EPA
United States
Environmental Protection
Agency - Region 2
Water Management Division
Marine* Wetlands
Protection Branch
December 1993
EPA-902-R-93-004
WETLANDS
REGULATION GUIDEBOOK
FOR
NEW YORK STATE
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Copies of the
Wetlands Regulation Guidebook
can be received by contacting:
U.S. Environmental Protection Agency, Region 2
Marine and Wetlands Protection Branch
26 Federal Plaza
New York, NY 10278
(212)264-5170
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TABLE OF CONTENTS
ACKNOWLEDGMENTS
NOTE TO THE READER
WHAT IS A WETLAND?
WETLAND VALUES AND FUNCTIONS
ALTERNATIVES TO WETLAND ALTERATION
HOW WETLANDS ARE REGULATED
HOW TO USE THIS GUIDE
FEDERAL REGULATIONS
CLEAN WATER ACT - SECTION 404
CLEAN WATER ACT - SECTION 401
OTHER RELATED FEDERAL LAWS AND POLICIES
STATE REGULATIONS
FRESHWATER WETLANDS ACT
ADIRONDACK PARK AGENCY ACT
TIDAL WETLANDS ACT
WATERFRONT REVITALIZATION ACT
STATE ENVIRONMENTAL QUALITY REVIEW ACT
OTHER RELATED STATE LAWS AND POLICIES
GLOSSARY
LIST OF ACRONYMS
IMPLEMENTING AGENCIES
IV
V
1
2
6
7
9
15
15
22
24
29
29
31
32
33
35
39
43
46
47
11
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ACKNOWLEDGMENTS
The concept for this booklet originated with and was first implemented by
the Washington State Department of Ecology,
We thank that agency for kindly providing us their materials for our use.
We also thank the United States Army Corps of Engineers,
the New York State Department of Environmental Conservation,
and the Adirondack Park Agency for their review of this document.
111
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NOTETOTHEREADER
Numerous federal and state laws affect the use and protection of wetlands. Because no
single one of these laws was specifically designed as a comprehensive policy for wetlands
management, understanding how and when the various laws and levels of regulation apply
can be somewhat confusing.
The purpose of this guidebook is to provide planners, developers, and the general public
with an introduction to the scope and application of existing laws and regulations that
directly or indirectly affect wetlands in New York State. As such, this guidebook is not
a legal document and should not be considered as the final word on any of the laws
or requirements presented.
A variety of agencies implement wetland related laws. These agencies are referenced
throughout this document. The reader should always contact the appropriate local, state,
or federal agencies for complete, up-to-date information of that agency's responsibility
over wetland areas and for all the regulatory requirements pertaining to a particular
activity. Addresses and contacts for the implementing agencies appear in the back of this
document.
We welcome any comments on how we can improve the usefulness of this guidebook.
Please send your written comments to:
U.S. Environmental Protection Agency, Region 2
Marine and Wetlands Protection Branch
26 Federal Plaza
New York, NY 10278
(212)264-5170
iv
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WETLANDS REGULATION GUIDEBOOK
WETLAND VALUES AND FUNCTIONS
WETLAND VALUES AND
FUNCTIONS
Many people have viewed wetlands simply
as unimportant, useless lands that could be improved
in value by draining or filling. Recent efforts,
however, to preserve and protect wetlands are
motivated largely by a greater appreciation for the
many important ecological, social, and economic
functions that wetlands perform. These functions
vary from wetland to wetland, but include providing
water quality protection, flood control, shoreline
stabilization, contributions to ground water and
stream flows, and wildlife and fisheries habitat.
Also, many people value wetlands as natural areas
providing aesthetic, recreational, and educational
opportunities that should be preserved for future
generations.
WATER QUALITY PROTECTION
Many pollutants are washed by rainfall from
urban or agricultural lands and are carried overland
to water bodies. Pollutants include soil particles,
fertilizers, pesticides, heavy metals, and grease and
oil from cars and trucks. Wetlands can improve
water quality by removing pollutants from surface
waters. Three pollutant removal processes provided
by wetlands are particularly important: sediment
trapping, nutrient removal, and chemical detoxifica-
tion. The degree to which wetlands perform these
useful functions is influenced by the characteristics
of the wetland and environmental circumstances.
Wetlands are detrimentally impacted by pollutant
levels beyond their capacity for filtration and
biological conversion.
Nutrient
Removal
Sediment
Trapping 'r
Chemical
Detoxification
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WETLANDS REGULATION GUIDEBOOK
WETLAND VALUES AND FUNCTIONS
Sediment Trapping
SEDIMENT TRAPPING
Runoff flowing through a wetland is slowed
by the flatter wetland topography and the resistance
of wetland plants. As the water slows down, the
runoff drops many of the soil particles (sediment)
that it is carrying. The
roots of wetland plants can
then bind the accumulated
sediments. Sediments not
trapped from runoff often
settle in stream beds where
they clog gravel beds and
prevent fish spawning.
They can also fill naviga-
tional channels, increasing
the need for dredging.
Also, because many pollutants such as heavy metals
are attached to soil particles, the settling of sedi-
ments in wetlands further improves water quality.
CHEMICAL DETOXIFICATION
Some of the pollutants carried into a wetland
in runoff are trapped along with settled soil particles.
Some of these pollutants may be buried in the
Chemical Detoxification
sediments, while others may
be converted to less harmful
chemical forms by bio-
chemical processes. Still
other pollutants may be taken
up by plants and either
recycled within the wetland
or transported from it.
NUTRIENT REMOVAL
Certain forms of nitrogen and phosphorus
stimulate plant growth. An over abundance of
these nutrients in lakes and ponds can promote
excess plant and algal growth, resulting in a
degradation of water quality. If these nutrients
enter wetlands from surrounding areas, they may
accumulate within the soils of the wetland.
Microorganisms in the wetland soils then convert
some nutrients into less harmful forms. Other
nutrients may be taken up by wetland plants and
converted to plant materials. When wetland plants
die and decay, nutrients are recycled within the
wetland.
Nutrient Removal
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WETLANDS REGULATION GUIDEBOOK
WETLAND FUNCTIONS AND VALUES
WILDLIFE AND FISHERIES HABITAT
Wetlands provide essential habitat and food
for numerous fish and wildlife species. Many
animal species, including waterfowl and freshwa-
ter and saltwater fish, require wetland habitat for
breeding, nesting, or rearing of their young, as well
as for resting, migration, or overwintering areas.
About forty-five percent of the species listed by the
federal government as threatened or endangered
depend on wetlands during some part of their life
cycle.
Coastal wetlands and some types of inland,
freshwater marshes exhibit very high rates of plant
productivity, in the conversion of energy from the
sun into plant materials. This high productivity
often supports a varied and complex food web both
X
within and outside the wetland. For instance, only
a small amount of the plant material produced in
coastal salt marshes is eaten by animals during the
growing season. When the marsh plants die, much
of this dead plant material is broken down into
small particles and flushed into adjacent waters.
There it becomes apotential food source for plankton,
fish and other estuarine organisms.
In addition to serving as a food source, the
dense vegetation found in many wetlands provides
places for wildlife to build homes and hide from
predators. While many species live in wetlands
year round, others, such as striped bass, use wetlands
for a part of their life cycle or during certain times
of the year.
TYPICAL ESTUARINE
MARSH FOOD WEB
'I
Diving £4.
Birds A
Crab
,, Animal
' Plankton
Fish
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ALTERNATIVES TO WETLAND
WETLANDS REGULATION GUIDEBOOK ALTERATION
ALTERNATIVES TO WETLAND
ALTERATION
It is usually easier and less expensive to In many cases, retaining wetlands as open
avoid wetland alteration than to obtain the required space within development increases the value of the
federal, state, and local permits. property for future residents or employees. City
When wetlands are not adequately taken into and county planning departments can discuss local
consideration in the course of project design, regulations and options pertaining to wetland pro-
development activities that affect wetlands may be tection.
costly in terms of time, environmental impact Many new organizations have become
assessment, and required mitigation. In many cases, involved in purchasing or accepting donations of
the burden of proof that aproject meets the conditions private land and managing such lands in their
for permit approval rests with the applicant, and may natural state. In some instances, lands are transferred
result in the need for extensive technical analysis. It to government agencies that will protect them.
may be to the applicant's greater benefit to research While federal and state governments own and manage
and implement a project proposal that avoids many acres of wetlands, most remaining wetlands
wetlands. are privately owned. In many cases, transfers of
There are a variety of alternatives for land to a public or private conservation group may
protecting wetlands that benefit both society and the have tax benefits for the property owner.
individual property owner. Benefits for property Guidance on avoiding wetland impacts can
owners include completing projects faster, more be discussed with municipal officials. In addition,
easily and for lower cost, gaining potential tax representatives of the New York State Department
benefits, as well as the satisfaction of having protected of Environmental Conservation (DEC), the
a valuable natural resource. Adirondack Park Agency (APA), and the U.S. Army
Some local governments have adopted Corps of Engineers (Corps) are available to discuss
provisions that allow tradeoffs between the options for avoiding project impacts to wetlands
preservation of natural areas (such as wetlands) and (see "Implementing Agencies" for phone numbers).
densities of development. Examples include
"planned unit development" and "clustering"
provisions in local land use ordinances.
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WETLANDS REGULATION GUIDEBOOK
HOW WETLANDS ARE REGULATED
HOW WETLANDS ARE
REGULATED
A variety of federal, state, and local
regulations affect construction and other activities in
wetlands and in areas immediately adjacent to
wetlands. In addition, the types, sizes, and locations
of wetlands included in the regulations vary from
law to law. As a result, case-by-case review is
needed, and applicants are advised to contact the
appropriate agencies prior to project development.
Contacting the New York State Department of
Environmental Conservation, Adirondack Park
Agency, U.S. Army Corps of Engineers, U.S.
Environmental Protection Agency (EPA), and local
government will provide the best start. For larger
projects, landowners may elect to hire an environ-
mental consulting firm to coordinate the permitting
process.
The tables and figures in the subsequent
pages help in identifying the jurisdiction of the
principal federal and state laws that regulate activities
in or near wetlands.
FEDERAL REGULATIONS
The principal federal laws that regulate
activities in wetlands are Sections 404 and 401 of the
Clean Water Act, and Section 10 of the Rivers and
Harbors Act. Other federal laws include the Na-
tional Environmental Policy Act, the Coastal Zone
Management Act, and the Swampbuster provision
of the Food, Agriculture, Conservation and Trade
Act of 1990.
STATE REGULATIONS
The principal New York State regulations
affecting development activities in and near wetlands
include the Freshwater Wetlands Act, the Tidal
Wetlands Act, and the Adirondack Park Agency
Act. Administration of the Tidal Wetlands Act rests
solely with the DEC. The Freshwater Wetlands Act
is administered by the DEC in all of New York state
outside of the Adirondack Park. Inside the
Adirondack Park, the Adirondack Park Agency
administers both the Freshwater Wetlands Act and
the APA Act. Other state laws that may apply to
activities in or near wetlands include the State
Environmental Quality Review Act (SEQRA), the
Waterfront Revitalization of Coastal Areas and
Inland Waterways Act, the Coastal Erosion Hazard
Areas Act, and the Use and Protection of Waters
Program. In addition, the New York Uniform
Procedures Act applies to procedural aspects of the
review and permitting processes. Also, the DEC
administers the Water Quality Certification program
pertaining to Section 401 of the Clean Water Act,
which requires state certification that federal permits
meet state water quality standards.
