule of activities, erosion control plan, types and quantities of chemicals to be used, a site plan drawn to scale, a map showing the area of freshwater wetland or adjacent area directly affected, with the location of the proposed regulated activity thereon, an area locator map, a copy of the deed describing the subject property, showing the county clerk's stamp and such additional information as the ECB deems sufficient to enable it to make the findings and determinations required under this chapter. A complete SEQR Environmental Assessment Form must accompany the application.

(1)

Submission of an application for a permit shall constitute permission by the applicant for the ECB to conduct site inspections, as deemed necessary by the ECB, in connection with processing, acting upon or monitoring activities which may be permitted as a result of the application. At the discretion of the ECB, the property shall be flagged, prior to the acceptance of the application, to delineate wetlands, proposed roadways, property boundaries, or any other items deemed necessary by the ECB.

(2)

The application shall be accompanied by a list of the names of the owners of record of lands within 500 feet of the lands upon which the project is to be undertaken (unless waived by the ECB) and a list of other permits required for this action and their present status. Compliance with the New York State Environmental Quality Review Act regulations (SEQR) is mandated prior to any action taken on wetland applications.

(3)

An application shall not be deemed to be completed or received until the ECB determines that all such information, including any additional information requested has been supplied in a complete and satisfactory form.

(4)

Where a regulated wetland lies within two or more jurisdictions:

(a)

The Environmental Conservation Board must immediately provide copies to the other entities.

(b)

The ECB will process the application in consultation with the other entities in order to achieve a mutually satisfactory determination.

Within seven days of its receipt of a completed application for a permit regarding a proposed regulated activity, the ECB shall have published one time in the official newspaper of the Town of Carmel a notice of application at the Town's expense. Said notice of application shall be in a form prescribed by the ECB and shall:

(1)

Specify that persons wishing to object to the application should file a notice of objection by a specified date, together with a statement of the precise grounds of objection to the application, with the ECB;

(2)

Specify that if no notices of objection are timely filed or if the ECB determines that the proposed activity is of such a minor nature as to not affect or endanger the balance of systems within the freshwater wetland, then the ECB, at its discretion, may determine a hearing is not necessary and dispense with a public hearing; and

(3)

Specify that the application, including all documents and maps therewith, is available for public inspection at the office of the Clerk of the Town of Carmel.

Procedures for the public hearing.

(1)

If no public hearing is to be held in accordance with Subsection C(2) above, the applicant shall be timely notified.

(2)

If a hearing is to be held [in accordance with Subsection C(2) above] the applicant shall be so notified and shall publish a notice of hearing at least 30 days prior to the date set for the hearing in the official newspaper of the Town.

(3)

At least 15 days prior to the date set for the hearing, the applicant shall, by U.S. Mail, regular or certified at the discretion of the ECB, provide a notice of hearing to all owners of record of land adjacent to the affected freshwater wetland or adjacent area and to all known claimants of water rights, of whom the applicant has notice, which relate to any land within, or within 100 feet of the boundary of the property on which the proposed regulated activity will be located.

(4)

The notice of hearing shall:

(a)

State the name of the applicant.

(b)

Specify the location and outline the scope of the proposed activity;

(c)

Specify the date, time and place of the public hearing on the application;

(d)

Specify that persons wishing to be parties in interest and eligible to be heard at such public hearing, if any, should file a notice of appearance by a specified date, together with a statement of the precise grounds of support of, opposition to or interest in the application, with the Environmental Conservation Board;

(e)

Specify that any person who wishes to be a party in interest without filing a notice of appearance may do so by appearing at the public hearing and indicating his or her desire to be a party in interest; and

(f)

Specify that the application, including all documents and maps therewith, is available for public inspection at the office of the Clerk of the Town of Carmel.

The hearing shall be held no sooner than 30 days and no later than 75 days after the receipt of a completed application for a permit regarding a proposed regulated activity, which hearing shall be held pursuant to the provisions of § 89-6 of this chapter.

The ECB shall make the application, including all documents and maps associated with it, available for public inspection at the office of the Clerk of the Town of Carmel.

§ 89-6 Application for a letter of permission.

The abbreviated letter of permission procedures are applicable when the ECB has determined that the proposed activity will not substantially alter or impair the natural functions or benefits of a wetland. Such activities are designated as Type II actions under SEQRA. If, after consulting the charts in § 89-12, an applicant deems that a letter of permission is appropriate for the proposed activity, that should be indicated on the application form submitted.

The advantages of a letter of permission are that no public hearing is required and that the letter of permission, if it is granted, is granted within 20 calendar days of the ECB's acceptance of a properly completed application.

The issuance of a letter of permission allows an applicant to proceed without a permit. However, to ensure that the activity to be covered by an issued letter of permission does not exceed the thresholds identified in § 89-12, the ECB may attach to the letter of permission a statement of any necessary conditions to the proposed activity.

