[HISTORY: Adopted by the Board of Trustees of the Village of Scarsdale 7-19-1976 by L.L. No. 3-1976; amended in its entirety 12-13-2011 by L.L. No. 4-2011. Subsequent amendments noted where applicable.]
Freshwater wetlands in their natural state serve multiple functions, including:
Removing pollutants from surface waters by trapping sediment, removing nutrients and detoxifying chemicals.
Recharging groundwater and surface waters, thereby maintaining stream flows needed by plants and animals to survive.
Controlling flooding by storing and then slowly releasing stormwater runoff.
Stabilizing stream banks by protecting against erosion caused by stream currents or construction activities.
Providing unique or essential habitats for diverse fish and wildlife species, including many of those on the New York State and federal lists of special concern, threatened, rare and endangered species.
Supporting unique vegetative associations specifically adapted for survival in low-oxygen environments.
Providing areas of unusually high plant productivity which support wildlife diversity and abundance.
Providing open space and visual relief from intense development.
Providing recreational opportunities, including fishing, nature study, hiking and wildlife watching.
Serving as outdoor laboratories and living classrooms for the study and application of biological, natural and physical sciences.
In addition, the Long Island Sound has been declared an Estuary of National Significance by the federal government, and nonpoint source pollution, especially excessive nutrient loadings, has been determined to be a major cause of the water quality problems in Long Island Sound. Siltation into streams, lakes and harbors is a concern to downstream communities.
It is therefore the policy of the Board of Trustees of the Village of Scarsdale to protect its citizens and those of downstream communities, including future generations, by preventing the further despoliation and destruction of freshwater wetlands and watercourses within the village while taking into account varying ecological, water quality, economic, recreational and aesthetic values. Activities that may damage freshwater wetlands functions or cause the loss of freshwater wetlands and watercourses should be avoided and, where avoidance is not practicable, minimized to the fullest practicable extent.
It is the intent of the Board of Trustees of the Village of Scarsdale that activities in and around freshwater wetlands conform with the Building Code (Chapter 132), the Flood Damage Prevention Code (Chapter 167), Stormwater Management, (Chapter 254) and all other related codes and regulations, and that such activities not threaten public safety or the natural environment or cause nuisances by:
Impeding flood flows, reducing flood storage areas or destroying storm barriers, thereby resulting in increased flood heights, frequencies or velocities on other lands.
Increasing water pollution through inappropriate siting of stormwater control facilities; excessive or unauthorized application of fertilizers, pesticides, herbicides and algicides; disposal of solid wastes at inappropriate sites; creation of unstabilized fills; or the destruction of freshwater wetlands soils and vegetation serving pollution and sediment control functions.
Adversely altering the recharge or discharge functions of freshwater wetlands, thereby impacting groundwater or surface water supplies.
Significantly altering the freshwater wetlands hydrology and thereby causing either short- or long-term changes in vegetative composition, soils characteristics, nutrient recycling or water chemistry.
Destroying sites needed for educational and scientific research, such as outdoor biophysical laboratories, living classrooms and training areas.
Destroying or damaging aesthetic and property values.
As used in this chapter, the following terms, phrases, words and their derivatives shall have the meanings given herein:
- CONTROLLED ACTIVITY
- Any of the following activities:
- A. Any form of draining, dredging, excavation or removal of soil, mud, sand, gravel or other material.
- B. Any form of dumping, filling, grading or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind.
- C. Erection of any structures or roads if the actual construction activity is within a freshwater wetlands controlled area.
- D. Driving of pilings or the placement of any other obstructions, whether or not changing or diverting the flow of water, or alteration or modification of natural drainage patterns.
- E. Alteration or modification of the contours of the land.
- F. Introduction of any form of pollution, including but not limited to installing a septic tank, running a sewer outfall discharging sewage treatment effluent or other liquid wastes into or so as to drain into a freshwater wetlands area.
