[HISTORY: Adopted by the Town Board of the
Town of East Fishkill as indicated in article histories. Amendments
noted where applicable.]
[Adopted 9-27-2007 by L.L. No. 8-2007]
A.
These regulations are enacted with the intent of providing
a reasonable balance between the rights of the individual property
owner to the free use of his property and the right to enjoy and benefit
from preservation of wetlands, water bodies and watercourses of present
and future generations. Therefore, this article recognizes the rights
of owners of property in or near wetlands to use their property for
reasonable purposes consistent with other regulations and controls,
including the need to cross over wetlands to access otherwise developable
uplands, provided that such use, in the judgment of the appropriate
agencies or officials of the Town of East Fishkill, does not result
in a significant adverse impact to the wetland systems, both on- and
off-site, or the functions which the wetlands are known to fulfill
in the Town of East Fishkill. Therefore, the Town Board of the Town
of East Fishkill finds and declares it to be the public policy of
the Town to preserve, protect and conserve its wetlands, water bodies
and watercourses and the benefits derived therefrom, to prevent the
despoliation and destruction and to regulate the use and development
thereof and to secure the natural benefits of wetlands, water bodies
and watercourses consistent with the general welfare and beneficial
economic and social development of the Town. In this connection, the
Town Board finds as follows:
(1)
Rapid population growth, attended by housing, road
and other construction, and increasing demands upon natural resources,
are found to be encroaching upon, despoiling, polluting or eliminating
many of the Town's wetlands, water bodies and watercourses and processes
associated therewith.
(2)
The preservation and maintenance of wetlands, water
bodies and watercourses in an undisturbed and natural condition constitute
important physical, ecological, social, aesthetic, recreational and
economic assets necessary to protect and promote the health, safety
and general welfare of present and future residents of the Town and
of downstream drainage areas.
B.
It is the intent of this article to promote the public
purposes identified in this section by providing for the protection,
preservation, proper maintenance and use of the Town's wetlands, water
bodies and watercourses by preventing or minimizing erosion due to
flooding and stormwater runoff, by maintaining the natural groundwater
supplies, by preserving and protecting the purity, utility, water-retention
capability, ecological functions, recreational usefulness and natural
beauty of all wetlands, water bodies, watercourses and other related
features of the terrain and by providing and protecting appropriate
habitats for wildlife.
C.
It is the intent of this article to provide for the
integrity of the biodiversity of the Town's wetlands, water bodies
and watercourses, by providing and protecting appropriate habitats
for wildlife and plants and especially rare, endangered and threatened
species.
D.
It is the intent of this article to improve and avoid,
minimize or mitigate the loss or degradation of the Town's wetlands,
water bodies and watercourses, by regulating the operation, repair
and maintenance of dams, spillways, retaining walls, drainage structures,
sluices, culverts, or other water control structures or devices that
insure the integrity of wetlands, watercourses and water bodies.
E.
The Town shall encourage the use of conservation easements
to protect wetlands, water bodies and watercourses.
F.
It is the intent of this article to apply to wetlands,
water bodies and watercourses, including those regulated pursuant
to state or federal law, as the same may from time to time be amended.
It is not intended to duplicate existing regulations but rather to
fill in any gaps in wetland protection.
G.
The following wetlands, water bodies and watercourses
are regulated under this article:
(1)
Ponds, lakes, reservoirs, marshes, swamps, bogs, vernal
pools or other area of permanent water retention, regardless of origin.
(2)
All natural drainage systems, including rivers, streams
and brooks which contain water at least three months of the year and
the associated floodplains of such watercourses.
As used in this article, the following terms
shall have the meanings indicated:
The person filing an application pursuant to this article.
The Zoning Board, the Planning Board, the Town Board, the
Building Inspector, or the Zoning Administrator.
The variety of living things (plants and animals), their
interrelationships, their interdependence with the environment in
which they live.
The Building Inspector of the Town of East Fishkill, New
York.
The body established by the Town Board to address wetland and other environmental issues in connection with Planning Board, Zoning Board of Appeals and Town Board applications (currently the Conservation Advisory Council as set forth in Chapter 8 of the Town Code).
Land set aside on the subject premises for preservation and
protection and/or the right of use or enjoyment.
To fill, place, eject, discharge or dump any material, but
not including stormwater.
Those species of flora and fauna, including those on federal,
state and county lists, that are present in such small numbers that
they are in jeopardy of becoming extinct. Threatened species could
become endangered if a critical factor in their environment were to
change.
Any material used for the primary purpose of changing the
topography. (See also "deposit.")
The portion of the year when wetland vegetation is most apparent.
A soil that is saturated, flooded or ponded long enough during
the growing season to develop anaerobic conditions in the upper part,
as defined by the National Technical Committee for Hydric Soil, prepared
by the federal government and as updated from time to time and is
on file with the Town Clerk.
Those plants that are dependent upon seasonal or permanent
flooding or sufficiently waterlogged soils to give them a competitive
advantage over other species. These plants may belong to any of the
following vegetative types: wetland trees, wetland shrubs, submerged
vegetation, rooted floating-leaved vegetation, free-floating vegetation,
wet meadow vegetation and bog mat vegetation.
