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New York Protection of Waters Permit (19-NY-h)

Information current as of 2020
In New York, a developer may need to obtain a Protection of Waters Permit from the Department of Environmental Conservation (DEC) in order to disturb the bed or banks of a protected stream, construct or repair a dam or other water impoundment structure, or excavate or place fill material into navigable waters of the state. DEC is entrusted with the regulatory authority to protect New York’s lakes, rivers, streams and ponds from the potentially harmful effects of human activities. New York – Protection of Waters Program.



Protection of Waters Permit Process


19-NY-h.1 – Contact the Department of Environmental Conservation (DEC)

The developer should contact the appropriate regional Department of Environmental Conservation (DEC) Division of Environmental Permits office early on in the planning process, prior to beginning detailed design and engineering work.


Contact information for each regional office is available at the New York – Department of Environmental Conservation Regional Office Directory Webpage.

19-NY-h.2 to 13-NY-h.3 – Schedule Pre-Application Conference

For complex development projects, the DEC recommends that developers schedule a pre-application conference with the regional office to discuss project plans, required permits, application procedures, stream classifications, standards for permit issuance, and other relevant issues. New York – Protection of Waters: Application Procedures.

19-NY-h.4 – Will the Project Disturb Beds or Banks of a Protected Stream or Watercourse?

A developer must obtain a Protection of Waters Permit for any project that will disturb the bed or banks of a stream with a classification of AA, A, B, or C with a standard of (T) or (TS). NYDEC Protected Stream of Other Watercourse Webpage. “Banks” means that land area immediately adjacent to and which slopes toward the bed of a watercourse and which is necessary to maintain the integrity of the watercourse. NYDEC Protected Stream of Other Watercourse Webpage For these purposes, “stream” generally means any fresh surface watercourse classified by the DEC for best usage as a source of drinking water, for swimming and other contact recreation, or to support fisheries. N.Y. Envtl Conserv. Law § 15-0501(1)-(2); New York – Protection of Waters Program.

Note:

The following are activities that are exempt from the requirement for obtaining a Protection of Waters Permit:

  • Disturbance of a protected stream conducted by a town or county government after entering into a written agreement with New York Department of Environmental Conservation;
  • Agricultural activities involving crossing/re-crossing of a stream by livestock or farm equipment at an established crossing;
  • Withdrawal of irrigation waters without altering streams beds and or banks; or
  • Removal of fallen tree limbs or tree trunks where material can be pulled from the stream without disturbing the bank.

NYDEC Protected Stream of Other Watercourse Webpage

=19-NY-h.5 – Will the Project Entail Excavation or Fill of State Waters?

If the project will entail excavation or fill below the mean high water level in a navigable water of the state—or in marshes, estuaries, tidal marshes and wetlands that are adjacent and contiguous to a navigable water of the state and that are inundated at mean high water level or tide—the developer must submit an application for an Excavation and Fill in Navigable Waters permit to the appropriate regional permit administrator, using the DEC’s Joint Application Form. N.Y. Envtl Conserv. Law § 15-0505.

In addition to the requirements for the Stream Disturbance Permit application, the developer’s application for an Excavation and Fill in Navigable Waters Permit must include the following:

  • A description of the character and extent of the proposed project or work;
  • Drawings, plans and specifications providing the location and details of the proposed project or work; and
  • Any additional information the DEC may require.

N.Y. Envtl Conserv. Law § 15-0505(2).

Note:

Waters that are surrounded by land held in single private ownership at every point in their total area do not require a Protection of Waters Permit. NYDEC Excavation or Placement of Fill in Navigable Waters.

19-NY-h.6 – Will the Project Entail the Construction, Reconstruction, or Repair of a Dam?

A developer must obtain a protection of waters permit for the construction, reconstruction, or repair of a dam or other impoundment. NYDEC Construction or Repair of Dams and Impounding Structures Webpage.

