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 664 - Freshwater Wetlands Maps And Classification › Section 664.4 - Classification procedures

Current through Register Vol. 46, No. 28, July 10, 2024
(a) The
					 commissioner shall classify each wetland shown on the freshwater wetlands map
					 according to the classification system set forth in section
					 664.5  of
					 this Part. That system establishes four separate classes that rank wetlands
					 according to their ability to perform wetland functions and provide wetland
					 benefits. Class I wetlands have the highest rank, and the ranking descends
					 through classes II, III and IV.
(b)
					 When a wetland contains characteristics of more than one class, the wetland
					 shall be classified in the highest of the classes.
(c) If irreversible degradation has removed
					 the benefits associated with the particular characteristic(s) justifying a
					 classification, the wetland shall be classified on the basis of the remaining
					 characteristics. For example, a wetland could be irreversibly contaminated by
					 toxic substances that remove its benefits as habitat for fish and wildlife, or
					 could be irreversibly visually degraded, thus removing some or all of its
					 aesthetic, recreational and open-space benefits.
(d) Notwithstanding subdivision (c) of this
					 section, where land originally designated as a wetland on the map was altered
					 for agricultural purposes following the promulgation of that map, the land
					 shall continue to be classified in light of its wetland conditions, and the
					 wetland benefits set forth in section 24-0105 of the act and in this Part that
					 it provided, at the time of its original designation on the map.
(e) The classification of each wetland shall
					 be set forth in a written order by the commissioner. An explanation of the
					 reasons for the classification shall be on file in the appropriate regional
					 office(s) of the department. A copy of the classification order shall be filed
					 in the office of the clerk of each local government in which the wetland is
					 located and in the appropriate regional office(s) of the department. Notice of
					 each order shall also be given to the chief administrative officer of each
					 affected local government and to each owner of record, as shown on the latest
					 completed tax assessment rolls, of classified wetlands affected by the order,
					 and also shall be published in the department's environmental notice
					 bulletin.
(f) The commissioner may
					 raise or lower a classification on the basis of material new information or
					 materially changed wetland conditions. Notice of the order setting forth the
					 revised classification shall be given and published, and a copy of such order
					 shall be filed, as provided in subdivision (e) of this section.
(g) Any person may request of the department
					 a change in a wetland's classification by setting forth reasons for believing
					 the present classification to be incorrect. Such request shall be submitted in
					 writing in a form and manner prescribed by the department and shall set forth
					 material new information relevant to the wetland or materially changed
					 conditions of the wetland justifying the request. The request must include
					 evidence addressed to the classification system set forth in section
					 664.5  of
					 this Part, consisting of, for example, photographs identifying cover types
					 justifying a different classification; water samples; or the affidavit of an
					 expert. The department shall notify the person making the request within 15
					 working days as to whether the request is adequate to warrant consideration. If
					 the department deems the request adequate, the decision to reclassify the
					 wetland as requested, to retain the existing classification, or to change the
					 classification to another classification not so requested shall continue to be
					 at the discretion of the commissioner. Notice of any order setting forth a
					 revised classification shall be given and published, and a copy of such order
					 shall be filed, as provided in subdivision (e) of this section.
(h) Any person intending to submit an
					 application for a permit or a letter of permission may, in the course of a
					 preapplication conference held pursuant to subdivision (b) of section
					 663.4  of
					 this Title, or in the course of analogous discussions with a local government
					 that is administering the act, request in writing, in a form and manner
					 prescribed by the department, that the commissioner confirm the classification
					 of the wetland that would be affected by the proposed activity. Within 15
					 working days of the department's receipt of the request, the commissioner shall
					 decide either to confirm the existing classification or to revise (either to
					 raise or lower) the classification on the basis of material new information or
					 materially changed wetland conditions. Within that same 15-day period, the
					 department shall send notice of the decision confirming or revising the
					 classification to the person who submitted the request; and that person shall
					 not file a permit application until such notice has been provided. Where the
					 classification is revised, notice of the order setting forth the revised
					 classification shall also be given and published, and a copy of such order
					 shall be filed, as provided in subdivision (e) of this section. Once the
					 wetland's classification has been confirmed or revised pursuant to this
					 subdivision and the permit application that was the subject of the
					 preapplication conference has been filed, no further department-initiated
					 change in the wetland's classification shall change the standard for permit
					 issuance applied to that application.
(i) If there is a public hearing on a permit
					 application, then once that hearing has commenced, no department-initiated
					 change in the wetland's classification shall change the standard for permit
					 issuance applied to that application. However, any other party to such a
					 hearing may request a change in the existing classification of that wetland in
					 the same manner and under the same conditions as set forth in subdivision (g)
					 of this section. Within five working days of its receipt of the request, the
					 department must determine whether the request is adequate to warrant
					 consideration. If the department deems the request adequate, the commissioner
					 must act upon the request; either to reclassify the wetland as requested, to
					 retain the existing classification, or to change the classification to another
					 classification not so requested; within 15 working days from the date of the
					 request, and before the permit hearing may continue.