N.Y. Comp. Codes R. & Regs. tit. 9 § 578.3

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

Section 578.3 - Definitions used in this Part

In addition to the definitions in section 24-0107 of the Environmental Conservation Law, the following terms shall have the following definitions:

(a) Adjacent area means lands or waters within 100 feet, measured horizontally, of the boundaries of a freshwater wetland.

(b) Artificial mudflat means generally unvegetated mud bottoms exposed by human action, such as those exposed by reservoir drawdowns.

(c)Bog means a wetland where standing or slowly running water is at or near the surface during a normal growing season, and where the vegetation grows on an accumulation of largely undecomposed acidic organic debris which is saturated at or near the ground surface by standing or slowly flowing water throughout a normal growing season. The base of the vegetative community is typically a mat formed by peat moss (Sphagnum spp.) and which also contains some or all of the following species, many of which are specially adapted to saturated or acid soil conditions: leatherleaf (Chamaedaphne calyculata), sheep and swamp laurels (Kalmia angustifolia, K. polifolia), labrador tea (Ledum groenlandicum), bog rosemary (Andromeda poll folia"), low bush cranberries (Vaccinium oxycoccus oxycoccos, V. macrocarpon), rhodora (Rhododendroncanadense), cottongrasses (Eriophorum spp.), sedges (Carex_spp., Cyperus spp.), black spruce (Picea mariand), American larch or tamarack (Larix laricind), bog aster ( Qclemena nemoralis), pitcher plant (Sarracenia purpurea), sundews (Drosera spp.), liverwort (Cladopodiellafluitans), and orchids (Arethusa bulbosa, Pogonia ophioglossoides, Calopogon tuberosus, Platanthera spp.)- Other commonly associated species include sweet gale (Myrica gale), chokeberry (Photinia spp.), northem white cedar (Thuja occidentalis), red maple (Acer rubrum), and white pine (Pinus strobus).

(d)

(1) Boundaries of a freshwater wetland or wetland boundaries means the outer limits of the vegetation referred to in paragraphs (1) and (2) of the definition of "freshwater wetlands" in this section and of the lands and waters referred to in paragraph (3) thereof. In any case where indicator species are present, seasonal or permanent flooding or sufficiently water-logged soils to give them a competitive advantage over non-wetland species must also be present.

(2) The agency will determine the exact location of wetland boundaries at the request of any person having a legal interest in property and contemplating thereon a regulated activity, or an activity in adjacent areas listed in section 578.2(b) of this Part.

(e)Classic or kettlehole bog means a wetland at least 250 feet in diameter within a closed drainage basin with a minimal or wholly subterranean inlet and a minimal or no outlet stream, composed of differing wetland vegetative cover types in substantially concentric zones, proceeding from (1) an outer edge of coniferous wooded wetlands growing on saturated organic deposits composed mainly of partially decayed sphagnum moss, inward towards (2) a floating mat of sphagnum mosses and shrubby heath plants to (3) an inner area of open water, known as the bog pond, which has an acidity of pH 5.00 or lower, and is typically anoxic and stained a dark brown in color from decaying vegetation.

(f)Coniferous swamp means a wetland or wetland covertype where a significant part of the vegetational community consists of live coniferous trees over 20 feet in height, usually growing on hummocky terrain or on deep organic soil deposits and with pockets of water and/or sphagnum moss between the hummocks. Coniferous swamps usually contain some or all of the following trees: black spruce (Picea mariana), American larch or tamarack (Larix laricina), hemlock (Tsuga canadensis), white cedar (Thuja occidentalis), red spruce (Picea rubens), balsam fir (Abies balsamea), and occasionally white pine (Pinus strobus).

(g)Covertype or wetland coverage means any of the groups of wetland vegetation set forth in the definitions of "artificial mudflat," "coniferous swamp," "deciduous swamp," "deep water marsh," "emergent marsh," "shrub swamp," and "wet meadow" in this section. Where technical and common, colloquial or local type names were inconsistent, the prevailing common usage is employed.

