N.Y. Comp. Codes R. & Regs. tit. 6 § 664.6

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

Section 664.6 - Explanation of classification characteristics

This section describes characteristics and their associated benefits used in classifying wetlands in section 664.5 of this Part.

(a) Cover types. The different wetland cover types described in this subdivision provide wetland benefits to varying degrees. In order for a wetland to be considered to be of a given cover type and classified accordingly, that cover type should constitute at least 50 percent of the area of the wetland. However, if no single cover type constitutes 50 percent or more of the wetland area, this aspect of the wetland's classification shall be determined by adding up the areas of all the separate cover types in each class and then assigning the wetland to the class that represents the largest proportion of the wetland's area. As listed in section 664.5 of this Part, the only class II cover type is emergent marsh in which purple loosestrife and/or reed (phragmites) constitutes less than two thirds of the cover type; class III cover types are emergent marsh in which purple loosestrife and/or reed (phragmites) constitutes two thirds or more of the cover type, deciduous swamp, shrub swamp, floating and/or submergent vegetation, and wetland open water; and class IV cover types are wet meadow and coniferous swamp. The evaluations of cover types in this subdivision are distinct from the evaluations of structural groups provided in paragraph (b)(1) of this section.

(1) Wet meadow. This consists of such plants as sedges, rushes, coarse grasses, and sometimes cattails. The soil is usually saturated with water for a significant part of the growing season. Vegetation tends to grow in clumps or tussocks. Cattails, if present, tend to grow between the clumps. In agricultural areas, wet meadow is usually a cleared but uncultivated parcel; often it is pastured. If the land is pastured, the clumps are more pronounced due to trampling by livestock. Wet meadow may occur within or at the edges of a hayfield and may be mowed, depending upon the degree of wetness. Old beaver meadows and floodplains may contain wet meadow vegetation. Standing water is often present during wet periods. Wet meadow, when associated with other wetland cover types, is valuable for wildlife, especially for nesting wetland birds. When associated with certain other wetland cover types or with open water, wet meadow may be valuable for fish spawning. When not associated with other wetland cover types, however, wet meadow is likely to be of relatively low value.

(2) Emergent marsh. This consists of such plants as cattails, purple loosestrife, swamp loosestrife, arrowheads, reeds, bur reeds, pickerelweed, wild rice, water plantain, bulrushes and arrow arum. These are herbaceous plants encroaching on water areas and flooded with standing water much of the year. Emergent marsh is generally the most valuable individual cover type. The emergent vegetation itself provides nesting habitat, food and cover. Frequently, emergent vegetation produces the largest annual increase in natural organic materials of any cover type, providing nonpolluting nutrients to food chains. An emergent marsh is usually different in physical structure from surrounding areas and therefore provides habitat diversity. An exception to the high value assigned to emergent marsh may occur where purple loosestrife or reed (phragmites) is dominant, in that it constitutes two thirds or more of the cover type. In this case, a wetland shall be a class III wetland.

(3) Deciduous swamp. This consists of live deciduous trees over 4.5 meters (approximately 15 feet) in height. If not totally flooded, the terrain is hummocky. The trees include, but are not limited to, American elm, red maple, silver maple, red ash, black ash, swamp white oak, and willows. Deciduous swamps will generally be flooded or saturated during the spring and early summer but are likely to appear dry toward the end of summer and in the fall. Deciduous swamp is relatively valuable because it is frequently used by nesting waterfowl and is also heavily used by songbirds and other wildlife.

(4) Coniferous swamp. This consists of live coniferous trees over 4.5 meters (approximately 15 feet) in height. Some of the coniferous trees most commonly found in wetlands are black spruce, white cedar, red spruce, balsam fir and American larch. Flooded conifers usually grow in hummocky terrain. The trees tend to grow out of the drier hummocks with pockets of water forming between the hummocks. The value of coniferous swamp for wildlife is considered to be relatively low, although coniferous swamp can provide important winter cover for deer and habitat for varying hare.

(5) Shrub swamp. This cover type is found in a variety of areas including floodplains; frost pockets; edges of ponds, lakes and bogs; and in association with hillside seeps. Woody vegetation is classified as shrub swamp if it is 4.5 meters (approximately 15 feet) or less in height. Species include: alders, willows, leather-leaf, bog rosemary, sweet gale, buttonbush, highbush cranberry, and red osier dogwood. Also, sphagnum moss in bog mats usually occurs in association with shrub species. The value of shrub swamp for fish and wildlife is variable, but shrub swamp can provide some of the values of emergent marsh or deciduous swamp: it is likely to have a structure different from surrounding areas and may supply significant nesting and other wildlife uses.

