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
                                                                                              13

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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.
                                                                                                                                    15

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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
26

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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").
                                                                                                              27

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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.

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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
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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).
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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.
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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)
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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
44

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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
                                                                                                         49

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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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