(h) Deciduous swamp means a wetland or wetland covertype where a significant part of the vegetational community consists of live deciduous trees over 20 feet in height, usually growing in hummocky terrain or on seasonally or permanently flooded areas. Deciduous swamps usually contain some or all of the following tress: American elm (Ulmus americana), silver, red or mountain maples (Acer saccharinum, A. rubrum, A. spicatum), black or green ashes ( Fraxinus nigra, F. pennsylvanica), willows ( Salix spp.), and (more commonly in lower elevations of the Lake Champlain and Hudson, Black, and St. Lawrence River valleys) swamp white oak (Quercus bicolor), witch hazel (Hamamelis virginiana), and American hornbeam/ironwood (Carpinus caroliniana).

(i)Deep water marsh means a wetland or wetland covertype where a significant part of the vegetational community consists of free floating vegetation, rooted vegetation with floating leaves, or submergent vegetation, usually containing some or all of the following plants: duckweed (Lemna spp.), water lilies (Nymphaea spp., Nuphar spp., Nymphoides spp.), coontail (Ceratophyllum demersum), water milfoil (Myriophynum_spp.), bladderwort (Utricularia spp.), pondweeds (Potamogeton spp.), watershield ( Brasenia schreberi), big duckweed (Spirodela polyrrhizg). watermeal (Wolffia spp.), naiads (Najas spp.), wild celery (Vallisneria americand), muskgrass (Chara spp.), stonewort (Nitella spp.), waterweeds (Elodea spp.) and water smartweeds (Polygonum spp.).

(j)Emergent marsh means a wetland or wetland covertype where a significant part of the vegetational community consists of herbaceous plants encroaching on water areas and flooded with standing or running water much of the year. Emergent marshes usually contain some or all of the following plants: arums (Pehandra spp., Calla spp.), pickerel weeds (Pontederia cordataf, P. lanceolata]), water milfoils (Myriophyllum spp.), water starworts (Callitriche spp.), bladderworts (Utricularia spp.), water smartweeds (Polygonum spp.), water plantains (Alisma spp.), arrowheads (Sagittaria spp.), loosestrifes (Lythrum spp.), water willow/swamp loosestrife (Decodon verticillatus), rushes (Juncus spp.), burreeds (Sparganium spp.), cattails (Typha latifolia, T. angustifolia), horsetails (Equisetum spp.), pipeworts (Eriocaulon spp.), spikerushes ( Eleocharis spp.), bulrushes (Scirpus spp.), sedges (Carex spp., Cyperus spp., Dulichium arundinaceum), common reed (Phragmites australis), wild rice (Zizania aquatica), blueflag (Iris spp.), hydrophilic grasses (Phalaris arundinacea, Glyceria spp., Calamagrostis spp., Leersia spp.), royal fern (Osmunda regalis), sweet gale (Myrica gale), and occasionally leatherleaf (Chamaedaphne calyculata).

(k) Freshwater wetlands or wetlands means:

(1) lands and submerged lands, commonly called marshes, swamps, sloughs, vlys, bogs, and flats which are seasonally or permanently flooded or contain sufficiently water-logged soils to support and give a competitive advantage to the aquatic or semi-aquatic vegetation set forth by common name, genus and species in the individual definitions of "artificial mudflats," "bog," "coniferous swamp," "deciduous swamp," "deep water marsh," "emergent marsh," "shrub swamp," or "wet meadow" in this section;

(2) lands and submerged lands containing remnants of any nonaquatic or semiaquatic vegetation that has died because of prolonged wet conditions not exceeding a maximum seasonal water depth of six feet and which, barring human intervention, can be expected to persist indefinitely;

(3) lands and open water substantially enclosed by the aquatic or semi-aquatic vegetation referred to in paragraph (1) or by the dead vegetation referred to in paragraph (2) of this definition, the regulation of which is necessary to protect and preserve the aquatic or semi-aquatic vegetation; and

(4) the waters overlying the lands referred to in paragraph (1) and (2) and the lands underlying the open waters referred to in paragraph (3) of this definition.