(6) Floating and submergent vegetation. Floating wetland vegetation may be free-floating, such as duckweed and watermeal, or rooted with floating leaves, such as water lily, water shield and spatterdock. Submergent plants, such as pondweeds, naiads, coontail, water milfoil, wild celery, muskgrass, stonewort, water smartweed, and bladderworts, normally grow beneath the surface of the water. These cover types can be important food sources for waterfowl and frequently are valuable areas for fish spawning and nurseries.

(7) Wetland open water, including open water with dead trees and open water that occasionally exposes unvegetated mud flats. Unvegetated open water is part of a wetland as a wetland cover type if it is substantially enclosed by wetland vegetation and is no larger than 2.5 hectares (approximately 6.2 acres). If the body of open water that is substantially enclosed by wetland vegetation is larger than 2.5 hectares (approximately 6.2 acres), then only that portion of the open water that is within 50 meters (approximately 165 feet) of the wetland vegetation is considered to constitute a wetland cover type and to be part of a wetland. When in close conjunction with wetland vegetation, open water can be of considerable value as fish and wildlife habitat.

(b) Ecological associations. A variety of significant ecological associations may occur in wetlands. Wetlands having an association of substantially different kinds of physical or vegetative structures have special ecological value, especially for wildlife and fish. Association with particular non-wetland features may be important in defining wetland benefits. In addition, the visual diversity provided serves a valuable aesthetic function. The nature and significance of these associations are set forth in this subdivision.

(1) Two or more structural groups. Three groups of wetland vegetative structures can be identified. In order to be significant enough to be considered a factor in classifying a wetland according to this class II characteristic, each structural group must constitute at least a particular minimum percentage of the area of the wetland.

(i) The herbaceous structural group consists of the cover types made up of herbaceous vegetation which emerges above the surface of the water or soil. These emergent marsh and/or wet meadow cover types must constitute at least 25 percent of the area of the wetland.

(ii) The woody structural group consists of cover types of generally woody vegetation. These deciduous swamp, coniferous swamp, and/or shrub swamp cover types must constitute at least 25 percent of the area of the wetland.

(iii) The water structural group consists of cover types in which the surface of the water is apparent. These submergent and floating vegetation and/or wetland open water cover types, including open water with dead trees and open water that occasionally exposes unvegetated mud flats, must constitute at least 15 percent of the area of the wetland.

For example, a wetland which is 80 percent shrub swamp (woody structural group) and 20 percent submergent and floating vegetation (water structural group) has this class II characteristic. A wetland which is 45 percent deciduous swamp (woody structural group), 35 percent coniferous swamp (also woody structural group), and 20 percent wet meadow (herbaceous structural group) does not have this class II characteristic because, although the woody structural group constitutes well over its minimum 25 percent of the wetland, the herbaceous structural group constitutes less than its minimum 25 percent of the wetland. The physical structure of each of these three groups is substantially different from the structure of each of the other two. The presence of this characteristic increases the value of a wetland as fish and wildlife habitat because each of the different groups can support species not found in the others, thus increasing the variety of species on the wetland as a whole. In addition, those species which need two different structural groups to meet all of their requirements can only exist when both groups are present. The presence of different groups together also provides visual variety, thus enhancing aesthetic benefits.

(2) Classic kettlehole bog. Classic kettlehole bogs are wetlands which are at least 75 meters (approximately 246 feet) in diameter within a closed drainage basin, having a minimal or no surface inlet or outlet. These bogs have complete or virtually complete concentric zones of differing vegetative cover types. The innermost zone of the bog is open water that is of pH 5.00 or lower and is typically anoxyous and dark brown. Surrounding this is a floating mat of sphagnum mosses, liverwort, and shrubby heath plants; this mat is surrounded in turn by coniferous swamp above deep deposits primarily of partly decayed sphagnum mosses. Wetlands of this type are very rare, as are many of the life forms within them, and therefore they contribute to the ecological, geological and aesthetic diversity of the State. This in turn provides educational and scientific research benefits.

(3) Wetlands contiguous to tidal wetlands. These are freshwater wetlands which abut the landward boundary of tidal wetlands shown on the tidal wetlands inventory maps promulgated pursuant to section 25-0201 of the Environmental Conservation Law. Freshwater wetlands contiguous to tidal wetlands can provide unusual fish and wildlife habitat benefits. The perpetuation of freshwater wetlands associated with tidal wetlands is likely to be essential to the protection of the tidal wetlands. These freshwater wetlands can purify water flowing into tidal wetlands and also can act with tidal wetlands to protect adjacent property against storm tides.

