New York regulations
Title 9 Part 578
Executive Department
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9 NYCRR 578.1 - Applicability of this Part
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(a)This Part applies to the undertaking of regulated activities on private or State lands.
(b)This Part does not apply to any regulated activity in freshwater wetlands or any activity in adjacent areas listed in section 578.2(b) of this Part if undertaken pursuant to permit issued prior to May 1, 1983 either by the agency, or by the Department of Environmental Conservation acting pursuant to section 15-0505 of the Environmental Conservation Law. The permit requirements of this Part apply, however, if the activity has not been substantially commenced within two years of the date of issuance of the permit or within any other time period specified therein.
(c)This Part does not apply to the replacement in kind or to the routine repair of structures, roads, or onsite wastewater treatment systems lawfully existing in wetlands on May 1, 1983, provided there is no (1) draining, (2) filling, (3) substantial increase in erosion, siltation or sedimentation, (4) diversion of surface or subsurface drainage that adversely affects the natural hydrologic regime, or (5) other material alteration of the wetland.
(d)The Public Service Commission and the New York Board on Electric Generation Siting and the Environment shall apply the substantive provisions of this Part in determining whether to issue a certificate of environmental compatibility and public need pursuant to article seven or article eight of the Public Service Law.
9 NYCRR 578.2 - General rules
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(a)No person shall undertake any regulated activity without first obtaining an agency permit.
(b)No person shall install any leaching component of an onsite wastewater treatment system or seepage pit or any sewer outfall within the area adjacent to a freshwater wetland without first obtaining an agency permit pursuant to section 578.11 of this Part.
9 NYCRR 578.3 - Definitions used in this Part
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9 NYCRR 578.4 - General values of wetlands
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(a)Flood damage and storm water control.
Wetlands slow water runoff and temporarily store water, slowing movement of the crest downstream and lowering its elevation, thus helping to protect downstream areas from flooding and siltation or sedimentation. Public health and private property in one part of a watershed may be harmed if wetlands are destroyed or substantially altered in upstream parts of that watershed.
(b)Wildlife habitat.
Wetlands are of unparalleled value as wildlife habitat. Many of the wetland bird species, such as ducks, geese, herons and the endangered bald eagle, are migratory. They must have nesting, migrating and wintering habitat. The destruction of one kind of habitat in one part of the State will reduce populations in other parts of the State or country and deprive bird-watchers, hunters and others of recreational opportunities. Where a specific wetland is the only known location of a key endangered species habitat, destruction of that wetland may threaten the survival of the species.
(c)Protection of water resources and valuable watersheds through pollution treatment or sediment control.
The protection of surface and subsurface water resources afforded by wetlands benefits all potential users of those water resources. The cleansing action of wetlands, through sedimentation and oxidation or precipitation of pollutants, may provide water cleaner than would be the case if the wetlands were destroyed. The loss of wetlands may result in a decline in water quality downstream or in adjacent lakes.
(d)Recreation.
Wetlands provide spawning and nursery grounds for several species of fish. The availability of these fish may be adversely affected by the loss of these or adjacent wetlands. Nutrients supplied by wetlands are often important to the fisheries food chains of adjacent waters. In addition to their importance to fishermen, many wetland areas provide important hunting, boating, hiking, birdwatching, photography, and other recreational opportunities.
(e)Other values.
Wetlands provide opportunities for scientific research, visual variety and open space, and educational benefits.
9 NYCRR 578.5 - Values of particular wetlands
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The following list describes several wetland covertypes and most other wetland characteristics and assigns one of four value ratings to each. Wetlands may have one or several of these characteristics. The value ratings indicate the overall worth of a given wetland, and in combination with the standards in sections 578.6 through 578.10 of this Part, will provide general guidance to applicants whether a permit will be issued pursuant to this Part.
