New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter X - DIVISION OF WATER RESOURCES › Subchapter A - GENERAL › Article 1 - MISCELLANEOUS RULES › Part 665 - Local Government Implementation Of The Freshwater Wetlands Act And Statewide Minimum Land-use Regulations For Freshwater Wetlands › Section 665.7 - Standards for issuance of permits

Current through Register Vol. 46, No. 28, July 10, 2024
(a) All persons proposing to conduct
					 activities on wetlands or adjacent areas that have not been specifically
					 exempted from regulation under section 24-0701 of the act or section
					 665.2(x)(1)-(3) 
					 of this Part must obtain either a permit or a letter of permission.
(b) The permit applicant or a person
					 requesting a letter of permission has the burden of establishing that the
					 applicable standards of this section will be met.
(c) In granting, denying or modifying a
					 permit, a local government must apply the standards for permit issuance
					 contained in this section in conjunction with the classification of the subject
					 wetland as indicated by the official map filed by the department. In applying
					 these standards, the local government must consider the effects of the proposed
					 activity regardless of political boundaries. In granting a letter of
					 permission, a local government must determine that the proposed activity
					 complies with the limits of the activities as stated in subdivision (g) of this
					 section.
(d) As shown in the chart
					 in subdivision (e) of this section, a determination of compatibility and a
					 weighing of need against benefits lost are the criteria for decisionmaking. The
					 three tests for compatibility must be used for all activities listed in the
					 minimum land-use regulations of subdivision (g) of this section that carry a
					 compatibility category of "C" or "N" as defined in subdivision (g) of this
					 section. Activities and land uses not listed in the minimum land-use
					 regulations also must be evaluated using the three-part compatibility test.
					 Activities designated as "LP" in subdivision (g) of this section have been
					 determined under the minimum land-use regulations to be compatible and no
					 further compatibility or weighing analysis need be performed before issuance of
					 a letter of permission as defined in section
					 665.2  of this Part.
					 Activities identified as "E" are exempt and do not require either a permit or
					 letter of permission. Exempt activities are included in subdivision (g) of this
					 section to assist local governments in determining regulatory procedures.
(1) When the three tests of compatibility
					 given in the chart in subdivision (e) of this section are met, no other
					 weighing standards need apply, regardless of the wetland's classification, and
					 a permit, with or without conditions, may be issued for the proposed activity.
					 In conjunction with the three-part test, the statewide minimum land-use
					 regulations contained in subdivision (g) of this section or a local variance
					 from them that has been duly adopted according to the provisions of section
					 665.8 
					 of this Part are the basis for determinations of compatibility.
(2) If the proposed activity cannot meet all
					 three tests of compatibility or if it is identified as "X," incompatible, then,
					 for a permit to be issued, the activity must meet each of the weighing
					 standards listed in the chart in subdivision (e) of this section for the
					 classification of the wetland that would be affected by the proposed
					 activity.
(3) If a local government
					 determines that a written request for a letter of permission exceeds the
					 thresholds identified in the items listed in subdivision (g) of this section, a
					 letter of permission may not be issued. Instead, the proposed action must be
					 tested for compatibility using the three-part test in subdivision (e) of this
					 section and a permit application must be processed pursuant to the act and this
					 Part. If there is a question or doubt as to whether any proposed activity being
					 reviewed for compatibility with the three-part test in subdivision (e) of this
					 section meets any of the three parts of the test, the action must be treated as
					 incompatible and the activity weighed according to the standards identified in
					 subdivision (e) of this section.