N.Y. Comp. Codes R. & Regs. tit. 6 § 663.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 663.3 - Applicability of this part

(a) This Part provides the framework for the department's administration of the freshwater wetlands regulatory protection program in those areas of the State where the commissioner has promulgated an official map and the department, rather than a local government, is the regulating authority.

(b) Permit applications must be filed with and processed by the local government, in accordance with local laws and regulations, for those areas of the State where the commissioner has promulgated an official map and a local government has assumed the freshwater wetlands regulating authority pursuant to section 24-0501 of the act and Part 665 of this Title.

(c) Permit applications must be filed with the department and processed in accordance with the department's Freshwater Wetlands Interim Permits regulations (Part 662), for those areas of the State where the commissioner has not promulgated an official map.

(d) Permit applications must be filed with and processed by the department in accordance with this Part for those areas of the State where the commissioner has promulgated an official map, and:

(1) a local government has not assumed regulatory authority pursuant to section 24-0501 of the act and Part 665 of this Title; or

(2) a county has transferred regulatory authority to the department pursuant to section 24-0503 of the act and Part 665; or

(3) the commissioner has superseded local authority and retained jurisdiction pursuant to section 24-0503 of the act and Part 665.

(e) All persons proposing to conduct activities on wetlands or adjacent areas that have not been specifically exempted from regulation under section 24-0701 of the act or section 662.2(z) of this Part must obtain either a permit or a letter of permission.

(f) Where a local government or other political subdivision of the State is the applicant for a permit pursuant to the act, the department shall serve as the regulatory authority. A local government may not process its own application or that of another local government or political subdivision of the State.

(g) Where a regulated wetland lies within two or more jurisdictions, whether that be two or more local governments or the department and local government(s):

(1) the agency receiving the permit application must immediately provide copies to the other entities sharing jurisdiction; and

(2) the agency within whose jurisdiction the proposed activity will occur will process the application in consultation with the other entities in an effort to achieve a mutually satisfactory decision. However, the final decision will rest with the agency having jurisdiction over the permit application.

(h) Where a local government is the regulatory authority for a wetland and its adjacent area associated with a major international or interstate river or lake, it must consult with the department before taking any regulatory action pursuant to the act concerning that wetland or its adjacent area. Those rivers and lakes are the Hudson, Delaware, Susquehanna, Niagara and St. Lawrence rivers and Lakes Erie, Ontario and Champlain and are considered to extend in tributaries to the first barrier impassable to fish or the first bridge, whichever is further downstream. A wetland is associated with such a river or lake when it is contiguous to the body of water or, if separated, the separation is only a narrow strip of land, such as a barrier beach or railroad bed.

(i) A local government, upon the implementation of a local freshwater wetlands protection program pursuant to title 5 of the act and Part 665 of this Title, becomes the regulatory authority for all freshwater wetlands wholly or partially within its jurisdiction, except for wetlands and their adjacent areas exempted from local implementation in accordance with section 24-0505 of the act. These wetlands will be shown on the official map and will be a Class I wetlands as described in the department's Freshwater Wetlands Maps and Classification Regulations (Part 664). Permit applications for Class I wetlands must be filed with and processed by the department.

(j) If the department reclassifies to Class I a wetland under local jurisdiction, the local government retains jurisdiction for any permit application received prior to the reclassification and must apply the Class I standards of section 665.7(e) of this Title. Thereafter, the wetland shall be under the jurisdiction of the department for subsequent permit applications.

(k) Notwithstanding the exemption of Class I wetlands from local implementation described in subdivision (i) of this section, the commissioner may delegate to a local government the department's regulatory authority for those wetlands, pursuant to section 3-0301.2(p) of the Environmental Conservation Law and Part 665 of this Title.

(l) A person who has obtained an interim permit from the department pursuant to Part 662 of this Title prior to the date an official map is promulgated or a local government assumes regulatory authority is not required to obtain an additional permit, however, a new permit may be necessary under those conditions specified in section 663.6 of this Part. If an application for an interim permit has been submitted to the department and a decision has not been made at the time a local government assumes regulatory authority pursuant to Part 665, the department retains regulatory authority over that application. The department staff must consult with the local government prior to making a decision on the application.

(m) This Part is not applicable to wetlands or portions of wetlands within the Adirondack Park. Those wetlands or portions of wetlands are regulated by the Adirondack Park Agency and Adirondack Park local governments, pursuant to title 8 of the act.

(n) Activities regulated by article VII or VIII of the Public Service Law do not require a permit or letter of permission under this Part. However, the standards in section 663.5(e) of this Part must be applied in determining whether to issue a certificate of environmental compatibility and public need under those articles.

(o) This Part and the act do not apply to land uses, improvements or developments for which final approval was obtained prior to September 1, 1975, from the local governmental authority or authorities having jurisdiction over such land use. However, expansion or significant modification of the existing use, or the introduction of any form of pollution, including but not limited to sewage effluent, runoff or pesticides, or disposal of toxic substances into wetlands or adjacent areas are regulated activities under this Part. The term final approval is defined in section 24-1305 of the act. Persons wishing to rely on an approval given by the local government prior to September 1, 1975, should request a decision from the regional permit administrator as to whether the approval given meets the requirements of section 24-1305 of the act. To request such a decision, permit applicants should write to the regional permit administrator, giving details of the approval relied upon, and enclosing supporting documentation. The burden of showing exemption from the permit requirements of the act rests on the person seeking to benefit from the exemption.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 663.3