N.Y. Comp. Codes R. & Regs. tit. 6 § 664.7

Current through Register Vol. 46, No. 50, December 11, 2024

Section 664.7 - Freshwater wetlands map maintenance, amendment and adjustment

(a) Procedures.

(1) The commissioner shall supervise the maintenance of each map. Maps shall be available for public examination at the appropriate regional office of the department and in the office of the clerk of each county in which each wetland or a portion thereof is located. They will also be filed with each appropriate local government.

(2) The commissioner may, upon request by any person having evidence such as photographs of the area in question, or upon department initiative, issue an order amending or adjusting any map for the following reasons and under the following circumstances:

(i) The commissioner may amend a map by adding a previously unmapped or newly created wetland to the map, by significantly expanding or contracting the boundaries of a wetland shown on the map, or by deleting a wetland from the map, all as may be necessary to conform the map to actual onsite conditions. This will be done only after a copy of the proposed amended map has been made available for public inspection in the appropriate regional office of the department and in the office of the clerk of each affected local government, and only after the commissioner has provided notice of the proposed amendment and an opportunity for a public hearing on the proposal. The notice shall be sent by certified mail, not fewer than 30 days prior to any such hearing, to each owner of record, as shown on the latest completed tax assessment rolls, of land involved in the proposed amendment and also to the chief administrative officer and clerk of each affected local government. Notice of the proposed amendment shall also be published at least once in at least two newspapers having a general circulation in the area that is the subject of the proposed amendment, and also in the department's environmental notice bulletin. If a hearing is scheduled, notice shall be provided to the same parties, and also published, in the same manner, not more than 30 nor fewer than 10 days before the date set for the hearing. Once the announcement of a proposed amendment has been made, no activity subject to regulation pursuant to the act shall be initiated within the area that is the subject of the proposal until the commissioner has either amended the map or denied the amendment. However, no activity which has already been initiated at the time of the announcement, within an area that is proposed as an addition to the map, will be subject to such regulation.

(ii) Notwithstanding subparagraph (i) of this paragraph, the commissioner may make minor adjustments to a map as follows: to reflect natural changes that have occurred through erosion or accretion since the effective date of the map, as originally established or amended; to reflect changes that have occurred as a result of granting permits under the act; to clarify the boundaries of any wetlands; to correct minor errors; or to effect other technical changes. These adjustments may be made only after notice by certified mail to each owner of record, as shown on the latest completed tax assessment rolls, of land involved in the adjustment and to the chief administrative officer of each affected local government, at least 30 days prior to the issuance of an order adjusting the map. A public hearing will not be held on any such proposed adjustment unless the commissioner determines that it is appropriate, at which time the provisions set forth in subparagraph (i) of this paragraph shall apply.

(3) Any public hearing held pursuant to paragraph (2) of this subdivision shall provide to any person an opportunity to support, oppose, or make a statement of interest in, a proposed amendment or adjustment to a map.

(4) After considering the testimony given at any such hearing and any other facts which may be deemed pertinent, and after considering the rights of affected property owners and the policy and purposes of the act, the commissioner either shall deny the amendment or adjustment or shall promulgate by order an amended or adjusted map. A copy of any such order, together with a copy of the relevant portion of the amended or adjusted map, shall be filed in the office of the clerk of each affected local government. The commissioner shall simultaneously give notice of such decision and any resultant order to each owner, as shown on the latest completed tax assessment rolls, of land that is the subject of the decision. This notice shall be given by mailing a copy of the decision and any resultant order to the owner by certified mail, in any case where a notice by certified mail was not sent under paragraph (2) of this subdivision, and in all other cases by first class mail. At the same time, the commissioner shall give notice of the decision and any resultant order to the chief administrative officer of each affected local government. A copy of the decision and any resultant order also shall be published in at least two newspapers having a general circulation in the area that is the subject of the decision, and notice of the decision also shall be published in the department's environmental notice bulletin.

(b) Treatment of two or more areas as a single wetland. Two or more areas of land and/or water, as defined in paragraphs (a) through (d) of section 24- 0107(1) of the act, may be considered to be a single wetland for regulatory purposes if they are determined by the commissioner to function as a unit, or to be dependent upon each other, in providing one or more of the wetland benefits listed in paragraphs (a), (b), (c), (e), (f), and (i) of section 24- 0105(7) of the act, and if they are no more than 50 meters (approximately 165 feet) apart. The areas will be included, and labelled as a single wetland, on a map according to the procedures for amending a map set out in subdivision (a) of this section.

(c) Wetlands of less than 12.4 acres (approximately 5 hectares) having unusual local importance.

(1) The commissioner shall designate an area of land and/or water, as defined in paragraphs (a) through (d) of section 24-0107(1) of the act, of less than 12.4 acres (approximately 5 hectares) as a wetland having unusual local importance if it contains any class I characteristic listed in section 664.5(a) of this Part. Any person may nominate such an area for this purpose by providing evidence or testimony to the department that the area contains such a class I characteristic. Pursuant to section 663.3(g) of this Title, the commissioner may delegate jurisdiction over such a wetland to a local government within which the wetland is located if that government is the regulating authority for wetlands pursuant to the act.

(2) For any such area not containing a class I characteristic, the commissioner shall consider its nomination as a wetland having unusual local importance for one or more of the benefits enumerated in section 24-0105(7) of the act and, in accepting or rejecting nominations, shall take into account the expressed local interest.

(3) Where an area of land and/or water, as defined in paragraphs (a) through (d) of section 24-0107(1) of the act, of less than 12.4 acres (approximately 5 hectares) is on a State or national border, that portion of the area that is within New York shall be designated as a wetland having unusual local importance if the rest of the area is receiving protection as a wetland in the adjoining state or nation.

(4) A designation of an area as a wetland having unusual local importance shall be made pursuant to section 24-0301(1) of the act, but included on the map only after the commissioner has followed the procedures for amending a map set out in subdivision (a) of this section.

(d) Extending the adjacent area. All or part of a wetland's adjacent area may be extended beyond 100 feet (approximately 30 meters) from a wetland boundary where necessary to protect and preserve the wetland, pursuant to section 24- 0701(2) of the act. Such an extension shall be in relation to the nature and importance of the wetland's benefits, the resulting wetland classification, and the fragility and vulnerability of the wetland and its benefits, and shall be made only after the commissioner has followed the procedures for amending a map set out in subdivision (a) of this section. The amended map will indicate what wetland has been affected by an adjacent area extension, and a record showing that extension in more detail shall be available in the same locations as the map of the wetland to which it is adjacent, as those locations are set forth in paragraph (1) of subdivision (a) of this section.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 664.7