If the proposed activity does not qualify for a letter of permission and a permit is required instead, the ECB will inform the applicant at its next regularly scheduled session and will require the appropriate fees and any additional information necessary to make the application complete.

§ 89-7 Public hearing on a permit application

Any public hearing held on a permit application received under this chapter shall be conducted by the Environmental Conservation Board. The ECB chairman shall have full authority to control the conduct and procedure of the hearing, including setting time limits on discussion both verbal and written, and shall be responsible for a complete record of the hearing.

Any person may appear and be heard by the Environmental Conservation Board. Comments for inclusion may also be submitted in writing.

§ 89-8 Decision on permit application.

Where a public hearing has been held regarding a permit application, the ECB shall either issue the permit requested with or without conditions, or deny the application. The decision by the ECB to issue or deny a permit after a public hearing shall be based on the record of the hearing and shall be in writing within 45 days of the close of the public hearing.

Where no public hearing regarding a permit application has been held, either because a hearing was determined not to be necessary pursuant to Subsection C(2) of § 89-5 of this chapter or because no notice of appearance was filed with regard to the public hearing and a hearing was cancelled pursuant to § 89-5 of this chapter, the ECB shall compile a file consisting of documents submitted by the applicant and any additional documents relied on by the ECB with respect to the application.

(1)

The ECB may also take notice of general, technical or scientific facts within the specialized knowledge of the ECB. Any document made part of such file shall be available for inspection by the applicant and any interested member of the public. On the basis of such file, the ECB shall either issue the permit requested, with or without conditions, deny the application or order a public hearing; to be held pursuant to the provisions of this chapter.

(2)

The decision by the ECB to issue or deny a permit shall be made in writing. If a public hearing is held, the decision shall be made within 45 days of its closing. If no public hearing is held, the decision shall be made within 60 days of the receipt of a completed application. The issuance of a permit shall be deemed a written decision by the ECB.

One copy of the decision of the ECB on each application for a permit under this chapter shall be filed with the Town Clerk, the Director of Codes Enforcement and the Wetlands Inspector.

§ 89-9 Standards for permit decisions.

The Commissioner of the Department of Environmental Conservation is charged in accordance with § 24-0903 of the Freshwater Wetlands Act with the identification of compatible uses of each class of wetlands in the form of minimum land use regulations. The charts included in this subdivision serve as statewide minimum land use regulations for use by the Environmental Conservation Board or the Department of Environmental Conservation as appropriate, subject to variation in accordance with § 89-15. These land use regulations, in conjunction with the standards for permit issuance, are the basis for determinations of compatibility.

All persons proposing to conduct activities on wetlands or adjacent areas that have not been specifically exempted from regulation under § 89-4B of this chapter must obtain either a permit or a letter of permission.

The permit applicant or a person requesting a letter of permission has the burden of establishing that the applicable standards of this section will be met.

In granting, denying or modifying a permit, the ECB may apply the standards for permit issuance contained in this section in conjunction with the classification of the subject wetland as indicated by the official wetland map. In applying these standards, the ECB will consider the effect of the proposed activity regardless of political boundaries. In granting a letter of permission, the ECB will determine that the proposed activity complies with the limits of the activities as stated in § 89-12.

A determination of compatibility and a weighing of need against benefits lost are the criteria for decisionmaking as shown in § 89-10. The three tests for compatibility may be used as guidelines for all activities listed in the minimum land use regulations of § 89-12 that carry a compatibility category of "C" or "N" as defined in § 89-12. Activities and land uses not listed in the minimum land use regulations also may be evaluated using the three-part compatibility test. Activities designated as "LP" in § 89-12 have been determined under the minimum land use regulations to be compatible and no further compatibility or weighing analysis need be performed before issuance of a letter of permission as defined in § 89-3. Activities identified as "E" are exempt and do not require either a permit or letter of permission. Exempt activities are also included in § 89-12.

(1)

When the three tests of compatibility given in § 89-10 are met, no other weighing standards need apply, regardless of the wetland's classification, and a permit, with or without conditions, may be issued for the proposed activity. In conjunction with the three-part test, the minimum land use regulations contained in § 89-12 are the basis for determinations of compatibility.

(2)

If the proposed activity cannot meet all three tests of compatibility, or if it is identified as "X," incompatible, then, for a permit to be issued, the activity must meet each of the weighing standards listed in § 89-10 for the classification of the wetland that would be affected by the proposed activity.

(3)

If the ECB determines that a written request for a letter of permission exceeds the thresholds identified in the items listed in § 89-12, a letter of permission may not be issued. Instead the proposed action must be tested for compatibility using the three-part test in § 89-10 and a permit application must be processed pursuant to this chapter. If there is question or doubt as to whether any proposed activity being reviewed for compatibility with the three-part test in § 89-10 meets any of the three parts of the test, the action must be treated as incompatible and the activity weighed according to the standards identified in § 89-10.

