The good news is that the New York State Department of Environmental Conservation has finally issued a general wetlands permit for private property owners.
The less good news, at least for property owners, is that the permit isn’t exactly general: it authorizes a very limited range of activities, and only in a limited portion of the buffer area of State regulated freshwater wetlands.
The limited scope of the general permit was apparently intended by DEC to allow property owners with existing residences or structures a simple method to obtain permit coverage for very limited intrusions into the wetland buffer area. It will be most useful for owners who need to bring their property into conformance with DEC wetlands requirements to facilitate resolution of an outstanding violation notice, sale or refinancing of the property, or perhaps as a precaution to remove one issue that might impede an anticipated land use application.
There is advantage to DEC as well. By allowing a property owner to use the general permit obtain coverage for relatively minor activities, DEC can focus its increasingly limited resources on those individual permits with the greatest potential to affect wetlands.
Activities eligible for coverage by the DEC permit include demolition and removal of existing accessory structures; construction of driveways or parking areas, additions to existing structures, installation of garages, decks, porches, sheds, pools, utility lines and similar accessory structures, limited to 1,000 square feet within the adjacent area; and in-kind, in-place replacement of existing accessory/appurtenant structures, roads and associated utilities.
Those activities are only allowed in currently disturbed areas, such as existing lawns, gardens, paved areas or structures. To be eligible for permit coverage, the activity may not disturb more than 1/4 of an acre in total for the entire project, within and beyond the adjacent area, and all disturbance must remain at least 50 feet away from the delineated boundary of the DEC wetland. The permit requires owners to provide “appropriate” stormwater controls.
It is worth noting that the general permit does not authorize filling, grading, demolition of a primary structure, or installation of new or replacement septic systems.
Although a sign that DEC is beginning to show some regulatory flexibility in the wetlands area, the scope of the activities allowed by the DEC general permit is much more conservative than the range of activities authorized in federal wetlands by the Army Corps nationwide permits program.
George W. Lithco is a partner on the Land Use/Environmental and Municipal Law Teams. He can be reached by phone at 845-778-2121 toll free or 845-778-2121 and by email.