(4) Associated with permanent open water outside the wetland. A wetland may include open water, as described in subdivision 664.6(a)(7). However, to be considered under this characteristic, a wetland must be associated with permanent open water which exists outside of the wetland. This association must be one of close proximity, with water flow between the wetland and the open water at some time during the year. The wetland must be contiguous to the open water or, if it is separated, the separation must be only a narrow strip of land, such as a barrier beach or a railroad bed. Wetlands associated with open water have many special values. Some wildlife and fish usually found in open water must spend part of their life cycle in wetlands for reproduction, food and cover. The wetlands are also vital in providing natural nutrients to open water ecosystems. They may cleanse water entering the open water body and thus protect the quality of the open water. The associated open water often provides recreational and educational opportunities dependent upon these wetland functions.

(5) Adjacent or contiguous to streams classified C(t) or higher under article 15 of the Environmental Conservation Law. Wetlands may be critical to protecting the quality of these streams. They may remove sediment and other pollutants, stabilize water flow, and help to maintain water temperatures required by desirable fish species.

(6) Island present within wetland. Islands provide nesting habitat and refuge for wildlife. They provide visual variety and interest and can be the focus of recreational and educational activities.

(c) Special features. Wetlands may contain particularly critical or fragile resources that require special protection. They may also contain other special features which enhance their benefits. Since some of these features are described in relation to major regions of the State, a definition of those major regions is provided in paragraph (1) of this subdivision.

(1) The major regions of the State are shown on the map in Appendix 8-D. More detailed delineations of the major regions shown on that map are available in the regional offices of the department. Where a wetland is near a major region border, the wetland's region shall be considered to extend into the adjacent region(s) to a distance of 15 kilometers (approximately 9 miles) from the wetland. However, this modification of regional borders does not apply to the borders of the metropolitan region. The major regions are:

(i) Coastal plain (Long Island, outside of the New York portion of the New York-Northeastern New Jersey urbanized area, as defined by the United States Bureau of the Census--see also paragraph [e][1] of this section);

(ii) Metropolitan (the New York portion of the New York - Northeastern New Jersey urbanized area);

(iii) Hudson-Mohawk (in the Hudson Valley, north of the metropolitan region, from the eastern border of the State to the Appalachian highlands; in the Mohawk Valley, from the Appalachian highlands to the Adirondacks);.

(iv) Lake plain (a narrow strip bordering Lake Erie; south of Lake Ontario to the Appalachian highlands; east of Lake Ontario to the Adirondacks; north of the Adirondacks to the St. Lawrence River or to the Canadian border; a narrow strip bordering Lake Champlain);

(v) Adirondack (within the Adirondack forest park and bordered by the lake plain and Hudson Mohawk regions);

(vi) Appalachian highland (from the Pennsylvania and New Jersey borders to the lake plain and the Hudson-Mohawk valleys).

(2) Wetlands containing resident animal habitat. This means habitat of year-round resident animal species, or habitat of migratory species during their breeding or wintering periods.

(3) Wetlands containing traditional migration habitat of an animal species. This is a habitat used by a species in moving from breeding to wintering habitat in the late summer and fall, and from wintering to breeding habitat in the late winter and spring. Such use must be on a recurring basis so that there are grounds to believe that it will continue annually. This characteristic does not apply to the occasional occurrence of a stray or wandering individual animal during the migration period.

(4) Endangered or threatened species. This is a species or subspecies (or botanical "variety", where "variety" is used as the equivalent of the zoological "subspecies") of plant or animal (vertebrate or invertebrate) which, for the purposes of this Part, shall be considered to be of statewide significance because it has been identified as endangered or threatened by the United States Fish and Wildlife Service or in regulations, such as Part 182 of this Title, promulgated by the department pursuant to section 11-0535 of the Environmental Conservation Law, in the case of animals, or in additions to this Part after public hearing, in the case of plants.

(5) Vulnerable species. This is a species or subspecies (or botanical "variety", where "variety" is used as the equivalent of the zoological "subspecies") of plant or animal (vertebrate or invertebrate):

(i) for which extirpation from the State or a major region of the State is likely, but the species as a whole is not in jeopardy;

(ii) that is in such small numbers throughout the State or a major region of the State that it could be extirpated if recent trends degrading or diminishing its habitat continue; or

(iii) whose range is restricted in the State or a major region of the State and it or its habitat has a low tolerance for disturbance.

Vulnerable species shall be identified by the department in additions to this Part after public hearing.