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WETLANDS REGULATION GUIDEBOOK
HOWWETLANDS ARE REGULATED
LOCAL REGULATIONS
Many local governments in New York also
have provisions in ordinances and other regulations
that affect projects proposed in or adjacent to
wetlands. Because there is considerable variation in
the provisions of these local regulations, it is necessary
to contact the appropriate local government depart-
ment to determine the local provisions that affect a
particular wetland. In some cases, local regulations
may cover wetlands not covered by federal and state
regulations, and may be more restrictive than those
of federal or state regulations. Please note, that even
when local laws are less restrictive, projects must
comply with state and federal laws.
As of 1975, the New York State Freshwater
Wetlands Act allowed local governments to assume
jurisdiction for regulating wetlands wholly or partially
within their boundaries. Local wetland protection
laws or ordinances may simply adopt the state law.
or may strengthen the law (forexample, by protecting
smaller wetland areas). However, no local law or
ordinance can be adopted that is less protective of
freshwater wetlands than is the state Freshwater
Wetlands Act. To date, three local governments
have taken over the state program.
Wetlands may be regulated by additional
ordinances, such as sensitive areas or clearing and
grading ordinances. Special analysis and review
may be required for projects affecting wetlands
covered by local sensitive areas ordinances. Such
policies and regulations may regulate wetlands and/
or activities that are not covered under state and
federal laws.
Other local mechanisms that may be used to
regulate developments affecting wetlands include
comprehensive plans, zoning ordinances, and
floodplain management regulations. Local planning
and public works agencies can assist project
proponents in determining local requirements.
8
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WETLANDS REGULATION GUIDEBOOK
HOW TO USE THIS GUIDE
HOW TO USE THIS GUIDE
The graphics and tables on the following pages are
designed to help you determine what permits may be
required for your project, provide an overview of
the major permit requirements, and give a general
idea of the sequencing and interrelationships of
permits. The flow chart below will guide you to the
appropriate information.
WHAT TYPE OF WKTLAN1) IS THE PROPERTY?
WHAT PERMITS AFFMT TO THIS TOE
See Figure 1
See Figure 2
WHAT ABE THE SPECIFICS OF THOSE PERMITS?
See Table 1
HOW WILL YOUR PERMITS BE PROCESSED?
See Figure 3
9
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WETLANDS REGULATION GUIDEBOOK
WETLAND JURISDICTION
WETLAND JURISDICTION
Jurisdiction refers to the extent or range of
authority given by a regulation. Understanding the juris-
diction of the federal and state regulations applicable to
a particular wetland may be confusing. The accompany-
ing figures assist in determining the jurisdiction of the
principal state and federal regulations for various wetland
types and topographic locations. However, permit re-
quirements vary depending on the type of activity pro-
posed and the specific wetland situation. Always contact
the appropriate regulatory agency for clarification if
you are not sure about permit requirements. Navigable
waters refers to all presently, historically, and reasonably
potential navigable waters and all waters subject to the
ebb and flow of the tide up to mean high water in tidal
water and up to ordinary high water in freshwater areas.
FIGURE 1
WETLANDS
Bordering Streams Bordering Navigable Waters
Bordering Lakes
Isolated
10
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WETLANDS REGULATION GUIDEBOOK
PERMIT REQUIREMENTS
FIGURE 2
WETLAND SITUATION
Bordering
Navigable Waters
PERMITS REQUIRED
Rivers and Harbors Act
Section 10
Clean Water Act
Section 404
Individual Permit
Clean Water Act
Section 404
General Permit
State Freshwater
Wetlands Act
Use and Protection of
Waters Program
Tidal Wetlands Act
Waterfront Revltallzatlon of
Coastal Areas and Inland
Waterways Act
Coastal Erosion Hazard
Areas Act
Bordering Streams
f
& 1
*w
itiO*
v/
lli^ftL 4|
Adjacent Areas
>5 cfs
<5 cfs >10acre 1-10 <1acre
100 tt fresh
300 ft tidal
I Direct Authority
I Discretionary
Authority
If mapped on the
New York State
Freshwater
Wetlands Maps
or designated by
DEC or APA
11
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WETLANDS REGULATION GUIDEBOOK
TABLE 1. OVERVIEW OF MAJOR REGULATIONS PERTAINING TO WETLANDS IN NEW YORK
Regulation
Federal Clean Water Act,
Section 404
Federal Clean Water Act,
Section 401
Federal Rivers and
Harbors Act, Section 10
Federal Coastal Zone
Management Act
Food, Agriculture,
Conservation, and Trade
Act of 1990 (Farm Bill)
National Environmental
Policy Act (NEPA)
Implementation
Requires permit for
discharge of dredged or fill
materials, including
excavation activities and
placement of pilings, as
defined.
Requires, as a condition of
federal permit approvals,
state certification that
federal permit meets state
water quality standards.
Requires permit for all
construction activity in
navigable waters.
Requires notice of
consistency with the state
coastal zone management
plan as a condition of
federal activities, federal
license approvals, and
federal support of local
activities.
The Swampbuster
provision denies eligibility
for all U.S. Dept. of
Agriculture farm program
benefits to those who
convert a wetland' by
draining dredging or
filling.
Requires full disclosure of
potential impacts associated
with proposed federal
actions.
Jurisdiction
Waters of the United
States.
Federal permits affecting
waters of the state.
Navigable waters to mean
high water mark of tidal
waters, and ordinary high
water mark of fresh waters.
New York's coastal
counties and along lakes
Erie and Ontario, St.
Lawrence and Niagara
Rivers, Hudson River south
of Troy Dam, East and
Harlem Rivers, Kill Van
Kull, and Arthur Kill.
Areas considered wetland
according to the Soil
Conservation Service's
designation.
All major federal actions.
Application to Wetlands
Includes all wetlands (with
some exceptions).
Includes all wetlands that
may be affected by a
federally permitted activity.
Wetlands to the limits of
navigable waters.
Wetlands within the coastal
areas of New York State.
Wetlands that have not
been converted to
agricultural use prior to
December 23, 1985.
All wetlands.
Implementing Agency
U.S. Army Corps of
Engineers. U.S.
Environmental Protection
Agency
New York State
Department of
Environmental
Conservation
U.S. Army Corps of
Engineers
New York State
Department of State
Agricultural Stabilization
and Conservation Service
Varies with the proposed
action; lead agency is
usually the federal agency
issuing the permit
Reference Page
1 5
22
24
24
26
25
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WETLANDS REGULATION GUIDEBOOK
TABLE 1 (cont.). OVERVIEW OF MAJOR REGULATIONS PERTAINING TO WETLANDS IN NEW YORK
Regulation
New York State
Freshwater Wetlands Act
Use and Protection of
Waters Program
New York State Tidal
Wetlands Act
Hew York State
Waterfront Revitalization
of Coastal Areas and
Inland Waterways Act
Coastal Erosion Hazard
Areas Act
State Environmental
Quality Review Act
(SEQRA)
Implementation
Protects freshwater
wetlands and requires a
100ft adjacent buffer area.
Protects the bed and banks
of water bodies.
Protects tidal wetlands and
adjacent areas.
Oversees all permit
activities in the state's
coastal waterways and
adjacent shorelines and in
some inland waters.
Protects Natural Protective
Features and Structural
Hazard Areas along coastal
and Great Lakes waters.
Requires, through state
process, the full disclosure
of potential impacts
associated with proposed
actions.
Jurisdiction
All wetlands shown on
New York State Freshwater
Wetlands Maps, and as
designated by the DEC and
the APA.
Navigable and protected
waters of the state.
All wetlands as shown on
the New York State Tidal
Wetlands Inventory Maps
and as designated by DEC.
All federal, state, and local
actions within coastal areas
of New York State.
All coastal areas of the
Marine District and the
Great Lakes and associated
waters.
All federal, state, and local
actions, including permit
issuance, within New York
State.
Application to Wetlands
Wetlands of 12.4 acres or
greater in size, or smaller
wetlands of unusual local
importance. Within the
Adirondack Park: wetlands
of one acre or greater, and
less than one acre if
adjacent to open water.
The excavation or
placement of fill in
navigable and protected
waters of the state
including adjacent wetlands
requires a permit
Coastal fresh, intertidal
marsh; coastal shoals, bars,
flats; littoral zone; high
marsh, salt meadow,
formerly connected salt
marshes; and uplands
within 300ft of wetlands.
All wetlands affected by
actions within coastal
areas.
Wetlands within regulated
Natural Protective Features
and Structural Hazard
Areas.
All wetlands affected by
actions, except those
actions specifically
exempted or excluded
Implementing Agency
New York State
Department of
Environmental
Conservation, Adirondack
Park Agency
New York Slate
Department of
Environmental
Conservation
New York State
Department of
Environmental
Conservation
New York State
Department of State
New York State
Department of
Environmental
Conservation
Lead Agency (determined
by nature of proposed
action)
Reference Page
29
39
32
33
40
35
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WETLANDS REGULATION GUIDEBOOK
PERMITTING SEQUENCE
PERMITTING SEQUENCE
Completion of the permit processes that apply to major permit and related activities. One or more of these
a particular project can take from a few months for small permits may be required. For more information, see
projects to more than a year for complex projects. Figure 2, Table 1, and a more detailed description of
The chart below shows the relative timing of regulations in the text following.
14
FIGURE 3
Certification,
Notice of Consistency
Coastal Zone
Impact Assessment,
Disclosure Process
State
Environmental
Quality Review
Act (SEQRA)
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WETLANDS REGULATION GUIDEBOOK
FEDERAL CLEAN WATER ACT, SECTION 404
Wetlands are:
"... those areas that
are inundated or
saturated by surface
or groundwater at a
frequency and
duration sufficient to
support, and that
under normal circum-
stances do support, a
prevalence of
vegetation typically
adapted for life in
saturated soil condi-
tions."
[40 CFR 230.3(t)]
To implement this
definition, EPA and
the Corps use a multi-
parameter approach
that requires the
presence of wetland
vegetation, hydrol-
ogy, and soils.
FEDERAL REGULATIONS
In this section, federal laws and regulations
that affect the use of wetlands are described in more
detail. Particular focus is given to Sections 404 and
401 of the federal Clean Water Act.
CLEAN WATER ACT
SECTION 404
PURPOSE
The primary goal of the Clean Water Act
(CWA) is to restore and maintain the chemical,
physical, and biological integrity of the Nation's
waters. Section 404 is specifically directed toward
regulating discharges of dredged or fill material
into waters of the United States, including wetlands
(see definition in sidebar). Other pollutants are
regulated by the U.S. Environmental Protection
Agency under Section 402 of the CWA.
IMPLEMENTATION
Section 404 provides for government and
public review and comment on projects that propose
to alter or destroy waters of the United States by
filling, including any soil movement, or disposal of
dredge material. A permit program is used to
administer the provisions of Section 404. Within
this permit program, the U.S. Army Corps of
Engineers issues or denies Department of the Army
permits for the discharge of dredged or fill material
into wetlands. The definition of "discharge of
dredged material" has been recently modified to
address and regulate certain types of excavation
activities including mechanized landclearing,
ditching, channelization, and other activities that
destroy or degrade waters of the United States
(Federal Register at 58 FR 45008). Also, the
definition of "fill material" has been modified to
recognize that the placement of pilings can have the
effect of fill material and require a Department of
the Army permit.