Values of Particular Wetland Covertypes
Value Rating
(a)Bogs are relatively specialized communities which often contain unusual plant or animal species, including many typical of boreal zones, and are usually very slow-growing. 2
(b)Classic or kettlehole bogs are very rare, support a limited community of plants highly specialized for life in bogs and are very sensitive to disruption and slow to recover. 1
(c)Emergent marsh is the most valuable individual covertype and one of the highest in productivity of all temperate ecosystems. The emergent vegetation provides nesting habitat, food and cover for many waterfowl and other wildlife, provides large annual increases in biomass, and cycles large quantities of nutrients into food chains. Emergent marshes usually contrast with surrounding areas in physical structure and therefore provide habitat diversity and "edge." Where purple loosestrife (Lythrum salicaria) or reed (Phragmites australis) constitute approximately two-thirds or more of the wetland, however, the value assigned is lower (3) as these species are less productive and support much less wildlife use than other marsh species. 2
(d)Deciduous swamps are frequently used by nesting and migrating waterfowl. They are also heavily used by other birds and wildlife. Deciduous swamps are often intermittently flooded and desiccated. Their soils exhibit high fertility which promotes rapid plant growth and a wide variety of flora and fauna. Windthrow of the shallow rooted trees found in such swamps tends to create habitat variety. During the growing season, such swamps transpire and filter great quantities of water, contributing to the maintenance of water quality and the moderation of micro-climatic conditions. 2
(e)Deep water marsh may be an important food source for waterfowl and is frequently a valuable area for fish spawning and nurseries. When located adjacent to a larger waterbody it is valuable as well as a water storage area. 3
(f)Shrub swamps generally have variable values for fish and wildlife. Since they are likely to be of different vegetational structure than surrounding or adjoining areas, they often supply significant nesting and other wildlife habitat. Shrub swamps adjacent to permanent bodies of water are frequently flooded and provide additional water storage capacity to ameliorate downstream flooding. Shrub swamps may also be located in zones subject to scouring by ice or other waterborne debris. In these areas, shrub swamps, which contain species resistant to scouring damage, stabilize soil and prevent erosion and downstream sedimentation. 3
(g)Wetlands composed of two or more structural groups have greater value as fish or wildlife habitat. Three structural groups are recognized for determining this value: 2
(1)low types, found in wet meadows and emergent marshes;
(2)shrubs and trees, found in deciduous, coniferous and shrub swamps;
(3)flat or water, found in deep water marshes, open water and mudflats.
A group must comprise at least 10 percent of the wetland area to be counted as a separate structural group for the purposes of this subdivision.
(h)Coniferous swamps are capable of transpiring large quantities of water over a major portion of the year. This process may, during the summer, contribute to the maintenance of low soil and water temperatures critical to the survival of cold water fish in streams fed by or running through such swamps. 4
(i)Wet meadows, when associated with other covertypes, are valuable for wildlife, including nesting by wetland birds. When associated with open water and certain other wetland covertypes, wet meadows may also be valuable for fish spawning. When not associated with other wetland covertypes, however, wet meadow is likely to be of relatively lower value. 4
(j)Artificial mudflats usually have limited or no values for fish and wildlife due to the unpredictability and usually prolonged duration of exposure. 4
Wetlands Related to Surface Water Systems
(k)Wetlands associated with open water provide breeding and spawning areas as well as food and cover for wildlife and fish using the open water. They are an integral part of open water ecosystems and provide natural nutrient exchange. They purify water entering the open water and may improve its quality whether measured in rate of flow, dissolved oxygen content, clarity, or ionic content. They often provide temporary storm water storage and ameliorate downstream flooding. Wetlands with over 20 acres within the mean high water mark of lakes, ponds, rivers and streams are integral parts of those water bodies and can dramatically affect quality and flow in those waterbodies and are rated highest (1). Wetlands with under two acres in size or not within the mean high water mark are of much less importance to the adjoining water body and are rated lower (3). 2
(l)Wetlands that are not part of permanent surface water systems have lower hydrological value and are less supportive of fish and waterfowl. 4
Wetlands with Values due to Productivity or Diversity
(m)Wetlands with unusual species abundance or diversity are unique ecosystems which may contain large heron rookeries, may be the site of other colonial nesting grounds, may be used intensively by migrating birds, or may contain some other abundance or diversity of wildlife or fish. They are relatively more valuable if they are unique or exemplary compared to other wetlands in the State, in the Adirondacks, or in the county in which they are located, and are rated highest (1). 2