A formula, set forth in Chapter 163, Subdivision of Land, that establishes the maximum permitted number of lots or dwelling units for a proposed subdivision, which references this article.
Matter, including but not limited to, soil, silt, rock, stone,
sand, gravel, clay, peat, mud, debris, refuse or any other organic
or inorganic substance, whether liquid, solid or gaseous, or any combination
thereof.
The plan prepared by an applicant's professional to compensate
for unavoidable wetland and buffer area impacts pursuant to the standards
and requirements of this article, upon determination that either losses
or impacts to the wetland or regulated buffer area are necessary and
unavoidable and have been minimized to the extent practicable as determined
by the approval authority.
Any person, firm, partnership, association, corporation,
company, organization or legal entity of any kind, including municipal
corporations, governmental agencies or subdivisions thereof.
The Planning Board of the Town of East Fishkill, New York.
The introduction into the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to humans, plants, wildlife or other animal life, or
to property.
That area which consists of a wetland, water body or watercourse
and its associated buffer area.
The plan prepared by an applicant's professional to restore
or otherwise correct unauthorized activities or existing conditions
and approved by the approval authority.
The New York State Environmental Quality Review Act, a law
pursuant to Article 8 of the New York Environmental Conservation Law
providing for environmental quality review of actions which may have
a significant adverse impact on the environment.
The Soils Map of the United States Department of Agriculture
for Dutchess County.
The freshwater wetlands map prepared by the State of New
York pursuant to Article 24 of the Environmental Conservation Law,
as the same may from time to time be amended.
Anything constructed or built, whether of natural, man-made
or processed materials.
The Town Board of the Town of East Fishkill, New York.
A confined depression, either natural or man-made, that is
seasonably flooded, and is devoid of breeding fish populations. The
absence of fish is the essence of this ecosystem.
Any body of water that exists at least three months of the
year.
Any identifiable channel through which water flows continuously
or intermittently.
The geographic region within which water drains to a particular
wetland, water body, or watercourse containing water at least two
months of the year.
Wetlands possess three essential characteristics: hydrophytic
vegetation, hydric soils and wetland hydrology, all of which must
be present in an area to be considered a wetland. The criteria shall
be the ones used to determine the presence of hydrophytic vegetation,
hydric soils and hydrological indicators as set forth in the Federal
Manual for Identifying and Delineating Jurisdictional Wetlands, dated
January 1989. Wetlands shall be all portions of NYSDEC regulated wetlands
and buffers, all portions of USACOE regulated wetlands, and all portions
of "isolated" wetlands not regulated by either NYSDEC or USACOE and
with an area of 1/2 acre or more. Further, the area requirements for
all wetlands shall mean the total area of the wetland, not just the
portion on the applicant's lot.
The land area within 100 linear feet, 50 feet in the case
of a watercouse) measured perpendicular or radial to the boundary
of the wetland, water body, watercourse or watershed area along the
ground surface, away from, and around the perimeter of the outermost
boundary of a wetland, which area serves to lessen the impact of human
disturbances to, and is an integral component of, said wetland ecosystem.
Except for wetlands and water bodies of at least one acre but less
than two acres, the buffer shall be 50 feet. For wetlands and water
bodies of at least two acres but less than three acres, the buffer
shall be 75 feet. The buffers less than 100 feet may be greater as
determined by the approval authority but not more than 100 feet.
A determination of the ecological value of a wetland, as
detailed in Magee 1998, A Rapid Procedure for Assessing Wetland Functional
Capacity, or as required by the approval authority.
The dynamics of water movement and changes in water supply
to areas that are inundated or saturated during the growing season
long enough to support a dominance of hydrophytic vegetation.
The Zoning Administrator of the Town of East Fishkill, New
York.
The Zoning Board of Appeals of the Town of East Fishkill,
New York.
A.
Except as provided in § 110-4 hereof, it shall be unlawful to conduct, directly or indirectly, any of the following activities upon or within any regulated wetlands, water bodies or watercourses unless a permit is obtained pursuant to § 110-5 hereof. Any person, applicant or property owner found to be conducting or maintaining a regulated activity or use without the proper prior clearance, authorization or permit approval, or violating any provision of this article, shall be subject to the enforcement proceedings and penalties and any other applicable remedies as provided by law.
B.
Regulated activities within wetlands.
(1)
Any form of draining, dredging, grading, excavation
or removal of material, including, but not limited to, peat or other
organic soil deposits, except removal of debris or refuse.
(2)
Any form of depositing, dumping, filling or storing
of any material.
(3)
Erecting or enlarging any building or structure of
any kind, roads, driveways, the driving of pilings, digging of wells
or placing of any obstructions, whether or not they change the ebb
and flow of the water.
(4)
Any form of activity which might tend to pollute,
including, but not limited to, installing a septic tank or septic
field, running a sewer outfall, discharging sewage treatment effluent
or other liquid waste into or so as to drain into any wetland, water
body or watercourse.
(5)
Any other activity that disturbs any of the several functions served by wetlands, water bodies and watercourses or the benefits derived therefrom as set forth in § 110-1 hereof, including any activity that causes the disturbance of the soil (e.g., removal of tree stumps).
(6)
Any cutting of trees or brush.
(7)
Using off-road vehicles of any kind.
(8)
The introduction or destruction of plant life that
would alter the existing pattern of vegetation.
