N.Y. Comp. Codes R. & Regs. tit. 10 § 128-3.9

Current through Register Vol. 46, No. 25, June 18, 2024

Section 128-3.9 - Stormwater pollution prevention plans and impervious surfaces

(a) Impervious surfaces.

(1) The construction of an impervious surface within the limiting distance of 100 feet of a watercourse or wetland, or within the limiting distance of 300 feet of a reservoir, reservoir stem, or controlled lake, is prohibited.

(2) Paragraph (1) of this subdivision shall not apply to the following activities:

(i) construction of a new individual residence, which shall comply with paragraph (5) of this subdivision, or non-commercial ancillary improvements or additions to an individual residence;

(ii) agricultural activities;

(iii) construction of bridges or crossings of watercourses or wetlands constructed pursuant to a valid permit from the appropriate regulatory agencies. If a permit from a regulatory agency other than the department is not required, the applicant shall comply with paragraph (9) of this subdivision;

(iv) creation of an impervious surface to alter or modify a wastewater treatment plant approved by the department;

(v) creation of an impervious surface that is made necessary by the construction of a new facility or alteration or modification of an existing facility used in connection with the operation of a public water supply system; or

(vi) creation of an impervious surface, such as a culvert, needed as an integral component of diversion or piping of a watercourse, but only with the review and approval of the department and only if the department determines that such impervious surface will not have an adverse impact on water quality.

(3) Paragraph (1) of this subdivision shall not apply to creation of an impervious surface in the west of Hudson watershed within a village, hamlet, village extension, or area zoned for commercial or industrial uses, which complies with paragraph (8) of this subdivision or to the creation of an impervious surface in the east of Hudson watershed within a designated main street area, which complies with paragraph (11) of this subdivision.

(4) Paragraph (1) of this subdivision shall not apply to the creation of an impervious surface in connection with the following activities occurring in the east of Hudson watershed outside a designated main street area or in the west of Hudson watershed outside a village, hamlet, village extension, or an area zoned for commercial or industrial uses:

(i) construction of a new road or driveway, or widening of an existing road, which shall comply with paragraph (6) of this subdivision;

(ii) creation of an impervious surface within a designated village center, which shall comply with paragraph (7) of this subdivision; or

(iii) expansion of an existing impervious surface within the limiting distance of 100 feet of a watercourse or wetland, at an existing commercial or industrial facility, provided that the total area of all expanded impervious surfaces does not exceed 25 percent of the area of the existing impervious surface at that commercial or industrial facility, which shall comply with subdivisions (b), (c) and (d) of this section.

(5) The following requirements are applicable to construction of a new individual residence:

(i) whether or not a new individual residence will be located in a subdivision, construction of a new individual residence within the limiting distance of 300 feet of a reservoir, reservoir stem, or controlled lake is prohibited;

(ii) construction of a new individual residence in a subdivision within the limiting distance of 100 feet of a watercourse or wetland is prohibited where:

(a) the subdivision plat received preliminary approval on or after October 16, 1995; or

(b) the subdivision plat received preliminary approval before October 16, 1995, the person who owned the subdivision on October 16, 1995 was the same person, or a principal or affiliate of the person, who owned the subdivision at the time the subdivision plat received preliminary approval, and construction activity related to infrastructure improvements for the subdivision had not begun as of October 16, 1995;

(iii) construction of a new individual residence not in a subdivision, or in a subdivision approved before October 16, 1995 and not prohibited by clause (ii)(b) of this paragraph, within the limiting distance of 100 feet of a perennial stream or wetland requires an individual residential stormwater permit from the department, pursuant to subdivision (e) of this section.

(6) The following requirements are applicable to construction of an impervious surface for a new road or driveway or the widening of an existing road:

(i) Construction of an impervious surface for a new road or driveway within the limiting distance of 300 feet of a reservoir, reservoir stem or controlled lake is prohibited, except paving an existing dirt or gravel road is permitted. Construction of a new impervious surface by paving an existing dirt or gravel road requires a Stormwater Pollution Prevention Plan which complies with subdivisions (b), (c) and (d) of this section.