(n)Wetlands with a total alkalinity of at least 50 ppm are valuable for fish and wildlife since their buffering capacity promotes conditions favorable to the growth of vegetation, providing good wildlife habitat. Alkalinity also indicates natural fertility of the underlying substrate, with potentially high productivity and nutrient turnover. 3
(o)Wetlands adjacent to fertile upland, indicated by the presence of growing crops or soils suitable for growing crops in the immediate vicinity, are valuable as fish and wildlife habitat due to higher levels of available plant and nutrients and trace elements reaching the wetland. 3
Wetlands with Values due to Presence of Threatened or Endangered Species
(p)Wetlands with significant evidence of use as key habitat for endangered or threatened wildlife species contribute significantly to the survival prospects for that species. Wetlands providing resident habitat for a species considered endangered or threatened in New York State or the Adirondack Park are the most critical. Wetlands providing migratory habitat, while also essential for perpetuation of the species, are rated lower (2). 1
(q)Wetlands containing an endangered or threatened plant species similarly contribute to the prospects for survival of such species. If five or fewer sites are known where the plant occurs within New York State or the Adirondack Park, the wetland provides virtually irreplaceable habitat. Wetlands providing any habitat supporting plants endangered or threatened in New York State or the Adirondack Park are nevertheless valuable (2). 1
Wetlands with Values Due to Geological Features
(r)Wetlands containing, owing their existence to, or ecologically associated with high quality or "textbook examples" of geological features are generally of scientific and educational interest. 3
(s)Wetlands with slopes greater than one percent have little hydrologic value due to decreased water retention. 4
Wetlands with Values due to Social Factors
(t)Wetlands located in towns where wetlands or wetlands of the same covertype are one percent or less of total acreage are valuable due to comparative rarity. 2
(u)Wetlands that are among the three largest in the town in which located are assigned high values due to comparative rarity. Wetlands among the three largest of the same covertype are valuable for the same reason (3). 2
(v)Wetlands with island(s) present within their boundaries provide nesting and refuge for wildlife, visual variety and interest, and an opportunity for recreational or educational activities. 3
(w)Wetlands of demonstrable historical, archeological or palentological significance are generally of high value for scientists and laymen alike depending upon the specific historic event, or archeological or paleontological feature involved. 3
(x)Wetlands that contribute significantly to open space or aesthetic values in a hamlet, moderate intensity or low intensity use area serve to preserve open space and aesthetic values in areas where most growth will and should occur according to the Adirondack Park land use and development plan map. They often provide welcome visual relief due to their natural character, and opportunities for wildlife viewing within built-up areas. 3
9 NYCRR 578.6 - Method for determining overall wetland value
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Where a wetland contains multiple values based upon more than one factor listed in section 578.5 of this Part:
(a)The overall wetland value will be no lower than its highest associated value.
(b)Three or more medium value characteristics (3) will raise a wetland associated value to high (2).
(c)Three or more high value characteristics (2) will raise a wetland associated value to highest (1).
9 NYCRR 578.7 - Advisory opinions as to wetland value ratings
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(a)The agency staff will, at the request of any person having a legal interest in property and contemplating a regulated activity thereon, provide an advisory opinion as to the value rating of any particular wetland. The opinion may be based on:
(1)the specific characteristics of the wetlands involved, such as:
(i)proximity to streams, lakes, rivers, and aquifer recharge areas;
(ii)covertype or types;
(iii)historical, archaeological or geographical significance;
(iv)location and size in relation to the drainage basin involved;
(v)underlying soil types; and
(vi)historical or traditional use;
(2)whether the wetland possesses any additional values not mentioned in the Freshwater Wetlands Act or this Part;
(3)whether preexisting degradation is present and, if so, if such degradation is irreversible or has diminished the original values of the wetland; and
(4)whether, due to any of these considerations, a value rating other than that derived from these general guidelines is recommended and the basis therefor.
(b)The advisory opinion shall not bind the agency in its review of wetlands projects pursuant to this Part.
9 NYCRR 578.8 - Impacts of certain regulated activities
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Regulated activities will usually have the following impacts:
(a)Draining of wetlands lowers average water table elevations. It may increase downstream peak flows and, if normal flow channels are blocked, decrease water storage capacity and downstream base flows. Secondary impacts may occur, such as a successional change in wetland vegetative covertype toward drier types, increased water temperatures, and changes in fish and wildlife use. Complete draining can eliminate wetland vegetation or wetlands themselves.
