N.Y. Comp. Codes R. & Regs. Tit. 16 §§ 1100-2.15

Current through Register Vol. 46, No. 53, December 31, 2024

Section 1100-2.15 - Exhibit 14: Wetlands

Exhibit 14 shall contain:

(a) A map or series of maps showing jurisdictional boundaries of all federal, state and locally regulated wetlands and adjacent areas present on the facility site and within one hundred (100) feet of areas to be disturbed by construction, including the interconnections, as determined by the Office pursuant to section 1100-1.3(e) of this Part, and provide federal jurisdictional determination, if available. For adjacent properties without accessibility, initial surveys may be based on remote-sensing data, interpretation of existing wetlands and soils mapping, observation from adjacent accessible properties, and current and historical aerial imagery.

(b) Any reports detailing the results of the delineation survey(s).

(c) A qualitative and descriptive wetland functional assessment, including seasonal variations, for all delineated wetlands that would be impacted for groundwater recharge/discharge, flood flow alteration, fish and shellfish habitat, sediment/toxicant retention, nutrient removal, sediment/shoreline stabilization, wildlife habitat, recreation, uniqueness/heritage, visual quality/aesthetics, and protected species habitat.

(d) An analysis of all off-site wetlands within one hundred (100) feet beyond the limit of disturbance that may be hydrologically or ecologically influenced by development of the facility and the wetlands identified on the map required by subdivision (a) of this section, observed in the field where accessible to determine their general characteristics and relationship, if any, to delineated wetlands.

(e) If the Office has determined pursuant to section 1100-1.3(e) of this Part that there are jurisdictional wetlands at the site, a demonstration of avoidance of impacts to such wetlands and their one hundred (100)-foot adjacent areas by siting all components more than one hundred (100) feet from any delineated NYS wetlands.

(f) If the applicant cannot avoid impacts to all wetlands and adjacent areas, an explanation of all efforts the applicant made to minimize the impacts to wetlands and adjacent areas identified during wetland surveys. The impact minimization summary shall address the following criteria for each proposed impact area:

(1) Why the facility design and siting cannot avoid NYS wetlands and adjacent areas, as applicable;

(2) How the facility design has minimized proposed impacts to NYS wetlands and adjacent areas, as applicable;

(3) How the facility design and siting minimize impacts to NYS wetlands, or portions of the wetlands, and the function and values currently provided by these wetlands; and

(4) How the facility design and siting will maximize and/or improve the function and values provided by the remaining adjacent areas surrounding the NYS wetlands.

(g) For facilities for which compensatory mitigation is required in Table 1, unless determined otherwise by the Office in consultation with the NYSDEC, the applicant shall submit a Wetland Restoration and Mitigation Plan pursuant to section 1100-10.2(f)(2) of this Part, in accordance with the following:

(1) Purchase of existing wetland mitigation bank credits for unavoidable wetland impacts wherever there is an existing wetland mitigation bank with a service area that includes the location of the facility. The purchase of mitigation banking credits shall occur within the same HUC 8 Watershed within which the facility is located; or

(2) Implement applicant-responsible wetland and/or adjacent area mitigation at the ratios as set forth in Table 1 below as follows, unless determined otherwise by the Office in consultation with the NYSDEC:

(i) Category: Prescribed mitigation ratio & type

(a) X: Not an allowable feature or activity.

(b) A: Allowed; no mitigation or enhancement required.

(c) A(M1): Allowed, mitigation required (3:1 mitigation ratio by area of impact - creation only, broken down by cover type)

(d) A(M2): Allowed, mitigation required (2:1 mitigation ratio by area of impact - creation, restoration, and enhancement)

(e) A(M3): Allowed, mitigation required (1:1 mitigation ratio by area of impact - creation, restoration and enhancement)

(f) A(E): Allowed, enhancements and/or mitigation required (e.g., planting of adjacent area, mitigating hydrological changes)

(ii) Within the same HUC 8 sub-basin; and

(iii) Within a location that is subject to NYSDEC jurisdiction under ECL article 24, which includes the following:

(a) Contiguous with an existing NYS-regulated wetland; or

(b) Within fifty (50) meters (one hundred sixty-four (164) feet) of an existing NYS-regulated wetland;

(iv) Where creation, enhancement, and restoration mean the following:

(a) Creation, in cases of activities requiring fill, means making a new wetland or expanding an existing wetland in lands that were not previously occupied by a wetland. Creation, in cases of activities not requiring fill, can include planting trees and/or shrubs in an existing wetland currently devoid of trees and shrubs.

(b) Restoration means reclaiming a degraded wetland or adjacent area to bring back one or more functions that have been partially or completely lost.

(c) Enhancement means altering an existing functional wetland or adjacent area to increase selected functions and benefits that offsets losses of these functions or benefits in another wetland or adjacent area or parts of the same wetland or adjacent area.

(3) Implement a combination of the mitigation required pursuant to paragraphs (1) and (2) of this subdivision to meet the mitigation requirement.

Table 1: Wetland Mitigation Requirements

	Class I^a		Class II^a		Class III & IV^a Unmapped >12.4 acres
Feature/Activity	FWW	AA	FWW	AA	FWW	AA
Major Activities
Wind Turbines	X	A(M3)**	X	A(E)*	A(M3)	A
Solar Panels	X	A(E)**	A(M2)	A(E)*	A(M3)	A
Energy Storage	X	A(M3)**	X	A(E)*	A(M3)	A
Access Roads	A(M1)	A(E)*	A(M2)	A(E)*	A(M3)	A
Power interconnections (including clearing for interconnections)	A(M1)	A(E)*	A(M2)	A(E)*	A(M3)	A
Clearing of forest	X	A(M3)**	A(M2)	A(E)*	A(M3)	A
Other activities and structures integral to the project involving placement of fill	X	A(M3)**	A(M2)	A(E)*	A(M3)	A
Intermediate Activities
Security fence	X	A(E)*	A(M3)	A	A	A
Clearing and manipulation of undisturbed herbaceous vegetation	X	A(E)*	A(M3)	A	A(M3)	A
Other activities integral to the project involving grading	X	A(E)*	A(M3)	A	A(M3)	A
Minor Activities
Grading and manipulation of disturbed areas (active hay/row crops, existing commercial/industrial development)	X	A(E)*	A(M3)	A	A(E)	A
Selective cutting of trees and shrubs	A	A	A	A	A	A
No enhancements or mitigation required with 75 foot or more setback * 75-foot setback from wetland boundary required in undisturbed adjacent area ^a ECL article 24 classification as determined under 6 NYCRR Part 664.

N.Y. Comp. Codes R. & Regs. Tit. 16 §§ 1100-2.15

Transferred from 900-2.15 New York State Register July 17, 2024/Volume XLVI, Issue 29, eff. 6/26/2024