§ 89-10 Standards for permit issuance.

Compatibility. These three tests are to be used to determine the compatibility of all activities identified as "C" or "N" in § 89-12 or for any unlisted action. If all three of the following tests for compatibility are met, no other weighing standards need be met, regardless of the wetland class. A permit, with or without conditions, may be issued for a proposed activity on a wetland of any class or in a wetland's adjacent area if it is determined that the activity:

(1)

Would be compatible with preservation, protection, and conservation of the wetland and its benefits.

(2)

Would result in no more than insubstantial degradation to, or loss of, any part of the wetland; and

(3)

Would be compatible with the public health and welfare.

Weighing. These standards must be applied to all activities identified as "X" in § 89-12, and to all those activities listed as "C" or "N" in § 89-12 or any unlisted action, which do not meet the three tests of compatibility, listed in § 89-10 above. If the proposed activity is listed as "X," or cannot meet the three tests for compatibility, then a permit shall be issued only if the proposed activity meets each of the standards below for the class of wetland affected.

(1)

Class I wetlands provide the most critical of the state's wetland benefits, reduction of which is acceptable only in the most unusual circumstances. A permit shall be issued only in the most unusual circumstance. A permit shall be issued only if it is determined that the proposed activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefits(s) of the Class I wetland.

(a)

The proposed activity must be compatible with the public health and welfare.

(b)

The proposed activity must be the only practicable alternative which could accomplish the applicant's objectives and have no practicable alternative on the site that is not a freshwater wetland or adjacent area.

(c)

The proposed activity must minimize degradation to, or loss of, any part of the wetland or its adjacent area and must minimize any adverse impacts on the functions and benefits which that wetland provides.

(2)

Class II wetlands provide important wetland benefits, the loss of which is acceptable only in very limited circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the benefit(s) of the Class II wetland.

(a)

The proposed activity must be compatible with the public health and welfare.

(b)

(c)

(3)

Class III wetlands supply wetland benefits, the loss of which is acceptable only after the exercise of caution and discernment. A. permit shall be issued only if it is determined that the proposed activity satisfies an economic or social need that outweighs the loss of or detriment to the benefit(s) of the Class III wetland.

(a)

The proposed activity must be compatible with the public health and welfare.

(b)

(c)

(4)

Class IV wetlands provide some wildlife and open space benefits and may provide other benefits cited in § 89-1. Therefore, wanton or uncontrolled degradation or loss of Class IV wetlands is unacceptable. A permit shall be issued for a proposed activity in a Class IV wetland only if it is determined that the activity would be the only practicable alternative which could accomplish the applicant's objectives.

(a)

The proposed activity must be compatible with the public health and welfare.

(b)

(c)

The proposed activity must make a reasonable effort to minimize degradation to or loss of any part of the wetland or its adjacent area.

§ 89-11 Interpretation.

Interpretation of some terms used in Standards for permit issuance, § 89-10.

"Public health and welfare."

(1)

Those concerns include:

(a)

Consistency of the proposed activity with physical health, as necessary, as judged by health professionals.

(b)

Consistency with related federal, state, and local laws, regulations and policies.

(2)

If a proposed activity is inconsistent with physical health, or with any related laws, regulations and government policies, then this would weigh against issuing a permit under this Wetlands Chapter until such conditions were met that would make the proposed activity consistent with these provisions.

"Only practicable alternative." A proposed activity is the only practicable alternative if no other is physically or economically feasible. This does not, however, mean that the most profitable or least costly alternative is the only feasible one nor that the least profitable or the most costly alternative is the only feasible one.

"Economic and social need." When the economic and social need for the proposed activity is considered, the economic and social burden that would be imposed on the public shall be considered. The public economic and social burden may include: associated services, such as sewer systems, schools, and fire and police protection, necessitated by the proposed activity; prevention of contamination, flood or other damage to the proposed development on the wetland by methods such as channelization, alteration of land, alteration of water flow, draining, or construction of dams, dikes, or levees; and/or services and repairs, such as medical care, pumping, cleaning, dredging, and emergency assistance as a result of contamination, flooding, or other damage to the proposed development on the wetland. Nothing in this section precludes the consideration of any issue which must be addressed under the State Environmental Quality Review Act (Article 8 of the Environmental Conservation Law).

Specific Class I standards.

(1)

"Reduction of which is acceptable only in unusual circumstances." Permits for the vast majority of activities that could not avoid reducing a benefit provided by a Class I wetland would not be approved. The word "reduction" means that this applies not just to the loss of any benefit, but to the partial loss or reduction of a benefit.

(2)

"Satisfies a compelling economic or social need." The word "compelling" implies that the proposed activity carries with it not merely a sense of desirability or urgency, but of actual necessity; that the proposed activity must be done; that it is unavoidable.