EPA has developed environmental
guidelines by which permit applications must be
evaluated, known as the Section 404(b)( 1) guidelines.
Proposed actions requiring a permit must comply
with these guidelines. If a project does not comply
with the 404(b)( 1) guidelines, the permit application
must be denied by the Corps. The Corps may direct
the project to be modified to minimize impacts, or
require that applicants create or restore wetlands to
compensate for unavoidable project impacts. In
some cases, an Environmental Impact Statement
(EIS) may be required prior to permit issuance.
EPA has authority under Section 404(c) to
prohibit, withdraw, or restrict the placement of
dredged or fill material into wetlands and veto a
permit issued by the Corps. Enforcement actions
may be brought by the Corps or the EPA against
those who discharge dredged or fill material into
wetlands without, or in violation of, a Department
of the Army permit.
PROVISIONS OF THE LAW
Under the law, activities in wetlands may
The Corps and EPA
have amended their
permit regulations,
defining discharges
of dredged and fill
material to include
incidental discharges
associated with
excavation activities
and clarifying when
the placement of
pilings is considered
to be a discharge of
fill material. The final
rule was published in
the Federal Register
at 58 FR 45008.
The Section 404(b)(1)
guidelines were
developed by the
EPA for use by the
Army Corps of
Engineers in deter-
mining the suitability
of a discharge
activity. The guide-
lines' provisions
discourage avoid-
able impacts to
wetlands and require
mitigation for any
unavoidable adverse
impacts.
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WETLANDS REGULATION GUIDEBOOK
FEDERAL CLEAN WATER ACT, SECTION 404
Waters of the
United States
means:
1 .all waters which are
currently used, or were
used in the past, or may
be susceptible to use
in interstate or foreign
commerce, including all
waters which are
subject to the ebb and
flow of the tide;
2. all interstate waters
including interstate
wetlands;
3. all other waters
such as intrastate
lakes, rivers, streams
(including intermittent
streams), mudflats,
sandflats, wetlands,
sloughs, prairie
potholes, wet mead-
ows, playa lakes, or
natural ponds, the use,
degradation, or
destruction of which
could affect interstate
or foreign commerce
including any such
waters:
(continued on right
sidebar)
either be: 1) subject to an individual permit, 2)
covered under the provisions of a general permit, or
3) exempt from regulatory requirements. Some
activities, having minimal impact on wetlands,
have been given blanket authorization under the
provisions of a general permit issued by the Corps.
General permits may pertain to a geographical
region or the entire nation, or to particular water
body characteristics. Special conditions may apply
to general permits. Activities which are exempt
from regulation do not require authorization from
the Corps. However, it is advisable to contact the
Corps to determine the applicability of an exemption
for a particular activity. It is important to note that
proposed activities may be subject to other laws
even if exempted or covered by a general permit.
When a project involves an especially valuable
ecological area, the District Engineer can exercise
discretionary authority to require an applicant to
obtain an individual permit, rather than the
authorization of a general permit.
INDIVIDUAL PERMITS
With the exceptions noted in the remainder of
this section, proposals to modify wetlands require
issuance of an individual Department of the Army
Section 404 permit. The Corps should always be
contacted to determine permit requirements.
The Corps evaluates Section 404 permit
applications based on: 1) compliance with the
guidelines developed by EPA, the Section 404(b)( 1)
guidelines, to assess the impact of a project on
environmental quality, and 2) factors to determine
whether the project is in the public interest. If a
project does not meet both of these requirements
(compliance with the guidelines and a determination
that the project is in the public interest), a permit
must be denied.
The Corps must consider the requirements
in the Section 404(b)(l) guidelines that discourage
placement of dredged or fill material into the aquatic
ecosystem, unless it can be demonstrated that such
a discharge will not have an unacceptable adverse
impact on restoring and maintaining the chemical,
physical, and biological integrity of the waters of
the United States.
To assure that the goals of the Clean Water
Act are being met, the guidelines state that no
discharge of dredged or fill material shall be permitted
if there is a practicable alternative to the proposed
discharge which would have less adverse impacts on
the aquatic ecosystem. For example, if the project
can be constructed somewhere else without impacting
wetlands and the same purpose achieved, the permit
must be denied. The analysis of alternatives
considers cost, logistics, and technology.
The Section 404(b)(l) guidelines also state
that no permit can be issued if the disposal of
dredged or fill materials will: violate state water
quality standards; violate applicable toxic effluent
standards; jeopardize federally listed endangered or
threatened species; or cause or contribute to
a. which are or could
be used by interstate or
foreign travelers for
recreational or other
purpose; or
b. from which fish or
shellfish are or could be
taken and sold in
interstate or foreign
commerce; or
c. which are used or
could be used for
industrial purpose by
industries in interstate
commerce;
4. all impoundments of
waters otherwise
defined as waters of the
United States under the
definition;
5. tributaries of waters
identified in paragraphs
1-4 of this section;
6. the territorial seas;
7. wetlands adjacent to
waters (other than
waters that are them-
selves wetlands)
identified in paragraphs
1-6 of this section.
[33CFR328.3(a)(1-7)J
16
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WETLANDS REGULATION GUIDEBOOK FEDERAL CLEAN WATER ACT, SECTION 404
significant degradation of the waters of the United long as the project complies with the conditions in
States, which, as defined, include wetlands. the general permit. Typical projects include
Effects contributing to significant navigation markers, utility line backfill and bedding,
degradation include a "significantly adverse effect" bank stabilization projects, minor road crossings
on: municipal water supplies, plankton, fish, shell- and bridges, minor dredge and fill projects, some
fish, wildlife, and special aquatic sites, which types of mooring structures, and certain federally
includes wetlands; aquatic ecosystem diversity, approved and funded projects.
productivity, and stability, including the loss offish One general permit that is often applicable
and wildlife habitat and loss of a wetland's capacity is Nationwide Permit #26. It specifically addresses
to assimilate nutrients, purify water, or reduce activities in wetlands that are above the headwaters
wave energy; and recreational, aesthetic, and of a river or stream (less than 5 cfs average annual
economic values [40 CFR 230.10(c)]. flow), or are isolated wetlands. Under this general
If no practicable alternatives exist, impacts permit, blanket authority is provided for activities
to wetlands must be minimized to the greatest impacting up to one acre of wetland, provided that
extent possible. This can include the restoration or certain permit conditions are met. For activities
creation of wetlands to offset unavoidable wetland impacting between one and ten acres of wetlands,
impacts. The EPA, Corps, and U.S. Fish and Wildlife the Corps must be notified prior to the activity
Service (FWS) have all developed strong mitigation being undertaken. The Corps will consider the
guidelines. The Corps usually incorporates such proposed action and coordinate with the EPA, FWS,
guidelines into permit requirements. National Marine Fisheries Service (NMFS), and the
In addition, no permits are to be granted that appropriate state resource agencies. The process
involve alteration to wetlands unless "the benefits takes about 30 days and results in either authorization
of the proposed alteration outweigh the damage to to proceed under the nationwide permit or
the wetlands resource "[33 CFR Part 320.4(b)(4)]. notification that an individual permit is required.
The Corps has recently reauthorized the
GENERAL PERMITS "Nationwide Permit Regulations for the State of
The Corps has authority to issue general New York", effective January 21,1992. For details
permits which provide blanket authorization on a on the types of general permits available and the
nationwide, state, or regional level for actions that conditions that apply to each general permit in New
have minimal adverse impacts on the environment.. York, the applicant should obtain a copy of the
Such actions do not require individual permits as Corps Public Notice of April 17, 1992.
17
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WETLANDS REGULATION GUIDEBOOK FEDERAL CLEAN WATER ACT, SECTION 404
In conjunction with the Nationwide Permit EXEMPTIONS (33 CFR 323.4)
Regulations, the Corps has published a list of Exempted activities or areas include: nor-
activity-specific (permit-specific) conditions mal on-going farming, forestry, and ranching ac-
associated with New York State Water Quality tivities including cultivation, soil and water conser-
Certification(WQC) and Coastal Zone Management vation practices; farm ponds; irrigation ditches;
Consistency Concurrence (CZM). In addition to the roads used strictly for farming or forestry opera-
referenced list, certain conditions are defined that tions; regular maintenance; and emergency recon-
apply to some or all of the nationwide permit struction. Such activities are not exempt, however,
activities. Prospective permittees planning to if they convert wetlands to another use, or where the
conduct activities under one or more nationwide flow or circulation would be impaired or the reach
permits must comply with the applicable DEC and of waters reduced.
New York State Department of State (DOS) Although many agricultural activities are
conditions, as well as with all of the terms and exempt as noted above, if agricultural lands have
conditions of the nationwide permit program. If the been abandoned and wetlands have developed which
Corps list indicates that a specific nationwide permit would require hydrologic modification to return
is considered denied by either the DEC or DOS, an the land to agricultural uses, then authorization
individual project-specific WQC and/or CZM under a Department of the Army permit would be
concurrence is required prior to undertaking the required.
activity.
DEC determination that a wetland is not REGULATING AGENCIES
regulated by the State does not free a property Section 404 of the CWA regulates dis-
owner from his or her obligation under the Clean charges to waters of the United States, including the
Water Act. The Corps regulates all discharges of filling of wetlands, and establishes a permit pro-
dredged or fill material into wetlands and other gram to ensure that such discharges comply with
waters, regardless of size. environmental requirements. The Corps adminis-
Actions allowed under a nationwide permit ters the federal permit program and is responsible
are not subject to an appeal process. However, the for determining which areas are regulated as wet-
Corps' District Engineer can override provisions of lands under the program. EPA has final authority
a general permit on a case-by-case basis if there is over such decisions regarding the extent of geo-
sufficient reason for concern about the effect of the graphic jurisdiction and is responsible for deter-
project on the aquatic environment. mining which activities are exempt* under Section
18
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WETLANDS REGULATION GUIDEBOOK FEDERAL CLEAN WATER ACT, SECTION 404
404(f), from regulation. EPA has responsibility for derived from the Fish and Wildlife Coordination
and has developed the environmental guidelines by Act.
which permit applications must be evaluated. The The DEC has authority to place conditions
Corps reviews permit applications and issues, or on or request denial of a Department of the Army
denies issuance, of a Department of the Army permit if a proposed project does not comply with
permit for the discharge of dredged or fill material state water quality laws. Under Section 401 provi-
into wetlands. The Corps may override EPA sions of the Clean Water Act, the state certifies
guidelines in the interest of navigation (although whether a proposed project complies with state
this rarely occurs). water quality laws. The Corps generally cannot
EPA reviews and comments on permit issue a Department of the Army permit if the state
applications, with the authority to elevate a Corps has denied water quality certification.
permit decision to a higher level of Corps review.
In addition, EPA has authority under Section 404(c) PERMIT PROCESS
of the CWA to prohibit or restrict the placement of An overview of the permit process is shown
fill in wetlands that would have an unacceptable in the figure on pages 20 and 21. Elements of the
impact on water supply, fish, shellfish, wildlife, process are described in the following paragraphs.
and recreational uses. EPA may veto the issuance Because of the flexibility in the implementation of
of a Department of the Army permit, or require the Clean Water Act, this overview is intended only
permit modifications or restrictions, through a as a description of a typical sequence of events.
404(c) action.
