A.
Except as provided in Subsection B of this section, no person shall conduct a regulated activity on any freshwater wetland or adjacent area unless such person has first obtained a permit pursuant to this chapter.
B.
No permit under this chapter shall be required for:
(1)
The deposition or removal of the natural products of
freshwater wetlands and adjacent areas by recreational or commercial fishing,
shellfishing, aquiculture, hunting or trapping, where otherwise legally permitted
and regulated.
(2)
Public health activities, orders and regulations of the
State Department of Health, County Department of Health, City Department of
Health or other, as applicable, undertaken in compliance with § 24-0701,
Subdivision 5, of the State Environmental Conservation Law.
(3)
Activities subject to the review jurisdiction of the
State Public Service Commission or the New York State Board on Electric Generation
Siting and the Environment under Article 7 or Article 8 of the State Public
Service Law, respectively. The standards and restrictions of this chapter
will be applied by said bodies in determining whether to issue a certificate
of environmental compatibility and public need under such articles.
(4)
Any actual and ongoing emergency activity which is immediately
necessary for the protection and preservation of life or property or the protection
or preservation of natural resource values. Such emergency activities include,
for example, search and rescue operations; preventive or remedial activities
related to large-scale contamination of streams or other bodies of water,
floods, hurricanes and other storms; and public health concerns. Within five
days of the end of such an emergency involving the undertaking of any activity
which otherwise would be treated as a regulated activity under this chapter,
the person chiefly responsible for undertaking such emergency activity shall
send a written statement to the agency setting forth the pertinent facts regarding
such emergency, including an explanation of the life, property or resource
values such activity was designed to protect or preserve.
(5)
Any activity located in a freshwat er wetland where
such wetland is located in more than one town or village.
A.
Any person proposing to conduct or cause to be conducted
a regulated activity requiring a permit under this chapter upon any freshwater
wetland or adjacent area shall file an application for a permit with the Clerk
of the village. The Clerk shall immediately forward such application to the
agency.
B.
An application for a permit shall be filed by the applicant
on a form prescribed by the agency. Such application shall set forth the purpose,
character and extent of the proposed regulated activity. The application shall
include a detailed description of the regulated activity, a map showing the
area of freshwater wetland or adjacent area directly affected, with the location
of the proposed regulated activity thereon, a deed or other legal description
describing the subject property and such additional information as the agency
deems sufficient to enable it to make the findings and determination required
under this chapter.
C.
The application shall be accompanied by a list of the
names of the owners of record of lands adjacent to the freshwater wetland
or adjacent area upon which the project is to be undertaken and the names
of known claimants of water rights, of whom the applicant has notice, which
relate to any land within or within 100 feet of the boundary of the property
on which the proposed regulated activity will be located.
D.
An application shall not be deemed to be completed or
received until the agency determines that all such information, including
any additional information requested, has been supplied in a complete and
satisfactory form.
E.
The Clerk of the village shall cause a copy of such completed
application to be mailed to all local governments where the proposed activity
or any part thereof is located.
A.
Within five days of its receipt of a completed application
for a permit regarding a proposed regulated activity, the agency shall provide
the applicant with a notice of application which the applicant shall publish
at his or her own expense at least once in a newspaper having a general circulation
in the village.
B.
Said notice of application shall be in a form prescribed
by the agency and shall:
(1)
Specify that persons wishing to object to the application
should file a notice of objection by a specified date, together with a statement
of the precise grounds of objection to the application, with the agency.
(2)
Specify that if no notices of objection are timely filed
or if the agency determines that the proposed activity is of such a minor
nature as to not affect or endanger the balance of systems within any freshwater
wetland, then the agency, in its discretion, may determine a hearing is not
necessary and dispense with the public hearing.
(3)
Specify that the application, including all documents
and maps therewith, is available for public inspection at the office of the
Clerk of the village.
C.
Notwithstanding any other provision of this section,
the agency may in its discretion dispense with the requirement for a notice
of application and require a notice of hearing pursuant to this article.
