Title: Section 128-3.9 - Stormwater pollution prevention plans and impervious surfaces

Effective Date

07/08/1998

128-3.9 Stormwater pollution prevention plans and impervious surfaces.
(a) Impervious surfaces.
(1) The construction of an impervious surface within the
limiting distance of 100 feet of a watercourse or wetland, or within the
limiting distance of 300 feet of a reservoir, reservoir stem, or controlled
lake, is prohibited.
(2) Paragraph (1) shall not apply to the following
activities:
(i) Construction of a new individual residence, which shall
comply with paragraph (5) of this subdivision, or non-commercial ancillary
improvements or additions to an individual residence;
(ii) Agricultural activities;
(iii) Construction of bridges or crossings of watercourses
or wetlands constructed pursuant to a valid permit from the appropriate
regulatory agencies. If a permit from a regulatory agency other than the
Department is not required, the applicant shall comply with paragraph (9)
of this subdivision;

(iv) Creation of an impervious surface to alter or modify a
wastewater treatment plant approved by the Department;
(v) Creation of an impervious surface that is made
necessary by the construction of a new facility or alteration or
modification of an existing facility used in connection with the operation
of a public water supply system; or
(vi) Creation of an impervious surface, such as a culvert,
needed as an integral component of diversion or piping of a watercourse,
but only with the review and approval of the Department and only if the
Department determines that such impervious surface will not have an adverse
impact on water quality.
(3) Paragraph (1) shall not apply to creation of an
impervious surface in the West of Hudson watershed within a village,
hamlet, village extension, or area zoned for commercial or industrial uses,
which complies with paragraph (8) of this subdivision or to the creation of
an impervious surface in the East of Hudson watershed within a Designated
Main Street Area, which complies with paragraph (11) of this subdivision.
(4) Paragraph (1) shall not apply to the creation of an
impervious surface in connection with the following activities occurring in
the East of Hudson watershed outside a Designated Main Street Area or in
the West of Hudson watershed outside a village, hamlet, village extension,
or an area zoned for commercial or industrial uses:
(i) Construction of a new road or driveway, or widening of
an existing road, which shall comply with paragraph (6) of this
subdivision;
(ii) Creation of an impervious surface within a designated
village center, which shall comply with paragraph (7) of this subdivision;
or
(iii) Expansion of an existing impervious surface within the
limiting distance of 100 feet of a watercourse or wetland, at an existing
commercial or industrial facility, provided that the total area of all
expanded impervious surfaces does not exceed 25 percent of the area of the
existing impervious surface at that commercial or industrial facility,
which shall comply with subdivisions (b), (c) and (d) of this section.
(5) The following requirements are applicable to
construction of a new individual residence:
(i) Whether or not a new individual residence will be
located in a subdivision, construction of a new individual residence within
the limiting distance of 300 feet of a reservoir, reservoir stem, or
controlled lake is prohibited;
(ii) Construction of a new individual residence in a
subdivision within the limiting distance of 100 feet of a watercourse or
wetland is prohibited where:
(a) The subdivision plat received preliminary approval on
or after October 16, 1995; or
(b) The subdivision plat received preliminary approval
before October 16, 1995, the person who owned the subdivision on October
16, 1995 was the same person, or a principal or affiliate of the person,
who owned the subdivision at the time the subdivision plat received
preliminary approval, and construction activity related to infrastructure
improvements for the subdivision had not begun as of October 16, 1995;
(iii) Construction of a new individual residence not in a
subdivision, or in a subdivision approved before October 16, 1995 and not
prohibited by paragraph (a)(5)(ii)(b) of this subdivision, within the
limiting distance of 100 feet of a perennial stream or wetland requires an
individual residential stormwater permit from the Department, pursuant to
subdivision (e) of this section.
(6) The following requirements are applicable to
construction of an impervious surface for a new road or driveway or the
widening of an existing road:
(i) Construction of an impervious surface for a new road or
driveway within the limiting distance of 300 feet of a reservoir, reservoir
stem or controlled lake is prohibited, except paving an existing dirt or
gravel road is permitted. Construction of a new impervious surface by
paving an existing dirt or gravel road requires a stormwater pollution
prevention plan which complies with subdivisions (b), (c) and (d) of this
section.
