New York Tidal Wetland Permit (13-NY-d)
- Preserving, protecting, and enhancing the present and potential values of tidal wetlands;
- Protecting the public health and welfare; and
- Giving due consideration to the reasonable economic and social development of the State.
Tidal Wetland Permit Process
13-NY-d.1 to 13-NY-d.2 – Will the Proposed Project Be Located in a Tidal Wetland or Adjacent Area?
Tidal wetlands include all of the State’s salt marshes, non-vegetated and vegetated flats, and shorelines subject to tides. Adjacent areas extend up to 300 feet inland from the wetland boundary, or up to 150 feet inland if within New York City. 6 CRR-NY 661.4. Not all wetlands are protected by the DEC. Before submitting an application for a Tidal Wetlands Permit, the developer should review the State’s official tidal wetland maps. Department of Environmental Conservation – Tidal Wetlands Permit Program: Tidal Wetlands Permit Program: Application Procedures. Tidal wetlands maps showing the exact locations of New York’s regulated wetlands are available for public inspection at DEC regional offices in Regions 1, 2, and 3, and in the County Clerks’ Offices of Nassau, Suffolk, Bronx, Kings, New York, Queens, Richmond, Rockland, and Westchester counties. 6 CRR-NY 661.15; Department of Environmental Conservation – Tidal Wetlands Permit Program (New York).
13-NY-d.3 - Does the Project Involve the Continuation of a Lawfully Existing Use?
A developer does not need a permit in order to continue with a lawfully existing use that does not alter wetlands and does not change existing structures in or adjacent to the tidal wetlands. A permit may be required for the repair, restoration or rebuilding of a lawfully existing structure or facility. 6 CRR-NY 661.10. If unsure about whether or not a Tidal Wetlands Permit is required for the project, the developer should contact the Division of Environmental Permits Regional Office. Department of Environmental Conservation – Tidal Wetlands Permit Program: Do I Need a Permit. Contact information for the DEC’s regional offices is available at the agency’s New York – Department of Environmental Conservation Regional Office Directory website.
13-NY-d.4 – Will the Proposed Project Alter a Tidal Wetland or Adjacent Area?
The DEC requires developers to obtain a permit for projects that alter wetlands or adjacent areas. 6 CRR-NY 661.3. Specific activities regulated under the Tidal Wetlands Act include the following:
- Construction, reconstruction, and/or the expansion of existing structures (e.g., dams, roads, and drainage structures);
- Movement of earth material; and
- Subdividing the land.
For a more detailed list of regulated tidal wetlands activities, see 6 CRR-NY 661.5.
13-NY-d.5 to 13-NY-d.6 – Schedule Pre-Application Conference
Early on in the planning process, the developer should schedule a pre-application conference with the appropriate DEC regional Environmental Permits Office. Contact information for the DEC regional Environmental Permits Offices is available at the agency’s Department of Environmental Conservation – Regional Permit Administrators (New York) website. The pre-application conference provides the developer with an opportunity to explain the proposed project to the DEC staff (and other potentially involved agencies) and to obtain preliminary answers to questions regarding:
- Project plans;
- Construction procedures, including equipment access and logistics of materials and equipment storage;
- Application procedures;
- Wetlands and adjacent area boundaries; and
- Standards for permit issuance.
13-NY-d.7 – Tidal Wetlands Permit Application
To apply for a Tidal Wetlands Permit, the developer must submit an application to the regional permit administrator, using the DEC’s Joint Application Form. The application must be accompanied by:
- A Permission to Inspect Property form;
- A list of the names of the owners-of-record of lands adjacent to the tidal wetlands or adjacent area where the project is located and, in some cases, a list of the names of known claimants of water rights for the project property or for property within 300 feet of the project property;
- A US Geological Survey Quadrangle Map, or equivalent, identifying the project location;
- Project plans meeting the following requirements: (see sample plans at the Department of Environmental Conservation (New York) - Sample Wetlands Plans website):
- Draw project plans to a scale no smaller than 1”=50’;
- Draw plans for small projects to a sufficient scale to reasonably represent the project on standard working drawings no smaller than 8-12” x 11”;
- Topography drawn with a two foot contour interval may be required on some project plans;
- The drawing must show existing conditions and the work to be performed and include all pertinent dimensions and elevations;
- The plan must show the mean high water line and the tidal wetlands boundary;
- The wetlands boundary may be on the plans as it was delineated at the site by an environmental consultant, or shown as an accurate representation of the tidal wetlands boundary as taken from the official tidal wetlands maps;
- A cross sectional drawing through any proposed modification of beach or lands under water must be provided.