(6) Wetlands having animal species in unusual abundance or diversity (statewide or regional). Certain wetlands are unusual ecosystems because they are sites of large heronries or other colonial nesting; are regularly and intensively used by raptors, waterfowl or other migrating birds; are in major deer winter concentration areas; support valuable and intensive fish spawning; are extremely productive in breeding ducks, geese, shore birds, wading birds, and/or furbearers; or otherwise contain an unusually high abundance or diversity of wildlife or fish. In order to be considered under this characteristic, the abundance and/or diversity must be actual, not merely potential or predicted; with the expectation, based on the department's knowledge of existing conditions and fish and wildlife behavior, that the abundance and/or diversity is not merely a one-year or transitory phenomenon. However, this characteristic does not apply to domestic or invertebrate species or to disease-bearing or other noxious species such as the Norway rat.

(7) Wetlands having animal species in unusual abundance or diversity (county). The same values described under paragraph (6) of this subdivision apply here, except that they are lower because the basis for assessing abundance or diversity is countywide rather than regional or statewide.

(8) Wetlands having demonstrable archaeological or paleontological signifi-cance as wetlands. Some existing wetlands were important sites of native American activities such as food-gathering, or supported concentrations of life forms now long extinct, and the natural conditions in wetlands enabled the evidence of these functions to be preserved. Such areas now are valuable resources for education and scientific research examining the importance of wetlands to human and animal life over time. Damage to such wetlands could significantly diminish those resources.

(9) Wetlands having geological significance. Some wetlands are associated with unusual geological features which are excellent representations of their type. Examples of such features might be lakeshore barrier beaches, sand dunes, eskers, or pine barrens. Where wetlands contain, are part of, owe their existence to, or are ecologically associated with, such a feature, they comprise integral parts of unusual ecological communities. Damage to such wetlands may therefore result in the loss of unusual species of fish, wildlife or vegetation and is likely to significantly diminish the State's or a major region's ecological, educational or aesthetic resources or diminish the variety of the State's or a major region's landforms.

(10) Wetlands having a total alkalinity of at least 50 parts per million. A relatively high total alkalinity has value for wildlife and fish for at least two reasons. It is a measure of the capacity of wetlands to avoid acidic conditions and as such deters the accumulation of substances harmful to the growth of vegetation that provides good wildlife habitat. Total alkalinity is also a general indication of the natural fertility of the substrate underlying the wetland. Generally, a more naturally fertile substrate will support better habitat.

(11) Wetlands adjacent to fertile upland. This characteristic is identified by soil tests or by soils maps. Upland soils in the immediate vicinity of a wetland are an indication of the fertility of the wetland substrate. In general, those soils described by the United States Soil Conservation Service as "high base soils" (pH 5.6 or higher) will be considered fertile for the purposes of this Part. The value of fertile soils is similar to the values described in paragraph (10) of this subdivision: generally, a more naturally fertile substrate will support better habitat for fish and wildlife.

(d) Hydrological and pollution control features. Some wetlands provide significant hydrological and pollution control benefits. The major features of wetlands providing those benefits are set forth in this subdivision.

(1) Wetlands may provide a drainage basin with a natural stormwater retention facility. This flood storage function may slow the downstream movement of the flood crest and lower its peak elevation. The flood control benefits of a wetland generally increase with its size relative to the size of the drainage area tributary to the flood-endangered locale. The loss of a significant area of wetland within a drainage basin may therefore aggravate flooding, erosion, and sedimentation in the immediate downstream area.

(2) The protection of wetlands adjacent or contiguous to reservoirs or to other bodies of water used primarily for public water supply may be essential to preserving that supply. Disturbance or loss of these wetlands can lower water quality and cause health problems to the water users.

(3) Some wetlands that are part of a surface water system with permanent open water receive pollutants. By slowing runoff, adding water to the pollutants, and spreading water shallowly over a large area, these wetlands may remove sediment, oxidize or precipitate pollutants, and dilute wastewater, thus cleansing water in the surface water system. In some cases, such wetlands provide tertiary treatment in relation to sewage disposal systems. However, these beneficial characteristics are considered for classification only if the pollution is generally of a kind amenable to assimilation or amelioration by wetlands.