(ii) Construction of an impervious surface for a new road
within the limiting distance of 50 feet of an intermittent stream or
wetland, or within the limiting distance of 100 feet of a perennial stream
is prohibited, except for paving an existing dirt or gravel road or where
necessary to provide an access road to two or more parcels or to a
subdivision. Construction of an impervious surface for paving such
existing dirt or gravel road or for such a new access road requires a
stormwater pollution prevention plan which complies with the requirements
of subdivisions (b), (c) and (d) of this section. Any access road
constructed pursuant to this paragraph shall be constructed as far as
practicable from all watercourses and wetlands.
(iii) Construction of an impervious surface for a new road
between the limiting distances of 50 feet and 100 feet of an intermittent
stream or wetland requires a stormwater pollution prevention plan which
complies with the requirements of subdivisions (b), (c) and (d) of this
section.
(iv) Construction of an impervious surface for a driveway
within the limiting distance of 50 feet of an intermittent stream or
wetland, or within the limiting distance of 100 feet of a perennial stream
is prohibited except where necessary to provide access to an existing home
or a new individual residence allowed to be constructed within such
limiting distances pursuant to paragraph (5) above. If construction of the
individual residence served by the driveway would require a stormwater
pollution prevention plan or an individual residential stormwater permit,
construction of the impervious surface for the driveway shall also require
a stormwater pollution prevention plan or an individual residential
stormwater permit, respectively.
(v) Widening of an existing road located within the
limiting distance of 50 feet of an intermittent stream or wetland, within
the limiting distance of 100 feet of a perennial stream, or within the
limiting distance of 300 feet of a reservoir, reservoir stem or controlled
lake shall be performed on the side of such existing road furthest from the
watercourse, wetland, reservoir, reservoir stem or controlled lake, to the
extent practical.
(7) The following requirements are applicable to creation
of an impervious surface within a designated village center:
(i) A local government in the Croton System may delineate
an area within the local government's boundaries to be a designated village
center in a Comprehensive Croton Water Quality Protection Plan prepared and
agreed to in accordance with section 128-8.2 of these rules and
regulations. Such designated village center shall comply with the
requirements of this paragraph with regard to the construction of
impervious surfaces.
(ii) Within a designated village center the construction of
a new impervious surface within the limiting distance of 100 feet of a
watercourse or wetland, or within the limiting distance of 300 feet of a
reservoir, reservoir stem, or controlled lake requires the review and
approval of the Department. An approval issued by the Department pursuant
to this subparagraph shall contain a determination by the Department that
there is no reasonable alternative to the creation of the proposed new
impervious surface within the applicable limiting distance and that the
best available measures have been taken to prevent adverse impacts on the
quality of the drinking water supply.
(8) The following requirements are applicable to creation
of an impervious surface in the West of Hudson watershed within a village,
hamlet, village extension or area zoned for commercial or industrial uses:
(i) Creation of any new impervious surface within the
limiting distance of 100 feet of a watercourse or wetland, or within the
limiting distance of 300 feet of a reservoir, reservoir stem or controlled
lake, within a village, hamlet, village extension or area zoned for
commercial or industrial uses as of the effective date of these rules and
regulations, requires a stormwater pollution prevention plan which complies
with the requirements of subdivisions (b), (c) and (d) of this section,
except that the foregoing requirements of this subparagraph shall not apply
to the creation of a new impervious surface for an activity set forth in
paragraph (2) of this subdivision which complies with the provisions of
paragraph (2).
(ii) If a local government in the West of Hudson watershed
adopts a zoning ordinance designating additional areas for commercial or
industrial use after the effective date of these rules and regulations, it
may apply to the Department to allow construction of new impervious
surfaces in the newly zoned commercial or industrial areas located within
the limiting distance of 100 feet of a watercourse or wetland, or within
the limiting distance of 300 feet of a reservoir, reservoir stem, or
controlled lake. The Department shall approve such application if the
Department determines that allowing new impervious surfaces in such newly
zoned commercial or industrial area is consistent with the objectives of
these rules and regulations and with previously approved zoning ordinances.