(3)

"Clearly and substantially outweighs." "Clearly" means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate. "Substantially" carries this further, in that not only must the need clearly outweigh the loss or detriment, but the margin of outweighing itself must be large or significant.

Specific Class II standards.

(1)

"Loss of which is acceptable only in limited circumstances." Permits for most activities that could not avoid causing a loss of or detriment to a benefit of a Class II wetland would not be approved.

(2)

"Satisfies a pressing economic or social need." "Pressing" should suggest that for the need to outweigh the loss of or detriment to a benefit of a Class II wetland, it must be urgent and intense, though it does not have to be necessary or unavoidable.

(3)

"Clearly outweighs" means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate, although there does not have to be a large or significant margin between the need and the loss.

Specific Class III standards.

(1)

"Loss of which is acceptable only after the exercise of caution and discernment." This means that permits could be issued for activities that could not avoid loss of or detriment to the benefit provided by a Class III wetland, but only after careful evaluation.

(2)

"Satisfies an economic or social need." The need for the activity is real and undeniable, though it does not have to be necessary, unavoidable, urgent, or intense.

(3)

"Outweighs." means that the need for an activity must outweigh the loss of or detriment to a benefit, but the balance in favor of the activity does not have to be beyond serious debate.

Class IV standards. Permit issuance cannot be indiscriminate or unexamined for Class IV wetlands and still requires consideration of loss of wetland values.

§ 89-12 Statewide minimum land use regulations.

These statewide minimum land use regulations establish the compatibility categories to be used in conjunction with the different types of land use activities to be conducted upon freshwater wetlands or adjacent area. For activities and land uses not shown on the chart, the Environmental Conservation Board or the Department of Environmental Conservation, as appropriate, must first make a determination that the activity is a regulated activity as defined in the Freshwater Wetlands Act and § 89-3. If the activity is regulated, then an independent determination of compatibility using the three tests for compatibility contained in the standards for permit issuance in § 89-11 must be used.

(1)

Area categories:

(a)

FWW: Freshwater wetland.

(b)

AA: Adjacent area.

(2)

Compatibility categories:

(a)

LP: Compatible; letter of permission issued.

(b)

C: Usually compatible.

(c)

N: Usually incompatible.

(d)

X: Incompatible.

(e)

E: Exempt.

The following categories are used in the statewide minimum land use regulations:

(1)

"LP" means that a letter of permission will be issued for the proposed activity. These are activities which are neither specifically exempted from regulation nor identified for regulation according to § 24-0701 of the Freshwater Wetlands Act, but which the Environmental Conservation Board has determined will not have a significant adverse impact on freshwater wetlands.

(2)

"C" means that a regulated activity may be compatible with a wetland and its functions and benefits, although in some circumstances the proposed action may be incompatible.

(3)

"N" means that a regulated activity is usually incompatible with a wetland and its functions and benefits, although in some cases the proposed action may be insignificant enough to be compatible.

(4)

"X" means that a related activity is incompatible with a wetland and its functions and benefits.

(5)

"E" means that an activity is exempted in § 24-0701 of the Freshwater Wetlands Act, or is not regulated by the Act because the activity will not substantially impair any of the functions or benefits of freshwater wetlands. Exempt actions are not regulated, but are included in the following two tables to assist permit application reviewers in determining regulatory requirements.

Exempt activities. The following activities either have been exempted from regulation by the Freshwater Wetlands Act or are not regulated because they will not substantially impair any of the functions or benefits of freshwater wetlands.

		Compatibility	By Area
Item	Activities	FWW	AA
1.	Continuing lawfully existing uses and continuing all activities normally and directly associated with any such use, except for those activities covered by items 38, 39, 40 and 41 (found below) where such continuance does not involve expansion or significant alteration of the existing use and does not affect additional wetland area.	E	E
2.	Establishing scenic, historic, wildlife and scientific preserves, where no significant impairment of the wetland or its benefits are involved.	E	E
3.	Boating, hiking, swimming, camping, picnicking, and other similar nonmotorized forms of outdoor activity, where no significant impairment of the wetland or its benefits are involved.	E	E
4.	Depositing or removing the natural products of wetlands in the process of recreational or commercial fishing, shell fishing, aquaculture, hunting or trapping, including the erection and maintenance of temporary (no more than 72 hours) hides or blinds.	E	E
5.	Conducting educational and scientific research activities where no significant impairment of the wetland or its benefits is involved.	E	E
6.	Establishing walking trails, where no significant impairment of the wetland or its benefits is involved.	E	E
7.	Establishing an individual recreation mooring.	E	E
8.	Gathering firewood, except as covered by items 22, 23, and 24.	E	E
9.	Conducting an agricultural activity as in § 89-3	E	E

Existing structures and facilities.