(9)
Any form of activity that could destroy or damage
nesting or breeding areas.
(10)
The application of herbicides, pesticides, or fertilizers.
(11)
Any soil testing or other testing activity or access
thereto. As part of an application for a wetland permit, the applicant
shall prove to the satisfaction of the approval authority that there
are no alternative means of access to the subject location. Any permitted
disturbance to wetland, water body and watercourse regulated areas
shall be kept to a minimum by the applicant and all disturbances shall
be restored to original condition as approved by the approval authority.
(12)
Repair, rebuilding or replacing of dams, spillways,
retaining walls, drainage structures, sluices, culverts, or other
water control structures or devices.
(13)
The placement of sewage disposal tanks, septic fields
and sewage treatment plants are not encouraged within a wetland and/or
wetland buffer area, and may only be considered when all other potential
feasible alternatives have been thoroughly explored and determined
to be infeasible, as represented in writing by the applicant's engineer.
Such facilities shall be assessed and designed consistent with the
requirements of the Dutchess County Health Department.
(14)
Any placement of aeration devices or fountains.
(15)
Any activity that changes the velocity or direction
of water flows.
The following activities, which might otherwise be construed as being encompassed by § 110-3 hereof, are permitted by right within regulated areas:
A.
The depositing or removal of the natural products
of the wetlands, water bodies or watercourses by recreational or commercial
fishing, shell fishing, aquiculture, hunting or trapping where otherwise
legally permitted.
B.
Outdoor recreation activity that does not materially
alter the natural state of the land or require construction, including
use of field trails for nature study, hiking or horseback riding,
swimming, skin diving and boating, where otherwise legally permitted.
C.
Operation and maintenance of dams, stone walls, retaining
walls, terraces, sluices, culverts, or other water control structures
or devices.
D.
The implementation of emergency actions of the Town
of East Fishkill, as determined by the Town Supervisor, in order to
protect public health or safety.
E.
Public health activities as expressed by orders and
regulations of the County Department of Health.
F.
Any actual and ongoing emergency activity that is
immediately necessary for the protection and preservation of life
or property or the protection or preservation of natural resource
values.
G.
Normal maintenance of existing lawns and gardens,
removal of hazardous trees, tree trimming, pruning and bracing, but
excluding the use of pesticides, herbicides or fertilizers.
H.
The normal maintenance and installation of public
drainage facilities and other public utility improvements by the Town
and the discharge from private drainage facilities which meet the
applicable standards of Phase II stormwater regulations.
I.
Timber harvesting as specified under a professionally
prepared management plan, pursuant to an approved management plan
under NYSDEC or NYCDEP rules and/or relevant Town of East Fishkill
regulations, and as administered by a forester.
J.
The location and construction of public water supply
facilities or sewer treatment plants as approved by the County Department
of Health.
K.
Activities within wetlands under the jurisdiction
of the federal or state government for which a permit has been obtained
from the appropriate agency provided that a copy of the permit is
filed with the approval authority or if none, the Town Clerk.
A.
The boundaries of a wetland, water body or watercourse
shall be determined by field inspection and delineation by the Town-designated
wetlands consultant and subsequent survey and mapping by a New York
State licensed land surveyor unless such mapping is waived by the
approval authority. Any professional fees incurred by the Town in
reviewing an application shall be borne by the applicant. The applicant
shall deposit funds into a Town escrow account in accordance with
the provisions of the Town Code.
B.
The approval authority may require the applicant to
fund other studies which may involve information from biologists,
hydrologists, soil scientists, or other experts as necessary, to assist
the Town in making a determination as to the acceptability of a proposed
activity.
C.
As a policy and at the discretion of the approval
authority, the determination and delineation of wetlands will only
be conducted during the growing season, which is usually April 2 to
November 30. Wetland delineations must be re-evaluated every four
years to the satisfaction of the approval authority in order to be
utilized in a permit application.
D.
Any person proposing to conduct or cause to be conducted a regulated activity specified in § 110-3 hereof shall file an application for a permit with the approval authority as hereinafter provided. Such application shall include the following information:
(1)
The name, address and telephone number of the applicant
and the applicant's agent, if any, and whether the applicant is the
owner, lessee, licensee, etc. If the applicant is not the owner, the
written consent of the owner must be attached.
(2)
The street address and Tax Map designation of the
subject property.
(3)
A detailed description of the specific purpose, nature
and scope of the activity proposed.
(4)
A map showing the area of wetland(s), watercourse(s)
and water body(ies) involved and areas proposed to be disturbed.
(5)
The boundaries of the buffer area shall be flagged
on the property and shown on the site development plan.
(6)
Any topographical and perimeter surveys, hydrological
computations, engineering studies and other factual or scientific
data and reports as deemed necessary by the approval authority to
permit it to arrive at a proper determination.
(7)
In the case of applications affecting water retention
capability, water flow or other drainage characteristics of any wetland,
water body or watercourse, the approval authority may require the
inclusion of a statement of the area of upstream and downstream watersheds,
impact analysis and information as to rainfall intensity in the vicinity
for not less than a ten-year return frequency, together with approximate
runoff coefficients to determine the capacity and size of any channel
sections, pipes or waterway openings, together with plans for necessary
bridges, culverts, stormwater or pipe drains that, in the opinion
of the approval authority, are needed to arrive at a proper determination
on the application, consistent with the purposes of this article.