If approved by the Department, creation of new impervious surfaces within
such newly zoned commercial or industrial areas within the aforesaid
limiting distances shall be allowed subject to the requirements of
subparagraph (8)(i) above.
(9) Construction of a bridge or crossing of a watercourse
or wetland which does not require a permit from a regulatory agency other
than the Department shall require the review and approval of the
Department. Such bridge or crossing shall be constructed to prevent
adverse impacts on the quality of the water supply.
(10) Maintenance of an existing impervious surface that is a
noncomplying regulated activity shall not require the review and approval
of the Department.
(11) The following requirements are applicable to creation
of an impervious surface in the East of Hudson watershed within a
Designated Main Street Area:
(i) Creation of any new impervious surface within a
Designated Main Street Area requires a stormwater pollution prevention plan
which complies with the requirements of subdivisions (b), (c), and (d) of
this section, except that the foregoing requirements of this subparagraph
shall not apply to the creation of a new impervious surface for an activity
set forth in paragraph (2) of this subdivision which complies with the
provisions of paragraph (2).
(ii) Within thirty (30) days of the effective date of these
rules and regulations, a local government may define by metes and bounds,
tax maps or other geographic boundaries a proposed Designated Main Street
Area within its boundaries, and apply to the Department for approval of
such proposal. Within thirty (30) days of such application the Department
may approve, disapprove, or approve with modifications, such Designated
Main Street Area. If the Department disapproves the application, the local
government shall have an additional thirty (30) days in which to submit a
revised application for approval of the proposed Designated Main Street
Area, and the Department shall approve or disapprove the application within
thirty (30) days of receipt of such revised application. The Department
will approve only a limited number of Designated Main Street Areas and
local governments may not designate all areas of population concentrations
in the East of Hudson watershed as Designated Main Street Areas. The
approved boundary description of a Designated Main Street Area shall be
made available by the Department for public inspection at its field offices
in the East of Hudson watershed.
(b) Stormwater pollution prevention plans.
(1) Stormwater pollution prevention plans shall not be
required to be prepared pursuant to this section for agricultural and
silvicultural activities.
(2) Stormwater pollution prevention plans shall not be
required to be prepared pursuant to this section for clear cutting and
mining activities, provided, however, that such activities shall be subject
to the requirements set forth in the applicable New York State Department
of Environmental Conservation SPDES Permit which may be required pursuant
to Environmental Conservation Law section 17-0808.
(3) Stormwater pollution prevention plans shall be
prepared for the activities listed in this paragraph. Such plans shall be
prepared and implemented in accordance with the requirements of Part III of
the New York State Department of Environmental Conservation General Permit
No. GP-93-06. Such plans shall also be subject to the prior review and
approval of the Department. The activities are:
(i) Plans for development or sale of land that will result
in the disturbance of five (5) or more acres of total land area as
described in General Permit No. GP-93-06;
(ii) Construction of a subdivision;
(iii)Construction of a new industrial, municipal,
commercial, or multi-family residential project that will result in
creation of an impervious surface totaling over 40,000 square feet in size;
(iv) A land clearing or land grading project, involving two
or more acres, located at least in part within the limiting distance of 100
feet of a watercourse or wetland, or within the limiting distance of 300
feet of a reservoir, reservoir stem or controlled lake or on a slope
exceeding 15 percent;
(v) Construction of a new solid waste management facility
or alteration or modification of an existing solid waste management
facility within 300 feet of a watercourse or wetland or 500 feet of a
reservoir, reservoir stem or controlled lake;
(vi) Construction of a gasoline station;
(vii)Construction of an impervious surface for a new road,
as required by paragraph (a)(6) of this section;
(viii) Construction of an impervious surface in the West of
Hudson watershed within a village, hamlet, village extension or area zoned
for commercial or industrial uses, as required by paragraph (a)(8) of this
section;
(ix) Up to a 25 percent expansion of an existing impervious
surface at an existing commercial or industrial facility which is within
the limiting distance of 100 feet of a watercourse or wetland, as required
in subdivision (a) (4)(iii) of this section; or
(x) Construction of an impervious surface in the East of
Hudson Watershed in a Designated Main Street Area.
