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

Information current as of 2019
In New York, any person (developer) may need a Protection of Waters Permit from the Department of Environmental Conservation (DEC) if the project:
  • Will modify or disturb the course, channel or bed of any stream or remove any sand, gravel or other material from the bed or banks of a stream;
  • Entails excavation or fill below the mean high water level in a navigable water of the state;
  • Or requires the construction, reconstruction, or repair of a dam or other impoundment.


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. Navigable waters include lakes, rivers and other waterways and water bodies on which water vessels with a capacity of one or more persons are operated or can be operated. N.Y. Env. Cons. L. § 15-0501(1)-(2); New York – Protection of Waters Program.

The Department of Environmental Conservation (DEC) is entrusted with the regulatory authority to protect the state’s valuable water resources. In order to preserve and protect New York’s lakes, rivers, streams and ponds from the potentially harmful effects of human activities, the DEC created the Protection of Waters Regulatory Program. 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 19-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 – Application for a Protection of Waters Permit for Stream Disturbance

A Protection Of Waters Permit is required for disturbing the bed or banks of a stream (Protection of Waters Permit for Stream Disturbance). “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. New York – Protection of Waters Program.

To apply for a Protection of Waters Permit for Stream Disturbance, 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:

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

6 CRR-NY 608.6(a); New York – Protection of Waters: Application Procedures.

19-NY-h.5 to 19-NY-h.6 – Will the Project Entail Excavation or Fill of State Waters?

A Protection Of Waters Permit is required for excavating or placing fill in navigable waters of the state, below the mean high water level, including adjacent and contiguous marshes and wetlands (Protection Of Waters Permit for Excavation and Fill in Navigable Waters). Navigable waters include lakes, rivers and other waterways and water bodies on which water vessels with a capacity of one or more persons are operated or can be operated. The developer must submit an application to the appropriate regional permit administrator, using the DEC’s Joint Application Form. N.Y. Env. Cons. L. § 15-0505.

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

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

N.Y. Env. Cons. L. § 15-0505(2).

19-NY-h.7 to 19-NY-h.8 – Will the Project Entail the Construction, Reconstruction, or Repair of a Dam?

A Protection of Waters Permit is required for constructing, reconstructing, repairing, or modifying dams and water impounding structures that permanently or temporarily impound water as a result of a structure placed across a watercourse or overland drainage way or which receive water from an external source such as drainage diversion or pumping of ground water (Protection of Waters Permit for Constructing, Repairing, or Modifying Dams). To acquire a Protection of Waters Permit for Constructing, Repairing, or Modifying Dams, a developer must submit an application to the DEC. New York – Protection of Waters Program; New York – Protection of Waters: Application Procedures.

Dam and Impoundment Structures Permit:
7-NY-f

19-NY-h.9 – Identify the Project’s Probable Effects on the People and Natural Resources of the State

Before granting a Protection of Waters Permit for Stream Disturbance or a Protection of Waters Permit for Excavation and Fill in Navigable Waters, 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 a Protection of Waters Permit for Excavation and Fill in Navigable Waters is involved, the DEC will also consider the project’s probable effect on the use of such waters for navigation. N.Y. Env. Cons. L. § 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:

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

6 CRR-NY 608.7(b); see also New York – Protection of Waters Program: Protection of Waters: Standards for Issuance.

19-NY-h.10 – 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.11 to 19-NY-h.13 – 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. Env. Cons. L. § 15-0515.

19-NY-h.14 – Protection of Waters Permit

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

  1. Issue a permit, approving the manner and extent to which alterations to the streambed or channel may be made; or
  2. 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. Env. Cons. L. § 15-0501(3)(a); 6 CRR-NY 608.7(a).


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