(8)
A list of the names of the owners of record of all
abutting property owners, including those across any street or right-of-way
abutting the involved property.
(9)
An enumeration of all applicable county, state and
federal permits required for the proposed activity, and copies of
the same when requested.
E.
One copy of any such application shall be filed with
the Town Clerk of the Town of East Fishkill and two copies with the
approval authority.
F.
The approval authority with respect to applications
hereunder shall be as follows:
(1)
The Zoning Board of Appeals shall be the approval
authority with respect to any application that requires the issuance
of any other permit or approval by it exclusively pursuant to the
local laws and ordinances of the Town of East Fishkill.
(2)
The Planning Board shall be the approval authority
with respect to any application which requires the issuance of any
other permit or approval by it pursuant to the local laws and ordinances
of the Town of East Fishkill, including any application which also
incidentally requires the issuance of any permit or approval by the
Zoning Board of Appeals.
(3)
The Town Board shall be the approval authority with
respect to any application which requires the issuance of any other
permit or approval by it pursuant to the local laws and ordinances
of the Town of East Fishkill, including any application which also
incidentally requires the issuance of any permit or approval by the
Planning Board or Zoning Board of Appeals.
(4)
The Building Inspector or the Zoning Administrator
shall be the approval authority with respect to all other regulated
activities.
G.
The approval authority shall refer any application
submitted to it pursuant to this article to the Environmental Advisory
Board. The Environmental Advisory Board shall report back to the approval
authority within 45 days of the date of referral or within such greater
period as determined by the approval authority.
H.
Public notification.
(1)
For an application involving the Planning Board, Zoning
Board of Appeals or Town Board, a public hearing shall be held by
the approval authority on the application made hereunder at such times,
under such circumstances and upon such notice as may be required for
the granting of the other permit or approval required of such approval
authority pursuant to the local laws and ordinances of the Town of
East Fishkill.
(2)
For a single lot application or an application which
does not involve the Zoning Board of Appeals, Planning Board or Town
Board, upon receipt of a completed application under this article,
the Building Inspector or Zoning Administrator shall cause notice
of receipt of same, such notice to be defined by the Town Board, to
be made to abutting property owners and property owners across any
street or right-of-way abutting the involved property. Such property
owners shall have 30 days from the day of notice to submit written
comments to the approval authority with regard to said application.
The approval authority may waive this notice procedure if responses
from all of the required property owners have been received with the
application. Additionally, the property will be posted, as set forth
in the Zoning Ordinance, for a period of 20 days prior to the final
date for comments.
I.
Approval or disapproval of permit.
(1)
On an application for which a public hearing is required,
a determination shall be made to approve, approve with modifications
or disapprove the issuance of such permit simultaneous with the determination
by the approval authority of the other permit or approval for which
application was made.
(2)
On an application for which no public hearing is required,
a determination shall be made to approve, approve with modifications
or disapprove the issuance of such permit within 60 days following
the close of the comment period, unless an extension is agreed to
between the Town and applicant.
(3)
The Town shall require the applicant to fund the cost
of monitoring improvements per the mitigation plan, during and for
a designated period after construction.
A.
The approval authority shall make an initial determination that impacts to wetland or buffer areas are unavoidable, and then the applicant must develop a proposed mitigation plan in accordance with § 110-10 hereof. The applicant shall have the burden of demonstrating that the proposed activity will be in accord with the policies and provisions of this article and will satisfy the considerations expressed in Subsection B below.
B.
In approving, disapproving or approving with modifications
an application, the approval authority, based on the CAC report, or
the recommendations of other Town designated consultants involved
with the project, shall issue findings which address the following:
(1)
The environmental impact of the proposed action.
(2)
The alternatives to the proposed action.
(3)
Irreversible and irretrievable commitments of resources
that would be involved in the proposed activity.
(4)
The character and degree of injury to or interference
with safety, health or the reasonable use of property that is caused
or threatened.
(5)
The suitability or unsuitability of such activity
to the area for which it is proposed.
(6)
The effect of the proposed activity with reference
to the protection or enhancement of the several functions which the
wetlands, water bodies and watercourses are known to fulfill.
(7)
The availability of preferable alternative locations
of the subject parcel or proposed action.
(8)
The required mitigation measures that are incorporated
in the plan or action.
(9)
The extent to which the exercise of property rights
and the public benefit derived from such use may outweigh or justify
the possible degradation of the wetland, water body or watercourse,
the interference with the exercise of other property rights and the
impairment or endangerment of the public health, safety or welfare.
(10)
The wetland functional assessment, if required by
the approval authority.
C.
Permits will be issued by the approval authority pursuant
to this article only if the approval authority:
(1)
Has adopted findings warranting the grant of such permit on the basis of the considerations set forth in Subsection B above and that such permit is consistent with the policies and provisions of this article.
(2)
The proposed regulated activity is consistent with
the policy of this article.
(3)
The proposed regulated activity is consistent with
the land use ordinances and regulations governing wetlands, water
bodies and watercourses applicable in the Town of East Fishkill.
(4)
The proposed regulated activity is compatible with
the public health and welfare of the Town.
