[HISTORY: Adopted by the Board of Trustees of the Village of Spring
Valley 8-31-1976 as L.L. No. 9-1976 (Ch. 7 1/2 of the 1970 Code). Amendments
noted where applicable.]
This chapter shall be known as the "Freshwater Wetlands Protection Law
of the Village of Spring Valley."
It is declared to be the public policy of the Village of Spring Valley
to preserve, protect and conserve freshwater wetlands and the benefits derived
therefrom, to prevent the 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 beneficial economic,
social and agricultural development of the Village of Spring Valley. It is
further declared to be the policy of the Village of Spring Valley to exercise
its authority pursuant to Article 24 of the State Environmental Conservation
Law.
A.
The freshwater wetlands located in the Village of Spring
Valley are invaluable resources for flood protection, wildlife habitat, open
space and water resources.
B.
Considerable acreage of freshwater wetlands in the Village
of Spring Valley may be lost or impaired by unregulated draining, dredging,
filling, excavating, building, pollution or other acts inconsistent with the
natural uses of such areas. Other freshwater wetlands are in jeopardy of being
lost or impaired by such unregulated acts.
C.
Recurrent flooding aggravated or caused by the loss of
freshwater wetlands has serious effects upon natural ecosystems.
D.
Freshwater wetlands conservation is a matter of village
concern.
E.
Any loss of freshwater wetlands deprives the people of
the Village of Spring Valley of some or all of the many and multiple benefits
to be derived from wetlands, such as:
(1)
Flood and storm control, by the hydrologic absorption
and storage capacity of freshwater wetlands.
(2)
Wildlife habitat, by providing breeding, nesting and
feeding grounds and cover for many forms of wildlife, wildfowl and shorebirds,
including migratory wildfowl and rare species.
(3)
Protection of subsurface water resources and provisions
for valuable watersheds and recharging groundwater supplies.
(4)
Recreation, by providing areas for hunting, fishing,
boating, hiking, bird watching, photography, camping and other uses.
(5)
Pollution treatment, by serving as biological and chemical
oxidation basins.
(6)
Erosion control, by serving as sedimentation areas and
filtering basins, absorbing silt and organic matter and protecting channels
and harbors.
(7)
Education and scientific research, by providing readily
accessible outdoor biophysical laboratories, living classrooms and training
and education resources.
(8)
Open space and aesthetic appreciation.
(9)
Sources of nutrients in freshwater food cycles and nursery
grounds and sanctuaries for freshwater fish.
F.
Regulation of freshwater wetlands, in accordance with the agricultural exemption established in § 130-5 hereof, is consistent with the legitimate interests of farmers and other landowners to graze and water livestock, make reasonable use of water resources, harvest natural products of the wetlands, selectively cut timber and otherwise engage in the use of land for agricultural production.
The following terms, phrases, words and their derivatives shall have
the meanings given herein:
Any land in the Village of Spring Valley immediately adjacent to
a freshwater wetland lying within one hundred (100) feet, measured horizontally,
of the boundary of a freshwater wetland.
The Board of Trustees of the Village of Spring Valley.
Any person who files an application for any permit issued by the
Agency pursuant to this chapter and includes the agent of the owner or a contract
vendee.
The Freshwater Wetlands Appeals Board established by Article 24 of
the State Environmental Conservation Law.
The outer limit of the vegetation specified in Subsections A and
B of the definition of "freshwater wetlands" and of the waters specified in
Subsection C of such definition.
Lands and waters lying within the boundaries of the Village of Spring
Valley as shown on a freshwater wetlands map which contain any or all of the
following:
Lands and submerged lands commonly called "marshes," "swamps," "sloughs,"
"bogs" and "flats," supporting aquatic or semiaquatic vegetation of the following
vegetative types:
Wetland trees, which depend upon seasonal or permanent flooding or sufficiently
waterlogged soils to give them a competitive advantage over other trees; including,
among others, red maple (Acer rubrum), willows (Salix spp.), black spruce
(Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica),
American elm (Ulmus americana) and larch (Larix laricina).
Wetland shrubs, which depend upon seasonal or permanent flooding or
sufficiently waterlogged soils to give them a competitive advantage over other
shrubs; including, among others, alder (Alnus spp.), buttonbush (Cephalanthus
occidentalis), bog rosemary (Andromeda glaucophylla) and leatherleaf (Chamaedaphne
calyculata).
Emergent vegetation, including, among others, cattails (Typha spp.),
pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra
virginica), arrowheads (Sagittaria spp.), reed (Phragmites communis), wild
rice (Zizania aquatica), bur reeds (Sparganium spp.), purple loosestrife (Lythrum
salicaria), swamp loosestrife (Decodon verticillatus) and water plantain (Alisma
Plantago-aquatica).
