Chapter 114 Wetlands and Watercourses

This chapter shall be known as the "Wetlands and Watercourses Protection Law of the Town of Mamaroneck." The Town Board of the Town of Mamaroneck finds and declares it to be public policy of the Town to preserve, protect and conserve its tidal and freshwater wetlands, and watercourses; to prevent despoliation and destruction; to regulate their use and development; and to secure the natural benefits of wetlands and watercourses that are consistent with the general welfare and beneficial economic and social development of the Town.

It is therefore the policy of the Town of Mamaroneck to ensure maximum protection for wetlands and watercourses by discouraging degradation within them and within their buffers that may adversely affect these natural resources. It is the policy of the Town to encourage restoration of already degraded or destroyed wetlands, watercourses and buffers, and to ensure "no net loss" of wetlands and watercourse areas.

Enabling authority. This chapter is enacted pursuant to the Municipal Home Rule Law and any and all applicable laws, rules and regulations of the State of New York. This chapter establishes a wetlands regulatory system separate from, and in addition to, any applicable requirements under state or federal law. Nothing contained herein shall be deemed to conflict with any such laws, rules and regulations.

Findings of fact.

The Town of Mamaroneck lands and waters are entirely tributary to Long Island Sound, a federally recognized estuary of national significance. As such, the protection of wetlands and watercourse areas within the Town, particularly for their water quality and habitat functions, is essential to the long-term health and viability of the Sound.

A significant amount of the original complement of freshwater and tidal wetlands and their associated buffers within the Town have been lost or impaired by draining, filling, excavating, building, polluting and other acts inconsistent with the natural uses of such areas. Buffers to existing watercourses have been built upon with a resultant loss of water quality. Four miles of the Sheldrake River, 19 acres of the East Creek estuary, and the twenty-six-acre Sheldrake Lake have been placed on the State Priority Waterbodies List due to stressed or impaired water quality. Remaining wetlands, watercourses and their buffers are in jeopardy of being lost, despoiled or impaired, directly or cumulatively, by such acts contrary to the public safety and welfare.

The Town Board of the Town of Mamaroneck has determined that tidal and freshwater wetlands and watercourses are indispensable and fragile natural resources with significant development constraints due to flooding, erosion and soil limitations. Wetlands and watercourses serve a myriad of important ecological functions which serve to benefit the residents of the Town. These functions include, but are not limited to, the following:

Protecting water resources by providing sources of surface water, recharging groundwater and aquifers, serving as chemical and biological oxidation basins and/or functioning as settling basins for naturally occurring sedimentation;

Controlling flooding and stormwater runoff by storing and releasing floodwaters and stormwater runoff;

Providing nesting, migratory and wintering habitats for diverse wildlife species, including many on the New York State and federal threatened and endangered species lists;

COASTAL ZONE MANAGEMENT COMMISSION

Providing areas of unusually high plant productivity which support wildlife diversity and abundance;

(e)

Supporting plant communities specifically adapted for survival in low-oxygen environments and/or brackish or salt water;

(f)

Stabilizing shorelines by protecting against erosion caused by stream currents and the forces of wave actions;

(g)

Serving as nutrient traps for nitrogen and phosphorus and as filters for surface water pollutants;

(h)

Providing breeding and spawning grounds, nursery habitat and food for various species of aquatic life;

(i)

Providing recreation areas for swimming, fishing, boating, hiking, bird watching, photography and other passive recreational uses; and

(j)

Providing open space and visual relief from residential and commercial development.

Legislative intent. It is the intent of the Town of Mamaroneck that activities in and around wetlands and watercourses or their buffers conform with all applicable building codes and other regulations. Such activities shall not threaten public safety or welfare, or the natural environment, or cause any nuisances.

§ 114-2 Definitions.

Except where specifically defined herein, all words used in this chapter shall carry their customary meanings:

APPLICANT

A person or entity who files an application for a permit under this chapter or a person to whom a wetlands permit has been given.

APPROVING AUTHORITY

The Planning Board or its designee.

