Wetlands Protection

A local wetlands and watercourses ordinance provides a direct regulatory tool for municipalities to protect sensitive aquatic resources that may not be covered by state or federal law, or to provide more stringent local protection. The Village of Croton-on-Hudson, New York, adopted its Wetlands and Watercourses Ordinance (Chapter 227) in 1988, creating a comprehensive framework for identifying, buffering, and regulating activities in and around these critical areas. The ordinance establishes a dedicated local review body, defines regulated areas based on specific ecological criteria, and implements a multi-zoned buffer system to protect resource functions.

This ordinance serves as a robust model for communities seeking to establish local control over wetland and stream protection. Its structure is notable for its detailed definitions, which provide a clear and defensible basis for jurisdiction, and for its creation of a specialized Water Control Commission to administer the permit process. While this ordinance functions alongside a separate Croton Watershed Protection law focused on the drinking water supply, its mechanics for regulating wetlands and watercourses are broadly applicable to any municipality. It represents a complete system for local resource management, from defining the resource to enforcing its protection. More examples of local environmental regulations can be found in the Model Ordinances library.

Key provisions

The Croton-on-Hudson ordinance establishes a permitting system for activities that may impact wetlands and watercourses. Its key provisions create a clear jurisdictional scope, a multi-layered buffer system, and a specialized body for technical review.

Applicability and Definitions

The ordinance applies to activities within designated “Controlled Areas” and their associated setbacks. Unlike ordinances that rely solely on a pre-existing map, this law defines controlled areas based on physical and ecological characteristics that can be verified in the field. The boundaries for a specific site are established by the Water Control Commission as part of the application process. Key definitions of controlled areas include:

• Water Body: Any body of standing water over 5,000 square feet that exists for at least six months of the year.
• Watercourse: Any body of water flowing in an identifiable channel for at least six months of the year.
• Wetlands: Areas of at least one-quarter acre that are inundated or saturated frequently enough to support wetland vegetation. The ordinance provides extensive lists of characteristic vegetation for nine distinct wetland types, including freshwater meadows, marshes, wooded swamps, and bogs.
• Poorly Drained Soils: Areas identified by specific soil classifications from the U.S. Department of Agriculture Soil Conservation Service.
• Rainfall Drainage System: Interconnected depressions and contours that convey surface water runoff.

Controlled Area Setbacks

A distinguishing feature of the ordinance is its two-tiered buffer system, which creates a no-disturbance zone immediately adjacent to the resource and a larger regulated setback where activities require a permit. This structure provides layered protection for the functions of the controlled area. Both zones are measured horizontally from the delineated edge of the controlled area.

Regulated Activities and Exemptions

The ordinance specifies which activities are exempt from regulation and which require a permit. Certain activities are permitted by right and do not require a permit, including passive recreation (hiking, nature study), conservation activities, and emergency work necessary to protect health and safety. Normal grounds maintenance and minor repairs to existing structures are also exempt.

A wetlands activity permit is required for a wide range of actions proposed within a controlled area or its minimum activity setback. These regulated activities include:

• Deposition or removal of any material
• Draining or alteration of a controlled area
• Construction of buildings, roads, driveways, pools, docks, or septic systems
• Discharge of any pollutant or contaminant
• Clear-cutting of trees
• Installation of service lines, cables, or pipes

Permitting and Administration

The ordinance creates a five-member Water Control Commission, appointed by the Mayor, to administer the law. Members are required to have training or experience in fields such as engineering, ecology, hydrology, or community planning. This ensures that applications are reviewed by a body with relevant technical expertise.

The permit process involves submitting a detailed application to the Village Engineer, including site plans, an estimate of materials to be moved, erosion control plans, and an analysis of impacts on wetland functions. The Commission holds a public hearing for each complete application and must issue a written decision within 45 days of the hearing’s close. In reviewing an application, the Commission must consider the environmental impact, potential alternatives, and whether the proposed action is consistent with the ordinance’s intent to protect the health, safety, and welfare of the community. The burden of proof is on the applicant to demonstrate that the activity will not cause adverse impacts and that no practicable alternative exists. This approach is fundamental to effective Stream Buffers and wetland protection.

Enforcement and Penalties

The Water Control Commission is granted the authority to enforce the ordinance. This includes the power to inspect properties to ensure compliance. For violations, the Commission can require a person to restore the disturbed area to its original condition within a specified time. It also has the power to set and collect fines, which the ordinance caps at $3,000 per violation.

