N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 128-8.1

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

Section 128-8.1 - Local government stormwater protection plans

(a) A local government of a town, village, or county in the watershed may submit to the department for review and approval a proposed local government stormwater protection plan ("Stormwater Plan") to undertake all or some aspects of watershed protection as set forth in section 128-3.9 of this Part. The Stormwater Plan may be submitted individually by a local government or jointly with one or more adjoining local government(s) in accordance with the requirements of this Subpart.

(1) Within 90 days of receipt by the department of a proposed Stormwater Plan, the department shall review the proposed Stormwater Plan to determine whether it meets the requirements of this section and notify the local government, in writing, whether the proposed Stormwater Plan is approved.

(2) If the department fails to notify the local government(s) in writing of its determination within the 90 day period set forth in paragraph (1) of this subdivision, the local government(s) may notify the department of its failure by means of certified mail, return receipt requested to the local department representative who is responsible for processing the Stormwater Plan.

(3) If the department fails to notify the local government(s) within 10 business days of the receipt of such notice the Stormwater Plan shall be deemed approved subject to the terms and conditions set forth in the most recent submission by the local government(s).

(b) Pursuant to the terms and conditions of an approved Stormwater Plan, the department may issue a waiver from specific provisions of section 128-3.9 of this Part, including the prohibition of construction of an impervious surface within the limiting distance of 100 feet of a watercourse or wetland or within the limiting distance of 300 feet of a reservoir, reservoir stem or controlled lake, for all applicants of projects located within some or all of the geographical area of the local government(s). The department may issue such waivers after a local government(s) has an approved Stormwater Plan.

(c) An approvable Stormwater Plan shall include:

(1) the specific provision(s) of section 128-3.9 of this Part from which the waiver is sought;

(2) a description of the metes and bounds of the geographical area (town, village, county, or part thereof) for which the waiver is sought, including a map of the described area;

(3) mechanisms to be established by the local government that are at least as protective of the watershed reservoir drainage basin in which the waiver will be effective as the specific provisions of section 128-3.9 of this Part from which the waiver is sought;

(4) a commitment by the local government(s) to implement each element of the Stormwater Plan in accordance with the terms of the Stormwater Plan and a schedule for implementation of all elements of the Stormwater Plan;

(5) an agreement by the local government(s) to coordinate with the department any review by the local government(s) required under the State Environmental Quality Review Act for regulated activities, as defined in these rules and regulations;

(6) the rights, obligations and roles of the local government(s) and the department under the Stormwater Plan; and

(7) identification of the approximate number, technical expertise and experience of personnel and all other resources that will be dedicated to carrying out such plan.

(d) The mechanisms to be established pursuant to paragraph (c)(3) of this section may include:

(1) stormwater control structures, or best management practices, that capture and treat stormwater from existing non-point pollution sources such as areas of concentrated impervious surfaces;

(2) mechanisms or programs that address the capture and treatment of stormwater from future non-point pollution sources on a community-wide basis such as the creation of a stormwater district;

(3) land use controls, zoning, and other local laws, ordinances and rules and regulations that will protect the quality of the water supply, including but not limited to laws and rules and regulations concerning wetland protection, protection of hydrologically sensitive areas, and control of runoff from non-point pollution sources; or

(4) educational programs providing information to residents of the town, village, or county whose local government is involved in the watershed protection plan process concerning:

(i) the challenges of protecting water quality and the Federal, State and local requirements for watershed protection;

(ii) the water supply system as a natural resource and source of drinking water; and

(iii) actions that can be taken by residents and the local government to enhance water quality protection.

(e) An annual report shall be submitted by the local government to the department on each anniversary of the date of the signing of the approved Stormwater Plan. The annual report shall include, but need not be limited to the following information:

(1) a statement by the local government of its compliance with the terms and conditions of the approved Stormwater Plan; and

(2) a statement of future commitment of adequate financial, personnel and other resources to continue compliance with the terms and conditions of the approved Stormwater Plan.

(f) Once the Stormwater Plan is approved by the department, the Stormwater Plan shall be considered valid and effective.

(1) The local governments proposing the Stormwater Plan may, upon written notice to the city, modify the plan at any time after it has been agreed upon. If the Stormwater Plan is proposed to be modified, the department shall make a determination within 60 days of notice of the proposed modification, whether the Stormwater Plan as modified shall continue to be valid and effective. In making such a determination, the department shall consider whether the Stormwater Plan as modified, taken as a whole, continues to be at least as protective of the watershed as the specific provisions of section 128-3.9 of this Part from which the waiver applies. The Stormwater Plan shall continue to be valid and effective during the period of the department's review of any proposed modification. If the department determines that the proposed modification would cause the Stormwater Plan to be not as protective as the provisions of section 128-3.9 of this Part which are being waived, the department shall so notify the local government(s). The existing and approved Stormwater Plan will then remain valid and effective until and unless the local government(s) implemented the proposed changes to the Stormwater Plan.

(2) If at any time the department determines that the local government's administration of all or part of the Stormwater Plan is not as protective as the provisions of section 128-3.9 of this Part which are being waived, the department may revoke or modify the Stormwater Plan after notice has been given to the local government and an opportunity to meet and discuss the problem has been provided.

(3) Upon a final determination to revoke the Stormwater Plan the waivers issued thereunder shall be void and the watershed rules and regulations contained herein shall be applicable in the area of the watershed that was previously exempt pursuant to the waivers issued under the Stormwater Plan.

(4) Any Stormwater Plan agreed to shall be reviewed by the parties agreeing to such plan 15 years after such plan becomes effective in order to determine whether such plan has met and will continue to meet its goals.

N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 128-8.1