(1)

Normally, maintenance, repair, or restoration of existing facilities will not cause adverse impacts on wetlands. This is not always true, however, for construction activities that are associated with such maintenance, repair, or restoration, such as the placing of access roads, staging areas, and utilities. Various such activities are listed elsewhere in these charts.

(2)

Expansion or substantial restoration or reconstruction of existing structures and facilities can have significant impacts on the functions and benefits of wetlands. These impacts can be greater than those caused by the total replacement of the structures or facilities or by their construction in a different location.

		Compatibility	By Area
Item	Activities	FWW	AA
10.	Ordinary maintenance and repair of existing functional structures, facilities or improved area, including but not limited to bridges, roads, highways, culverts, railroad beds, bulkheads, docks, beaches, piers, wharves, pilings, dolphins, utility rights-of-way, buildings, landscaped or paved area, lawns, and mosquito control ditches. Such maintenance and repair might include, for example, replacing broken boards in docks, repainting structures, redriving pilings, resurfacing paved areas, and installing and removing docks on a seasonal basis but does not include activities covered by Items 22, 23, 24, 38, 39, 40, and 41 or other applicable items listed in this chart.	E	E
11.	In-kind and in-place replacement of existing functional bulkheads and similar structures.	LP	LP
12.	Routine beach regrading and cleaning.	LP	LP
13.	Restoring, reconstructing or modifying existing functional structures or facilities which involves a temporary disturbance of less than 50 square meters (approximately 540 square feet) of ground surface.	C	LP
14.	Expanding or substantially modifying existing functional structures or facilities, except for activities covered by Items 13, 19 or 31	N	C

Operating motor vehicles. Intense use of motor vehicles may impair any of the several functions and benefits of wetlands by introducing or increasing contaminants, noise, or other forms of pollution, or by removing or reducing vegetation and exposing soil to erosion. Occasional use generally does not warrant regulation.

		Compatibility	By Area
Items	Activities	FWW	AA
15.	Operating all-terrain vehicles, air and motor boats, and snowmobiles, except as described in Item 16. (E for water bodies and watercourses - X for all other wetlands.)	E	E
16.	Intensive, organized, and repetitive use of all-terrain vehicles, air and motor boats, and snowmobiles.	N	C

Draining, filling, grading, clear-cutting, and dredging.

(1)

Generally, draining of wetlands lowers groundwater levels, may increase downstream peak flows, and may decrease water storage capacity and downstream base flow. It may also cause changes in vegetation and water temperature, increased stream bed scouring, and sediment deposition. Draining can totally destroy a wetland.

(a)

Filling decreases the number and size of wetlands, thereby decreasing their ability to collect runoff and prevent erosion and sediment deposition downstream. Certain fill materials may adversely effect water quality. Disposal of dredge material may result in erosion and cause turbidity and sediment deposition. Filling eliminates wetland habitat for fish and wildlife, may alter the water table and groundwater flow and adversely affect groundwater recharge, and can irreversibly destroy a wetland.

(b)

Grading a wetland or adjacent area can substantially alter surface water drainage and flow patterns, may temporarily increase erosion, and may eliminate fish and wildlife habitat.

(c)

Clear cutting removes the vegetative cover of wetlands and may reduce their ability to absorb water and serve as habitat. It may also cause soil erosion.

(d)

Dredging or excavating may increase water depth and remove wetland vegetation, thus altering the basic characteristics of, and perhaps destroying, wetlands. Fish and wildlife feeding or reproductive capacities may be altered, as may cover types, turbidity, sediment deposition, and erosion patterns.

(2)

Any of these activities can cause the permanent loss of benefits provided by wetlands, and may, in fact, destroy the wetlands entirely .

		Compatibility	By Area
Item	Activities	FWW	AA
17.	Draining and altering water levels, except as part of an agricultural activity.	X	X
18.	Removing or breaching beaver dams.	N	C
19.	Constructing, expanding, or substantially modifying drainage ditches, except as part of an agricultural activity.	X	N
20.	Filling, including filling for agricultural purposes.	X	N
21.	Installing or creating a dry well, retention basin, filter, open swale, or pond.	N	N
22.	Clear-cutting trees.	N	C
23.	Clear-cutting vegetation other than trees except as part of an agricultural activity.	X	N
24.	Cutting but not the elimination or destruction of vegetation, such that the functions and benefits of the wetland are not significantly adversely affected.	LP	LP
25.	Grading, and dredging not included in Item 26.	X	N
26.	Dredging less than 400 cubic meters (approximately 523 cubic yards) to maintain present navigation channels.	C	C
27.	Mining.	X	X
28.	Constructing roads, except for winter truck roads as defined in § 89-3, "agricultural activities."	X	N
29.	Drilling a water well to serve an individual residence.	C	LP
30.	Drilling a well, except for activities covered in Item 29.	X	N

Dams, docks and bulkheads. Generally, structures of this type are indicative of associated development which may increase disruptive human use or occupancy of wetland areas.