(4) Some wetlands are underlain by deposits of pervious earth materials which serve to hydraulically connect them to aquifer systems so that some of the water from such wetlands percolates into the aquifers and recharges them. For infiltration of water from a wetland to be of an amount significant enough to provide a ground-water supply source, and therefore to be either a class I or II characteristic, the pervious earth materials underlying the wetland must be more than three meters (approximately 10 feet) thick. Some of the more important aquifers in the State have already been identified by various agencies, such as the U.S. Geological Survey, the Department of Environmental Conservation, the State Department of Health and various county and regional planning agencies. Preservation of groundwater recharge areas is critical to the protection of the aquifers and the water supply. Recharge to groundwater systems generally takes place during times of the year when little foliage (which discharges water via transpiration) is present. At these times, as well as other times, wetlands can recharge aquifers if the soils at their bottoms are so pervious as to allow infiltration. For example. although the soil types underlying wetlands are usually peat, muck, marl or clay, none of which is very pervious, wetland overflow lands in floodplains may be underlain by sandy or gravelly alluvial soils. These wetlands, even if not very large, can serve to restore significant amounts of water to aquifers, thereby allowing wells to continue yielding water.

(e) Distribution and location. The distribution and location of wetlands are important considerations in determining the benefits of particular wetlands as open space and for recreational, aesthetic and educational purposes. Nothing in this Part or in the act, however, requires a landowner to open land to public access for such purposes.

(1) Within urbanized areas. "Urbanized areas" are defined by the United States Bureau of the Census, and consist of a central city, or cities, and surrounding suburban areas. According to that definition, the central city must have a population of 50,000 or more, and surrounding closely settled areas are included if these are:

(i) incorporated places of 2,500 inhabitants or more;

(ii) incorporated places with fewer than 2,500 persons, provided that each has a closely settled area of 100 housing units or more;

(iii) small land parcels normally less than one square mile in area having a population density of 1,000 inhabitants or more per square mile; or

(iv) other similar small areas in unincorporated territory with lower population density when these areas serve to complete urban-suburban community boundaries.

For the purposes of this Part, the urbanized areas of the State are listed by the United States Bureau of the Census as follows: New York -Northeastern New Jersey (the New York State portion), Buffalo, Albany-Schenectady-Troy, Binghamton, Rochester, Syracuse, and Utica-Rome. In addition, incorporated cities not covered by the United States Bureau of the Census definition are included for the purposes of this Part, but only the city proper and not surrounding areas. These are: Amsterdam, Auburn, Batavia, Beacon, Canandaigua, Corning, Cortland, Dunkirk, Elmira, Fulton, Geneva, Glens Falls, Gloversville, Hornell, Hudson, Ithaca, Jamestown, Johnstown, Kingston, Little Falls, Lockport, Mechanicville, Middletown, Newburgh, Norwich, Ogdensburg, Olean, Oneida, Oneonta, Oswego, Plattsburgh, Port Jervis, Poughkeepsie, Salamanca, Saratoga Springs and Watertown. Because of their rarity, their distinctiveness from urban surroundings, and their proximity to large numbers of people, wetlands in urbanized areas can provide unusually important natural, recreational, educational, scientific, open space and aesthetic benefits.

(2) Visible from an interstate highway, a parkway, a designated scenic highway or a passenger railroad, and serves a valuable aesthetic or open space function. The following criteria will be considered in determining the applicability of this characteristic: the visibility of the wetland or of the wildlife on the wetland, the size of the wetland, and the topography and the variety of vegetative types in and surrounding the wetland. As a guideline, the wetland should be within one-half kilometer (approximately one-third mile) from the transportation corridor, although the criteria may justify a reduction or increase in this distance. For many people who commute on high use transportation corridors, the open space, visual variety, and wildlife-viewing opportunities provided by wetlands are aesthetically important benefits.

(3) One of the three largest wetlands within a city, town, or New York City borough; one of the three largest wetlands of the same cover type within a town; in a town in which wetland acreage is less than one percent of the total acreage. The rarer wetlands are, and the rarer any one cover type is in a locality, the more valuable are the recreational and educational opportunities and open space and aesthetic benefits provided by the wetlands or cover types which remain. In addition, the retention of a base of wetlands and wetland cover types in a locality can help to perpetuate fish and wildlife diversity in that locality. The size of a wetland can also be significant because many species have substantial threshold space requirements and are unable to make use of smaller areas. In addition, disturbance of wetland wildlife by activities outside the wetland or adjacent area can be buffered to some degree in larger wetlands.

(4) Within a publicly owned recreation area. These wetlands provide many recreational and educational opportunities.

(5) On publicly owned land that is open to the public. Many of the recreational, educational, scientific, aesthetic and open space benefits of wetlands cited in section 24-0105 of the act will usually be most fully realized on publicly owned lands. Such lands may have greater public use than private lands.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 664.6