(5)
The applicant has demonstrated that there is no practicable
alternative for the proposed regulated activity.
(6)
The proposed regulated activity minimizes the degradation
to or loss of any part of the wetland, water body or watercourse or
its regulated areas and minimizes any adverse impacts on the functions
and benefits that said wetland, water body and watercourse provides,
or an acceptable mitigation plan has been prepared.
(7)
The proposed activities must also be in compliance
with the standards set forth in the federal regulations and in the
New York State Freshwater Wetland Regulations, Sections 665.7(e) and
665.7(g).
D.
Notwithstanding any other provisions herein, duly
filed notice, in writing, that the State of New York or any agency
or governmental subdivision thereof is in the process of acquiring
any wetlands by negotiation or condemnation shall be sufficient basis
for denial of any permit.
A.
In granting a permit, the approval authority may limit
the same or impose conditions or limitations designed to carry out
the public policy set forth in this article. The approval authority
shall require a bond or other financial security, in an amount and
with surety and conditions satisfactory to it, securing to the Town
of East Fishkill compliance with the conditions and limitations set
forth in the permit.
B.
Mitigation measures and permit conditions shall be
set forth in a covenant to be recorded in the County Clerk's office,
to run with the land and bind subsequent owners. The approval authority
will require the applicant to provide an easement or covenant to enable
the Town to inspect any mitigation measures or approval. If mitigation
measures are removed or not properly maintained, the Town, upon notice
to cure to the property owner, may undertake corrective action, charge
the property owner for such expense, and, if unpaid, place the costs
on the real property tax bill.
C.
The approval authority shall inspect or shall cause to be inspected the premises in question from time to time. The boundaries of a wetland, water body or watercourse and its associated buffer area having been delineated by flagging (§ 110-5A), these markings should be maintained throughout the construction period so that said markings are clear to any observer on the property. A permanent marker of the wetland buffer boundary will be required upon completion of any work. The approval authority shall suspend or revoke a permit if it finds, on 10 days' written notice to the applicant and such further notice as may have been required for the public hearing held under § 110-5H hereof, that the applicant has not complied with one or more of the conditions or limitations set forth in the permit or has exceeded the scope of the permitted activity. An immediate stop-work order may, however, be issued by the Building Inspector or the Zoning Administrator pending such hearing where, in this official's reasonable judgment, additional damage may be done to the wetland, water body, watercourse or regulated area pending a determination on such hearing.
D.
Within 10 days after completion of all work allowed
under a permit granted in accordance with this article, the applicant
shall notify the approval authority of such completion. Within 30
days of such notification, the Building Inspector or the Zoning Administrator
shall have the work inspected for compliance with all conditions of
the permit.
E.
Before a permit is issued, a Declaration of Covenant
and Restrictions will be filed against the parcel describing the wetland
boundary determined hereunder.
F.
When all work allowed under a permit is deemed acceptable,
the Building Inspector or the Zoning Administrator shall issue a certificate
of completion, which shall be accompanied by cancellation or return
of any bond or other financial security collected for the completion
of the work under that permit.
G.
If the activity authorized by a permit issued pursuant
to this article has not been completed within two years from the date
of issuance of the permit, such permit shall lapse. Application for
extension for an additional year may be made to the approval authority,
not more than 60 days before the expiration of the permit.
H.
A copy of the permit issued under this article shall,
prior to the exercise of any rights granted under said permit, be
posted in a conspicuous location on the parcel to which said permit
is applicable so that the permit shall be visible from the roadway
directly accessing said parcel.
A.
This chapter will not apply to any application which
has received preliminary approval upon the effective date of this
article, nor will this article apply to any application for which
a determination of significance has been adopted as of the effective
date of this article and, in addition, for which a DEIS has heretofore
been submitted to the lead agency conducting environmental review
or for which a DEIS will be submitted within nine months from the
effective date of this article.
B.
Where this article is less or more protective of the
environment than the regulatory program of the United States Army
Corps of Engineers, the Environmental Conservation Law of the State
of New York, the New York City Department of Environmental Protection,
or any law or ordinance of the County of Dutchess or the Town of East
Fishkill, the law or ordinance that is more protective of the environment
shall prevail.
C.
Grandfathered projects. This chapter shall not apply
to any land use, improvement or development physically completed prior
to the effective date of this article. This chapter shall not apply
to any project for which approval has been granted and work is commenced
within one year of final approval.
D.
Current projects. Any regulated activity which has
received an approval or is otherwise allowed to legally continue prior
to the effective date of this article, but which is not in conformity
with the provisions of this article, may be continued subject to the
following:
(1)
Such activity shall continue to be governed by the
laws of the Town of East Fishkill in effect at the time of approval.
(2)
Such activity shall not be expanded, changed or enlarged
in any way that increases its size or impact without compliance with
this article.
(3)
If such activity is discontinued for 12 consecutive
months, any resumption of the activity shall conform to this article.
E.
The buffers provided herein shall not apply to any
individual lot upon which a building is already existing. Nothing
herein shall prevent the expansion, repair or replacement of any existing
permitted use or accessory activity on an existing lot, nor shall
a permit be required for such uses within the defined buffer areas
otherwise established by this chapter.
[Amended6-22-2017 by L.L.
