2023 New York Laws › ENV - Environmental Conservation › Article 34 - Coastal Erosion Hazard Areas › 34-0108 - Rules and Regulations.

§ 34-0108. Rules and regulations.
1. After consultation with affected state agencies and representatives
of local governments, and after conducting public hearings and review of
any  other  comments  submitted,  the commissioner shall adopt rules and
regulations implementing the  provisions  of  this  article  within  one
hundred eighty days after the effective date hereof.
2. The rules and regulations adopted by the commissioner shall include
a  procedure  pursuant  to  which any owner of land in an erosion hazard
area identified pursuant to section 34-0104 of this article  may  appeal
from  the  inclusion  of  such  land in such erosion hazard area.   Such
procedure shall provide that the sole basis for  such  appeal  shall  be
technical  information  indicating either (a) that the long-term average
annual recession or other method used in identifying the erosion  hazard
area was incorrect, or (b) that an area has been identified as a natural
protective area erroneously, and that the commissioner shall decide such
appeal  within  thirty  days after receipt thereof, and shall adjust the
boundaries of the identified erosion hazard area or  identified  natural
protective features accordingly.
3.  The  rules and regulations adopted by the commissioner pursuant to
sections 34-0105, 34-0106 and 34-0107 of this  article  shall  establish
minimum   standards   and  criteria  to  be  applied  to  activities  or
development in erosion hazard areas. Such standards and  criteria  shall
be used to deny, condition or modify a proposed action, if necessary, to
implement  the  policies  and  purposes  of  this article. Standards and
criteria promulgated pursuant to this section shall  include  but  shall
not be limited to:
(a) minimum setback requirements for structures within coastal erosion
hazard  areas taking into consideration recession rates, the useful life
of the proposed  structure,  and  the  protection  afforded  by  natural
protective features and existing erosion protection structures.
(b)  regulation  of  activities or development, including placement of
erosion protection structures or use of non-structural measures so there
will be no measurable increase in erosion to the development site or  at
other locations.
(c)  regulation  of  activities or development, including placement of
erosion protection structures, so as to minimize  adverse  effects  upon
natural  protective  features, existing erosion protection structures or
natural resources, such as significant fish and wildlife habitat.
(d) standards and  criteria  shall  provide  that  erosion  protection
structures  that  are  proposed for construction or reconstruction shall
have a reasonable probability of controlling long-term  erosion  on  the
immediate  site  for  a  period  of  at  least  thirty  years and that a
long-term maintenance program is provided for such  structures;  however
such  standards and criteria may allow for such protection structures to
be constructed of materials which by themselves have a working  life  of
less  than  thirty years, when the maintenance program assures that they
will be regularly maintained and replaced as  necessary  to  attain  the
required thirty years of erosion protection.
(e)  restoration  and stabilization standards for activities which are
to be undertaken in connection with activities or development to  insure
that  land areas are maintained and where necessary restored to minimize
erosion on the site or to other nearby lands.
4. The rules and regulations shall provide procedure pursuant to which
the strict application of their standards and criteria may be varied  or
modified  in cases where practical difficulty or unnecessary hardship is
shown, provided that  in  granting  any  such  variance,  the  following
criteria are met:
(a) for any proposed activities and development where public funds are
utilized  the  public  benefits  clearly outweigh the long-range adverse
effects.
(b) no reasonable prudent alternative site is available.
(c)  all responsible means and measures to mitigate adverse impacts on
natural systems in the area have  been  incorporated  into  the  project
design and will be implemented at the developer's expense.
(d)  the  development  will  be reasonably safe from flood and erosion
damage.
(e) the variance provided will be the minimum  necessary  to  overcome
the practical difficulty or unnecessary hardship which was the basis for
requesting such variance.
5.  Notwithstanding section 34-0105 or 34-0106 of this article, in the
case of any department, bureau, commission, board or other agency of the
state, or any  public  benefit  corporation,  any  member  of  which  is
appointed  by  the  governor,  a  permit  shall  be  obtained  from  the
department  pursuant  to  section  34-0109  of  this  article  provided,
however,  in cases where there is a local law or ordinance in effect the
commissioner shall make a finding prior to the issuance  of  the  permit
that  the  conditions  of  such  local  law  or ordinance have been met,
insofar as such conditions relate to the standards and criteria  adopted
pursuant to section 34-0108 of this article.