N.Y. Comp. Codes R. & Regs. tit. 6 § 665.12

Current through Register Vol. 46, No. 45, November 2, 2024

Section 665.12 - Supersession of regulatory authority

(a) The commissioner, as set forth in section 665.4(k) of this Part, may supersede local jurisdiction on the basis of a finding of inadequate technical and/or administrative capability to implement a local freshwater wetlands protection program.

(b) The commissioner, pursuant to section 24-0503 of the act, may also supersede local jurisdiction on the basis of a finding that a local government has failed to effectively implement its local freshwater wetlands protection program.

(c) In the event of a finding under subdivision (a) of this section:

(1) The commissioner must notify the chief executive officer of the local government of such a finding by certified mail. The local government will be allowed 60 days to bring its program into conformance according to provisions of sections 665.4 and 665.5 of this Part. During that time, the local government must obtain, for a fee, the assistance of the department in processing and reviewing any permit applications already in process or which are received in the interim.

(2) If, after 60 days, conformance is not achieved, the commissioner must notify the chief executive officer by certified mail that local jurisdiction has been superseded and transferred to the next level of local government or to the department, as the case may be. In doing so, the commissioner must afford the local government an opportunity to request a hearing within 15 days of receipt of the notice.

(d) In the event of a finding under subdivision (b) of this section, the commissioner will notify the chief executive officer by certified mail that local jurisdiction has been superseded and transferred to the next level of local government or to the department, as the case may be. In doing so, the commissioner must afford the local government an opportunity to request a hearing within 15 days of receipt of the notice.

(e) The decision to supersede shall be based on a finding of inadequate technical and/or administrative capability or inadequate performance as evidenced by:

(1) failure to meet the requirements and standards in section 665.4, 665.5, 665.6 or 665.7 of this Part;

(2) failure to notify the department of a substantive change in local government capability or its local freshwater wetlands protection program in accordance with section 665.4(g) or 665.4(m) of this Part;

(3) failure to demonstrate technical capability in practice or to employ technical capability or to consider technical findings;

(4) failure to adhere to administrative processes in a single major case or several substantive cases; e.g., failure to provide for adequate public involvement; or

(5) failure to enforce a local freshwater wetlands protection program in accordance with section 665.10 of this Part.

(f) A local government may recover its authority to assume local jurisdiction in accordance with the procedures outlined in section 665.4 of this Part, not less than one year after supersession.

(g) In order to provide the necessary audit of local implementation:

(1) The department will review all actions and supporting documentation of a local government at least once within six months of assumption of local jurisdiction and at least once every two years thereafter. In its review, the department will consider the purposes, policies and provisions of the act and the standards and criteria included in this Part.

(2) A local government must provide the department with a copy of all permits upon issuance for audit and official map maintenance purposes. The local government must retain all applications, permits, letters of permission and supporting material for public or department inspection until two years after the permitted activity is completed or an application is denied.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 665.12