Both the Corps and EPA have authority to Prior to formal application, the following may
bring enforcement action against unpermitted dis- occur:
charges into wetlands. Also, the Corps has enforce-
ment authority over violation of the terms and Informal meetings with the Corps may be
conditions of a Department of the Army permit. requested at any time to discuss project concepts,
The FWS and NMFS also have responsi- potential permit requirements, and probable time
bilities in the 404 program. These agencies review required to complete the permit process.
and comment on permit applications and have au-
thority to elevate a Corps permit decision to a An optional Pre-Application Meeting may
higher level of Corps review. They provide techni- be requested prior to submittal of a permit applica-
cal assistance to protect fish and wildlife resources tion. A pre-application meeting provides an oppor-
and mitigate project impacts. Their authority is tunity for the applicant to present the proposed
19
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WETLANDS REGULATION GUIDEBOOK
FEDERAL CLEAN WATER ACT, SECTION 404
project to federal, state, local, and tribal groups to
obtain preliminary technical input.The remaining
paragraphs describe steps in the formal application
and review process.
Submittal of the Application to the Corps.
Outside the Adirondack Park, a joint DEC/Corps
application procedure is in place. Application to
DEC is sufficient; a copy of the application will
automatically be forwarded by DEC to the Corps.
For wetlands which the Corps, but not the DEC, has
jurisdiction, application to the regional Corps of-
fice is required. For application inside the Adiron-
dack Park, separate applications to the APA and the
Corps are required. When received by the Corps,
the application is checked for accuracy, complete-
ness, and compliance with Corps format require-
ments.
Public Notice. Once a complete submittal
is received, and upon determination of the need for
an individual permit, the Corps issues a public
notice describing the proposed project. The public
notice follows a set format which includes a project
description; characteristics of the discharge and the
extent of wetland proposed to be impacted; criteria
for permit review; and potential impacts on threat-
ened and endangered species, cultural resources,
and wild and scenic rivers.
The notice is sent to an extensive list of
groups and individuals, including public agencies,
newspapers, adjacent property owners, treaty In-
dian tribes, and environmental groups. Any indi-
vidual may request to be on the mailing list for
specific regions or projects. In response to the
public notice, the public has the opportunity to
comment on the proposed activity. The Corps
solicits public and agency comments for 30 days.
Public agencies involved in the review process
include:
- U.S. Environmental Protection Agency
- U.S. Fish and Wildlife Service
Initial meetings, I
pro-application
meeting
(completed app//ca-1
I tion received, ac- I
knowledged and
processed
20
Normal 30 day I
comment period
Application Review
Includes:
Corps
Individuals
Special Interest Groups
Local Agencies
State Agencies
Federal Agencies
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WETLANDS REGULATION GUIDEBOOK
FEDERAL CLEAN WATER ACT, SECTION 404
- National Marine Fisheries Service
- Treaty Indian Tribes
- New York State Department of
Environmental Conservation
- Adirondack Park Agency, for wetlands
within the Adirondack Park
- New York State Department of State
- Local jurisdictions
See the "Regulating Agencies" section on page 18
for their role in the review process.
If the state agencies deny either a 401
certification or a determination of coastal zone
consistency, the Corps must deny the permit
application without prejudice, that is, until such
time as the applicant gains 401 certification and
coastal zone consistency. In addition, if any local
permits are denied, the Corps may also deny the
404 permit request without prejudice, until such
time as the applicant acquires such permits.
Public Hearing. The Corps is not required
to hold a public hearing, but may do so if requested
and if it appears that important new information
will come out of the hearing process.
Environmental Review. Because every
permit issued by the Corps is a major federal action,
the provisions of the National Environmental Policy
Act (NEPA) apply to every permit. Thus, the Corps
prepares an environmental assessment (EA) and,
with Department of the Army Section 404 permit
applications, a Section 404(b)(l) analysis. If the
result of this step is a Finding of No Significant
Impact (FONSI), the environmental documentation
under NEPA is concluded. If there is reason to
believe that the project will cause significant effect
to the human environment, preparation of a federal
environmental impact statement is required.
Public hearing
may be held
(CZM or 401 Certification
denied by »tate)
Evaluation
factors
Conservation
Economics
Aesthetics
Environmental
Fish t Wildlife Values
Flood Protection
General Public Welfare
Historic Values
Recreation
Land Use
Water Supply
Water Quality
Navigation
Applicant signs I
and returns
with fee
Application
denied
21
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WETLANDS REGULATION GUIDEBOOK FEDERAL CLEAN WATER ACT, SECTION 401
Permit Evaluation and Decision Making. CLEAN WATER ACT
The Corps' permit review addresses compliance SECTION 401
with the Section 404(b)( 1) guidelines, public interest
factors,and NEPA compliance. The Corps makes a PURPOSE
determination to issue or deny a Department of the ^ purpose of Section ^ provisions is to
Army permit and prepares a decision document ensure that federally permitted activities comply
recording the decision making process. All with the federal Clean Water Act, state water quality
applicable federal laws are considered during this laws> and any Qther appropriate state laws (e>g,
point in the process. If necessary, the applicant is Protection of Waters program).
required to provide additional information. The
final decision for permit approval or modification IMPLEMENTATION
rests with the Corps. Section 401 is implemented through a
certification process. With respect to wetlands, the
PERMIT TIMING state certification process is most typically triggered
The review process normally is concluded through the submittal of the DEC and Corps Joint
within 60 days of receipt of a completed applica- Application for Permit.
tion. However, the complexity of the wetland
issues and laws and the number of agencies involved PROVISIONS OF THE LAW
may greatly lengthen the process. In particular, if a Any applicant for a federal permit for any
controversial action is proposed or an EIS is re- activity that could result in a discharge of a pollutant
quired, the application process may take one to two to a state's waters is required to obtain a certification
years before the actual decision to approve, modify, from the state in which the activity is to occur. In
or deny any permit application is made. essence, the state is to certify that the materials to be
If the EPA, FWS, or NMFS exercise their discharged into a wetland will comply with the
option to elevate a permit decision to a higher level, applicable effluent limitations, water quality
under Section 404(q), the decision may be delayed standards, and any other applicable conditions of
30 to 60 days. If EPA decides to exercise its state law. A certification obtained for construction
authority under Section 404(c) to deny or restrict of any facility must also pertain to the subsequent
use of a site for placement of dredged or fill mate- operation of the facility. If the state denies
rial, the Corps cannot issue a permit. The 404(c) certification, the federal permitting agency must
process involves public participation, may involve deny the permit application. If the state imposes
hearings, and takes months to complete.
22
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WETLANDS REGULATION GUIDEBOOK FEDERAL CLEAN WATER ACT, SECTION 401
conditions on a certification, the conditions become location and description of the proposed work, and
part of the federal permit. other pertinent information. DEC responds to the
list of proposed activities by determining whether
ACTIVITIES COVERED specific conditions are required, or whether water
Section 401 requirements pertain to any quality certification should be denied for certain
activity that requires a federal permit and that may activities. Additionally, DEC has a set of general
result in a discharge to a state's waters. While most conditions that apply to all activities.
of the 401 certifications are initiated through
submittal of the DEC and Corps Joint Application CERTIFICATION TIMING
for Permit, occasionally other federal permit DEC has 60 days, from the issuance of a
processes may also require 401 certification. An Corps public notice, to respond to the Corps
example would be the Federal Energy Regulatory concerning certification for a proposed activity.
Commission requirements for hydropower plants. DEC's response may be certification, denial, or a
request for delay due to lack of information. If DEC
REGULATING AGENCIES has not responded within 60 days, the federal agency
In the state of New York, the Department of is authorized to waive certification requirements.
Environmental Conservation implements the The Corps' District Engineer can extend the time
Section 401 requirements. DEC also tracks the period for state response, not to exceed one year,
responses of other reviewing agencies and has the when so requested by the state. The public generally
final word on approval, denial, or special conditions has 30 days from the issuance of the Corps' public
for certification. notice to comment to DEC on the request for water
quality certification. However, depending on the
CERTIFICATION PROCESS scope and magnitude of proposed projects, the time
As mentioned, typically the 401 certification allowed for public responses may be shortened or
process -begins with the receipt of the DEC and lengthened.
Corps Joint Application for Permit. Typically,
sufficient information to process a 401 certification
is provided through the federal permit process. If
additional information is required, the applicant is
notified of such by DEC. The application form is
submitted in triplicate to the DEC or Corps for
review. The form includes the applicant's name,
23
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WETLANDS REGULATION GUIDEBOOK OTHER RELATED FEDERAL LAWS
OTHER RELATED FEDERAL LAWS COASTAL ZONE MANAGEMENT
AND POLICIES ACT OF 1972 (CZMA)
^-^^^^^^^ The CZMA encourages each coastal state to
RIVERS AND HARBORS ACT develop a coastal zone management (CZM) plan
SECTION 10 which provides for a number of mandates as
This law was enacted in 1899 to preserve the contained in Section 303(3) of the Act. New York
navigability of the Nation's waterways. Section 10 has an approved coastal zone management plan.
prohibits the unauthorized obstruction or alteration Thirty counties bordering on the marine coast and
of any navigable water of the United States. The on major rivers and lakes are affected by the plan.
provisions apply to any activity that alters the Section 307(c) of the CZMA requires any
course, location, or capacity of a navigable water, non-federal applicant, seeking a federal permit to
i.e., any activity in, over, or affecting navigable conduct an activity affecting land or water uses in
waters. Actions in wetlands within these limits are the state's coastal zone, to furnish a certification that
subject to Section 10 provisions. the proposed activity will comply with the state's
Navigable waters include all presently, coastal zone management program. No federal
historically, and reasonably potential navigable permit will be issued until the state has concurred
waters and all waters subject to the ebb and flow of with the applicant's certification of consistency.
the tide up to mean high water in tidal waters and up The New York State Department of State reviews
to ordinary high water in freshwater areas, project proposals for their consistency with the
Provisions of Section 10 are implemented through state approved CZM plan. The DOS has six months
a permit process that includes consideration of from receipt of a consistency certification to issue
navigational, flood control, fish and wildlife a determination. If the DOS does not respond
management, and environmental impacts. NEPA within this time frame, a determination of
compliance is required. Section 10 reviews often consistency may be presumed.
occur simultaneously with Section 404 permit
reviews. The Section 404(b)(l) guidelines are not EXECUTIVE ORDER 11990
applicable in the Section 10 review process, but are In 1977, President Carter officially
applied when a proposed project requires recognized the value of the country's wetlands. His
authorization under Section 404, i.e., involves the Executive Order 11990 included the following
discharge of dredged or fill material into a wetland, statement on wetland values:
24
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WETLANDS REGULATION GUIDEBOOK
OTHER RELATED FEDERAL LAWS
"The Nation's coastal and inland wetlands
are vital natural resources of critical
importance to the people of this country.
Wetlands are areas of great natural
productivity, hydrological utility, and
environmental diversity, providing
natural flood control, improved water
quality, recharge of aquifers, flow
stabilization of streams and rivers, and
habitat for fish and wildlife resources."
Through the order, the President directed
federal agencies to avoid the unnecessary alteration
and destruction of wetlands. Federal agencies must
provide leadership and take action to minimize the
destruction, loss, or degradation of wetlands affected
by a federal project or by any project that receives
federal funding. While the order does not regulate
wetlands per se, it does establish wetland protection
as the official policy of all federal agencies.
NATIONAL ENVIRONMENTAL
POLICY ACT OF 1969 (NEPA)
The National Environmental Policy Act (42
U.S.C. 4321 et seq.) established a process requiring
federal agencies to consider the environmental
impacts of major federal actions that they undertake,
including individual permit actions. The NEPA
process emphasizes the full disclosure of
environmental impacts and their consideration, along
with technical and social/economic considerations,
prior to an agency decision.