No. 2-2017]
A.
The mitigation plan shall be based on the following
order of preference:
(1)
Minimization of impacts and disturbance to wetlands
and adjacent buffer areas, in that order.
(2)
Preservation of remaining wetlands and adjacent buffer
areas through the dedication and establishment of perpetual conservation
easements, development restriction areas or equivalent.
(3)
Rectification by repairing or restoring existing damaged
wetlands or adjacent buffer areas, including enhancement thereto.
B.
Mitigation may take the following forms, either singly
or in combination:
(2)
For disturbance in a wetland:
(a)
Restoration of areas of significantly disturbed
or degraded wetlands to reclaim or to bring back one or more of the
functions that have been partially or completely lost by such actions
as draining and filling.
(b)
The in-kind replacement of impacted wetland
by the construction of new wetland, usually by flooding or excavating
land that were not previously occupied by a wetland, that re-creates
as nearly as possible the original wetland in terms of type, functions,
geographic location and setting and that is larger than the original
wetland by a ratio acceptable to the approval authority but not less
than 2:1. On-site mitigation is required.
C.
The following policies shall apply:
(1)
All mitigation measures shall balance the benefits
of gaining new wetland area(s) with the loss to upland (non-wetland)
areas caused by wetland creation.
(2)
Any mitigation plan developed to compensate for the
loss of wetland or wetland/watercourse buffer shall include baseline
data as needed to adequately review the effectiveness of the plan.
(3)
Any mitigation plan prepared pursuant to this section
and accepted by the approval authority shall become part of the permit
to conduct a regulated activity.
D.
All mitigation plans shall include:
(1)
A map with sufficient detail and at a scale to be
able to determine where the wetland is located and its size, boundaries
and topographic features.
(2)
A narrative which describes goals and specific objectives
for the mitigation wetland or wetland buffer, including the functions
and benefits to be provided and clear performance standards and criteria
for assessing project success.
(3)
A description of the physical, hydrological, and ecological
characteristics of the impacted wetland or wetland buffer, and proposed
restored or created wetland or buffer, in sufficient detail to enable
the approval authority to determine whether wetland or wetland buffer
impacts will be permanently mitigated.
(4)
Details on construction, including:
(a)
Diking, excavation, or other means by which
the wetland will be restored or created, including existing and proposed
topographic contours.
(b)
Construction schedule.
(c)
Measures to control erosion and sedimentation
during construction.
(d)
Plantings, source of stock, procedures for transplanting/seeding
the stock, area(s) to be planted, and planting schedule. If vegetation
from the wild is to be used, identify the source and measures to prevent
introduction of undesirable exotics.
(e)
If applicable, explain why chemicals will be
used and precautions to be taken to minimize their application and
protect the wetland or wetland buffer from excessive chemicals.
(5)
Details on management of the mitigation site, including:
(a)
Measures to assure persistence of the wetland
(e.g., protection against predation by birds and other animals).
(b)
Vegetative management.
(c)
Sediment and erosion control.
(d)
Plans for monitoring site during and after construction,
including methods and a schedule for data collection and provisions
for mid-course corrections.
(e)
Provisions for long-term protection of the site
(e.g., permanent conservation easement) with such protections to be
described on the approved plan and to be issued via a separate recorded
document.
(f)
Provision for bonding or other financial guarantees.
(6)
A description of the periodic reporting, including
at the end of the construction, during the monitoring period and at
the end of the monitoring period.
(7)
The name, qualifications and experience of the person(s)
implementing the mitigation plan (e.g., contractor who will restore
or construct the wetland).
A.
The Town Board authorizes the following amended administrative procedures with respect to applications pursuant to Chapter 163, Subdivision of Land, Chapter 194, Article XII, Site Development Plan Approval, and this article, Freshwater Wetlands, Water Bodies and Watercourses.
(1)
After conferring with the CAC, the Building Inspector
shall periodically prepare for the consideration of the Town Board
a list of qualified wetlands consultants to be retained by the Town
Board to provide wetland services (identification, evaluation and
periodic inspections during construction) to assist the Planning Board,
Zoning Board of Appeals, Town Board, the Building Inspector or the
Zoning Administrator, in subdivision or site development plan review,
and other agencies and offices of the Town in the implementation of
subdivision or site development plans.
(2)
The Building Inspector shall assign on an equitable
basis the wetland consultants retained by the Town Board for subdivision
or site development plan applications.
A.
Any person who violates, disobeys or disregards any
provision of this article shall be punishable by a fine not to exceed
$500 or up to 15 days in jail or by a civil penalty not to exceed
$3,000 for every such violation. Each week's continuation of a condition
violating this article shall be deemed a separate violation.
B.
In addition to the above penalties, the Town Board
or the Building Inspector or the Zoning Administrator, with advice
and consent of the Town Attorney, shall have the right to seek equitable
relief to restrain and/or remedy any violation of any provisions of
this article.
C.
The Building Inspector or the Zoning Administrator shall have the power to direct a violator to cease violation of this article and, with the consultation of the Conservation Advisory Council, satisfactorily restore the affected wetland, water body or watercourse to its condition prior to the violation, insofar as that is possible, within a reasonable time. The exercise of such power may be with or without the imposition of a fine or civil penalty under Subsection A hereof.