(ii) Construction of an impervious surface for a new road within the limiting distance of 50 feet of an intermittent stream or wetland, or within the limiting distance of 100 feet of a perennial stream is prohibited, except for paving an existing dirt or gravel road or where necessary to provide an access road to two or more parcels or to a subdivision. Construction of an impervious surface for paving such existing dirt or gravel road or for such a new access road requires a Stormwater Pollution Prevention Plan which complies with the requirements of subdivisions (b), (c) and (d) of this section. Any access road constructed pursuant to this paragraph shall be constructed as far as practicable from all watercourses and wetlands.

(iii) Construction of an impervious surface for a new road between the limiting distances of 50 feet and 100 feet of an intermittent stream or wetland requires a Stormwater Pollution Prevention Plan which complies with the requirements of subdivisions (b), (c) and (d) of this section.

(iv) Construction of an impervious surface for a driveway within the limiting distance of 50 feet of an intermittent stream or wetland, or within the limiting distance of 100 feet of a perennial stream is prohibited except where necessary to provide access to an existing home or a new individual residence allowed to be constructed within such limiting distances pursuant to paragraph (5) of this subdivision. If construction of the individual residence served by the driveway would require a Stormwater Pollution Prevention Plan or an individual residential stormwater permit, construction of the impervious surface for the driveway shall also require a Stormwater Pollution Prevention Plan or an individual residential stormwater permit, respectively.

(v) Widening of an existing road located within the limiting distance of 50 feet of an intermittent stream or wetland, within the limiting distance of 100 feet of a perennial stream, or within the limiting distance of 300 feet of a reservoir, reservoir stem or controlled lake shall be performed on the side of such existing road furthest from the watercourse, wetland, reservoir, reservoir stem or controlled lake, to the extent practical.

(7) The following requirements are applicable to creation of an impervious surface within a designated village center:

(i) A local government in the Croton System may delineate an area within the local government's boundaries to be a designated village center in a Comprehensive Croton Water Quality Protection Plan prepared and agreed to in accordance with section 128-8.2 of this Part. Such designated village center shall comply with the requirements of this paragraph with regard to the construction of impervious surfaces.

(ii) Within a designated village center the construction of a new impervious surface within the limiting distance of 100 feet of a watercourse or wetland, or within the limiting distance of 300 feet of a reservoir, reservoir stem, or controlled lake requires the review and approval of the department. An approval issued by the department pursuant to this subparagraph shall contain a determination by the department that there is no reasonable alternative to the creation of the proposed new impervious surface within the applicable limiting distance and that the best available measures have been taken to prevent adverse impacts on the quality of the drinking water supply.

(8) The following requirements are applicable to creation of an impervious surface in the west of Hudson watershed within a village, hamlet, village extension or area zoned for commercial or industrial uses:

(i) Creation of any new impervious surface within the limiting distance of 100 feet of a watercourse or wetland, or within the limiting distance of 300 feet of a reservoir, reservoir stem or controlled lake, within a village, hamlet, village extension or area zoned for commercial or industrial uses as of the effective date of these rules and regulations, requires a Stormwater Pollution Prevention Plan which complies with the requirements of subdivisions (b), (c) and (d) of this section, except that the foregoing requirements of this subparagraph shall not apply to the creation of a new impervious surface for an activity set forth in paragraph (2) of this subdivision which complies with the provisions of paragraph (2) of this subdivision.