Rooted, floating-leved vegetation, including, among others, water lily
(Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar
spp.).
Free-floating vegetation, including, among others, duckweed (Lemna spp.),
big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.).
Wet meadow vegetation, which depends upon seasonal or permanent flooding
or sufficiently waterlogged soils to give them a competitive advantage over
other open land vegetation; including, among others, sedges (Carex spp.),
rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides),
reed canary grass (Phalaris arundinacea), swamp loosestrife (Decodon verticillatus)
and spikerush (Eleocharis spp.).
Bog mat vegetation, including, among others sphagnum mosses (Sphagnum
spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata),
pitcher plant (Sarracenia purpurea) and cranberries (Vaccinium macrocarpon
and V. oxycoccos).
Submergent vegetation, including, among others, pondweeds (Potamogeton
spp.), naiads (Naias spp.), bladderworts (Utricularia spp.), wild celery (Vallisneria
americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum
spp.), waterweeds (Elodea spp.) and water smartweed (Polygonum amphibium).
Lands and submerged lands containing remnants of any vegetation that
is not aquatic or semiaquatic that has died because of wet conditions over
a sufficiently long period, provided that such wet conditions do not exceed
a maximum seasonal water depth of six (6) feet; and provided, further, that
such conditions can be expected to persist indefinitely, barring human intervention;
A map on which are indicated the boundaries of any freshwater wetland
and which has been filed with the Clerk of the Village of Spring Valley by
the State Department of Environmental Conservation pursuant to § 24-0301
of the State Environmental Conservation Law.
A city, county, town or village.
The applicant, the Agency, the State Department of Environmental Conservation, each local government in which the regulated activity or any part thereof is located and any person who appears and wishes to be a party in interest at the public hearing held pursuant to § 130-7 of this chapter.
Any corporation, firm, partnership, association, trust, estate, one
(1) or more individuals and any unit of government or agency or subdivision
thereof.
The presence in the environment of human-induced conditions or contaminants
in quantities or characteristics which are or maybe injurious to humans, plants,
animals or property.
Any action which may result in direct or indirect physical impact
on a freshwater wetland, including but not limited to any regulated activity.
Any form of draining, dredging, excavation of soil, mud, sand, shells, gravel or other aggregate from any freshwater wetland, either directly or indirectly; any form of dumping, filling or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly; erecting any structures or roads, the driving of pilings or placing of any other obstructions, whether or not changing the ebb and flow of the water; 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 directly into or so as to drain into a freshwater wetland; that portion of any subdivision of land that involves any land in any freshwater wetland or adjacent area; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom which are set forth in § 130-3 of this chapter.
The annual or periodic removal of trees, individually or in small
groups, in order to realize the yield and establish a new crop and to improve
the forest, which removal does not involve the total elimination of one (1)
or more particular species of trees.
The State of New York.
Any state department, bureau, commission, board or other agency,
public authority or public benefit corporation.
Shall have the same meaning as provided for in the land subdivision
regulations of the Village of Spring Valley.[1]
The Village of Spring Valley.
A.
Except as provided in Subsection B of this section, no person shall conduct a regulated activity on any freshwater wetland or within one hundred (100) feet thereof 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,
shell fishing, aquaculture, hunting or trapping, where otherwise legally permitted
and regulated.
(2)
The activities of farmers and other landowners in grazing
and watering livestock, making reasonable use of water resources, harvesting
natural products of the wetlands, selectively cutting timber, draining land
or wetlands for growing agricultural products and otherwise engaging in the
use of wetlands or other land for growing agricultural products, except that
structures not required for enhancement or maintenance of the agricultural
productivity of the land and any filling activities shall not be excluded
hereunder.[1]
(3)
Public health activities, orders and regulations of the
Rockland County Health Department undertaken in compliance with § 24-0701,
Subdivision 5, of the State Environmental Conservation Law.
(4)
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 VII or Article VIII 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.
(5)
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
(5) days of the end of such an emergency, 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.
(6)
Any activity located in a freshwater wetland where such
wetland is located in more than one (1) municipality.
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 within one hundred (100) feet thereof shall file an application
for a permit with the Board of Trustees of the Village of Spring Valley.
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 proposed 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 determinations required
under this chapter.
(1)
The application shall be accompanied by a list of the
names of the owners of record of lands adjacent to the freshwater wetland
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 one hundred (100) feet of the boundary of the property on
which the proposed regulated activity will be located.
(2)
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.
C.
The Board of Trustees of the Village of Spring Valley
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.
D.
[1]Within five (5) 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 each in two (2) newspapers having
general circulation in the area.