(4) If the owner or operator of any activity which is
subject to a Stormwater Pollution Prevention Plan pursuant to subsection
(b)(3), alters or modifies such activity in a manner which would require an
amended stormwater pollution prevention plan pursuant to Part III.C of the
New York State Department of Environmental Conservation General Permit No.
GP-93-06, if such activity were governed by General Permit No. GP-93-06,
such amended stormwater pollution prevention plan shall be submitted to the
Department for prior review and approval and shall comply with the
requirements of this section.
(5) Any approval of a stormwater pollution prevention plan
issued by the Department shall expire and thereafter be null and void
unless construction is completed within five (5) years of the date of
issuance or within any extended period of time approved by the Department
upon good cause shown. Following expiration of the approval, the
application for the stormwater pollution prevention plan may be resubmitted
to the Department for consideration for a new approval.
(6) As a condition of approval the Department may require
evidence of financial security prior to construction from any owner or
operator of a stormwater management system pursuant to a stormwater
pollution prevention plan. Such financial security shall consist of a bond,
or an equivalent guaranty, to be deposited with the Department, covering
the full cost of the construction of such facility and an additional bond
or an equivalent guaranty for the payment of labor and material furnished
in the course of such construction. Upon completion of construction and
payment of labor and materials, such bonds or other guaranties shall be
released. Additionally, a bond or equivalent guaranty may be required for
the maintenance and operation of the facility for a period of five years
post-construction. No bond or guaranty is required where the owner or
operator of such a facility is a village, town, county or city.
(c) Additional requirements for stormwater pollution
prevention plans.
(1) When any activity listed in paragraph (3) of
subdivision (b) of this section is proposed to be undertaken in a
phosphorus restricted basin, the stormwater pollution prevention plan shall
include an analysis of phosphorus runoff, before and after the land
disturbance activity. Such plan shall require measures to capture and
treat the 2- year, 24-hour storm runoff from the disturbed area created by
such activity.
(2) When any activity listed in paragraph (3) of
subdivision (b) of this section is proposed to be undertaken in the
drainage basin of a terminal reservoir, as identified on the watershed maps
in Appendix 128-A, the stormwater pollution prevention plan shall include
analysis of coliform runoff, before and after the land disturbance
activity.
(i) If such proposed activity causes or contributes to the
contravention of the coliform standard set forth in Section 128-4.1(b)(1)
of Subpart 128-4, the stormwater pollution prevention plan shall not be
approved by the Department, unless the measures required by the stormwater
pollution prevention plan in conjunction with any other controls to be
imposed that limit future land disturbance at the site, including but not
limited to property easements, restrictive covenants, zoning laws and
development by-laws, will prevent the contribution of additional coliform.
(3) When any activity listed in paragraph (3) of
subdivision (b) of this section is proposed to be undertaken in a coliform
restricted reservoir basin, the stormwater pollution prevention plan shall
include an analysis of coliform runoff, before and after the land
disturbance activity. Such plan shall require measures to capture and
treat the 2-year, 24-hour storm runoff from the disturbed area created by
such activity.
(4) All stormwater pollution prevention plans prepared
pursuant to this section shall include an analysis of the 25-year storm.
(d) Application Requirements and Procedures
(1) An application for approval of a stormwater pollution
prevention plan shall include:
(i) The pollution prevention plan;
(ii) The information required in a Notice of Intent under
New York State Department of Environmental Conservation SPDES General
Permit No. GP-93-06; and
(iii) A phosphorus and/or coliform analysis when required by
this section.
(2) When the Department notifies an applicant that an
application for approval of a stormwater pollution prevention plan is
complete pursuant to subdivision 128-2.3(d)(2) and (3) of Subpart 128-2,
the Department shall also issue a written notification to the Stormwater
Project Review Committee ( Committee ) for the Town(s) or Village in which
the activity requiring preparation of the stormwater pollution prevention
plan is proposed to be located, of the Department s receipt of a complete
application.