This chapter shall take effect on November 1,
2007 after its filing with the Secretary of State of the State of
New York in accordance with the provisions of law.
[Adopted 9-24-2015 by L.L. No. 5-2015]
This article shall be known as the "East Fishkill Public Water
Supply Protection Local Law" and be part of the Freshwater Wetlands,
Water Bodies and Watercourses Protection Law.
The water districts rely upon groundwater resources for their
source of supply. Contamination of groundwater as well as surface
water can and does occur as a consequence of a variety of activities
taking place on or below the land surface. As a public supplier, the
Town of East Fishkill has the responsibility to protect the health
and safety of its residents. Therefore, it is the intent of the Town
Board of the Town of East Fishkill to preserve and protect the quality
of our water resources to ensure a continued safe, adequate, and usable
supply, now and in the future.
For the purpose of this article, there is hereby established
a source of water protection area in the Town of East Fishkill that
is depicted on a map entitled "Town of East Fishkill Source Water
Protection Area Map." This map is hereby adopted and declared to be
a part of this article and is filed at the Town Hall, Hopewell Junction,
New York 12533. The source water protection area consists of the area
that supplies water to the public water supply wells currently utilized
by various water districts in the Town of East Fishkill.
Whenever the requirements of this article are inconsistent with
the requirements of any other lawfully adopted rules, regulations
or ordinances, the most restrictive or that imposing the higher standards
shall govern.
As used in this article, the following terms shall have the
meanings indicated:
The land and on-farm buildings, equipment, manure processing
and handling facilities, and practices which contribute to the production,
preparation and marketing of crops, livestock and livestock products
as a commercial enterprise, including a commercial horse-boarding
operation as defined by New York State Agriculture and Markets Law
§ 301(11).
The rate of nitrogen addition designed to provide the amount
of nitrogen needed by the crop or vegetation grown on the land, and
to minimize the amount of nitrogen that passes below the root zone
of the crop or vegetation grown on the land to groundwater.
The degradation of natural water quality as a result of human
activities to the extent that its usefulness is impaired.
A specific geographic area designated by a state or local
agency, having exceptional or unique environmental characteristics.
Any bulk quantities of chloride compounds and/or other deicing
compounds (e.g., urea or calcium magnesium acetate) intended for application
to roads, including mixtures of sand and chloride compounds in any
proportion where the chloride compounds constitute over 8% of the
mixture. Bulk quantity of deicing compounds means any quantity, but
does not include any chloride compounds in a solid form that are packaged
in waterproof bags or containers which do not exceed 100 pounds each.
The abandonment, discharge, deposit, injection, dumping,
spilling, leaking, or placing by any other means of any solid waste,
petroleum, radioactive material, hazardous substance, hazardous waste,
or aqueous carried waste into or onto land or a surface water body.
Any commercially produced mixture generally containing phosphorous,
nitrogen, and potassium that is applied to the ground to increase
nutrients from plants.
Water below the land surface in a saturated zone of soil
or rock. This includes perched water separated from the main body
of groundwater by an unsaturated zone.
Any substance listed as a hazardous substance in 6 NYCRR
Part 597, Hazardous Substance List, or a mixture thereof. In general,
a hazardous substance means any substance which:
Because of its quantity, concentration, or physical, chemical,
or infectious characteristics poses a significant hazard to human
health or safety if improperly treated, stored, transported, disposed
of, or otherwise managed;
Poses a present or potential hazard to the environment when
improperly treated, stored, transported, disposed of, or otherwise
managed;
Because of its toxicity or concentration within biological chains,
presents a demonstrated threat to biological life cycles when released
into the environment.
A waste, or combination of wastes, which are identified or
listed as hazardous pursuant to 6 NYCRR Part 371, Identification and
Listing of Hazardous Wastes. Hazardous wastes include but not limited
to petroleum products, organic chemical solvents, heavy metal sludges,
acids with a pH less than or equal to 2.0, alkalies with a pH greater
than or equal to 12.5, radioactive substances, pathological or infectious
wastes, or any material exhibiting the characteristics of ignitability,
corrosivity, reactivity, or fails the Toxicity Characteristic Leaching
Procedure (TCLP).
Animal feces and urine.
Any petroleum-based oil of any kind which is liquid at 20°
C. under atmospheric pressure and has been refined, re-refined, or
otherwise processed for the purpose of:
Any waste generated by industrial, commercial, or mining
operations that by virtue of some use, process, or procedure no longer
meets the manufacturer's original product specifications.
Any material in any form that emits radiation spontaneously,
excluding those radioactive materials or devices containing radioactive
materials which are exempt from licensing and regulatory control pursuant
to regulations of the New York State Department of Labor or the United
States Nuclear Regulatory Commission.
The contents of a septic tank, cesspool, or other individual
wastewater treatment work which receives domestic sewage wastes.
The combination of human and household waste with water that
is discharged to the home plumbing system.
Material as defined in 6 NYCRR Part 360, including any garbage,
refuse, sludge from a wastewater treatment plant, water supply treatment
plant, or air pollution control facility and other discarded materials,
including solid, liquid, semisolid, or contained gaseous material,
resulting from industrial, commercial, mining and agricultural operations,
and from community activities, but not including solid or dissolved
materials in domestic sewage, or solid or dissolved materials in irrigation
return flows or industrial discharges that are point sources subject
to permit. Discarded materials that are being beneficially used pursuant
to 6 NYCRR Part 360-1.15 are not considered solid waste.