(ii) If a local government in the west of Hudson watershed adopts a zoning ordinance designating additional areas for commercial or industrial use after the effective date of these rules and regulations, it may apply to the department to allow construction of new impervious surfaces in the newly zoned commercial or industrial areas located within the limiting distance of 100 feet of a watercourse or wetland, or within the limiting distance of 300 feet of a reservoir, reservoir stem, or controlled lake. The department shall approve such application if the department determines that allowing new impervious surfaces in such newly zoned commercial or industrial area is consistent with the objectives of these rules and regulations and with previously approved zoning ordinances. If approved by the department, creation of new impervious surfaces within such newly zoned commercial or industrial areas within the aforesaid limiting distances shall be allowed subject to the requirements of subparagraph (i) of this paragraph.

(9) Construction of a bridge or crossing of a watercourse or wetland which does not require a permit from a regulatory agency other than the department shall require the review and approval of the department. Such bridge or crossing shall be constructed to prevent adverse impacts on the quality of the water supply.

(10) Maintenance of an existing impervious surface that is a noncomplying regulated activity shall not require the review and approval of the department.

(11) The following requirements are applicable to creation of an impervious surface in the east of Hudson watershed within a designated main street area:

(i) Creation of any new impervious surface within a designated main street area requires a Stormwater Pollution Prevention Plan which complies with the requirements of subdivisions (b), (c), and (d) of this section, except that the foregoing requirements of this subparagraph shall not apply to the creation of a new impervious surface for an activity set forth in paragraph (2) of this subdivision which complies with the provisions of paragraph (2) of this subdivision.

(ii) Within 30 days of the effective date of these rules and regulations, a local government may define by metes and bounds, tax maps or other geographic boundaries a proposed designated main street area within its boundaries, and apply to the department for approval of such proposal. Within 30 days of such application the department may approve, disapprove, or approve with modifications, such designated main street area. If the department disapproves the application, the local government shall have an additional 30 days in which to submit a revised application for approval of the proposed designated main street area, and the department shall approve or disapprove the application within 30 days of receipt of such revised application. The department will approve only a limited number of designated main street areas and local governments may not designate all areas of population concentrations in the east of Hudson watershed as designated main street areas. The approved boundary description of a designated main street area shall be made available by the department for public inspection at its field offices in the east of Hudson watershed.

(b) Stormwater Pollution Prevention Plans.

(1) Stormwater Pollution Prevention Plans shall not be required to be prepared pursuant to this section for agricultural and silvicultural activities.

(2) Stormwater Pollution Prevention Plans shall not be required to be prepared pursuant to this section for clear cutting and mining activities, provided, however, that such activities shall be subject to the requirements set forth in the applicable New York State Department of Environmental Conservation SPDES permit which may be required pursuant to Environmental Conservation Law, section 17-0808.

(3) Stormwater Pollution Prevention Plans shall be prepared for the activities listed in this paragraph. Such plans shall be prepared and implemented in accordance with the requirements of Part III of the New York State Department of Environmental Conservation General Permit No. GP-93-06. Such plans shall also be subject to the prior review and approval of the department. The activities are:

(i) plans for development or sale of land that will result in the disturbance of five or more acres of total land area as described in General Permit No. GP-93-06;

(ii) construction of a subdivision;

(iii) construction of a new industrial, municipal, commercial, or multi-family residential project that will result in creation of an impervious surface totaling over 40,000 square feet in size;

(iv) a land clearing or land grading project, involving two or more acres, located at least in part within the limiting distance of 100 feet of a watercourse or wetland, or within the limiting distance of 300 feet of a reservoir, reservoir stem or controlled lake or on a slope exceeding 15 percent;

(v) construction of a new solid waste management facility or alteration or modification of an existing solid waste management facility within 300 feet of a watercourse or wetland or 500 feet of a reservoir, reservoir stem or controlled lake;

(vi) construction of a gasoline station;

(vii) construction of an impervious surface for a new road, as required by paragraph (a)(6) of this section;

(viii) construction of an impervious surface in the west of Hudson watershed within a village, hamlet, village extension or area zoned for commercial or industrial uses, as required by paragraph (a)(8) of this section;

(ix) up to a 25 percent expansion of an existing impervious surface at an existing commercial or industrial facility which is within the limiting distance of 100 feet of a watercourse or wetland, as required in subparagraph (a)(4)(iii) of this section; or

(x) construction of an impervious surface in the east of Hudson watershed in a designated main street area.