Guidance for the implementation of NEPA
is provided by the Council on Environmental Quality
(CEQ). The CEQ Regulations (40 CFR 1500-1508)
emphasize the consideration of alternatives, including
ways to mitigate (avoid or reduce) harmful
environmental impacts. Generally, the NEPA process
occurs concurrently with the Section 404 reviews by
the Corps of Engineers. Most federal agencies,
including the Corps and EPA, have adopted their
own regulations for implementing NEPA
requirements.
NEPA requires that an environmental impact
statement be prepared for any major federal action
that would have significant environmental impacts.
The EIS must thoroughly evaluate any environ-
mental impacts of the proposed action and its
alternatives. Permits issued by a federal agency,
such as a Department of the Army permit pertaining
to Section 404, are considered to be federal actions
that may require an EIS.
To determine if a proposal would have
significant environmental impacts, the agency may
prepare an environmental assessment (EA). A
permit applicant often provides much of the
information and analysis used to prepare the EA.
The EA contains sufficient evidence and analysis to
determine if an EIS is required. If an EIS is not re-
Mitigation under
NEPA includes:
avoiding the impact
altogether by not
taking a certain
action or parts of an
action;
minimizing impacts
by limiting the degree
or magnitude of the
action and its imple-
mentation;
rectifying the impact
by repairing, rehabili-
tating, or restoring the
affected environment;
reducing or eliminat-
ing the impact over
time by preservation
and maintenance
operations during the
life of the action;
compensating for the
impact by replacing
or providing substi-
tute resources or
environments.
25
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WETLANDS REGULATION GUIDEBOOK OTHER RELATED FEDERAL LAWS
quired, a finding of no significant impact (FONSI) Home Administration loans, Commodity Credit
document, explaining why an EIS is not required, is Corporation storage payments, farm storage facility
prepared by the federal agency. In New York, loans, and Conservation Reserve Program payments.
documents prepared under the State Environmental Farmers who apply for certain USDA
Quality Review Act may provide information and programs must certify that they will not produce
analysis useful in preparing the EA or FONSI. agricultural commodities on land that was converted
The New York SEQRA parallels the from wetland after December 23, 1985. The Soil
requirements of NEPA. In virtually the same manner Conservation Service (SCS) evaluates each farm.
as federal agencies, state agencies are required to The SCS performs wetland determinations
consider environmental impacts associated with in the Swampbuster program. Those determinations
proposed actions. The SEQRA process is may differ from jurisdictional wetland delineation
summarized under this guidebook's section on state under the Section 404 program, due to differences
regulations. in the delineation criteria of the two programs. The
EPA, Corps, and SCS are developing procedures to
1990 FOOD, AGRICULTURE, CON- allow farmers to rely on written SCS wetlands
SERVATION, and TRADE ACT jurisdictional determinations as the final federal
(1990 Farm Bill) government position on the extent of Clean Water
Act jurisdiction.
Swampbuster Provision
The 1990 Farm Bill contains a provision Wetlands Reserve Program
regarding wetland conversion to agricultural land. The Wetlands Reserve Program (WRP) is a
This provision, known as Swampbuster, denies voluntary program administered by the USDA
eligibility for all United States Department of Agricultural Stabilization and Conservation Service
Agriculture (USDA) farm programs to farmers (ASCS) offering landowners a chance to retire
who convert wetlands to croplands. This provision marginal crop land and receive payments for
applies to all commodity crops produced by those restoring and protecting wetlands on their farms.
farmers, not just to those produced on converted Lands eligible for WRP include farmed wetlands
wetlands. that are restorable, and wetlands converted to
Programs covered by the Swampbuster cropland prior to December 23,1985. These lands
regulations include USDA price and income must have been in agricultural production for at
supports, disaster payments, crop insurance, Farmers least one of the 1986-1990 crop years. The land
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WETLANDS REGULATION GUIDEBOOK
OTHER RELATED FEDERAL LAWS
owner and ASCS enter a legal agreement, a
conservation agreement, in which the landowner
voluntarily sets a limitation on the future use of the
land, permanently or for 30 years. Eligible
landowners apply for enrollment declaring their
intent to participate and then obtain an approved
wetland reserve plan of operation (WRPO). The
SCS and FWS jointly help landowners develop
plans. A seventy-five percent cost share is paid on
permanent easements for restoring wetlands.
FISH AND WILDLIFE
COORDINATION ACT OF 1958
The Fish and Wildlife Coordination Act
(FWCA) and Reorganization Plan No. 4 of 1970,
requires federal agencies to give wildlife
conservation equal consideration with other features
during planning and decision-making processes that
may impact water bodies, including wetlands. Under
the FWCA, if the proposed project will impact
water and wetland resources, the federal agency
must consult with appropriate state and federal
wildlife agencies to determine necessary mitigation
measures.
ENDANGERED SPECIES ACT OF 1973
The Endangered Species Act (ESA) requires
federal agencies, in consultation with and with the
assistance of the Secretaries of the Interior and
Commerce, to ensure that their actions do not
jeopardize the continued existence of endangered
or threatened species or result in the destruction or
adverse modifications of the critical habitat of such
species. In 1986, the Department of the Interior,
through the U.S. Fish and Wildlife Service, and the
Department of Commerce, through the National
Marine Fisheries Service, established procedures
for the Act's consultation requirements of Section 7
(50 CFR Part 402, 1986 Rule).
Section 7(a)(2) of the ESA requires federal
agencies to ensure that any action authorized, as in
the issuance of Department of the Army permits,
funded, or carried out by such agency does not
jeopardize the continued existence of any listed
species, or result in the destruction or adverse
modification of habitat of such a species which has
been designated as critical ("critical habitat").
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WETLANDS REGULATION GUIDEBOOK OTHER RELATED FEDERAL LAWS
The 1978 Amendments added section 7(c), NATIONAL HISTORIC PRESER-
requiring the preparation of biological assessments VATION ACT OF 1966
in appropriate instances, and Section 7(d), pro- The National Historic Preservation Act
hibiting a federal agency or any involved permit or (NHPA) protects properties listed in, or eligible for
license applicant, after initiation of consultation, listing in, the National Register of Historic Places
from making an irreversible or irretrievable (NRHP), through review of and comment on federal
commitment of resources which would foreclose undertakings that affect such properties by the
the adoption of any reasonable and prudent Advisory Council on Historic Preservation (ACHP).
alternatives. Tte associated review is a public interest process
through which the federal agency proposing an
undertaking, such as Department of the Army
WILD AND SCENIC RIVERS ACT permit jssuance> participates along with the State
For the purposes of the Wild and Scenic Historic Preservation Officer, ACHP, and interested
Rivers Act (WSRA), water resource actions are organizations and individuals. This review ensures
defined as any project or action that could affect the that impacts to listed NRHP properties, or those
free-flowing characteristics of the river, e.g., dredge/ considered for listing, are identified, and that
fill operations, placement of riprap, etc. Under alternatives to avoid or mitigate an adverse impact
Section 7(a) of the WRS A, federal actions on water ^ adequately considered in the planning process.
resources actions are prohibited if they result in a
direct adverse effect on the characteristics which
result in a river's WSRA classification. The
Department of the Interior has determined that
actions within one-quarter mile or within the visual
field of a river could have a direct impact. Evaluation
of the effect on a river segment should be coordinated
with the appropriate federal land managing agency.
The National Park Service is the agency responsible
for most river segments in New York.
28
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WETLANDS REGULATION GUIDEBOOK
FRESHWATER WETLANDS ACT
STATE REGULATIONS
In this section, state laws that affect the use of
wetlands are described in more detail. These laws
and programs include the New York State Freshwater
Wetlands Act, Adirondack Park Agency Act, New
York State Tidal Wetlands Act, Waterfront Revital-
ization of Coastal Areas and Inland Waterways Act,
State Environmental Quality Review Act, Use and
Protection of Waters Program, and the Coastal
Erosion Hazard Areas Act. Permit application,
process, and timing information are presented in
the discussion of the Uniform Procedures Act.
FRESHWATER WETLANDS ACT
Legal Authority
Freshwater Wetlands Act, New York Environmental
Conservation Law, Article 24.
Implementing Regulations: Title 6, Parts 662, 663,
664,665 and Subtitle Q of Title 9, Parts 570 and 578
of the New York Code of Official Rules and
Regulations (6NYCRR 662-665 and 9NYCRR 570
and 578).
Program Description
The DEC is the principal permitting
authority, although in a few instances this authority
has been delegated to local governments. The
Adirondack Park Agency is the permitting authority
for wetlands within the Adirondack Park, under
authority of the Freshwater Wetlands Protection
Act and the Adirondack Park Agency Act. In order
to receive a permit, an applicant must demonstrate
that the proposed activity will be in accord with the
policies and provisions of the Freshwater Wetlands
Act, that is, "to prevent the despoliation and
destruction of freshwater wetlands, and to regulate
use and development...to secure the natural benefits
of freshwater wetlands, consistent with the general
welfare and beneficial economic, social and
agricultural development of the state." The
permitting authority must ensure that the activities
allowed in permits are consistent with the policies
of the Freshwater Wetlands Act and the Adirondack
Park Agency Act, and where necessary impose
conditions that ensure compliance.
Wetlands Jurisdiction
Pursuant to the Freshwater Wetlands Act,
the DEC has prepared maps of all freshwater
wetlands that are 12.4 acres or larger in size or, if
deemed to be of unusual local importance, wetlands
smaller than 12.4 acres. Wetlands one acre or
larger, or any size wetland adjacent to open water,
are regulated within the Adirondack Park. The
Freshwater Wetlands Act defines freshwater
wetlands as:
Lands and waters of the state shown on the
freshwater wetlands map which contain any
or all of the following: (a) lands and sub-
29
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WETLANDS REGULATION GUIDEBOOK
FRESHWATER WETLANDS ACT
merged lands commonly called marshes,
swamps, sloughs, bogs, and flats supporting
aquatic or semi-aquatic vegetation which
depend upon seasonal or permanent flood-
ing or sufficiently water logged soils to give
them a competitive advantage (the Act as
written includes a list of commonly occur-
ring wetland plants);
(b) lands and submerged lands containing
the remnants of any vegetation that is not
aquatic or semi-aquatic that has died be-
cause of wet conditions over a sufficiently
long period, provided that such wet condi-
tions do not exceed a maximum seasonal
water depth of six feet and provided further
that such condition can be expected to per-
sist indefinitely, barring human interven-
tion;
(c) lands and water substantially enclosed by
aquatic or semi-aquatic vegetation as set
forth in paragraph (a) or by dead vegetation
as set forth in paragraph (b), the regulation
of which is necessary to protect and preserve
the aquatic and semi-aquatic vegetation; and
(d) the waters overlying the areas set forth in
(a) and (b) and the lands underlying (c) [N. Y.
Environmental Conservation Law Section
24-0107(1)].
The boundaries of these freshwater wetlands
are the outer limits of the vegetation in (a) and (b)
above and the waters in (c). In addition, areas within
100 feet of wetlands, or further when necessary to
protect the wetland, are subject to regulation. The
New York State Freshwater Wetlands Maps show
the approximate locations of the actual wetland
boundaries, at a scale of 1:24,000. Maps may be
viewed at local government clerks offices, the
regional DEC offices, APA head-quarters, and they
are available for purchase through contact with
regional DEC offices.