The solid, semisolid, or liquid waste generated from a waste
processing facility, but does not include the liquid stream of effluent.
The surface and subsurface area surrounding a well or group
of wells through which contaminants are reasonably likely to move
toward and reach the water well(s).
Lakes, bays, sounds, ponds, impounding reservoirs, and rivers,
streams, creeks, wetlands, and marshes, and all other perennial bodies
of surface water, natural or artificial.
An action or class of actions identified in 6 NYCRR Part
617.4, or in any involved agency's procedures adopted pursuant
to 6 NYCRR Part 617.14.
All actions not identified as a Type I or Type II action
in 6 NYCRR Part 617.4 or, in the case of a particular agency action,
not identified as a Type I or Type II action in the agency's
own SEQR procedures.
A visible path through which surface water travels on a regular
basis. Drainage areas that contain water only during and immediately
after a rainstorm shall not be considered a watercourse.
An area(s) of marshes or swamps which have been designated
as such by the New York State Department of Environmental Conservation
or other agency having jurisdiction. Marshes and swamps that have
not been classified by an agency as wetland shall not be treated as
a wetland.
The on-site disposal of solid waste, pathological or medical
waste, petroleum, radioactive material, hazardous substances, hazardous
waste, or process wastes is prohibited within the source water protection
area. The exception is the application of animal manure, associated
bedding material, and food processing wastes for agricultural use.
Such materials must be applied at or below agronomic rates. The surface
land application of septage, sewage, sludge, or human exreta is prohibited
in the source water protection area except where permitted by New
York State Department of Environmental Conservation (NYSDEC) for agricultural
use. Where such application is permitted, the landowner shall provide
to the Town of East Fishkill a copy of all correspondence between
the landowner/applicant and the applicable federal, state or local
regulatory agencies and a copy of all applicable federal, state and
local permits. Emptying, discharging or transferring the contents
of a sewage vault or other sewage receptacle into any watercourse,
surface water, or wetland in the source water protection area is prohibited.
The disposal of septage, sewage, human excreta or other liquid wastes
is prohibited within 100 feet of the mean high water mark of any watercourse,
surface water, or wetland or within 300 feet of a public water supply
well operated by the Town of East Fishkill within the source water
protection area. The exception is if such disposal is necessary for
the continuation of an existing business or residence. Disposal of
primary or secondary effluent from a municipal or industrial sewage
treatment facility is prohibited in the source water protection area.
The disposal of snow containing deicing compounds is prohibited within
100 feet of a watercourse, surface water, or a wetland or within 300
feet of a public water supply well operated by the Town of East Fishkill
within the source water protection area. Discharge from the washing
of pesticide and/or fertilizer application equipment into any watercourse,
surface water, or wetland is prohibited within the source water protection
area.
The stockpiling or storage of coal and deicing compounds, hazardous
substances, or hazardous waste is prohibited in the source water protection
area, except where such storage occurs in structures that are designed
to prevent contact with precipitation and constructed on low-permeability
pads. The stockpiling or storage of fertilizers is prohibited in the
source water protection area except in containers or structures designed
to prevent contact with precipitation. The storage of manure is prohibited
in the source water protection area, except in conjunction with agricultural
or residential activities. The storage of petroleum is prohibited
within 100 feet of the mean high-water mark of any watercourse, surface
water, or wetland or within 300 feet of a public water supply well
operated by the Town of East Fishkill within the source water protection
area. The exception is if such storage is necessary for the continuation
of an existing business or residence or for the adequate provision
of drinking water. Whenever mandatory notification to the NYSDEC is
required regarding petroleum, hazardous substances, or hazardous waste
inventory monitoring, leak detection test reports, or discovery of
a leak, etc., notification to the Town of East Fishkill is also required.
This notification shall be made at the same time notification to the
NYSDEC is made. All permit applications for the installation of new
or the modification of existing facilities shall be forwarded to Town
of East Fishkill for review and comment.
Any person who is responsible for or has knowledge of any spill
of any hazardous substance, hazardous waste, petroleum, radioactive
material, or other materials that could pose a threat to water quality
to the land surface, subsurface, surface water, or groundwater within
the source water protection area of the Town of East Fishkill shall
notify the NYSDEC and the Town of East Fishkill within two hours of
such spill, or when knowledge of such spill is obtained.
The Town Code Enforcement Officer or his duly authorized representative
may, at a reasonable time and in a reasonable manner, enter and inspect
any place or facility in the source water protection area to ascertain
compliance with this article and other applicable provision of law.
No person shall refuse entry to the Town Code Enforcement Officer
or his designee or other Town officer attempting to enter any premises
for the purpose of inspection. Such entry shall be permitted not only
to areas open to the public but also to all other areas, provided
that no employee shall be required to accompany any officer in any
area that the employee deems to be dangerous, if the employee tells
the inspector or officer that the area is, in the employee's
opinion, dangerous. Facility inventory records and previous leak detection
reports shall also be made available to the Town Code Enforcement
Officer or his duly authorized representative upon request.