(i) If requested by one or more members of the Committee,
the Department shall submit a copy of the complete application to the
Committee for its review and shall convene a meeting, in person or by
telephone, of the Committee.
(ii) The Department shall not be required to meet with or
otherwise further consult with a member of the Committee concerning an
application where the Committee member declines to review the application
or fails to attend a meeting of the Committee convened to consider the
application.

(3) Upon completion of their review of the application, and
upon a majority vote of the Committee members, including the Department s
Committee member, who reviewed the application, the Committee may recommend
to the Department that an application for approval of a stormwater
pollution prevention plan be approved, approved with conditions or
disapproved.
(i) If the Department s Committee member agrees with the
majority recommendation of the Committee, the Department may proceed to
issue its determination to the applicant.
(ii) If the Department s Committee member disagrees with the
majority recommendation of the Committee, the application, together with
the written recommendation of the Committee, shall be submitted to the
First Deputy Commissioner of the Department for review and a determination.
The First Deputy Commissioner shall issue a written record of decision
setting forth the basis for the determination and responding to any
contrary written recommendations submitted by any member of the Committee.
(iii) If the Committee fails to make a recommendation to the
Department at least fifteen (15) days prior to the date the Department is
required to notify an applicant in writing of its determination pursuant to
subdivision 128-2.3(d)(5) of Subpart 128-2, the Department may proceed to
issue its determination and the Department shall not be required by these
rules and regulations to further consult with or consider the comments of
the Committee or any member of the Committee.
(4) Failure of any Committee member, other than the
Department Committee member, to act in accordance with the procedures or
within the time frames set forth in these rules and regulations, shall
relieve the Department of any obligation to consult with or consider the
comments of the Committee member. Failure of any Committee member, other
than the Department Committee member, to act in accordance with the
procedures or within the time frames set forth in these rules and
regulations, shall not invalidate any determination issued by the
Department.
(5) A Committee may only make recommendations to the
Department and shall have no authority to make decisions on behalf of the
Department. For purposes of SEQRA, the Department s determination on an
application, not the Committee s recommendation to the Department, shall be
considered a final decision.
(e) Individual residential stormwater permits.
(1) An individual residential stormwater permit is required
for:
(i) Construction of a new individual residence, not located
within a subdivision, and located within the limiting distance of 100 feet
of a perennial stream or wetland;
(ii) Construction of a new individual residence located
within a subdivision approved before October 16, 1995, and not prohibited
by paragraph (a)(5)(ii)(b) of this section, and located within the limiting
distance of 100 feet of a perennial stream or wetland; and
(iii) Construction of an impervious surface for a driveway
located within the limiting distances of 50 feet of an intermittent stream
or wetland or within 100 feet of a perennial stream, provided that the
driveway is necessary for access to an individual residence which is not
located within a subdivision and where the individual residence accessed by
the driveway would be required to obtain an individual residential
stormwater permit pursuant to this section.
(2) Application requirements. An application for issuance
of an individual residential stormwater permit shall include:
(i) A plan of the proposed individual residence and/or
driveway;
(ii) A plan or map identifying the location of any
watercourses, wetlands, reservoirs, reservoir stems or controlled lakes on
or adjacent to the property;
(iii)A plan showing the approximate area of site
disturbance;
(iv) A description and depiction of proposed erosion
controls sufficient to prevent sedimentation of the receiving watercourse
or wetland during construction. Erosion controls typically consist of
sediment barriers, such as hay bales and silt fencing, and temporary
stormwater diversions;
(v) A schedule for construction, including grading and site
stabilization; and
(vi) A description and depiction of proposed stormwater best
management practices designed to filter, detain, or filtrate runoff from
the individual residence or driveway, thereby minimizing the
post-construction increase in pollutant loading to the receiving perennial
stream or wetland.
(3) An individual residential stormwater permit issued by
the Department shall expire and thereafter be null and void unless
construction is completed within two (2) years of the date of issuance of
the permit, or within any extended period of time approved by the
Department upon good cause shown. Following expiration of the permit, the
application for the individual residential stormwater permit may be
resubmitted to the Department for consideration for a new permit.

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VOLUME B (Title 10)

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