(1)
Said notice of application shall be in a form prescribed
by the Agency and shall:
(a)
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.
(b)
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.
(c)
Specify that the application, including all documents
and maps therewith, is available for public inspection at the office of the
Village Clerk of the Village of Spring Valley.
E.
Public hearing.
(1)
No sooner than thirty (30) days and not later than sixty (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 Subsection D of this section, together with proof of publication thereof, the Agency shall hold a public hearing on such application at the Village Hall in the Village of Spring Valley, which hearing shall be held pursuant to the provisions of § 130-7 of this chapter.[2]
(2)
Notwithstanding the provisions of Subsection E(1) of this section, where no notice of objection to the notice of application published pursuant to Subsection D of this section 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 Subsection D of this section.
F.
Notice of hearing.
(1)
The Agency shall, within twenty-one (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 fifteen
(15) days prior to the date set for the hearing at least once each in two
(2) newspapers having general circulation in the area.[3]
(2)
At least fifteen (15) days prior to the date set for
the hearing, the Agency shall, by certified mail, cause notice of such hearing
to be mailed to each local government within whose boundaries the proposed
regulated activity or any portion thereof will be located.[4]
(3)
At least fifteen (15) days prior to the date set for
the hearing, the Agency shall, by certified mail, cause notice of such hearing
to be mailed to all owners of record of land adjacent to the affected freshwater
wetland and to all known claimants of water rights, of whom the applicant
has notice, which relate to any land within or within one hundred (100) feet
of the boundary of the property on which the proposed regulated activity will
be located.[5]
(4)
The notice of hearing shall:
(a)
State the name of the applicant.
(b)
Specify the location and outline the scope of the proposed
regulated activity.
(c)
Specify the date, time and place of the public hearing
on the application.
(d)
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.
(e)
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.
(f)
Specify that the application, including all documents
and maps therewith, is available for public inspection at the office of the
Village Clerk of the Village of Spring Valley.
G.
The Agency shall make the application, including all
documents and maps associated with it, available for public inspection at
the office of the Village Clerk of the Village of Spring Valley.
H.
If no timely notice of appearance has been filed as provided in the notice of hearing published pursuant to Subsection F 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.
I.
For any notice canceling a hearing which has been scheduled, notice shall be given on the same basis as the notice of public hearing provided in Subsection F of this section.
J.
The Agency may establish permit fees to assist in its
implementation of this chapter.
A.
Any public hearing held on a permit application received
under this chapter may be conducted by the Mayor of the Village of Spring
Valley. The public hearing shall be held within the Village of Spring Valley.
B.
At such hearing, any person or persons filing a request
for a hearing or a timely notice of appearance may appear and be heard.
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.
B.
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 thirty (30) days of the date of the hearing, unless
extended by mutual consent of the applicant and the Agency.
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 damages and protection or enhancement of the several functions of the freshwater wetlands and the benefits derived therefrom which are set forth in § 130-3 of this chapter.
B.
The applicant shall have the burden of demonstrating
that the proposed activity will be in accordance with the policies and provisions
of the State Environmental Conservation Law, Article 24.
C.
Duly filed written notice by the state of 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 may impose conditions and limitations
designed to carry out public policy set forth within Article 24 of the State
Environmental Conservation Law. 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.
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.
In order to carry out the purposes and provisions of this chapter, the
Agency shall have the power to adopt, amend and repeal, after public hearing,
such rules and regulations, consistent with this chapter, as it deems necessary
to administer this chapter and to do any and all things necessary or convenient
to carry out the purpose and policies of this chapter.
A.
To the greatest extent practicable, any public hearing held pursuant to § 130-7 of this chapter shall be incorporated with any public hearing by or pursuant to the New York State Village Law, General City Law, General Municipal Law or Environmental Conservation Law relating to approvals or permits otherwise required for the undertaking of regulated activities on the freshwater wetland or adjacent area in question.
B.
No permit granted pursuant to this chapter shall remove
any persons' obligation to comply in all respects with the applicable provisions
of any other federal, state or local law or regulation, including but not
limited to the acquisition of any other required permit or approval.
A.
The Agency may require that, prior to commencement of
work under any permit issued pursuant to this chapter, the permittee shall
post a bond with the Agency, in an amount determined by the Agency, conditioned
upon the faithful compliance with the terms of such permit and for the indemnification
of the Village of Spring Valley for restoration costs resulting from failure
to so comply. Such bond shall be issued by a corporate surety authorized to
do business in the state and shall be in favor of the Village of Spring Valley.
It shall remain in effect until the Agency certifies that the work has been
completed in compliance with the terms of the permit or the bond is released
by the Agency or a substitute bond is provided.
B.