Regulated Activities
Activities subject to regulation are addressed
in detail in Title 6 of the New York Code of Official
Rules and Regulations, Part 663. They include:
any form of draining, dredging, excavation,
removal of soil, mud, sand, shells, gravel, or
other aggregate from any freshwater wet-
land, either directly or indirectly;
any form of dumping, filling, or depositing
of any stones, sand, gravel, mud, rubbish or
fill of any kind, either directly or indirectly;
erecting any structures, roads, the driving of
pilings, or placement of any other obstruc-
tion whether or not changing the ebb and
flow of the water;
30
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WETLANDS REGULATION GUIDEBOOK
ADIRONDACK PARK AGENCY ACT
any form of pollution, including but not
limited to, installing a septic tank, running a
sewer outfall, discharging sewage treatment
effluent or other liquid wastes into or so as
to drain into a freshwater wetland; and
any other activity which substantially im-
pairs any of the several functions served by
freshwater wetlands or the benefits derived
therefrom [N.Y. Environmental Conserva-
tion Law Section 24-0701(2)].
The following types of activities have been
exempted from regulation by the Freshwater Wet-
lands Act, or are not regulated because they will not
substantially impair any of the functions and ben-
efits of freshwater wetlands (see the Freshwater
Wetlands Act and 6NYCRR663 for a full descrip-
tion of exempted activities):
- continuing lawfully existing uses and
activities;
- routine maintenance of existing functional
structures, e.g., repairing and repainting;
- normal agricultural practices, except fill-
ing, clear-cutting of trees, or construction
of non-agricuJtural structures;
- recreational activities and harvesting of
natural products;
- selective tree cutting and harvesting fuel
wood (not clear-cutting).
DEC has issued a booklet entitled Freshwater Wet-
lands Program: Applicant's Guide, available through
contact with the regional DEC offices (see "Imple-
menting Agencies" in the back of this booklet).
This guide addresses regulated and exempted activi-
ties (pp. 2 and 3). It is advisable to contact the DEC
or the APA before assuming whether or not an
activity is exempt from regulation by the Freshwa-
ter Wetlands Act.
ADIRONDACK PARK AGENCY ACT
Legal Authority
New York Executive Law, Article 27
Program Description
The Adirondack Park Agency Act protects
wetlands by regulating activities in or near them
that pose the threat of adverse impact, including
activities such as the subdivision of land.
Wetlands Jurisdiction and Regulated Activi-
ties
The APA regulates wetlands one acre or
larger or wetlands of any size that are adjacent to
open water. Copies of maps noting regulated wet-
lands within the Park may be viewed at the
Adirondack Park Agency headquarters. Regulated
31
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WETLANDS REGULATION GUIDEBOOK
TIDAL WETLANDS ACT
activities include those as listed under the New
York State Freshwater Wetlands Act, and also in-
clude the subdivision of land affecting wetlands.
TIDAL WETLANDS ACT
Legal Authority
Tidal Wetlands Act, New York Environmental
Conservation Law, Article 25.
Implementing Regulations: Title 6, New York Code
of Official Rules and Regulations, Part 661
(6NYCRR 661).
Program Description
The DEC regulates tidal wetlands through
permits granted or denied in accordance with DEC
regulation, which is based on the factors listed in
N. Y. Environmental Conservation Law Section 25-
0302(1). The public policy of the Act is "to
preserve and protect tidal wetlands, and to prevent
their despoliation and destruction, giving due
consideration to reasonable economic and social
development..." [N. Y. Environmental Conservation
Law Section 25-0102]. The factors listed in Section
25-0302(1) include the present and potential value
of wetlands for marine food production, wildlife
habitat, storm and flood control, recreation,
education, and research. In order to receive a permit,
an applicant must demonstrate that the proposed
activity will be in complete accord with the policy
and provisions of the Tidal Wetlands Act.
Local governments may regulate tidal
wetlands concurrently with the DEC. The DEC's
permit requirements must be complied with, in
addition to such local requirements.
Wetlands Jurisdiction
The DEC has authority over inventoried
tidal wetlands and areas immediately adjacent to
these wetlands. The DEC has mapped tidal wet-
lands boundaries as well as wetlands types on aerial
photography of the entire marine district. Maps
may be viewed at local government clerks offices,
the regional DEC offices, and they are available for
purchase through contact with regional DEC of-
fices. Tidal wetlands include the following areas:
(a) those areas which border on or lie be-
neath tidal waters, such as, but not limited
to, banks, bogs, salt marsh, swamps, mead-
ows, flats or other low land subject to tidal
action, including those areas now or for-
merly connected to tidal waters;
(b) all banks, bogs, meadows, flats and tidal
marsh subject to such tides, and upon which
grow or may grow some or any of the fol-
lowing: (followed by a list of common wet-
land vegetation associated with tidal and
saline influenced habitats) [N.Y. Environ-
mental Conservation Law Section 25-
0103.1)].
32
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WETLANDS REGULATION GUIDEBOOK
WATERFRONT REVITALIZATION ACT
In addition, DEC'S regulations clarify that
the Tidal Wetlands Act applies to all lands under
tidal waters, including coastal shoals, bars, and flats
and the littoral zone to a depth of six feet below
mean low water. In general, adjacent areas are those
areas closest to the most landward tidal wetland
boundary which are (1) within 300 feet of the
landward edge of a wetland (150 feet in the City of
New York), or (2) up to ten feet in elevation, or (3)
to the seaward edge of the closest lawfully existing,
as of August 20, 1977, functional and substantial
man-made structure [Title 6, Official Code of Rules
and Regulations Part 661.4(b)(l)].
Regulated Activities
The Tidal Wetlands Act regulates the
following activities:
any form of draining, excavation, and re-
moval either directly or indirectly, of soil,
mud, sand, shells, gravel or other aggregate
from any tidal wetland;
any form of dumping, filling, or depositing
of soil, stones, sand, gravel, mud, rubbish or
fill of any kind;
the erection of any structure or roads, the
driving of any pilings or placing of any
other obstructions, whether or not changing
the ebb or flow of the tide; and
any other activity ... which may substan-
tially impair or alter the natural condition of
the tidal wetland area [N.Y. Environmental
Conservation Law Section 25-0401(2)].
This includes activities associated with the
construction of dams and docks, but does not include
the depositing or removal of natural products of the
tidal wetlands by recreational or commercial fishing,
shell fishing, aquaculture, hunting, or trapping.
DEC has issued a booklet entitled Tidal Wetlands
Program: Applicant's Guide, available through
contact with the regional DEC offices (see
"Implementing Agencies" in the back of this booklet).
This guide addresses regulated and exempted
activities (pp. 2 and 3).
WATERFRONT REVITALIZATION
ACT
Legal Authority
Waterfront Revitalization of Coastal Areas and
Inland Waterways Act, New York Executive
Law, Article 42.
Implementing Regulations: Title 19, New York
Code of Official Rules and Regulations, Part 600
(19NYCRR 600).
Program Description
In addition to the Tidal and Freshwater
33
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WETLANDS REGULATION GUIDEBOOK
WATERFRONT REVITALIZATION ACT
34
Wetlands Acts, New York regulates its coastlines
through the Waterfront Revitalization of Coastal
Areas and Inland Waterways Act. Under this Act,
the New York State Department of State administers
the state's coastal program which contains
legislatively enacted coastal areas policies to which
state agencies must conform. The Act also
encourages local governments to adopt waterfront
revitalization programs which are consistent with
the state' s coastal area and inland waterways policies.
The state's policies, contained in New York
Executive Law Section 912, include requiring a
balance between economic development and
preservation that prevents the loss of natural resources
while encouraging the use of existing infrastructure
and public services.
The Act also encourages municipalities
located on inland waterways to adopt local
waterfront revitalization programs. Once a program
is approved by the Department of State, state
agencies must act in a manner consistent to the
maximum extent practicable with the local program
[N.Y. Executive Law Section 915-a(8)].
Geographic Jurisdiction
The Waterfront Revitalization Act applies
to all coastal areas which are defined as:
(a) the State's coastal waters; and
(b) the adjacent shore lands, including land-
locked waters and subterranean waters, to
the extent such coastal waters and adjacent
lands are strongly influenced by each other,
including but not limited to, islands, wet-
lands, beaches, dunes, barrier islands, cliffs,
bluffs, inter-tidal estuaries, and erosion
prone areas.
Coastal waters are defined as: Lakes Erie,
Ontario, and Champlain, the St. Lawrence
and Niagara Rivers, the Hudson River south
of the federal dam at Troy, the East River,
the Harlem River, the Kill van Kull and
Arthur Kill, Long Island Sound and the
Atlantic Ocean, and their connecting bod-
ies, bays, harbors, shallows and marshes
[N.Y. Executive Law Section 911].
The coastal zone extends to the limit of the State's
jurisdiction on the water side and inland only to
encompass those shore lands, the uses of which have
a direct and significant impact on coastal waters.
The coastal area boundaries are on file in the Office
of the Secretary of State. The boundaries are also on
file with the clerk of each county and local govern-
ment that has any portion of its jurisdiction within
the boundaries of the coastal area.
The Act also applies to certain designated
and non-designated inland waterways as those terms
are defined in N.Y. Executive Law Section 911.
Regulated Activities
The Waterfront Revitalization Act does not
regulate specific activities, but rather requires that
all state action conform to the policies of the Act.
-------
WETLANDS REGULATION GUIDEBOOK
STATE ENVIRONMENTAL QUALITY REVIEW ACT
These actions include grants, loans, or other funding
assistance, land use, development, or planning, and
land transactions [N. Y. Executive Law Section 919].
STATE ENVIRONMENTAL
QUALITY REVIEW ACT (SEQRA)
Legal Authority
State Environmental Quality Review Act, New
York Environmental Conservation Law, Article
8.
Implementing Regulations: Title 6, New York
Code of Official Rules and Regulations, Part 617
(6NYCRR 617).
Program Description
The New York State Environmental Quality
Review Act was passed by the legislature with the
intent that all agencies conduct their affairs with an
awareness that they are stewards of the air, water,
land, and living resources, and that they have an
obligation to protect the environment for the use
and enjoyment of this and all future generations.
The basic purpose of SEQRA is to incorporate the
consideration of environmental factors into the
existing planning, review, and decision making
processes of state, regional, and local government
agencies at the earliest possible time [N.Y.
Environmental Conservation Law Section 617.1].
Information provided during the SEQRA process
helps agency decision-makers and the general public
understand how a project would affect the
environment. It is intended to help decision-makers
at all levels of state government make better
environmental decisions.
Implementation
SEQRA is not a permit program. It is a
process that meshes with existing permit and
approval and/or licensing programs. SEQRA
requires a full disclosure of the likely significant
environmental impacts of a project and the
identification of ways to mitigate or reduce the
impacts of a project. Impacts to the natural and
man-made environment are considered. For
proposals likely to have a significant impact to the
environment, an environmental impact statement
must be prepared.
Although SEQRA has no regulatory or policy
provisions directed specifically at wetlands,
agencies and the public become aware of likely
impacts to wetlands and environmental resources
through the process of identifying environmental
impacts. Agencies or local government offices may
deny permits or other approvals under SEQRA if
the proposal is likely to result in significant adverse
environmental impacts and if mitigative measures
would be insufficient to mitigate the identified
impacts. SEQRA rules emphasize the identification
of mitigative measures that may be required in
permit conditions to avoid or reduce environmental
impacts to wetlands or other resources.