The duly appointed Coastal Zone Management Commission of the Town of Mamaroneck and the Village of Larchmont.

DEPOSIT

To fill, grade, place, disturb, or dump any material.

DISCHARGE

The emission of any water, substance, or material into a wetland or wetland buffer whether or not such substance causes pollution.

DREDGE

To dig out and remove any material.

HYDRIC SOIL

Soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part, and as further defined by the technical publication, Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989), which manual shall be available for inspection in the Town Conservation and Building Departments.

HYDROPHYTIC VEGETATION

Macrophytic plant life growing in water, on soils, or substrate that is at least periodically anaerobic as a result of excessive water content, and as further defined by the technical publication, Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989), which manual shall be available for inspection in the Town Conservation and Building Departments.

MATERIAL

Substances including, but not limited to, soil, silt, gravel, rock, sand, clay, peat, mud, debris and refuse; any organic or inorganic compound, chemical agent or matter; sewage sludge or effluent, including stormwater runoff; or industrial or municipal solid waste.

MITIGATION PLAN

The plan prepared by the applicant pursuant to § 114-7 when the applicant has demonstrated that either the losses or impacts to the wetland, watercourse, or wetland/watercourse buffer are necessary and unavoidable as defined in § 114-2 and have been minimized to the maximum extent practicable.

PLANNING BOARD

The Planning Board of the Town of Mamaroneck.

POLLUTION

Any harmful thermal effect or the contamination or rendering unclean or impure of any wetland or waters by reason of erosion or by any waste or other materials discharged or deposited therein.

STRUCTURE

Anything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground, including but not limited to signs, tennis courts and swimming pools.

WATERCOURSE

Any natural or artificial, permanent or intermittent, coastal or inland, public or private water body or water segment, such as ponds, lakes, reservoirs, rivers, streams, brooks or waterways, which is contained within, flows through, or borders on the Town of Mamaroneck but shall not include structures as defined by law.

WETLAND HYDROLOGY

The sum total of wetness characteristics in areas that are inundated or have saturated soils for a sufficient duration to support hydrophytic vegetation.

WETLANDS

Any area which meets one or more of the following criteria:

Lands and waters of the state that meet the definition provided in § 25-0103.1 of the New York State Tidal Wetlands Act (Article 25 of the Environmental Conservation Law). The approximate boundaries of such lands and waters are indicated on the official tidal wetlands inventory promulgated by the Commissioner pursuant to § 25-0201 of the Act or such an inventory that has been amended or adjusted pursuant to § 25-0201.6 of said Act.

All other areas, 2,500 square feet or larger, that comprise hydric soils or are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of hydrophytic vegetation, as defined by the technical publication, Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989), which manual shall be available for inspection in the Town Conservation and Building Departments.

All areas designated as wetlands or watercourses on the Wetlands and Watercourses Map.

WETLANDS AND WATERCOURSES MAP

The Town of Mamaroneck Freshwater Wetlands Map, dated December 1986, or the New York State Department of Environmental Conservation Tidal Wetlands Map or such map as has been amended or adjusted and on which are indicated the approximate boundaries of the known wetlands, watercourses and wetland/watercourse buffers as defined pursuant to this chapter. The map shall be available for inspection in the Town Conservation and Building Departments.

WETLAND/WATERCOURSE BUFFER

The area surrounding a wetland or watercourse extending 100 feet horizontally away from the outermost boundary of a wetland or watercourse and/or point of mean high water of a wetland or watercourse.

WETLAND/WATERCOURSE PERMIT OR PERMIT

The permit required under this chapter to conduct regulated activities, which permit is in addition to and separate from any other permits required under local, state or federal law.

§ 114-3 Applicability; new and grandfathered projects.

The provisions of this chapter shall apply to all regulated activities conducted within wetlands, watercourses, and their buffers, except for activities for which Town final approval was obtained or that were physically completed or commenced prior to the effective date of this chapter ("grandfathered projects").