(b)Dredging, excavating, or channelizing wetlands, or removing soil, mud, sand, shells, or other aggregate from wetlands may increase water depth and remove wetland plant species, altering the basic substrate characteristics. Wetlands may be eliminated by creating water levels too deep for wetland vegetation to survive. Fish and wildlife feeding or reproductive use may be altered. Water storage capacity may be increased while changes in covertype variability, turbidity, sediment deposition and substrate erosion may result.
(c)Filling, dumping, or construction of roads may decrease wetland area, hence decreasing the multiple benefits derived from wetlands. Impacts may extend beyond the boundaries of the filled area especially if surface or subsurface water movement is affected. For example, loss of storage capacity may result in increased sedimentation of adjacent waters. Ancillary use of the filled area could lead to runoff or leaching of noxious materials or chemicals. Extraneous material incompatible with the wetland (such as certain metals or waste oil and other chemicals) may adversely impact water quality and fish and wildlife use. Such activities may degrade the aesthetic character of the wetland. Ultimately, filling may eliminate a wetland entirely.
(d)Creation of impervious surfaces in wetlands, irrespective of other associated developmental activities, may increase surface runoff and thereby may increase turbidity, sedimentation and water flow through wetlands. Increased water flow through wetlands may increase erosion, interfere with natural biological and chemical processes, change covertype patterns, and alter temperatures. Decreases in the functional capacity of wetlands may result as may also introduction of incompatible materials or chemicals (such as trash or gasoline) from the impervious surface over wide areas of the wetland.
(e)Erecting structures in wetlands, irrespective of other associated developmental activities, may shade and thus alter wetland vegetation, obstruct or interfere with surface or subsurface water flow, and interfere with fish and wildlife use.
(f)Placing obstructions or driving piles in wetlands may interfere with surface or subsurface water flow, or increase water levels, thus affecting wetland water supply, flooding potential and vegetative patterns. The level of impact is related to the amount and location of obstruction. The placing of piles for support of other structures may be a reasonable alternative to placement of fill when water storage capacity or hydrologic absorption values are the primary benefits derived from the wetland, especially when such placement of piles will not create a hazardous obstruction to flowing water containing ice or other water-borne material.
(g)Introducing wastewater treatment effluent or installing septic tanks or sewer outfalls in wetlands or adjacent areas may contaminate ground or surface water with undesirable nutrients or organisms. Excessive nutrient loads may alter the vegetative composition or fish and wildlife use, and/or affect the suitability of water for human use. Organisms introduced with wastewater effluent may create a general health hazard. Effluent may increase successional rates through the introduction of excessive levels of nutrients or by warming ambient water temperatures. Abnormal levels of water may be created in wetlands. These impacts may interfere with fish and wildlife as well as human use of water resources.
(h)Construction of dams, dikes, and other impoundments and control structures in wetlands or on water bodies running through them usually increases water levels or restricts water flow, altering or eliminating wetland vegetation, and may destroy whole wetlands.
(i)Other regulated activities may introduce or increase toxins, noise and other forms of pollution, remove or reduce vegetation or expose soil to erosion. Such activities include, for example, the operation of all-terrain vehicles and airboats, construction of utilities in existing or new corridors, either overhead or underground, disposal of chemicals, introduction or discharge of pollutants, application of pesticides and other chemicals, disposal of solid wastes, clearcutting or other timber harvesting practices, and construction or removal of groins, bulkheads, berms or levies.
9 NYCRR 578.9 - Benefits of activity proposed
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In its review of wetlands projects pursuant to this Part the agency will consider the relative values of wetlands set forth in section 578.5 of this Part, as well as any economic, social or other benefits to be derived from the activity proposed. Such benefits may compel a departure from the general guidelines of this Part, in which case the agency shall document the specific benefits compelling such departure.
9 NYCRR 578.10 - Issuance of permits
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(a)Unless the economic, social and other benefits to be derived from the activity proposed compel a departure from these guidelines, the agency shall not issue a permit for regulated activities in the following wetlands unless the findings set forth below are made.
(1)Wetlands rated1.
The proposed activity:
(i)would be compatible with preservation of the entire wetland; and
(ii)would not result in degradation or loss of any part of the wetland or its associated values.