(1)

A structure sometimes interferes with surface or subsurface water flow, increases water levels, or otherwise affects water supply. The impact of such a structure is related to its size, location, and design. For example, docks on piles are generally more compatible with the functions and benefits of wetlands than are docks on fill.

(2)

Dams alter normal flow patterns and often increase water levels, thus eliminating or altering the natural vegetation. Depending on the size of the structure, entire wetlands can be destroyed.

		Compatibility	By Area
Items	Activities	FWW	AA
31.	Installing a dock, pier, wharf, or other structures, built on floats or open-work supports and having a top surface area of 20 square meters (approximately 200 square feet) or less.	C	C
32.	Installing any dock, pier, wharf, or other structure used as a landing place on water, except for activities covered by Item 31.	N	N
33.	Constructing groins, bulkheads, and other shoreline stabilization structures.	X	N
34.	Constructing or removing berms, levees, dikes, dams, and other control structures.	X	N

Utilities.

(1)

Installing overhead lines in or adjacent to wetlands will be presumed to cause less damage to wetlands if little or no additional clearing and grading is necessary. Where extensive clearing and construction of access or maintenance roads occurs, erosion and sedimentation may be the most serious problems.

(2)

Installing overhead lines, while often spanning wetlands and thereby minimizing construction impacts, will result in a permanent adverse aesthetic impact on wetlands. Overhead power lines may also result in higher bird mortality rates, either through collision or electrocution.

		Compatibility	By Area
Item	Activities	FWW	AA
35.	Installing overhead lines to an individual residence.	LP	E
36.	Installing electric, telephone, or other lines from an existing distribution facility to a structure, except for activities covered by Item 35, where no major modifications or construction activities in the wetland are necessary.	C	LP
37.	Installing utilities, except for activities regulated by Article VII or VIII of the Public Service Law or by Item 36.	X	N

Pollution and pesticides. Introduction of sewage effluent, runoff of pesticides or disposal of toxic substances into wetlands or adjacent area may contaminate ground and surface water with undesirable chemicals, nutrients and organisms. The contamination may be temporary or permanent. It may result from activities located directly in wetlands or in adjacent areas, but, due to runoff and drainage patterns, it may also be caused by activities located some distance away. Distant activities can have adverse effects as severe as those caused by activities within or adjacent to wetlands. The presence of pollutants or pesticides in wetlands or adjacent area may increase mortality rates among fish and wildlife, alter their behavior or reproductive capability, and adversely affect their value as a food source. Excessive nutrients alter vegetative cover, fish and wildlife distribution, and water potability. Resulting organisms may also create a health hazard.

		Compatibility	By Area
Item	Activities	FWW	AA
38.	Introducing or storing any hazardous or toxic substance, material or waste, including any chemical, petrochemical, solid waste, nuclear waste, sewage effluent, or other pollutant, except as described in Item 39, 40, or 41.	X	X
39.	Application of a pesticide conducted pursuant to a permit issued under Article 15 of the Environmental Conservation Law (see 6 NCYRR Part 327, 328, 329).	N	C
40.	Application of a pesticide where no permit is required under Article 15 of the Environmental Conservation Law (see 6 NYCRR 327, 328, 329).	X	X
41.	Application of a pesticide to the grounds of a private residence when such use is by the owner.	C	LP

Buildings. Constructing buildings, accessory roads, and parking areas can have several effects on wetlands, not the least of which is the increased pressure to continue development beyond the initial construction.

(1)

Roofs and paved areas quickly shed rain where that rain previously had an opportunity to soak into the ground. This can result in more turbulent streamflow, more erosion and sedimentation, and higher water levels in surrounding areas, including nearby wetlands.

(2)

The effects of filling, grading, and draining are discussed elsewhere in this chart.

		Compatibility	By Area
Item	Activities	FWW	AA
42.	Constructing a residence or related structures or facilities.	X	N
43	Constructing commercial or industrial facilities, public buildings, or related structures or facilities.	X	X

§ 89-13 Mitigation of impact.

The applicant may suggest a proposal to enhance the existing benefits provided by a wetland or to create and maintain new wetland benefits in order to increase the likelihood that a proposed activity will meet the applicable standards for permit issuance. Such a proposal must meet the following provisions:

The mitigation must occur on or in the immediate vicinity of the site of the proposed project.

The area affected by the proposed mitigation must be regulated by this chapter after the mitigative measures are completed.

The mitigation must provide substantially the same or more benefits than those lost through the proposed activity.

§ 89-14 Governmental acquisition.

Duly filed notice in writing that the state or any agency or political subdivision of the state is in the process of acquiring any freshwater wetland, by negotiation or condemnation authorizes but does not require denial of any permit, but only if the affected landowner and the local government have been so notified.