- G. Destruction of natural growth, including living trees and shrubs.
- H. Any other activity which may substantially impair the natural functions served by the freshwater wetlands or the benefits derived therefrom, as described in § 171-1 of this chapter.
- To excavate or remove sediment, soil, mud, sand, gravel or other aggregate or decomposed biomass.
- Property within the special flood hazard areas subject to inundation by the one-percent (one-hundred year) annual chance flood as shown on the Flood Insurance Rate Maps or other such document for the Village of Scarsdale, as issued by the Federal Emergency Management Agency, or such other agency of legal jurisdiction.
- FRESHWATER WETLANDS
- Any area which meets one or more of the following criteria
- A. Lands and waters within the Village of Scarsdale, as shown on the Freshwater Wetlands Map dated April 25, 2011 or any amendments thereto.
- B. Lands and waters within the Village of Scarsdale that meet the definition provided in the New York State Freshwater Wetlands Act and are indicated on the official freshwater wetlands map promulgated by the Commissioner of the New York State Department of Environmental Conservation.
- C. Areas within the Village of Scarsdale which are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of hydrophytic vegetation as defined by the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (January 1989) prepared by the Federal Interagency Committee of the U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service and U.S.D.A. Natural Resources Conservation Service.
- FRESHWATER WETLANDS CONTROLLED AREA
- All lands in the Village of Scarsdale identified as freshwater wetlands and those lands within 100 feet of said freshwater wetlands.
- FRESHWATER WETLANDS MAP
- The map dated April 25, 2011, and adopted by the Village Board of Trustees on December 13, 2011, as may be amended.
- FRESHWATER WETLANDS/WATERCOURSES BUFFER
- A specified area surrounding freshwater wetlands or a watercourse that is intended to provide some degree of protection to the freshwater wetlands or watercourse from human activity and other encroachment associated with development. The freshwater wetlands buffer shall be subject to the regulations for wetlands as defined in this chapter and shall generally be determined to be the area extending 25 feet horizontally away from and paralleling the outermost boundary of wetlands and/or the point of mean high water of a watercourse or floodplain, or if a state-designated wetlands is involved, the area as may be designated by the Commissioner of the New York State Department of Environmental Conservation. Pursuant to § 171-7D of this chapter, no controlled activities are permitted within the freshwater wetlands/watercourse buffer except as approved as part of the conditions required by the Planning Board pursuant to § 171-7E of this chapter.
- To adjust the degree of inclination of the natural contours of the land, including leveling, smoothing, filling and other modifications to the natural land surface.
- HYDRIC SOIL
- A soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part.
- HYDROPHYTIC VEGETATION
- Macrophytic plant life growing in water, soil or substrate that is at least periodically deficient in oxygen as a result of excessive water content.
- A tax lot as shown on the current Tax Assessment Map of the Village of Scarsdale and any amendments thereto.
- MITIGATION PLAN
- The plan prepared by an applicant when the applicant has demonstrated that either losses or impacts to the freshwater wetlands or freshwater wetlands buffer are necessary and unavoidable and have been minimized to the maximum extent practicable.
- Any corporation, firm, partnership, association, trust, estate and one or more individuals.
- The presence in the environment of man-induced conditions or contaminants in quantities or characteristics which are or may be injurious to human or plant life or wildlife or other animal life or to property.
- Any natural or artificial, intermittent, seasonal or permanent and public or private water body or watercourse. A water body is intermittently, seasonally or permanently inundated with water and contains a discernible shoreline and includes ponds and lakes. A watercourse includes rivulets, brooks, creeks, streams, rivers and other waterways flowing in a definite channel with bed and banks and usually in a particular direction.
Within a freshwater wetlands controlled area, no person shall allow or conduct, either directly or indirectly, any controlled activity without a permit issued in accordance with the requirements of this chapter.
None of the following shall constitute a controlled activity:
Swimming or fishing, where otherwise legally permitted.