A.
No sooner than 30 days and not later than 60 days after its receipt of a completed application for a permit regarding a proposed regulated activity and after the publication of a notice of application pursuant to § 161-7, the agency shall hold a public hearing on such application at a suitable location, which hearing shall be held pursuant to the provisions of § 161-11.[1]
B.
Notwithstanding the provisions of Subsection of this section, where no notice of objection to the notice of application published pursuant to § 161-7 of this chapter shall have been filed within the time specified by that notice or where the agency determines that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within any freshwater wetland, the agency may, in its discretion, dispense with such hearing. Where the agency finds that a public hearing is not necessary, it shall publish a decision setting forth its reasons therefor, which decision shall be a matter of public record and shall be mailed to each local government where the proposed regulated activity or any part thereof will be located. Public notice of such decision that a public hearing is not necessary shall be provided in the same manner as notice of application set forth in § 161-7 of this chapter.
A.
The agency shall, within 21 days of receipt of a completed
application, provide the applicant with a notice of hearing which the applicant
shall publish at his or her own expense at least 15 days prior to the date
set for the hearing, at least once in a newspaper of general circulation in
the village.
B.
At least 15 days prior to the date set for the hearing,
the agency shall by certified mail provide a notice of hearing to each local
government within whose boundaries the proposed regulated activity or any
portion thereof will be located.
C.
At least 15 days prior to the date set for the hearing,
the agency shall, by certified mail, provide notice of hearing to all owners
of record of land adjacent to the affected freshwater wetland or adjacent
area and to all known claimants of water rights, of whom the applicant has
notice, which relate to any land within, or within 100 feet of the boundary
of, the property on which the proposed regulated activity will be located.
D.
The notice of hearing shall:
(1)
State the name of the applicant.
(2)
Specify the location and outline the scope of the proposed
regulated activity.
(3)
Specify the date, time and place of the public hearing
on the application.
(4)
Specify that persons wishing to be parties in interest
and eligible to be heard at such public hearing, if any, should file a notice
of appearance by a specified date, together with a statement of the precise
grounds of support of, opposition to or interest in the application, with
the agency.
(5)
Specify that any person who wishes to be a party in interest
without filing a notice of appearance may do so by appearing at the public
hearing and indicating his or her desire to be a party in interest, if a public
hearing is held.
(6)
Specify that if no notices of appearance are timely filed
by any party in interest and if the applicant waives any public hearing, then
the public hearing may be canceled by the agency.
(7)
Specify that the application, including all documents
and maps therewith, is available for public inspection at the office of the
Clerk of the village.
E.
The agency shall make the application, including all
documents and maps associated with it, available for public inspection at
the office of the Clerk of the village.
F.
If no timely notice of appearance has been filed as provided in the notice of hearing published pursuant to Subsections A through D of this section and the applicant waives, in writing, any public hearing on his or her application, the agency may dispense with a public hearing and in such instance shall provide public notice of the cancellation of the hearing.
The agency may establish permit fees to assist its implementation of
this chapter.
A.
Any public hearing held on a permit application received
under this chapter shall be conducted by a hearing officer designated by the
agency. The hearing officer shall have full authority to control the conduct
and procedure of the hearing and shall be responsible that a complete record
of the hearing be kept.[1]
B.
Any person may appear as a party in interest, notwithstanding
the failure of such person to file a timely notice of appearance, by appearing
at the hearing and making known his or her desire to be a party in interest.
Persons who are not parties in interest may be allowed to participate in the
hearing where the hearing officer finds that such participation would be in
the public interest.
C.
All parties in interest shall be afforded an opportunity
to present oral and written arguments on issues of law and policy and an opportunity
to call witnesses in their behalf and to present oral and written evidence
on issues of fact. The hearing officer shall permit the parties in interest
to cross-examine witnesses but may limit such cross-examination to avoid the
introduction of irrelevant or repetitious material in the record of the hearing.
A.