The written notice must include an indication that the acquisition process has commenced, such as that an appraisal of the property has been prepared or is in the process of being prepared.

If the landowner received no offer for the property within one year of the property denial, this bar to the permit lapses. If its negotiations with the applicant are broken off, the state or any political agency or subdivision must, within six months of the end of negotiations, either issue its findings and determination to acquire the property pursuant to § 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to § 206 of the Eminent Domain Procedure Law, or this ban to the permit lapses.

§ 89-15 Conditions to a permit or letter of permission.

Any permit or letter of permission issued pursuant to the law may be issued with conditions. Such conditions may be attached as are necessary to assure the preservation and protection of affected freshwater wetlands, water and related resources, including wildlife, and to assure compliance with the policy and provisions of the ECB's rules and regulations adopted pursuant to this chapter.

Every permit or letter of permission issued pursuant to this chapter shall contain the following conditions:

(1)

The Environmental Conservation Board shall have the right to inspect the project from time to time;

(2)

The permit, or letter of permission, shall expire on a date certain;

(3)

The permit or letter of permission holder shall notify the ECB of the date on which the regulated activity is to begin, at least five days in advance of such date; and

(4)

The ECB's permit or letter of permission shall be prominently displayed at the project site during the undertaking of the activities authorized by the permit or letter of permission.

The ECB shall set forth in writing in the file it keeps regarding a permit or letter of application, its findings, and reasons for all conditions attached to any permit or letter of permission.

The applicant has accepted expressly, by the execution of the application, the full legal responsibility for all damages, direct or indirect, of whatever nature, and by whomever suffered, arising out of the project described herein and has agreed to indemnify and save harmless the Town from suits, actions, damages and costs of every name and description resulting from the said project.

Granting of a permit does not relieve the applicant of the responsibility of obtaining any other permission, consent or approval from the U.S. Army Corps of Engineers, U.S. Coast Guard, New York State Office of General Services or any other local governmental permits or approvals which may be required.

All necessary precautions shall be taken to preclude contamination of any wetland or water body by suspended solids, sediments, fuels, solvents, lubricants, epoxy coatings, paints, concrete, leachate or any other environmentally deleterious materials associated with the project.

§ 89-16 Environmental Conservation Board; membership, terms in office, powers.

The Environmental Conservation Board heretofore created by the Town Board of the Town of Carmel exercising its authority pursuant to § 24-0501, Subdivision 2, of Title 5 of Article 24 (The Freshwater Wetlands Act) of New York State Environmental Conservation Law with all the duties and powers herein described shall consist of five members who shall be specifically qualified by reason of education, training or experience to perform the duties provided for hereunder.

[Amended 9-18-2019 by L.L. No. 6-2019]

The members of such Environmental Conservation Board shall be appointed by the Town Board. Members shall be appointed for a term of five years from and after the expiration of the terms of their predecessors in office. If a vacancy shall occur otherwise than by the expiration of term, it shall be filled by the Town Board for the unexpired term. The Town Board shall have the power to remove any member for cause.

[Amended 9-18-2019 by L.L. No. 6-2019]

In order to carry out the purposes and provisions of this chapter, the Board shall have the following powers:

(1)

To advise the Town Board of the need for professional and technical assistance.

(2)

To hold hearings, in the exercise of its powers, functions and duties as provided for in this chapter.

(3)

To enforce the law, directly or through a Wetlands Inspector or Deputy Wetlands Inspector.

(4)

To perform other activities, within the limits of the law, to properly evaluate wetlands permit applications, alleged violations, or other activities which do or might effect wetlands.

The Town Board shall designate a member of the Environmental Conservation Board to act as Chairman thereof as well as Vice Chairman thereof. Upon failure to do so, the Environmental Conservation Board shall elect a Chairman from its own members, who shall serve until such appointment by the Town Board.

[Added 4-11-2012 by L.L. No. 4-2012]

§ 89-17 Enforcement.

This chapter shall be enforced by the ECB or the Wetlands Inspector or the Deputy Wetlands Inspector of the Town of Carmel. It shall be the duty of the Wetlands Inspector or the Deputy Wetlands Inspector to issue notices of violation of this chapter.

(1)

The Wetlands Inspector or the Deputy Wetlands Inspector shall issue a written "Order to Remedy a Violation" which specifies the nature of the violation and provides a specific time within which the violation shall cease and satisfactory corrective action shall be taken by the violator.

(2)

The Wetlands Inspector is also authorized to issue appearance tickets in person or by certified mail to violators to appear in Town Court, with or without previously issuing an "Order to Remedy a Violation" to answer a charge of violating this chapter.

(3)

The Town Board may designate a resident of Putnam County or an adjacent New York State county as the Wetlands Inspector for a period of three years, or hire a consultant to be the Wetlands Inspector, and may also designate Deputy Wetlands Inspectors.