(4) If the owner or operator of any activity which is subject to a Stormwater Pollution Prevention Plan pursuant to paragraph (3) of this subdivision, alters or modifies such activity in a manner which would require an amended Stormwater Pollution Prevention Plan pursuant to Part III.C of the New York State Department of Environmental Conservation General Permit No. GP-93-06, if such activity were governed by General Permit No. GP-93-06, such amended Stormwater Pollution Prevention Plan shall be submitted to the department for prior review and approval and shall comply with the requirements of this section.

(5) Any approval of a Stormwater Pollution Prevention Plan issued by the department shall expire and thereafter be null and void unless construction is completed within five years of the date of issuance or within any extended period of time approved by the department upon good cause shown. Following expiration of the approval, the application for the Stormwater Pollution Prevention Plan may be resubmitted to the department for consideration for a new approval.

(6) As a condition of approval the department may require evidence of financial security prior to construction from any owner or operator of a stormwater management system pursuant to a Stormwater Pollution Prevention Plan. Such financial security shall consist of a bond, or an equivalent guaranty, to be deposited with the department, covering the full cost of the construction of such facility and an additional bond or an equivalent guaranty for the payment of labor and material furnished in the course of such construction. Upon completion of construction and payment of labor and materials, such bonds or other guaranties shall be released. Additionally, a bond or equivalent guaranty may be required for the maintenance and operation of the facility for a period of five years post-construction. No bond or guaranty is required where the owner or operator of such a facility is a village, town, county or city.

(c) Additional requirements for Stormwater Pollution Prevention Plans.

(1) When any activity listed in paragraph (b)(3) of this section is proposed to be undertaken in a phosphorus restricted basin, the Stormwater Pollution Prevention Plan shall include an analysis of phosphorus runoff, before and after the land disturbance activity. Such plan shall require measures to capture and treat the two-year, 24-hour storm runoff from the disturbed area created by such activity.

(2) When any activity listed in paragraph (b)(3) of this section is proposed to be undertaken in the drainage basin of a terminal reservoir, as identified on the watershed maps in section 128-10.1 of this Part, the Stormwater Pollution Prevention Plan shall include analysis of coliform runoff, before and after the land disturbance activity.

(i) If such proposed activity causes or contributes to the contravention of the coliform standard set forth in section 128-4.1(b)(1) of this Part, the Stormwater Pollution Prevention Plan shall not be approved by the department, unless the measures required by the Stormwater Pollution Prevention Plan in conjunction with any other controls to be imposed that limit future land disturbance at the site, including but not limited to property easements, restrictive covenants, zoning laws and development by-laws, will prevent the contribution of additional coliform.

(3) When any activity listed in paragraph (b)(3) of this section is proposed to be undertaken in a coliform restricted reservoir basin, the Stormwater Pollution Prevention Plan shall include an analysis of coliform runoff, before and after the land disturbance activity. Such plan shall require measures to capture and treat the two-year, 24-hour storm runoff from the disturbed area created by such activity.

(4) All Stormwater Pollution Prevention Plans prepared pursuant to this section shall include an analysis of the 25-year storm.

(d) Application requirements and procedures.

(1) An application for approval of a Stormwater Pollution Prevention Plan shall include:

(i) the Pollution Prevention Plan;

(ii) the information required in a Notice of Intent under New York State Department of Environmental Conservation SPDES General Permit No. GP-93-06; and

(iii) A phosphorus and/or coliform analysis when required by this section.

(2) When the department notifies an applicant that an application for approval of a Stormwater Pollution Prevention Plan is complete pursuant to section 128- 2.3(d)(2) and (3) of this Part, the department shall also issue a written notification to the Stormwater Project Review Committee (committee) for the town(s) or village in which the activity requiring preparation of the Stormwater Pollution Prevention Plan is proposed to be located, of the department's receipt of a complete application.