- At least 3 color photographs clearly depicting the site of the proposed activity;
- Any other information the DEC deems necessary in order to adequately review and evaluate the application, such as engineering or supplemental reports justifying the proposed location over alternative non-wetlands sites, and alternative layouts or designs which might avoid or minimize impacts to wetlands.
- For projects requiring a variance, or where the developer seeks approval of uses designated in 6 CRR-NY 661.5 as “Presumably Incompatible – permit required”; “Incompatible”; or “Permit Required”, a statement identifying feasible alternatives to the proposed project is required and must include:
- Alternatives located on a site that is not a tidal wetland or adjacent area;
- Alternatives that accomplish the project’s objectives by means that do not adversely affect tidal wetlands;
- Alternatives that reduce or minimize the project’s encroachment and/or impact on tidal wetlands.
- If such a variance is required, the developer must submit a written request setting forth facts supporting the variance, including:
- A clear statement of the specific element of the Development Restrictions (see 6 CRR-NY 661.6) from which the developer seeks relief;
- Specific identification of the extent of the variance sought;
- A description and justification of the minimum variance necessary; and
- Identification and explanation of the practical difficulties claimed which support the need for the variance requested.
- Application fees for the Tidal Wetlands Permit application (see New York Department of Environmental Conservation – Freshwater and Tidal Wetlands: Application Fees FAQS;
- A complete environmental assessment form, as required by the State Environmental Quality Review Act (SEQR); and
- A determination concerning the project’s impact on properties listed on or eligible for listing on the State or National Register of Historic Places, as required by the State Historic Preservation Act (SHPA).
13-NY-d.8 to 13-NY-d.9 — Review Application Materials for Completeness
Upon receipt of the Tidal Wetlands Permit Application, the DEC reviews the developer’s permit application materials and determines whether the developer has supplied all of the necessary information in a complete and satisfactory form. The DEC will notify the developer if additional information is needed for the review process. 6 CRR-NY 661.12.
13-NY-d.10 - Provide Public Access to Developer’s Permit Application
If necessary, the receiving regional permit administrator will mail a copy of the developer’s application to the chief administrative officers of other municipalities where the proposed project may affect tidal wetlands or adjacent areas. The DEC must make the developer’s application and associated documents and maps available for public inspection at each regional DEC office having jurisdiction over the affected tidal wetlands or adjacent areas. 6 CRR-NY 661.12.
13-NY-d.11 – Is the Proposed Project Considered a Major Project or a Minor Project?
Minor projects include, among other things:
- The connection of electricity, gas, sewer, or water lines from an existing distribution facility to an existing structure;
- Maintenance dredging; and
- In-kind and in-place replacement of existing functional bulkheads.
Major projects include, among other things:
- Placement of fill in a tidal wetland;
- Construction of commercial or industrial structures;
- Construction of groins, bulkheads, or other shoreline stabilization structures in vegetated tidal wetlands; and
- New dredging.
Department of Environmental Conservation – Tidal Wetlands Permit Program: Tidal Wetlands Permit Program: Is this Project Major or Minor?. For a more detailed listing of all regulated tidal wetlands activities, see 6 CRR-NY 661.5. Projects designated in 6 CRR-NY 661.5 as “Generally Compatible-permit required” are considered minor projects. For purposes of public notice (see below), all other activities are considered major projects.
13-NY-d.12 - Publish Public Notice of Application
If the proposed project is considered to be a major project, the DEC must publish notice of the developer’s Tidal Wetlands Permit application in both the Environmental Notice Bulletin and a designated local newspaper. Department of Environmental Conservation – Tidal Wetlands Permit Program: Tidal Wetlands Permit Program: Is this Project Major or Minor?.
13-NY-d.13 - Will the DEC Hold a Public Hearing?
After evaluating the developer's application and reviewing any comments received from the DEC staff, other state agencies and members of the public, the DEC may, at its discretion, hold a public hearing. The DEC will conduct a public hearing if DEC’s evaluation of the application or comments received raise significant issues regarding the findings or determinations the DEC is required to make. § 70-0119.
13-NY-d.14 – Provide Notice of Public Hearing
If the DEC elects to hold a public hearing, the DEC must notify the developer and all persons who filed comments on the project within 60 calendar days of determining that the developer’s application is complete. The DEC must also publish notice of the hearing in both the Environmental Notice Bulletin and a designated local newspaper. § 70-0119.