(4)

The Wetlands Inspector or a Deputy Wetlands Inspector may enter upon any lands, water bodies, watercourses, wetlands or their adjacent areas, public or private, within the Town, without hindrance, for the purpose of making or verifying surveys, making examinations or investigations necessary to the exercise of the powers and performance of the duties conferred or imposed upon the Environmental Conservation Board by this chapter.

Administrative sanctions. Any person who violates, disobeys or disregards any provision of this chapter, including any provision of any permit issued pursuant to this chapter, or any rule or regulation adopted by the ECB pursuant to this chapter, shall be liable to the people of the Town of Carmel for a civil penalty not to exceed an amount to be established by the Town Board for every such violation, to be assessed, following a hearing or opportunity to be heard in Town Court upon due notice and with rights to the specification of the charges and representation by counsel.

(1)

Such civil penalty may be released or compromised by the Town Attorney with the consent of the Town Board and such penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the Town Attorney with the consent of the Town Board.

(2)

In addition, the Court shall have the power to direct the violator 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 ECB. Any such order of the Court shall be enforceable in an action brought by the Town Attorney at the request of the Town Board and in the name of the Town of Carmel in any court of competent jurisdiction.

(3)

The ECB shall require an application for a permit be made and conditions for a permit be met for activities which were conducted without an appropriate permit or may require an application and a permit for the restoration of the violated regulated area.

(4)

Any civil penalty or order issued by the court pursuant to this subdivision shall be reviewable in a proceeding pursuant to Article 78 of the State Civil Practice Law and Rules.

Criminal sanctions.

(1)

Any person who violates an order, permit, rule, or regulation of the agency regulating freshwater wetlands and adjacent areas pursuant to this chapter shall, following a hearing or opportunity to be heard in any court of competent jurisdiction, upon due notice and with rights to the specifications of the charges and representation by counsel, in addition for the first offense, be guilty of a violation punishable by a fine of not more than $250 per day; for a second and each subsequent offense he or she shall be guilty of a misdemeanor punishable by a fine of not less than $1,000 nor more than $2,000 or a term of imprisonment of not less than 15 days nor more than six months, or both.

(2)

Instead of these punishments, any offender may be punished by being ordered by the court to restore the affected freshwater wetland to its condition prior to the offense, insofar as possible. The court shall specify a reasonable time for the completion of such restoration, which shall be affected under the supervision of the ECB. Each offense shall be a separate and distinct offense.

Equitable relief. The Environmental Conservation Board shall have the right to recommend to the Town Board that they seek equitable relief to restrain any violation or threatened violation of any of the provisions of this chapter.

§ 89-18 Stop-work orders, suspension or revocation of permits.

The Wetlands Inspector, or the Deputy Wetlands Inspector, if any, may suspend or revoke a permit or letter of permission issued pursuant to this chapter where it finds that the permittee has not complied with any or all terms of such permit or letter of permission, has exceeded the authority granted in the permit or letter of permission, or has failed to undertake the project in the manner set forth in the application, permit, or letter of permission.

All regulated activity shall cease immediately upon revocation of a permit or the issuance of a stop-work order which may be obtained by the Director of Codes Enforcement or the Codes Enforcement Officer.

The ECB shall set forth in writing in the applicant's project file its findings and reasons for revoking or suspending a permit or letter of permission pursuant to this section.

§ 89-19 Other laws and regulations.

To the greatest extent practicable, any public hearing held pursuant to § 62-7 of this chapter shall be incorporated with any public hearings required by or pursuant to the New York State Town Law, General Municipal Law or Environmental Conservation Law relating to approvals or permits otherwise required for the undertaking of regulated activities on the freshwater wetland or adjacent area in question.

No permit granted pursuant to this chapter shall remove any person's obligation to comply in all respects with the applicable provisions of any federal, state or local law or regulation, including but not limited to the acquisition of any other required permit or approval.

§ 89-20 Bonding requirements.

The ECB may require that, as a condition of any permit or letter of permission issued pursuant to this chapter the permittee shall post a bond with the Agency, in an amount determined by the ECB, conditioned upon faithful compliance with the terms of such permit or letter of permission and for the indemnification of the Town of Carmel for restoration costs resulting from failure to comply. Such bond shall be issued by a corporate surety authorized to do business in the State of New York and shall be in favor of the Town of Carmel. It shall remain in effect until the ECB certifies that the work has been completed in compliance with the terms of the permit or letter of permission or the bond is released by the ECB, or a substitute bond is provided.

The ECB shall set forth in writing in the applicant's project file its findings and reasons for imposing a bond pursuant to this section.

§ 89-21 Review and appeal.

Any decision or order of the ECB made pursuant to or within the scope of this chapter may be reviewed at the request of any person adversely affected by any such decision or order of the ECB, in accordance with Article 78 of the State Civil Practice Law and Rules.