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 663 - FRESHWATER WETLANDS PERMIT REQUIREMENTS › Section 663.5 - Standards for issuance of permits and letters of permission

Current through Register Vol. 46, No. 28, July 10, 2024
(a) A person proposing to conduct an activity
					 that requires a permit or letter of permission, as described in section
					 663.4(d)  of this
					 Part, must meet the standards for permit issuance and receive a permit or
					 letter of permission prior to commencing that activity. The burden of showing
					 that the proposed activity will comply with the policies and provisions of the
					 act and this Part rests entirely on the applicant.
(b) A letter of permission will be issued
					 only if the commissioner has determined that the proposed activity will not
					 substantially alter or impair the functions or benefits of a wetland. Those
					 activities are identified as "LP" in section
					 665.7(g)  of this
					 Title, the statewide minimum land use regulations for freshwater wetlands, and
					 as "L" in the activities chart in section
					 663.4(d). In
					 granting a letter of permission, the commissioner must determine that the
					 proposed activity complies with the limits of the activities as stated in the
					 statewide minimum land use regulations contained in Part 665 of this
					 Title.
(c) In granting, denying or
					 modifying a permit, the commissioner shall apply the standards for permit
					 issuance contained in subdivision (e) of this section in conjunction with the
					 classification of the subject wetland as indicated on the official freshwater
					 wetlands map filed by the department, and as established in Part 664 of this
					 Title. In applying these standards, the commissioner will consider the effects
					 of the proposed activity regardless of political boundaries.
(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 and section
					 663.4(d)  of this
					 Part that carry a compatibility category of "C" or "N" as defined in Part 665
					 of this Title and in section
					 663.4(d).
					 Activities and land uses not listed in the minimum land use regulations or in
					 the procedures table in section
					 663.4(d)  also must
					 be evaluated using the three-part compatibility test. Activities designated as
					 "L" in section
					 663.4(d)  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
					 663.2(r).
					 Activities identified as "E" are exempt and do not require either a permit or
					 letter of permission. Exempt activities are included in section
					 663.4(d)  to assist
					 the department and applicants 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 or a local variance from them that has been duly adopted according
					 to the provisions of Part 665 of this Title 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 it is
					 determined that a written request for a letter of permission exceeds the
					 thresholds identified in the items listed in sections
					 665.7(g) and
					 663.4(d), 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 question or doubt as to whether any proposed activity being reviewed
					 for compatibility with the three-part test in subdivision (e) 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).