13-NY-d.15 – Hold Public Hearing
The DEC must conduct the hearing within 90 calendar days of determining that the developer’s application is complete. § 70-0119. At the public meeting, interested parties may ask questions and provide oral and written comments regarding the developer’s permit application.
13-NY-d.16 – Review Application Materials and Public Comments
The DEC reviews the developer’s application (and public comments, if applicable) in order to determine whether the proposed project is consistent with the objectives of the Tidal Wetlands Regulatory Program. In making its determination, the DEC may consider proposals made by the developer in its application to enhance the existing values served by a wetland or to create and sustain new wetland values in or in the vicinity of the project site. 6 CRR-NY 661.9.
Tidal Wetlands To issue a permit for a proposed project on a tidal wetland, the DEC must determine that the proposed project:
- Is compatible with the policy of the Tidal Wetlands Act to preserve and protect tidal wetlands and to prevent their despoliation and destruction;
- Is compatible with the public health and welfare;
- Is reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed project and the degree to which the activity requires water access or is water dependent;
- Complies with the development restrictions contained in 6 CRR-NY 661.6; and
- Complies with the use guidelines contained in 6 CRR-NY 661.5; and
- If the project will be located on a formerly connected tidal wetland, the DEC must also determine that the proposed project will be consistent with the possible future restoration of any portion of the tidal wetland adjoining or surrounding the project site to its original condition.
Adjacent Areas To issue a permit for a proposed project in an area adjacent to a tidal wetland, the DEC must determine that the proposed project:
- Is compatible with the public health and welfare;
- Complies with the development restrictions contained in 6 CRR-NY 661.6;
- Will not have an undue adverse impact on the present or potential value of any adjacent or nearby tidal wetland for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research or open space and aesthetic appreciation, taking into account the social and economic benefits which may be derived from the proposed activity; and
- Complies with the use guidelines contained in 6 CRR-NY 661.5.
13-NY-d.17 to 13-NY-d.18 – Issue Final Determination
After reviewing the application materials and public comments, the DEC will determine whether to approve or deny the developer’s application for a Tidal Wetlands Permit and will notify the developer of its determination.
13-NY-d.19 – Does the DEC Approve the Developer’s Application for a Tidal Wetlands Permit?
The DEC may approve, conditionally approve, or deny the developer’s application for a Tidal Wetlands Permit
13-NY-d.20 – Is the DEC’s Approval Conditioned Upon the Developer Taking Steps to Minimize or Mitigate the Project’s Effects?
If the DEC conditionally approves the developer’s Tidal Wetlands Permit, the DEC may require that the developer take steps to minimize or mitigate the project’s effects to, among other things, marine food production; wildlife habitat; flood, hurricane, and storm control; recreation; ecosystem cleansing; absorption of silt and organic material; education and research opportunities; and the aesthetic values of the area.
13-NY-d.21 – Tidal Wetlands Permit
If the DEC determines that the proposed project meets the requirements of the Tidal Wetlands Act and approves the developer’s application, the DEC will issue a Tidal Wetlands Permit for the proposed project.
13-NY-d.22 to 13-NY-d.24 – Does the Developer Disagree With the DEC’s Determination?
If the developer disagrees with the DEC’s determination to deny the Tidal Wetlands Permit or disagrees with the DEC’s conditions for the permit, the developer may seek judicial review of the DEC’s determination within 30 days from the date of the order, pursuant to article 78 of the Civil Practice Law and Rules in the Supreme Court for the county in which the tidal wetlands or adjacent areas affected are located. 6 CRR-NY 661.19.
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- Department of Environmental Conservation – Tidal Wetlands Permit Program (New York)
- Department of Environmental Conservation – Regional Permit Administrators (New York)
- New York Joint Application Form for Permits to Undertake Activities Affecting Waters
- New York – Department of Environmental Conservation Permission to Inspect Property Form
- Department of Environmental Conservation (New York) - Sample Wetlands Plans
- New York Department of Environmental Conservation – Freshwater and Tidal Wetlands: Application Fees FAQS
- New York – Department of Environmental Conservation Regional Office Directory
New York State Department of Environmental Conservation
Division of Environmental Permits Contact 518-402-9167 kentabbazabbasanders@decabbazabbanyabbazabbagov Visit Website