N.Y. ENV Law § 34-0108 — New York Code / Act ENV / Article 34 / Section 34-0108
Rules and regulations
Status: in_force

§ 34-0108. Rules and regulations.\n  1. After consultation with affected state agencies and representatives\nof local governments, and after conducting public hearings and review of\nany other comments submitted, the commissioner shall adopt rules and\nregulations implementing the provisions of this article within one\nhundred eighty days after the effective date hereof.\n  2. The rules and regulations adopted by the commissioner shall include\na procedure pursuant to which any owner of land in an erosion hazard\narea identified pursuant to section 34-0104 of this article may appeal\nfrom the inclusion of such land in such erosion hazard area.  Such\nprocedure shall provide that the sole basis for such appeal shall be\ntechnical information indicating either (a) that the long-term average\nannual recession or other method used in identifying the erosion hazard\narea was incorrect, or (b) that an area has been identified as a natural\nprotective area erroneously, and that the commissioner shall decide such\nappeal within thirty days after receipt thereof, and shall adjust the\nboundaries of the identified erosion hazard area or identified natural\nprotective features accordingly.\n  3. The rules and regulations adopted by the commissioner pursuant to\nsections 34-0105, 34-0106 and 34-0107 of this article shall establish\nminimum standards and criteria to be applied to activities or\ndevelopment in erosion hazard areas. Such standards and criteria shall\nbe used to deny, condition or modify a proposed action, if necessary, to\nimplement the policies and purposes of this article. Standards and\ncriteria promulgated pursuant to this section shall include but shall\nnot be limited to:\n  (a) minimum setback requirements for structures within coastal erosion\nhazard areas taking into consideration recession rates, the useful life\nof the proposed structure, and the protection afforded by natural\nprotective features and existing erosion protection structures.\n  (b) regulation of activities or development, including placement of\nerosion protection structures or use of non-structural measures so there\nwill be no measurable increase in erosion to the development site or at\nother locations.\n  (c) regulation of activities or development, including placement of\nerosion protection structures, so as to minimize adverse effects upon\nnatural protective features, existing erosion protection structures or\nnatural resources, such as significant fish and wildlife habitat.\n  (d) standards and criteria shall provide that erosion protection\nstructures that are proposed for construction or reconstruction shall\nhave a reasonable probability of controlling long-term erosion on the\nimmediate site for a period of at least thirty years and that a\nlong-term maintenance program is provided for such structures; however\nsuch standards and criteria may allow for such protection structures to\nbe constructed of materials which by themselves have a working life of\nless than thirty years, when the maintenance program assures that they\nwill be regularly maintained and replaced as necessary to attain the\nrequired thirty years of erosion protection.\n  (e) restoration and stabilization standards for activities which are\nto be undertaken in connection with activities or development to insure\nthat land areas are maintained and where necessary restored to minimize\nerosion on the site or to other nearby lands.\n  4. The rules and regulations shall provide procedure pursuant to which\nthe strict application of their standards and criteria may be varied or\nmodified in cases where practical difficulty or unnecessary hardship is\nshown, provided that in granting any such variance, the following\ncriteria are met:\n  (a) for any proposed activities and development where public funds are\nutilized the public benefits clearly outweigh the long-range adverse\neffects.\n  (b) no reasonable prudent alternative site is available.\n  (c) all responsible means and measures to mitigate adverse impacts on\nnatural systems in the area have been incorporated into the project\ndesign and will be implemented at the developer's expense.\n  (d) the development will be reasonably safe from flood and erosion\ndamage.\n  (e) the variance provided will be the minimum necessary to overcome\nthe practical difficulty or unnecessary hardship which was the basis for\nrequesting such variance.\n  5. Notwithstanding section 34-0105 or 34-0106 of this article, in the\ncase of any department, bureau, commission, board or other agency of the\nstate, or any public benefit corporation, any member of which is\nappointed by the governor, a permit shall be obtained from the\ndepartment pursuant to section 34-0109 of this article provided,\nhowever, in cases where there is a local law or ordinance in effect the\ncommissioner shall make a finding prior to the issuance of the permit\nthat the conditions of such local law or ordinance have been met,\ninsofar as such conditions relate to the standards and criteria adopted\npursuant to section 34-0108 of this article.\n