The agency will determine whether wetlands are present, and delineate their boundaries, at the request of any person described in section 571.5(a) of these regulations contemplating a regulated activity, or an activity in adjacent areas listed in section 578.2(b) of this Part.

(l) Freshwater Wetlands Act means article 24 of the Environmental Conservation Law.

(m) Person means any corporation, firm, partnership, association trust, estate, one or more individuals, and any unit of government or subdivision thereof, including the State and any State agency.

(n)

(1) Regulated activity means any of the following within the boundaries of a freshwater wetland:

(i) land use and development;

(ii) any form of draining, dredging, excavation, removal of soil, peat, mud, sand, shells, gravel or other aggregate from any freshwater wetland, either directly or indirectly;

(iii) any form dumping, filling, or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly;

(iv) erecting any structures, constructing any roads, driving pilings, or placing of any other obstructions whether or not changing the pattern of flow or elevation of the water; or

(v) clearcutting of more than three acres.

(2) Regulated activities also include, whether or not within wetland boundaries:

(i) any form of pollution, including installing a septic tank or sewer outfall, discharging wastewater treatment effluent or other liquid wastes into or so as to drain into a freshwater wetland; or

(ii) any other activity which substantially impairs the functions served by or the benefits derived from freshwater wetlands set forth in section 24-0105 of the Freshwater Wetlands Act, including any diversion of surface or subsurface drainage that adversely affects the natural hydrological regime of, or substantially increases erosion of or siltation or sedimentation into, the wetland.

(3) Regulated activities for subdivision involving wetlands.

(i) For subdivision, a regulated activity includes any proposed lot which contains wetlands (including the parcel proposed for the subdivision road) and any proposed lot adjoining such wetland lot, and all land use and development related to such lots. The lots referred to in this paragraph constitute the "wetland subdivision group" for each wetland.

(ii) If all lots in a "wetland subdivision group" meet the following criteria, that group will not be considered a regulated activity. If any lot does not meet the criteria, the subdivision of the entire group will remain a regulated activity. The criteria are:

(a) all proposed parcel boundaries for the wetland subdivision group must be located at least 200 feet from any wetland boundary at all points; and

(b) all subdivision roads which provide access for more than one lot must be located at least 50 feet from the wetland; and

(c) all non-wetland areas of each lot must be able to be reached by an access road which does not require a wetland crossing and which will not cause adverse wetland impacts, unless such non-wetland areas are designated by deed covenant to be non-development areas; and

(d) if any lot described in subparagraph (i) of this paragraph contains a lawfully existing principal building, the lot must meet these criteria: the onsite water supply and wastewater treatment systems for the principal building must be located on the lot containing that principal building; and (2} there must be identified on that lot an adequate replacement site for the onsite wastewater treatment system which is located at least 100 feet from the wetland.

(iii) The landowner proposing the subdivision must obtain a written jurisdictional determination pursuant to section 571.1(a) of this Title to take advantage of the exception from wetland subdivision review provided by subparagraph (ii) of this paragraph.

(iv) The burden is on the landowner to demonstrate compliance with this section. A subdivision map must be submitted which identifies the proposed boundaries of lots for the entire subdivision, and for each lot in the wetland subdivision group. The map must also identify the location of all proposed subdivision roads and appropriate non-wetland access to all upland areas for all lots in the wetland subdivision group.

(v) The landowner shall provide all purchasers of lots with a copy of the jurisdictional determination and subdivision map which were authorized pursuant to this section.

(vi) The construction of a structure on any lot in a subdivision or wetland subdivision group may require a wetland permit pursuant to paragraph (n)(1) or (2) of this section.

(vii) Nothing in this section affects agency jurisdiction created by other sections of law or regulation.

(4) Regulated activities do not include:

(i) deposition or removal of the natural products of freshwater wetlands by recreational or commercial fishing, ricing, berrying, shellfishing, aquaculture, hunting or trapping;

(ii) the activities of farmers or other landowners in:

(a) grazing and watering livestock;

(b) making reasonable use of water resources;

(c) harvesting natural products of the wetlands;

(d) selectively cutting timber and constructing and using skid trails for removal of such timber;

(e) draining land or wetlands for growing agricultural products; and

(f) otherwise engaging in the use of wetlands or other land for growing agricultural products.