The Agency shall set forth, in writing, in the file it
keeps regarding a permit application, its findings and reasons for imposing
a bond pursuant to this section.
A.
The Agency may suspend or revoke a permit issued pursuant
to this chapter where it finds that the permittee has not complied with any
or all terms of such permit, has exceeded the authority granted in the permit
or has failed to undertake the project in the manner set forth in the application.
B.
The Agency shall set forth, in writing, in the file it
keeps regarding a permit application, its findings and reasons for revoking
or suspending a permit pursuant to this section.
A.
Administrative sanctions. Any person who violates, disobeys
or disregards any provision of this chapter, including any provision of any
permit issued pursuant to this chapter or any rule or regulation adopted by
the Agency pursuant to this chapter, shall be liable to the people of the
state for a civil penalty not to exceed three thousand dollars ($3,000.) for
every such violation, to be assessed, after a hearing or opportunity to be
heard upon due notice and with the rights to specification of the charges
and representation by counsel at such hearing, by the Agency. Such penalty
may be recovered in an action brought by the Attorney General at the request
and in the name of the Agency in any court of competent jurisdiction. Such
civil penalty may be released or compromised, and any action commenced to
recover the same may be settled and discontinued by the Attorney General with
the consent of the Agency. In addition, the Agency shall have power, following
a hearing held in conformance with the procedures set forth in § 71-1709
of the State Environmental Conservation Law, to direct the violator to cease
his or her violation of this chapter and to restore the affected freshwater
wetland to its condition prior to the violation, insofar as that is possible
within a reasonable time and under the supervision of the Agency. Any such
order of the Agency shall be enforceable in an action brought by the Attorney
General at the request and in the name of the Agency in any court of competent
jurisdiction. Any civil penalty or order issued by the Agency pursuant to
this subsection shall be reviewable in a proceeding pursuant to Article 78
of the State Civil Practice Law and Rules.
B.
Criminal sanctions. Any person who violates an order,
permit or rule or regulation of the Agency regulating freshwater wetlands
and adjacent areas pursuant to this chapter shall, in addition, for the first
offense, be guilty of a violation punishable by a fine of not less than five
hundred dollars ($500.) nor more than one thousand dollars ($1,000.); for
a second and each subsequent offense, he or she shall be guilty of a misdemeanor
punishable by a fine of not less one thousand dollars ($1,000.) nor more than
two thousand dollars ($2,000.) or a term of imprisonment of not less than
fifteen (15) days nor more than six (6) months, or both. Instead of these
punishments, any offender may be punishable by being ordered by the court
to restore the affected freshwater wetland to its condition prior to the offense,
insofar as that is possible. The court shall specify a reasonable time for
the completion of such restoration, which shall be effected under the supervision
of the Agency. Each offense shall be a separate and distinct offense and,
in the case of a continuing offense, each day's continuance thereof shall
be deemed a separate and distinct offense.
A.
The Attorney General, upon his or her own initiative
or upon complaint of the Agency, shall prosecute persons alleged to have violated
any such order of the Agency pursuant to this chapter.
B.
The Agency shall have the right to seek equitable relief
to restrain any violation or threatened violation of any provisions of this
chapter.
A.
Any decision or order of the Agency or any officer or
employee thereof made pursuant to or within the scope of this chapter may
be reviewed at the instance of any municipal corporation or person affected
thereby by the Board in accordance with Title 11 of Article 24 of the State
Environmental Conservation Law, provided that such review is commenced by
the filing with the Board of a notice of review within thirty (30) days after
service of such order or notice of such decision given, as the case may be.
B.
Any party to any proceeding before the Agency may make
an appeal to the Board in accordance with Title 11 of Article 24 of the State
Environmental Conservation Law from any order or decision of the Agency or
any officer or employee thereof issued or made pursuant to or within the scope
of this chapter, provided that such appeal is commenced by the filing with
the Board of a notice of appeal within thirty (30) days after service of such
order or after notice of such decision given, as the case may be.
C.
Any decision or order of the Agency or any officer or
employee thereof made pursuant to or within the scope of this chapter may
be reviewed at the instance of any person, in accordance with Article 78 of
the State Civil Practice Law and Rules, provided that such review is commenced
within thirty (30) days of the filing of such decision or order; and the limitation
upon the availability of such remedy as prescribed in § 7801 of
the Civil Practice Law and Rules shall not be applicable to the applications
for review of determinations and orders made pursuant to this chapter.
D.
The institution of a judicial proceeding to review a
determination or order of the Agency shall preclude the institution of a proceeding
before the Board to review such determination or order. The availability of
such review by the Board shall not affect the right of any person to seek
review of a determination of the Agency as provided in Article 78 of the State
Civil Practice Law and Rules.