(i) If requested by one or more members of the committee, the department shall submit a copy of the complete application to the committee for its review and shall convene a meeting, in person or by telephone, of the committee.

(ii) The department shall not be required to meet with or otherwise further consult with a member of the committee concerning an application where the committee member declines to review the application or fails to attend a meeting of the committee convened to consider the application.

(3) Upon completion of their review of the application, and upon a majority vote of the committee members, including the department's committee member, who reviewed the application, the committee may recommend to the department that an application for approval of a Stormwater Pollution Prevention Plan be approved, approved with conditions or disapproved.

(i) If the department's committee member agrees with the majority recommendation of the committee, the department may proceed to issue its determination to the applicant.

(ii) If the department's committee member disagrees with the majority recommendation of the committee, the application, together with the written recommendation of the committee, shall be submitted to the first deputy commissioner of the department for review and a determination. The first deputy commissioner shall issue a written record of decision setting forth the basis for the determination and responding to any contrary written recommendations submitted by any member of the committee.

(iii) If the committee fails to make a recommendation to the department at least 15 days prior to the date the department is required to notify an applicant in writing of its determination pursuant to section 128-2.3(d)(5) of this Part, the department may proceed to issue its determination and the department shall not be required by these rules and regulations to further consult with or consider the comments of the committee or any member of the committee.

(4) Failure of any committee member, other than the department committee member, to act in accordance with the procedures or within the time frames set forth in these rules and regulations, shall relieve the department of any obligation to consult with or consider the comments of the committee member. Failure of any committee member, other than the department committee member, to act in accordance with the procedures or within the time frames set forth in these rules and regulations, shall not invalidate any determination issued by the department.

(5) A committee may only make recommendations to the department and shall have no authority to make decisions on behalf of the department. For purposes of SEQRA, the department's determination on an application, not the committee's recommendation to the department, shall be considered a final decision.

(e) Individual residential stormwater permits.

(1) An individual residential stormwater permit is required for:

(i) construction of a new individual residence, not located within a subdivision, and located within the limiting distance of 100 feet of a perennial stream or wetland;

(ii) construction of a new individual residence located within a subdivision approved before October 16, 1995, and not prohibited by clause (a)(5)(ii)(b) of this section, and located within the limiting distance of 100 feet of a perennial stream or wetland; and

(iii) construction of an impervious surface for a driveway located within the limiting distances of 50 feet of an intermittent stream or wetland or within 100 feet of a perennial stream, provided that the driveway is necessary for access to an individual residence which is not located within a subdivision and where the individual residence accessed by the driveway would be required to obtain an individual residential stormwater permit pursuant to this section.

(2) Application requirements. An application for issuance of an individual residential stormwater permit shall include:

(i) a plan of the proposed individual residence and/or driveway;

(ii) a plan or map identifying the location of any watercourses, wetlands, reservoirs, reservoir stems or controlled lakes on or adjacent to the property;

(iii) a plan showing the approximate area of site disturbance;

(iv) a description and depiction of proposed erosion controls sufficient to prevent sedimentation of the receiving watercourse or wetland during construction. Erosion controls typically consist of sediment barriers, such as hay bales and silt fencing, and temporary stormwater diversions;

(v) a schedule for construction, including grading and site stabilization; and

(vi) a description and depiction of proposed stormwater best management practices designed to filter, detain, or filtrate runoff from the individual residence or driveway, thereby minimizing the post-construction increase in pollutant loading to the receiving perennial stream or wetland.

(3) An individual residential stormwater permit issued by the department shall expire and thereafter be null and void unless construction is completed within two years of the date of issuance of the permit, or within any extended period of time approved by the department upon good cause shown. Following expiration of the permit, the application for the individual residential stormwater permit may be resubmitted to the department for consideration for a new permit.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 128-3.9