35
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WETLANDS REGULATION GUIDEBOOK
STATE ENVIRONMENTAL QUALITY REVIEW ACT
The consistency of a proposal with existing
plans and policies, such as local zoning and local
sensitive areas ordinances which may contain
wetland policies, may be evaluated according to
SEQRA. The provisions of the Uniform Procedures
Act (see the subsequent section so titled) require
that applications for DEC permits cannot be
considered complete unless certain requirements of
SEQRA have been met.
Provisions of the Law
SEQRA provides policies, goals, and
procedures intended to ensure that the protection
and enhancement of the environment, and human
and community resources should be given
appropriate weight with social and economic
considerations, and that these factors be considered
together in reaching decisions on proposed activities.
Procedural provisions distinguish between actions
that are likely to have significant environmental
impacts and actions that do not.
The first step in the SEQRA process is to
determine how to classify a proposed activity.
Classes of action which require no further review
under SEQRA include: (1) exempt - specific actions
established by the legislature which require no
review under SEQRA [Section 617.29(q)]; (2)
excluded - actions initiated prior to the effective
dates of SEQRA or actions that receive environ-
mental review under the authority of the public
service law or the Adirondack Park Agency [Section
617.2(p)]; and (3) type II - actions contained on a list
in section 617.13 or on an agency's locally-adopted
list. Type II actions are those which do not have a
significant effect on the environment and do not
require the preparation of a draft EIS.
Classes of actions which do require further
review under SEQRA include: (1) type I - actions
that meet or exceed a threshold contained on the list
found at Section 617.12 or on an agency's locally
adopted type I list; and (2) unlisted - actions that do
not meet or exceed the thresholds contained on the
type I list and are also not contained on the type II,
exempt, or excluded action lists. Type I actions are
more likely to have a significant effect on the
environment than unlisted actions. Both type I and
unlisted actions require the determination of
significance and may require the preparation of an
EIS.
Regulating Agencies
SEQRA applies to all New York State
agencies, including local governments. When
agencies approve, undertake, or fund activities,
they must follow specific procedures to assure that
they give appropriate consideration to
environmental factors and carry out SEQRA's
provisions.
36
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WETLANDS REGULATION GUIDEBOOK STATE ENVIRONMENTAL QUALITY REVIEW ACT
SEQRA Process
If review under SEQRA is required, a lead After the lead agency accepts the DEIS, it
agency is identified. The lead agency may be any may hold a public hearing to solicit comments. The
public agency whose responsibility is to coordinate notice of the completion of a DEIS starts the
the SEQRA environmental review of a proposed comment period. This period must be a minimum
project with all other state and/or local agencies of 30 days. After the public comment period has
having jurisdiction over facets of the project. The ended, the preparer of the DEIS has 45 days to
lead agency determines whether or not the proposed complete the final EIS (FEIS). Review of the FEIS
action will have a significant impact on the includes the solicitation of comments from all
environment. The initial process calls for the involved regulatory agencies. The acceptance of the
completion of an Environmental Assessment Form FEIS and the adoption of findings then ends the
(EAF). As a result of the responses to a series of SEQRA process.
questions, the lead agency issues a determination of
significance (positive declaration) if an action will
have a significant impact to the environment or a
determination of non-significance (negative
declaration) if an action will not have a significant
impact on the environment. A negative declaration
will end the SEQRA review. A positive declaration
will require the preparation of a Draft
Environmental Impact Statement (DEIS).
To prepare a DEIS, the lead agency holds a
scoping session. Scoping is the process by which all
issues to be discussed in the DEIS are identified.
The goal is to identify the relevant environmental
issues and provide preparers with the greatest
specificity possible, de-emphasize or eliminate
insignificant or non-relevant issues, identify the
extent and quality of information needed, identify
the range of alternatives to be discussed, and identify
mitigation measures.
37
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WETLANDS REGULATION GUIDEBOOK
STATE ENVIRONMENTAL QUALITY REVIEW ACT
Draft EIS
accepted
for 30 day
public
review
Final BS
responsi-
bility of
Draft EIS
prepared
for lead
agency
Formal' ^acceptance
scoping
option
Positive
declaration
SEQR
hearing
option
Draft EIS
revision
required
select lead
agency
Coordinated \
Review \
Option
agency
makes
findings
Is
action
subject
to SEQR?
ShortEAF
(fullEAF
optional)
End
review
process
Unlisted
action
Negative
declaration
End
review
process
(See C.N.D. Option)
Condition Negative
Declaration Option
Procedures not requiring an EIS
Additional procedures when
an EIS Is required
i Type II,
_j\j exempt or
^4 excluded
actions
End
review
process
SEQRA TIMELINE
38
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WETLANDS REGULATION GUIDEBOOK
OTHER RELATED STATE LAWS
OTHER RELATED STATE LAWS AND
POLICIES
USE AND PROTECTION OF WATERS
PROGRAM
Legal Authority
Use and Protection of Waters Program, New
York Environmental Conservation Law, Article
15, Title 5.
Implementing Regulations: Title 6, New York
Code of Official Rules and Regulations, Part 608
(6NYCRR 608).
Program Description
The policy of New York State as set forth in
the Environmental Conservation Law, Title 5 of
Article 15, is to preserve and protect the state's
lakes, rivers, streams, and ponds. To implement
this policy, the DEC created the Protection of
Waters Program with the intent to prevent
undesirable activities on the beds and banks of
water bodies.
Geographic Jurisdiction
Jurisdictional authority includes navigable
and protected waters of the state. Navigable waters
are all lakes, rivers, streams and other water bodies
which are navigable in fact or upon which vessels
with a capacity of one or more persons can be
operated, notwithstanding interruptions due to
artificial or natural obstructions or seasonal
variations in capacity. Protected waters of the state
involve waters within the classifications AA, A, B,
as well as C(t), The C(t) class of protected waters
has a best usage of trout fishing. The next highest
classification, B, has best usages of contact
recreation, such as swimming and fishing. The
highest classifications, AA and A, include waters
used for drinking and cooking as well as for contact
recreation and fishing.
For projects in protected waters which
involve disturbance of a bank, regulatory
jurisdiction extends not more than 50 feet
horizontally from the mean high water line, except
that it may be extended upgrade to the crest of a
contiguous bluff, cliff, hillside or similar feature to
protect the water body.
Regulated Activities
Activities which require a permit include:
1) any activity which will change, modify or disturb
a protected water, its bed or banks; 2) removal of
sand, gravel, or othermaterial from the bed or banks
of a protected water; 3) excavation or placement of
fill, either directly or indirectly, in a navigable
water or in adjacent marshes and wetlands; 4) con-
struction or alteration of a dam or similar structure
which permanently or temporarily impounds the
water of a natural stream or watercourse having a
drainage area greater than one square mile; 5) con-
struction of a large farm pond in an upland area; 6)
construction, reconstruction, or repair of a large
dock, pier, wharf, platform, breakwater or other
structures in, on, or above a navigable water, except
39
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WETLANDS REGULATION GUIDEBOOK
OTHER RELATED STATE LAWS
for state-owned lands underwater; 7) installation or
modification of a mooring area for ten or more
boats in a navigable water; and 8) seasonal replace-
ment or installation of a floating dock or other
structure (which did not exist prior to May 4,1993)
in a navigable water.
DEC has issued a booklet entitled Protection
of Waters Program: Applicant's Guide, available
through contact with the regional DEC offices (see
"Implementing Agencies" in the back of this book-
let). This guide addresses regulated and exempted
activities (pp. 2 and 3).
NEW YORK COASTAL EROSION
HAZARD AREAS ACT
Legal Authority
New York Coastal Erosion Hazard Areas Act,
New York Environmental Conservation Law,
Article 34.
Implementing Regulations: Title 6, New York
Code of Official Rules and Regulations, Part 505
(6NYCRR 505).
Program Description
The intent of this program is to regulate
development in erosion-prone coastal areas. The
program affects certain lands along the coastal
rivers of lakes Erie, Ontario, and Champlain, the St.
Lawrence and Niagara Rivers, the Hudson River
south of the federal dam at Troy, the East River,
Harlem River, the Kill van Kull and Arthur Kill, the
Long Island Sound, the Atlantic Ocean, and their
respective connecting water bodies, bays, harbors,
shallows, and wetlands. The DEC Bureau of Flood
Protection administers the program.
Geographic Jurisdiction
There are two categories of regulated areas:
1) Natural Protective Features, and 2) Structural
Hazard Areas. Natural Protective Features include
the near shore, beaches, bluffs, primary dunes, and
secondary dunes. Structural Hazard Areas are lo-
cated landward of Natural Protective Features, and
are found on shorelines that have a demonstrated
long-term annual recession rate of one foot per year
or greater. The Structural Hazard Area is deter-
mined by multiplying the recession rate by 40, and
is measured from the landward limit of the Natural
Protective Feature. If the recession rate is less than
one foot per year, or cannot be accurately estab-
lished, then there is no Structural Hazard Area.
The regulated area is depicted for each
municipality on Coastal Erosion Hazard Area maps
that use an air photo base map at a scale of 1" = 200'.
The maps depict the landward limits of the Natural
Hazard Areas and Structural Hazard Areas, and
indicate the recession rate in feet per year, where
applicable. Maps may be viewed at local
government clerks offices, the regional DEC offices,
and the DEC Bureau of Flood Protection office, and
they are available for purchase from the Bureau of
Flood Protection (see "Implementing Agencies"
for address).
40
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WETLANDS REGULATION GUIDEBOOK
OTHER RELATED STATE LAWS
Regulated Activities
Regulated activities include construction,
modification, restoration of structures; excavation;
grading; mining; dredging and deposition of mate-
rial; construction, modification, restoration of ero-
sion protection structures; and miscellaneous ac-
tivities such as motor vehicle use and disturbance of
bird nesting and breeding areas.
Exempt activities include normal mainte-
nance of structures, beach grooming and cleanup,
vegetative plantings, open-work docks with 200
square feet or less of deck area, sand fencing, resto-
ration of existing structures that are damaged or
destroyed by events not related to coastal flooding
and erosion, private walkways, and seasonal docks
on floats.
UNIFORM PROCEDURES ACT
Legal Authority
New York Environmental Conservation Law,
Article 70.
Implementing Regulations: Title 6, New York
Code of Official Rules and Regulations, Part 621
(6NYCRR621).
Program Description
The Uniform Procedures Act was established
to standardize the procedures for processing the
DEC'S major regulatory permits. It was the
legislature's intent to assure fast and complete review,
eliminate inconsistent procedures, establish time
periods for DEC review, and encourage public
participation in permit review and decision-making.
To accomplish these intentions, the law and its
associated regulations provide standards and
procedures for submitting applications, reviewing
the applications, providing public notice,
conducting public hearings and reaching final
decisions.
Permits issued under the Protection of Waters
Program; Freshwater Wetlands, Tidal Wetlands,
and Coastal Erosion Hazard Area Acts; and 401
Certification are all subject to these standardized
procedures.
Program Implementation
The process involved in obtaining a permit
starts with the completion of the appropriate
application materials, including submission of
applicable fees. The DEC has 15 days to determine
if the application is complete. If the application is
found to be complete, the project is identified as a
minor or major project. A minor project will result
in the issuance of a decision within 45 days of the
determination that the application is complete.