Grandfathered projects may be continued without a permit subject to the following:

That the activity not be expanded or altered in any way that increases its nonconformity;

That if destroyed, damaged or removed by any cause, grandfathered projects may be replaced, restored or reestablished without a permit, provided that the replaced, restored or reestablished use is no closer to any wetland or watercourse or buffer, will result in no greater land coverage, and will result in no increased activity than before damage or destruction.

§ 114-4 Permitted activities.

The following activities may be conducted within any wetland, watercourse or wetland/watercourse buffer without a wetlands permit to the extent that they are not prohibited by any other ordinance:

Repair of existing structures, including interior renovations, walkways, walls, and docks, where the work does not involve use of any machinery directly within the wetland or watercourse;

Normal grounds maintenance, including selective trimming and pruning of vegetation, and removal of dead or diseased vegetation, except through the application or use of herbicides, within the wetland/watercourse buffer only;

Operation and maintenance of existing dams, retaining walls, terraces, culverts or other water-control structures, and piers or docks as legally existed on the effective date of this chapter and subject to conditions that apply to nonconforming uses;

The depositing or removal of the natural products of the wetland by recreational or commercial fishing, and shellfishing, where otherwise legally permitted; and

Public health activities of the Westchester County Department of Health or the New York State Department of Health for emergencies only.

§ 114-5 Regulated activities.

Except as provided in § 114-4 hereof, it shall be unlawful to conduct, directly or indirectly, any of the following activities within any wetland/watercourse or within the wetland/watercourse buffer unless a permit has been obtained pursuant to § 114-6 hereof:

Placement or construction of any structure, including dams, docks, water-control devices, groins, bulkheads, berms, floating docks, pilings, bridges, storage tanks, and other stabilization structures;

Any form of draining, dredging, excavation or removal of material either directly or indirectly;

Any form of dumping, filling, discharging, or depositing of material either directly or indirectly;

With the exception of pet containment systems and irrigation systems, the installation of any service lines, cable conduits or utilities which are either greater than three feet wide or four feet deep or 20 feet long;

Introduction of any form of pollution, by such means including, but not limited to, the installation of a septic system, running of a sewer or stormwater outfall or discharge of sewage treatment effluent, or other solid or liquid waste into or so as to drain into a wetland or watercourse;

Activities altering or modifying natural drainage patterns, natural features or contours of wetlands or watercourses;

Installation of any drainage or water supply pipes or wells;

Installation of an impervious surface larger than 100 square feet;

Operation of construction vehicles and equipment and all-terrain vehicles;

Installation of dry wells, retention basins, filters, open swales or ponds; and

Any other activity that may impair the natural function(s) of a wetland as found in § 114-1 of this chapter.

§ 114-6 Exempt activities.

Municipal action. The Town of Mamaroneck shall be exempt from the provisions of this chapter.

Wetland and watercourse buffer. A person may conduct regulated activities within a wetlands buffer without having to obtain a wetlands permit if the person demonstrates to the satisfaction of the Building Inspector or the Director of Building Code Enforcement and Land Use Administration that the proposed regulated activity cannot be done in an area outside the wetlands buffer. This exemption shall apply only where the area of land within the wetlands buffer that will be disturbed by the regulated activity is no greater than 10% of the area of the portion of the wetlands buffer located on the property of the person wishing to conduct such regulated activity.

[Amended 1-20-2016 by L.L. No. 1-2016]

§ 114-7 Wetland permits.

Permit applications.

Any person proposing to conduct or cause to be conducted a regulated activity as defined in § 114-5 shall file an application for a permit in duplicate with the Building Department and pay the filing fee set forth in § A250-1. All permit applications must include the following information:

[Amended 8-17-2011 by L.L. No. 8-2011]

The name, address and telephone number of the property owner and applicant, if different;

The street address and Tax Map designation of the property;

A statement of authority from the owner for any agent making application for a permit;

A statement of the proposed work and purpose thereof;

(e)

A completed environmental assessment form as required by Chapter 92 of the Town of Mamaroneck's Environmental Quality Review Law, and the New York State Environmental Quality Review Act; and

(f)

A statement that the property owner and applicant will indemnify and hold the Town or its representatives harmless against any damage or injury in connection with the activities for which a permit is being sought.