Selected provisions, annotated

Boundaries of “controlled areas” will be established when requested by the Water Control Commission, following the appropriate field work by qualified staff members of the Westchester County Soil and Water Conservation District, the New York Department of Environmental Conservation or other qualified individuals approved by the Water Control Commission.

Chapter 227, Wetlands and Watercourses Ordinance

This provision establishes how jurisdiction is asserted in practice. Rather than relying on a single, static wetlands map that may be out of date or inaccurate, boundaries are delineated case by case through qualified field work, giving the ordinance a flexible and scientifically defensible basis for regulating each site.

“MINIMUM ACTIVITY SETBACK” B The minimum buffer area required by this chapter between a proposed activity and controlled area…shall be one hundred (100) feet, measured horizontally in all directions from the edge of the prohibited buffer zone. Proposed activities within the “minimum activity setbacks” described above are subject to permits…

Chapter 227, Wetlands and Watercourses Ordinance

This definition is central to the ordinance’s protective strategy. It establishes a 100-foot regulated area adjacent to the 20-foot “Prohibited Buffer Zone,” creating a total regulated buffer of 120 feet. This two-tiered approach allows for a strict no-disturbance area immediately next to the resource while providing a larger zone where impacts are carefully reviewed and mitigated through the permit process.

The applicant shall have the burden of proof of demonstrating that the proposed activity is not adverse to the general health, safety and economic and general welfare of the residents…that it will not degrade the environment…and that the applicant will otherwise suffer undue hardship if a permit is not issued.

Chapter 227, Wetlands and Watercourses Ordinance

This standard places the responsibility squarely on the applicant to justify any proposed encroachment into a protected area. Requiring an applicant to demonstrate both a lack of environmental harm and the existence of “undue hardship” creates a high bar for permit approval, reinforcing the ordinance’s protective intent and discouraging speculative or unnecessary impacts.

What makes it a useful model

The Croton-on-Hudson Wetlands and Watercourses Ordinance is a useful model because it provides a complete and legally robust framework for local resource protection. Its primary strength lies in its detailed and multi-faceted definitions of regulated areas. By defining wetlands, watercourses, and other “controlled areas” based on verifiable field characteristics such as vegetation, soil type, and hydrology, the ordinance equips the municipality with a strong technical basis for its jurisdiction that is less susceptible to challenges than one based solely on lines on a map.

The two-tiered buffer system is another key feature that makes this ordinance an effective model. The creation of a 20-foot “Prohibited Buffer Zone” establishes a clear, unambiguous no-disturbance area that is easy to understand and enforce. The adjacent 100-foot “Minimum Activity Setback” provides a larger zone of caution, where development is not outright banned but is subject to careful review and conditioning through the permit process. This graduated approach allows for flexibility while ensuring a baseline level of protection for the most sensitive land immediately adjacent to the water resource.

Finally, the administrative structure is a critical component of the model. By vesting review authority in a specialized Water Control Commission composed of members with technical expertise, the ordinance ensures that complex environmental and engineering issues are evaluated by a qualified body. This is often more effective than assigning review to a general-purpose planning board, whose members may lack the specific knowledge needed to assess wetland impacts. This approach, combined with the ordinance’s other provisions, demonstrates a comprehensive strategy for managing local water resources, from Source Water Protection to stormwater conveyance.

Adaptation checklist for municipalities

Municipalities seeking to adapt this ordinance for local use should consider the following steps to tailor it to their specific legal, administrative, and environmental context:

• Identify the appropriate local administrative body (e.g., a new Conservation Commission, an existing Planning Board, or a specialized technical committee) to serve as the permit-granting authority.
• Define the qualifications and appointment process for members of the review body to ensure necessary technical expertise is available.
• Adopt or create official local maps of known wetlands, watercourses, floodplains, and hydric soils to serve as a primary reference, while retaining field-verification authority as defined in the ordinance.
• Establish specific buffer and setback widths (e.g., the 20-foot and 100-foot values) based on local ecological conditions, land use patterns, and community protection goals.
• Customize the lists of regulated, exempt, and prohibited activities to align with local priorities and common land uses.
• Integrate the wetlands permit process with other local land use reviews, such as those for subdivision, site plan, steep slopes, and Floodplain Management, to create a coordinated development review system.
• Establish a clear fee schedule to cover the costs of application review, technical consultation, public notices, and inspections.
• Reference specific state and federal wetland regulations to ensure the local ordinance is consistent with, or appropriately more stringent than, higher-level laws.
• Specify the legal authority and procedures for enforcement actions, including stop-work orders, restoration requirements, and civil penalties.
• Develop standardized application forms, submission checklists, and review procedures to ensure the permit process is efficient, transparent, and predictable for applicants and the public.