Notice of a major project is published in the
Environmental Notice Bulletin (ENB) and in a local
newspaper. After a project is "noticed", a minimum
15-day public comment period is initiated. At the
close of the public comment period, the DEC
evaluates the comments and determines whether a
public hearing is necessary. If no hearing is held, the
DEC must make its final decision within 90 days of
the determination that the project application is
complete. The DEC has 60 days to issue a final
decision at the conclusion of the public hearing
when held.
41
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WETLANDS REGULATION GUIDEBOOK
45 day
staff review
15 days
review for
complete-
ness
Submit
application
(DEC)
60 days
staffand
Need for hearing
public
review
Schedule
hearing
within
30 days
60 days final
comments
and review
UNIFORM PROCEDURES TIMELINE
(Applies to Freshwater Wetlands, Tidal Wetlands, and Protection
and Use of Waters Permits)
42
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WETLANDS REGULATION GUIDEBOOK GLOSSARY
CFR: Code of Federal Regulations, the compilation of DREDGING: any physical digging into the bottom of
federal regulations adopted by federal agencies through a water body, including wetlands. Dredging can be done
a rule-making process. with mechanical or hydraulic machines, and changes the
shape and form of the bottom of the water body.
CFS: cubic feet per second. This refers to the average
annual flow of water bodies. Waters less than 5 cfs are FILL MATERIAL: any material used to change the
considered to be above headwaters of a river or stream bottom elevation or replace waters (see definition below),
and fail within jurisdiction of Nationwide Permit 26, including wetlands, with dry land. Fill material may
whereas waters greater than or equal to 5 cfs are considered consist of rock, sand, dirt, and industrial, municipal and
below headwaters of a stream or river and would, agricultural wastes discharged into waters.
therefore, be subject to an individual permit.
HYDRIC SOIL: soil that is saturated long enough to
CUMULATIVE EFFECTS: the combined periodically produce anaerobic conditions, thereby
environmental impacts that accrue over time and space influencing the chemical reactions in the soil and the
from a series of similar or related individual actions, differential success of biota. Federal Section 404
projects, or contaminants. Although each action may regulatory definition of wetlands includes the presence
seem to have a negligible impact by itself, the combined of hydric soils as one of three parameters (along with
effect can be severe. wetland vegetation and hydrology).
CLEAN WATER ACT (CWA): previously known as HYDROLOGY: this refers to surface and groundwater
the Federal Water Pollution Control Act (33 U.S.C. 1251 characteristics. Wetlands exhibit long term or periodic
et seql. The goal of the Act is to restore and maintain the inundation by surface waters (over their entire extent, or
chemical, physical, and biological integrity of waters of restricted to streams, channels, ditches, or ponds), or long
the United States. The term "waters of the United term or periodic soil saturation. The presence of
States" includeswetlands(40CFRPart230.3[s]). Section characteristic hydrology is one of the three parameters
404 of the CWA addresses wetlands, and its authorities used in the federal Section 404 definition of a wetland.
are implemented through a permit program.
HYDROPHYTE: any plant successfully growing in
DISCRETIONARY AUTHORITY: a regulatory water or in soil that is at least periodically deficient in
agency's authority to interpret geographic areas and oxygen as a consequence of soil saturation during some
types of activities as falling within the realm of their part of the growing season. Hydrophytes are those plants
regulation. "typically adapted for life in saturated soil conditions"
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WETLANDS REGULATION GUIDEBOOK GLOSSARY
(as referred to in the federal definition of wetlands (40 NAVIGABLE WATERS (federal): all presently,
CFR 230.3[t]). The occurrence of wetlands vegetation, historically, and reasonably potential navigable waters
or hydrophytes, is one of the three required parameters in and all waters subject to the ebb and flow of the tide up
defining a wetland regulated under Section 404. to mean high water in tidal water and up to ordinary high
water in freshwater areas.
MEAN ANNUAL FLOW: the average amount of
water that flows past a given point in one year. ORDINARY HIGH WATER MARK (OHWM)
(federal): the point on the bank or shore to which the
MEAN HIGH WATER (MHW): the average height presence and action of surface water is so continuous as
(over many years) reached by the high tides. to leave a distinct mark by erosion, destruction or
prevention of terrestrial vegetation, predominance of
MITIGATION (federal): mitigation under NEPA aquatic vegetation, or other easily recognized
includes: avoiding the impact altogether by not taking a characteristic. The OHWM defines the bed of a lake,
certain action or parts of an action; minimizing impacts river, or stream.
by limiting the degree or magnitude of the action and its
implementation; rectifying the impact by repairing, WATERS OF THE UNITED STATES (federal):
rehabilitating, or restoring the affected environment; 1) all waters that are currently used, or were used in the
reducing or eliminating the impact over time by past, or may be susceptible to use, in interstate or foreign
preservation and maintenance operations during the life commerce, including all waters that are subject to the
of the action; and compensating for the impact by ebb and flow of the tide;
replacing or providing substitute resources or 2) all interstate waters, including interstate wetlands;
environments. 3) all other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats,
NATIONWIDE PERMIT: a general permit issued by sloughs, prairie potholes, wet meadows, playa lakes, or
the U.S. Army Corps of Engineers on a nationwide basis natural ponds, the use, degradation, or destruction of
to authorize minor activities with little or no delay and which could affect interstate or foreign commerce
paperwork. A few of the nationwide permits require including any such waters:
notification prior to the proposed work. This notification a. which are or could be used by interstate or
is required where a review by the District Engineer is foreign travelers for recreational or other purpose or;
necessary to ensure that activities authorized by those b. from which fish or shellfish are or could be
Nationwide permits have minimal individual and taken and sold in interstate or foreign commerce or;
cumulative adverse effects on the environment. c. which are used or could be used for industrial
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WETLANDS REGULATION GUIDEBOOK
LIST OF ACRONYMS
46
APA
Adirondack Park Agency
ASCS
U.S. Department of Agriculture Agricultural Stabili-
zation and Conservation Service
COE
U.S. Army Corps of Engineers (Corps)
CFR
Code of Federal Regulations
CWA
Clean Water Act
CZMA
Coastal Zone Management Act
DEC
New York State Department of Environmental
Conservation
DOS
New York State Department of State
EA
Environmental Assessment
EIS
Environmental Impact Statement
ENB
Environmental Notice Bulletin
EPA
U.S. Environmental Protection Agency
FONSI
Finding of No Significant Impact
NYCRR
New York Code of Official Rules and Regulations
NEPA
National Environmental Policy Act
NMFS
National Marine Fisheries Service
OHWM
Ordinary High Water Mark
scs
U.S. Department of Agriculture Soil Conservation
Service
SEQRA
State Environmental Quality Review Act
USFWS
U.S. Department of Interior Fish and Wildlife Service
WQC
New York State Water Quality Certification
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WETLANDS REGULATION GUIDEBOOK
IMPLEMENTING AGENCIES
U.S. ARMY CORPS OF ENGINEERS
Chief, Regulatory Branch
U.S. Army Corps of Engineers
New York District
26 Federal Plaza
New York, NY 10278
(212)264-0184
[DEC Regions 1,2,3,4,5]
Chief, Regulatory Branch
U.S. Army Corps of Engineers
Buffalo District
1776 Niagara Street
Buffalo, NY 14207
(716) 879-4330
[DEC Regions 6,7,8,9]
Chief, Regulatory Branch
U.S. Army Corps of Engineers
Pittsburgh District
William S. Moorehead Federal Building
1000 Liberty Avenue
Pittsburgh, PA 15222
(412) 644-6872
[portions of Allegany, Cattaraugus,
and Chautauqua counties]
U.S. ENVIRONMENTAL PROTECTION
AGENCY
U.S. Environmental Protection Agency, Region 2
Marine and Wetlands Protection Branch
26 Federal Plaza
New York, NY 10278
(212)264-5170
U.S. FISH AND WILDLIFE SERVICE
United States Fish and Wildlife Service
Region V
300 Westgate Center Drive
Hadley, MA 01035
(413)253-8200
NATIONAL MARINE FISHERIES SERVICE
National Oceanic and Atmospheric Administration's
National Marine Fisheries Service
Northeast Region
One Blackburn Drive
Gloucester, MA 01930
(508)281-9300
AGRICULTURAL STABILIZATION AND
CONSERVATION SERVICE
State Executive Director
Agricultural Stabilization and
Conservation Service (ASCS)
P.O. Box 7308
100 South Clinton Street, Room 811
Syracuse, NY 13260
(315)423-5176
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WETLANDS REGULATION GUIDEBOOK
IMPLEMENTING AGENCIES
NEW YORK STATE DEPARTMENT OF ENVI-
RONMENTAL CONSERVATION (cont.)
New York State Department of Environmental
Conservation
Division of Water
Bureau of Flood Protection
50 Wolf Road
Room 330
Albany, NY 12233-3507
(518)457-3157
Regional Permit Administrator
NYSDEC, Region 1 Headquarters
Building 40, SUNY Campus
Stony Brook, NY 11790-2350
(516) 444-0355 or -0356 or -0365
Regional Permit Administrator
NYSDEC, Region 2 Headquarters
Hunters Point Plaza
47-40 21st Street
Long Island City, NY 11101
(718)482-4900
Regional Permit Administrator
NYSDEC, Region 3 Headquarters
21 South Putt Corners Road
New Paltz, NY 12561
(914) 255-5453
Regional Permit Administrator
NYSDEC, Region 4 Headquarters
2176 Guilderland Avenue
Schenectady, NY 12306
(518)382-0680
Deputy Regional Permit Administrator
NYSDEC, Regional Suboffice
Route 10, Jefferson Road
Stamford, NY 12167
(607) 652-7364
Regional Permit Administrator
NYSDEC, Region 5 Headquarters
P.O. Box 296
Route 86
Ray Brook, NY 12977
(518)897-1234
Deputy Regional Permit Administrator
NYSDEC, Region 5 Suboffice
P.O. Box 220
Hudson Street Extension
Warrensburg, NY 12885
(518)623-3671
Regional Permit Administrator
NYSDEC Region 6 Headquarters
317 Washington Street
Watertown, NY 13601
(315)785-2236
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WETLANDS REGULATION GUIDEBOOK
IMPLEMENTING AGENCIES
50
NEW YORK STATE DEPARTMENT OF ENVI-
RONMENTAL CONSERVATION (cont.)
Deputy Regional Permit Administrator
NYSDEC, Region 6 Suboffice
207 Genesee Street
Utica, NY 13501
(315)793-2555
Regional Permit Administrator
NYSDEC, Region 7 Headquarters
615 Erie Boulevard West
Syracuse, NY 13204-2400
(315) 426-7400
Deputy Regional Permit Administrator
NYSDEC, Region 7 Suboffice
PO Box 1570
1285 Fisher Avenue
Cortland, NY 13045
(607)753-3095
Regional Permit Administrator
NYSDEC, Region 8 Headquarters
6274 East Avon-Lima Road
Avon, NY 14414
(716) 226-2466
Regional Permit Administrator
NYSDEC, Region 9 Headquarters
270 Michigan Avenue
Buffalo, NY 14203-2999
(716)851-7165
Deputy Regional Permit Administrator
NYSDEC, Region 9 Suboffice
128 South Street
Clean, NY 14760
(716)372-0645
NEW YORK STATE DEPARTMENT
OF STATE
New York State Department of State
162 Washington Avenue
4th Floor
Albany, NY 12231
(518)474-6000
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