Additional information may be requested by the approving authority, including any of the following:

Complete plans for the proposed site improvements, which shall be certified by an engineer, architect, land surveyor or landscape architect licensed in the State of New York, drawn to a scale no less detailed than one inch equals 20 feet, and showing the following:

[1]

The location of all wetlands/watercourse and wetland/watercourse buffer areas, which shall be determined no earlier that 12 months prior to the date of filing the application. The finite boundaries of a wetlands/watercourse shall be determined by field investigation and as defined under § 114-2;

[2]

A description of the vegetative cover of the regulated area, including dominant species;

[3]

A description of the on-site soil types;

[4]

The location of the construction area or area proposed to be disturbed, and its relation to property lines, roads, buildings and watercourses within 250 feet of the proposed activity;

[5]

The exact locations, specifications and amount of all proposed draining, fill, grading, dredging and vegetation removal or displacement, and the procedures to be used to do the work;

[6]

The location of any well(s) and depth(s) thereof, and any disposal system within 100 feet of the area(s) to be disturbed;

[7]

The existing and proposed contours at two-foot intervals in the proposed disturbed area and to a distance of 50 feet beyond; and elevations of the site and adjacent lands within 200 feet of the proposed activity.

[8]

Details of any temporary or permanent drainage system proposed both for the conduct of work, and after completion thereof, including locations at any point discharges, artificial inlets, or other human-made conveyances which would discharge into the wetland or wetland buffer, and measures proposed to control erosion, both during and after work;

[9]

Where creation of a lake or pond is proposed, details of the construction of any dams, embankments, outlets or other water-control devices, and analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations and subsurface soil, geology and groundwater conditions;

[10]

Where creation of a detention basin is proposed, with or without excavation, details of the construction of any dams, berms, embankments, outlets or other water-control devices, and an analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations and subsurface soil, geology and groundwater conditions;

[11]

Details of erosion and sediment control practices, including a diagram showing what and where erosion and sediment control practices will be implemented and a schedule for their installation and maintenance and any other information as specified in Chapter 95, Erosion and Sediment Control;

[12]

Functional analysis of the wetlands to be affected showing existing wetlands formation and impacts to those functions from the proposed activity;

[13]

A completed long-form environmental assessment form when required by the State Environmental Quality Review Act; and

[14]

All information relating to a permit application, including, but not limited to, the application itself; additional required materials or information; notices; record of hearings; and written comments.

Copies of all applicable county, state or federal permits or permit applications that are required for such work.

An application fee, engineering, and inspection fee in amounts set forth in the fee schedule approved by the Town Board.[1]

[1]

Editor's Note: See Ch. A250, Fee Schedule.

In the event that an application requires the Town of Mamaroneck to incur additional expenses for technical assistance in the review of the application, the applicant shall pay the expenses incurred by the Town. The applicant shall be notified of the expenses and shall deposit said necessary funds with the Town.

Procedures for permits.

No regulated activity shall be conducted without an issuance of a written permit from the approving authority. Application for a permit shall be made in duplicate to the approving authority on forms furnished by the Building Department.

An application shall not be deemed complete unless the approving authority has fully complied with the procedures of the Mamaroneck Environmental Quality Review Act (Chapter 92) and the State Environmental Quality Review Act (SEQR) (Article 8 of the State Environmental Conservation Law).

All information relating to a permit application, including but not limited to the application itself, additional required materials or information, notices, records of hearings, written comments and findings, shall be maintained on file in the office of the Town Building Department.

(4)

The approving authority, its agents or employees, may enter upon any lands or waters for the purpose of undertaking any investigations, inspections, examination, survey or other activity for the purpose of this chapter.

The Building Department shall provide the applicant with a notice of public hearing which shall be in a form prescribed by the approving authority and shall specify that the application, including all documents and maps therewith, is available for public inspection at the Town Building Department and that anyone interested in speaking either in favor or against the application for a permit may write to the approving authority or speak at the public hearing or have representatives do so on their behalf.