Public health activities, orders and regulations of the State or County Department of Health.
Mosquito control projects, unless determined by the Planning Board of the Village to have an adverse impact upon the freshwater wetlands.
Construction activities that are more than 100 feet from a freshwater wetland shown on the Freshwater Wetlands Map.
Operation and maintenance of dams, retaining walls, walkways, terraces, sluices, culverts or other water-control structures or devices as were in existence on the effective date of this chapter.
Conduct of normal land maintenance and conservation measures, including tree trimming and pruning, the removal of dead or diseased vegetation, lawn and garden care and the planting of shrubs or trees, subject to the limitation that excessive amounts of fertilizers should not be applied and that application of herbicides and pesticides shall be as regulated pursuant to Article 33 of the New York Environmental Conservation Law and Article 16 of the New York Public Health Law.
The Village Engineer is hereby authorized to review, approve, approve with conditions or deny the following types of applications within a freshwater wetlands controlled area:
Activities involving minor soil disturbances, such as, but not limited to, the placement of fence and gateposts, supports for decks and similar construction activities. "Minor soil disturbances" shall not include the placement of any fill, any regrading or the removal of any soil from the site other than is incidental to the excavation for fence posts, supports for decks or similar construction activities.
Construction of footbridges across watercourses, subject to the requirements of Chapter 167, Flood Damage Prevention, of the Code of the Village of Scarsdale.
Installation of granite curbing and minor amounts of paving at a driveway terminus onto a public street.
The Planning Board is hereby authorized to review, approve, approve with conditions or deny all other applications for the conduct of any controlled activity within a freshwater wetlands controlled area. Applications to the Planning Board shall be as provided in § A319-44 of the Code of the Village of Scarsdale.
In approving, denying or conditioning any permit, the Planning Board and Village Engineer shall evaluate the freshwater wetlands functions and the role of the freshwater wetlands in the hydrologic and ecological system of which it is a part and shall determine the impact of the proposed activity upon the public health, safety and welfare and the flora and fauna, water quality and freshwater wetlands functions. Factors to be considered may include, as appropriate:
The direct and indirect impact(s) of the proposed activity upon neighboring land uses and freshwater wetlands functions as set forth in § 171-1 of this chapter, including but not limited to:
Filling of freshwater wetlands or other modification of natural topographic contours.
Disturbance or destruction of natural flora and fauna.
Influx of sediments or other materials causing increased water turbidity or downstream siltation.
Reduction in freshwater wetlands groundwater or surface water supply.
Interference with freshwater wetlands water circulation.
A damaging reduction or increase in nutrients to a freshwater wetland.
Influx of toxic chemicals and/or heavy metals.
Damaging thermal changes in the freshwater wetlands water supply.
Destruction of natural aesthetic values.
Any existing freshwater wetlands impact(s) and the cumulative effect of reasonably anticipated future activities in or adjacent to the freshwater wetlands subject to the application.
The impact of the proposed activity and reasonably anticipated similar activities upon flood flows, flood storage and water quality.
The safety of the proposed activity from flooding, erosion, soil limitations and other hazards.
The availability of preferable alternative locations on the subject parcel.
The demonstration by the applicant that any direct and indirect impact(s) has/have been avoided to the maximum extent practicable and that any remaining unavoidable direct and indirect impact(s) has/have been minimized to the maximum extent practicable.
The Planning Board and the Village Engineer shall deny a permit if the proposed activity may threaten the public health, safety or welfare, cause nuisances, impair public rights to the enjoyment and use of public lands and waters, threaten a rare or endangered plant or animal species or violate pollution control standards.
Referrals may be made to the Village Naturalist, environmental consultants and/or to the Westchester County Soil and Water Conservation District, as appropriate, to assist the Planning Board and the Village Engineer in evaluating potential impacts of the proposed activity.