The activities of farmers or other landowners listed in this subparagraph include the construction of structures required to be located in the wetland or adjacent area for enhancement or maintenance of the agricultural productivity of the land, but exclude any filling activities (including the construction of wood roads involving the placing of fill) or other material disturbance of a wetland; and

(iii) public health activities, orders and regulations of the Department of Health.

(o) Resident habitat means the habitat of year-round animal species or the breeding or wintering habitat of migratory species.

(p)Selective cutting of timber means any cutting of timber within the boundaries of a freshwater wetland (1) which is not "clearcutting" as defined in section 570.3(f) of these regulations, or (2) which results in a cut area less than three acres in size.

(q)Shrub swamp means a wetland or wetland covertype where a significant part of the vegetational community consists of woody vegetation less than 20 feet in height, often found in floodplains, in frost pockets and other depressions, on the edges of ponds, lakes and bogs, and in hillside drainages. Shrub swamps usually contain some or all of the following shrubs: alders (Alnus spp.), willows (Salix spp.), viburnums (Viburnum spp.), dogwoods (Cornus spp.), chokeberries ( Photinia spp.), meadowsweet (Spirea_spp.), sweet gale (Myrica gale), buttonbush (Cephalanthus occidentalis), leatherleaf (Chamaedaphne calyculata), highbush blueberries and lowbush cranberries (Vaccinium corymbosum\ corymbosum, V. oxycoccos, V. macrocarpon), sheep and swamp laurels (Kalmia angustifolia, K. polifolia), labrador tea (Ledum groenlandicum), bog rosemary (Andromeda polifolia), and mountain holly (Nemopanthus mucronatus).

(r) Wetland associated with open water means a wetland bordering (1) lakes or ponds containing, throughout an average year, water too deep to support rooted aquatic vegetation over an area of one acre or larger, or (2) rivers or streams containing, throughout an average year, flowing water at the surface and having a surface water flow between the open water and the wetland at some time during an average year.

(s) Wetlands project means those activities in freshwater wetlands or adjacent areas requiring a permit pursuant to section 578.2 of this Part.

(t)Wet meadow means a wetland or wetland covertype where a significant part of the vegetational community consists of sedges, rushes, and coarse grasses, most of which tend to grow in clumps or tussocks. Groundwater is at or near the surface for most of the year including a significant part of the growing season, creating saturated soils. Wet meadows are often found in lake and river annual flood plains and in abandoned beaver and dam flowages. In agricultural areas, they are often maintained but uncultivated parcels used for pasture and/or hayfields, uses which can alter their physical appearance or species composition. Under natural conditions, however, tussocks in wet meadows may support some or all of the following species: rushes

(Juncus spp.), sedges (Carex spp. and Cyperus spp.), bluejoint grasses (Calamagrostisspp.), bulrushes (Scirpus spp.), spikerushes (Eleocharis spp). rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinacea), blueflag (Iris spp.), sensitive fern (Onoclea sensibilis), marsh fern Thelypteris palustris), vervains (Verbena spp.), thoroughwort ( Eupatorium spp.), St. Johnsworts (Hypericum spp.), false loosestrifes (Ludwigia spp.), loosestrifes (Lythrum spp.), and smartweeds (Polygonum spp.). Cattails (Typha latifolia, T. angustifolia) may be present between tussocks.

(u) Wetland with unusual species abundance or diversity means a wetland that is one or more of the following:

(1) an ecosystem with combinations or numbers of species not commonly encountered;

(2) the site of large heron rookeries or other colonial nesting grounds;

(3) used intensively by migrating birds; or

(4) used by large numbers or a wide range of species of wildlife or fish.

(v) Wood road means any road used for forest management purposes or related fish and game activities, not intended for use by the general public, and simply constructed by grading, filling, and/or corduroying, without extensive finish or maintenance work.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 578.3