The Building Department shall also notify the applicant of the names and addresses of all property owners of record within 100 feet of the boundary of the property on which the proposed regulated activity will be located, as shown in the Town Tax Assessor's office, of the filing of the wetland permit application. The applicant shall be responsible for mailing a copy of the notice of public hearing to all of the property owners so identified by the Building Department no less than 10 days prior to the date scheduled for the public hearing on the application.

The Building Department shall be responsible for notifying federal, state, and local agencies having jurisdiction over or an interest in the subject matter of the application, and to provide such agencies with an opportunity to comment.

(5)

Should an agency of the Town having jurisdiction over that application deem it necessary to hire consultants for technical review and/or on-site inspection, the applicant shall be required to pay the actual cost to the Town for such services.

[Added 4-24-2019 by L.L. No. 4-2019]

Public hearings. The Planning Board shall hold a public hearing on the application at such time it deems appropriate. Notice of the public hearing shall be published in the official newspaper of the Town at the same time that notice is published for other public hearings appearing on the same agenda. The applicant must comply with the notification procedures contained in Chapter 144. When deemed appropriate by the Planning Board, any public hearing on the application shall be integrated with any public hearing required or otherwise held pursuant to any other law, including, but not limited to, the Town's Environmental Quality Review Law (Chapter 92) and the State Environmental Quality Review Act (Article 8).[2]

[Amended 4-21-2021 by L.L. No. 7-2021]

[2]

Editor's Note: See Environmental Conservation Law § 8-0101 et seq.

Standards for permit decisions; factors to be considered. In making its determination to grant, deny or grant with conditions a permit under this chapter, the approving authority shall consider the following:

Any reports from other commissions (Coastal Zone Management Commission), Town, county, state and/or federal agencies;

All relevant facts and circumstances, including but not limited to the following:

The environmental impact of the proposed action;

The alternatives to the proposed action;

The impact of the proposed activity on wetland functions and the benefits as set forth in § 114-1 of this chapter.

The availability of preferable alternative locations on the subject parcel;

(4)

The availability of further technical improvements or safeguards that could feasibly be added to the plan or action;

(5)

The possibility of further avoiding reduction of the wetland's or watercourse's natural capacity to support desirable biological life, prevent flooding, control sedimentation and/or prevent erosion, facilitate drainage, and provide recreation and open space; and

(6)

The extent to which the public or private benefit derived from such use may or may not outweigh or justify the possible degradation of the wetland or watercourse, the interference with the exercise of other property rights, and the impairment or endangerment of public health, safety or welfare.

Required findings. No permit shall be issued by the approving authority pursuant to this chapter unless the approving authority shall find that the proposed regulated activity is consistent with the purpose of this chapter, as set forth under § 114-1.

Permit conditions.

Any permit issued pursuant to this chapter may be issued with conditions as deemed necessary by the approving authority.

Every permit issued pursuant to this chapter shall be in written form and shall contain the following conditions:

Work conducted under a permit shall be open to inspection at any time, including weekends and holidays, by the approving authority, or its designated representative(s).

The permit shall expire on a specified date that is one year from its issuance.

The permit holder shall notify the Building Department of the date on which the work is to begin, at least five days in advance of such date.

The approving authority's permit shall be maintained and prominently displayed at the project site during the undertaking of the activities authorized by the permit.

The approving authority shall set forth in writing findings and reasons for all conditions attached to any permit.

Bond. The approving authority may require that, prior to commencement of work under any permit issued pursuant to this chapter, the applicant shall post a bond in an amount and with surety and conditions sufficient to secure compliance with the conditions and limitations set forth in the permit. The bond shall remain in effect until the approving authority certifies that the conditions of the permit have been satisfied.

Other laws and regulations. No permit granted pursuant to this chapter shall remove an applicant's obligation to comply in all respects with the applicable provisions of any other federal, state or local law.

Mitigation plan requirements.

