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.