Where a public hearing has been held regarding a permit
application, the agency shall either issue the permit requested, with or without
conditions, or deny the application. The decision by the agency to issue or
deny a permit after public hearing shall be based on the record of the hearing
and shall be made in writing within 30 days of the agency's receipt of
the hearing record.
B.
Where no public hearing regarding a permit application has been held, either because a hearing was determined not to be necessary pursuant to § 161-8C of this chapter or because no notice of appearance was filed with regard to the public hearing and the hearing was canceled pursuant to § 161-9, the agency shall compile an official file consisting of documents submitted by the applicant and all additional documents relied on by the agency with respect to the application. The agency may also take notice of general, technical or scientific facts within the specialized knowledge of the agency. Any document made part of such official file shall be available for inspection by the applicant or any interested member of the public. On the basis of such file, the agency shall either issue the permit requested with or without conditions, deny the application or order a public hearing to be held pursuant to the provisions of the law.
C.
The decision by the agency to issue or deny a permit
or to order that a hearing be held shall be based on the official file and
shall be made in writing within 30 days of its completion of the official
file and in any event within 60 days of its receipt of a completed application,
provided that in the case where there have been no objections filed regarding
a proposed project, the issuance of a permit shall be deemed to be a written
decision by the agency.
D.
A copy of the decision of the agency on each application
for a permit under this chapter shall be mailed by the agency as soon as practicable
following such decision to the applicant and to each local government within
whose boundaries the proposed regulated activity or any portion thereof is
located and if a public hearing has been held regarding the application, to
each party in interest.
A.
In granting, denying or conditioning any permit, the agency shall consider the effect of the proposed activity with reference to the public health and welfare, fishing, flood, hurricane and storm dangers and protection or enhancement of the several functions of the freshwater wetlands and the benefits derived therefrom which are set forth in § 161-3 of this chapter.
B.
No permit shall be issued by the agency pursuant to this
chapter unless the agency shall find that:
(1)
The proposed regulated activity is consistent with the
policy of this chapter to preserve, protect and conserve freshwater wetlands
and the benefits derived therefrom, to prevent the despoliation and destruction
of freshwater wetlands and to regulate the development of such wetlands in
order to secure the natural benefits of freshwater wetlands, consistent with
the general welfare and the beneficial economic, social and agricultural development
of the village.
(2)
The proposed regulated activity is consistent with the
land use regulations applicable in the village pursuant to § 24-0903
of Article 24 of the State Environmental Conservation Law.
(3)
The proposed regulated activity is compatible with the
public health and welfare.
(4)
The proposed regulated activity is reasonable and necessary.
(5)
There is no reasonable alternative for the proposed regulated
activity on a site which is not a freshwater wetland or adjacent area.
C.
The applicant shall have the burden of demonstrating
that the proposed regulated activity will be in accord with the standards
set forth in this section.
D.
Duly filed written notice by the state or any agency
or subdivision thereof to the agency, that the state or any such agency or
subdivision is in the process of acquiring the affected freshwater wetland
on which a proposed regulated activity would be located by negotiation or
condemnation shall be sufficient basis for denial of a permit for such regulated
activity. Such notice may be provided at any time prior to the agency's
decision to issue or deny a permit for the regulated activity.
A.
Any permit issued pursuant to this chapter may be issued
with conditions. Such conditions may be attached as are necessary to assure
the preservation and protection of affected freshwater wetlands and to assure
compliance with the policy and provisions of this chapter and the provisions
of the agency's rules and regulations adopted pursuant to this chapter.
B.
Every permit issued pursuant to this chapter shall contain
the following conditions:
(1)
The agency shall have the right to inspect the project
from time to time.
(2)
The permit shall expire on a date certain.
(3)
The permit holder shall notify the agency of the date
on which project construction is to begin, at least five days in advance of
such date.
(4)
The agency's permit shall be prominently displayed
at the project site during the undertaking of the activities authorized by
the permit.
C.
The agency shall set forth, in writing, in the file it
keeps regarding a permit application, its findings and reasons for all conditions
attached to any permit.