(2)Wetlands rated 2.
The proposed activity:
(i)would result in minimal degradation or destruction of the wetland or its associated values; and
(ii)is the only alternative which reasonably can accomplish the applicant's objectives; or
(iii)alternatively to subparagraph (ii), is the only alternative which provides an essential public benefit.
(3)Wetlands rated 3.
The proposed activity:
(i)would result in the minimum possible degradation or destruction of any part of the wetland or its associated values;
(ii)is the only alternative which reasonably can accomplish the applicant's objectives; and
(iii)would, weighing the benefits of the activity against its cost and the wetland values lost, provide a net social and/or economic gain to the community.
(4)Wetlands rated 4.
The proposed activity is the only alternative which reasonably can accomplish the applicant's objectives.
9 NYCRR 578.11 - Adjacent area regulation
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(a)No person shall install any leaching component of an onsite wastewater treatment system or seepage pit or any sewer outfall within the area adjaent to a freshwater wetland without first obtaining an agency permit.
(b)Where, in its review of an application made pursuant to this section, the agency finds that the activity proposed will not impinge upon or otherwise substantially affect the wetland, it may treat the application as a request for determination of jurisdiction pursuant to sections 571.1 and 571.5 of these regulations and issue its determination that no permit is required.
9 NYCRR 578.12 - Procedures for the readjustment of freshwater wetlands maps
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(a)Following promulgation by the Commissioner of Environmental Conservation pursuant to section 24-0301(5) of the Freshwater Wetlands Act of a freshwater wetlands map for any area within the Adirondack Park, the agency may upon application of any person, or upon its own initiative, readjust any such map to clarify the boundaries of the wetlands shown thereon, to correct any errors on the map, or to effect any additions, deletions or technical changes in the map, and to reflect changes as have occurred as a result of the granting of permits pursuant to section 24-0703 of the Freshwater Wetlands Act, section 809 of the Adirondack Park Agency Act or this Part, or natural changes which have occurred through erosion, accretion or otherwise.
(b)Notice of such readjustments shall be given by:
(1)filing a copy of the agency's order and relevant portion of the map in (i) the central office of the Department of Environmental Conservation, and (ii) each regional office of the Department of Environmental Conservation and the office of the clerk of each county, town or village in which the affected wetlands or parts thereof are located;
(2)mailing a copy of such order and portion of the map by certified mail to (i) each owner of the wetlands or portions thereof affected as shown on the latest completed tax assessment roll, and by mail to (ii) the chief administrative officer and clerk of each county, town or village in which the affected wetlands or parts thereof are located; and
(3)causing a copy of such order to be published in at least two newspapers of general circulation in the area where the affected wetlands or parts thereof are located.
9 NYCRR 578.13 - Freshwater Wetlands Appeals Board
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The Freshwater Wetlands Appeals Board is empowered to review the following agency actions:
(a)determinations pursuant to section 571.2 of these regulations as to the existence of wetlands and the locations of wetland boundaries;
(b)actions on wetlands projects jurisdictional solely pursuant to the Freshwater Wetlands Act;
(c)classification of wetlands, promulgation of minimum land use regulations for freshwater wetlands, approval or disapproval of proposed freshwater wetland land use regulations submitted by a local government and farming land use regulations in the event of disapproval, action on applications to change such land use regulations, and orders or regulations issued pursuant to section 582.2 of these regulations;
(d)determination of applications and determinations not to require a permit made pursuant to section 578.11 of this Part;
(e)determinations to regulate extended adjacent areas made pursuant to section 582.8(d) of these regulations;
(f)readjustment of freshwater wetlands maps pursuant to section 578.12 of this Part;
(g)any other order or decision made pursuant to this Part and reviewable pursuant to section 24-1103 of the Freshwater Wetlands Act. The regulations of the board are set forth at 6 NYCRR Part 647.
9 NYCRR 578.14 - Effective date of this Part
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This Part shall take effect May, 1, 1983, except that:
(a)as to those activities referred to in sections 573.7(b)(1)(ii) and 573.7(e)(1) of this Title in coniferous swamps, it shall take effect August 1, 1983; and
(b)it shall apply to State agencies immediately.