In consideration of applications, the Planning Board and the Village Engineer are authorized to attach reasonable conditions intended to minimize the overall impact of the activity on the nearby freshwater wetlands or watercourse. Such conditions may include but are not limited to:
Erosion and sediment controls in compliance with the provisions of the New York State Standards and Specifications for Erosion and Sediment Control as same may be amended, modified or superseded, from time to time, by other standards and specifications.
In the event that it is determined by the Planning Board that impacts to freshwater wetlands or a freshwater wetlands/watercourse buffer are necessary and unavoidable and have been minimized to the maximum extent practicable, the Board may permit a controlled activity, in accordance with the New York State Stormwater Management Design Manual as same may be amended modified or superseded, from time to time, by other standards and specifications, within a freshwater wetlands/watercourse buffer and, in such event, shall require the applicant to develop a mitigation plan, to include, if appropriate, creation of replacement freshwater wetlands that recreate as nearly as possible the original freshwater wetlands in terms of type, functions and setting, and that is larger, by a ratio of at least 1.5 to 1.0, than the original freshwater wetlands.
In the consideration of applications for subdivisions and for nonresidential construction, the Planning Board may require creation and continuous maintenance of natural vegetation within the freshwater wetlands/watercourse buffer as defined in this chapter.
In the event that it is determined by the Planning Board that there are no feasible alternatives to a construction activity within the freshwater wetlands/watercourse buffer, the Board may approve a permit subject to the condition that the applicant post a bond or other surety adequate to hire a qualified person to regularly inspect the project during construction to ensure that all mitigation measures required in the Board's approval are in fact implemented prior to the start of construction and continuously throughout the construction process until a certificate of occupancy is issued.
New York State has designated one freshwater wetland (MV-1) within the Village on the New York State Freshwater Wetlands Map, under the provisions of Article 24 of the Environmental Conservation Law. This wetland is along a tributary of the Sheldrake River, near Crossway Field. In addition to compliance with the requirements of this chapter, any activity within 100 feet of this state-designated freshwater wetlands will require a permit from the New York State Department of Environmental Conservation.
The Planning Board and the Village Engineer may require that, prior to commencement of work under any permit issued pursuant to this chapter, the applicant post a performance bond, cash deposit or other surety in an amount not to exceed 20% of the anticipated cost of the work covered by the permit, and approved as to form by the Village Attorney, to insure that all conditions of the permit are adhered to. The bond shall be released upon completion of the work permitted by said permit, provided that such work is found to be in accordance with the provisions of the permit and is completed to the satisfaction of the Village Engineer.
The Village Engineer may suspend or revoke a permit in the form of a stop-work order based on a finding that the applicant has not complied with any or all of the terms of such permit, has exceeded the authority granted in the permit or has failed to undertake the project in the manner set forth in the approved application.
For the purposes of defraying administrative costs involved in the review of applications and costs of legal notices required by law, all applications shall be accompanied by a fee, payable to the Village of Scarsdale, as established by the Village Board.
An applicant may appeal from any decision of the Village Engineer. The applicant shall apply to the Planning Board within 30 days after the decision of the Village Engineer.
An applicant may appeal from any decision of the Planning Board. The applicant shall commence an action pursuant to Article 78 of the Civil Practice Law and Rules within 30 days after the date the decision of the Planning Board is filed with the Village Clerk.
Any person committing an offense against any provision of this chapter shall, upon conviction thereof, be guilty of a violation pursuant to the Penal Law of the State of New York, punishable by a fine not exceeding $250 or by imprisonment for a term not exceeding 15 days, or by both such fine and imprisonment. The continuation of an offense against the provisions of this chapter shall constitute, for each day the offense is continued, a separate and distinct offence hereunder.
The Village Board shall have the authority to amend the Freshwater Wetlands Map upon review and report from the Planning Board, pursuant to Chapter 77, Planning Board, of the Code of the Village of Scarsdale.
Any existing encroachment into a freshwater wetlands controlled area as of the effective date of this amendment shall not be subject to the requirements of this article.