Note:

A Protection of Waters Permit is not required for constructing/repairing a dam or any other structure used for impounding water that satisfies any one of the following

  • Max height of the dam/structure is six (6) feet or less;
  • Max impounding capacity is 1 million gallons or less; or
  • Max height is between six (6) and 15 feet and the max impounding capacity is less than 3 million gallons.

NYDEC Construction or Repair of Dams and Impounding Structures Webpage

19-NY-h.7 – Application for a Protection of Waters Permit

To apply for a Protection of Waters Permit, the developer must submit an application to the appropriate regional permit administrator, using the DEC’s Joint Application Form. The application must be accompanied by:

  • A plan of the proposed project;
  • A map showing the project location;
  • A Permission to Inspect Property form;
  • At least three (3) color photographs clearly depicting the site of the proposed activity;
  • A complete environmental assessment form, as required by the State Environmental Quality Review Act (SEQR);
  • A structural/Archaeological Assessment Form, as required by the State Historic Preservation Act (SHPA); and
  • Other information the DEC staff determines is necessary to adequately review and evaluate the application.

N.Y. Comp. Codes R. & Regs. § 608.6(a); New York – Protection of Waters: Application Procedures.

19-NY-h.8 – Identify the Project’s Probable Effects on the People and Natural Resources of the State

Before granting a Stream Disturbance Permit or an Excavation and Fill in Navigable Waters Permit, the DEC must ascertain the probable effect on the health, safety and welfare of the people of the state, and the effect the project will have on the natural resources of the state, including soil forests, water, fish and aquatic resources. Where an Excavation and Fill in Navigable Waters Permit is involved, the DEC will also consider the project’s probable effect on the use of such waters for navigation. N.Y. Envtl Conserv. Law § 15-0501(3)(a).

Specifically, the DEC reviews the developer’s application and supporting documents to determine whether the proposed alterations to water resources of the State are consistent with the state’s Use and Protection of Waters regulations, considering issues such as:

  • The environmental impacts of a proposal, including effects on:
    • Aquatic, wetland, and terrestrial habitats; unique and significant habitats; rare, threatened and endangered species habitats;
    • Water quality, including such criteria as temperature, dissolved oxygen, suspended solids;
    • Hydrology, including such criteria as water velocity, depth, discharge volume, flooding potential; and
    • Water course and waterbody integrity, including such criteria as erosion, turbidity, and sedimentation;
  • The adequacy of design and construction techniques for structures;
  • Operational and maintenance characteristics;
  • The safe commercial and recreational use of water resources;
  • The water dependent nature of the use;
  • The safeguarding of life and property; and
  • Natural resource management objectives and values.

N.Y. Comp. Codes R. & Regs. § 608.7(b); see also New York – Protection of Waters Program: Protection of Waters: Standards for Issuance.

19-NY-h.9 – Does the DEC Approve the Developer’s Application for a Protection of Waters Permit?

In order to minimize the disturbance of a stream and to prevent unreasonable erosion of soil, increased turbidity, irregular variations in velocity, temperature and water levers, the loss of fish and aquatic wildlife and the destruction of natural habitat, and the danger of flood or pollution, the DEC may grant or deny the developer’s request for a Protection of Waters Permit.

19-NY-h.10 to 19-NY-h.11 – Will the Developer Seek Review of the DEC’s Determination?

If the DEC denies the developer’s application for a permit, the developer may request review of the determination pursuant to article 78 of the Civil Practice Law and Rules. N.Y. Envtl Conserv. Law § 15-0515.

19-NY-h.12 – Review Application for Approval

The DEC will review the application materials to evaluate whether or not a Protection of Waters Permit should be granted.

19-NY-h.13 – Protection of Waters Permit

If the DEC approves the developer’s request, the DEC may:

  • Issue a permit, approving the manner and extent to which alterations to the streambed or channel may be made; or
  • Issue a permit with conditions as necessary to protect the health, safety, or welfare of the people of the State, and its natural resources.

N.Y. Envtl Conserv. Law § 15-0501(3)(a); N.Y. Comp. Codes R. & Regs. § 608.7(a).


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