The approving authority may require the preparation and implementation of a mitigation plan by the applicant when the applicant has demonstrated that either losses or significant impacts to the wetland or wetland buffer are necessary and unavoidable. In determining whether and to what degree such requirement will be imposed, the approving authority will consider the following:

Whether there is no feasible on-site alternative to the proposed activity, including reduction in density, change in use, revision of road and lot layout and related site planning considerations that could accomplish the applicant's objectives; and

Whether there is a feasible alternative to the proposed activity on another site available to the applicant that is not a wetland or wetland buffer area.

Adequate mitigation for intrusion into wetlands shall ensure no overall net loss of wetlands in terms of ecological characteristics and function, geographic location and setting and size. To ensure no net loss, mitigation measures must provide for replacement wetland at a ratio of at least 2.0 to 1.0.

The approving authority may require additional information if the plan does not provide sufficient detail to evaluate the effectiveness of the plan.

(4)

On-site mitigation shall be the preferred approach. Off-site mitigation shall be permitted only in cases where on-site alternatives are not possible; in these instances, emphasis should be placed on mitigation within the same general watershed as the original wetland.

(5)

The approving authority may recommend a fee payable to an established Town Wetlands Improvement Fund in lieu of direct action on behalf of the applicant or violator to initiate restoration projects, where it determines that the public interest is better served through such a fee.

(6)

The approving authority shall monitor or shall cause to have monitored projects in accordance with the specifications set forth in the permit to determine whether the elements of the mitigation plan have been met. The approving authority may retain qualified professionals to discharge its obligations hereunder at the expense of the applicant. The requirements for monitoring shall be specified in the permit and/or mitigation plan and may include, but not be limited to:

The time period for all monitoring activities, which shall be a minimum of three years or more, as the approving authority deems necessary;

Field measurements to verify the size and location of the impacted wetland area and the restored/replacement wetland area;

The date of completion of the work or restoration/replacement; and

Field verification of the structural details, best management practices, mitigation measures, and vegetative, hydrologic and soils criteria specified in the permit and/or mitigation plan.

§ 114-8 Penalties for offenses.

[Amended 1-20-2016 by L.L. No. 1-2016]

The Building Inspector or the Director of Building Code Enforcement and Land Use Administration or either's designated representative shall be the enforcement officer for this chapter. No work or activity subject to review under this chapter shall be commenced or undertaken until a wetlands permit has been approved by the Planning Board. The Town of Mamaroneck is specifically empowered to seek injunctive relief restraining any violation or threatened violation of any provisions of this chapter and/or compel the restoration of the affected wetland, watercourse or wetland/watercourse buffer to its condition prior to the violation of the provisions of this chapter.

Civil sanctions. Any person who violates any of the provisions of this chapter, including any requirement with regard to a wetlands permit, shall be liable for a civil penalty of not more than $3,000 for every such violation. Each consecutive day of violation will be considered a separate offense. Such civil penalty may be released or compromised by the approving authority.

Injunctive relief. The approving authority shall have power, following a hearing, to direct the violator to restore the affected wetland to its condition prior to the violation.

Criminal sanctions. Any person, firm or corporation who knowingly, or willfully, violates any of the provisions of this chapter or permits issued thereunder, upon conviction thereof of the first offense, shall be guilty of a violation punishable by a fine of not less than $500 and not more than $1,000 and for a second offense and each subsequent offense, shall be guilty of a violation punishable by a fine of not less than $1,000 nor more than $2,000 or a term of imprisonment of not more than 15 days, or both. In addition to these punishments, any offender may be ordered by the court to restore the affected wetland to its condition prior to the offense. Each consecutive day of violation will be considered a separate offense.

Stop-work order. The Building Department may suspend or revoke a permit in the form of a stop-work order if it finds that the applicant or permittee 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.

If a stop-work order is issued it shall be set forth in writing, a copy of which shall be filed with the Town Building Department, and shall contain the findings and reasons for issuing the stop-work order pursuant to this section.

The stop-work order shall have the effect of suspending all authorizations and permits granted by the Town or any agency thereof.