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This entry was published on 2014-09-22
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SECTION 34-0108
Rules and regulations
Environmental Conservation (ENV) CHAPTER 43-B, ARTICLE 34
§ 34-0108. Rules and regulations.

1. After consultation with affected state agencies and representatives
of local governments, and after conducting public hearings and review of
any other comments submitted, the commissioner shall adopt rules and
regulations implementing the provisions of this article within one
hundred eighty days after the effective date hereof.

2. The rules and regulations adopted by the commissioner shall include
a procedure pursuant to which any owner of land in an erosion hazard
area identified pursuant to section 34-0104 of this article may appeal
from the inclusion of such land in such erosion hazard area. Such
procedure shall provide that the sole basis for such appeal shall be
technical information indicating either (a) that the long-term average
annual recession or other method used in identifying the erosion hazard
area was incorrect, or (b) that an area has been identified as a natural
protective area erroneously, and that the commissioner shall decide such
appeal within thirty days after receipt thereof, and shall adjust the
boundaries of the identified erosion hazard area or identified natural
protective features accordingly.

3. The rules and regulations adopted by the commissioner pursuant to
sections 34-0105, 34-0106 and 34-0107 of this article shall establish
minimum standards and criteria to be applied to activities or
development in erosion hazard areas. Such standards and criteria shall
be used to deny, condition or modify a proposed action, if necessary, to
implement the policies and purposes of this article. Standards and
criteria promulgated pursuant to this section shall include but shall
not be limited to:

(a) minimum setback requirements for structures within coastal erosion
hazard areas taking into consideration recession rates, the useful life
of the proposed structure, and the protection afforded by natural
protective features and existing erosion protection structures.

(b) regulation of activities or development, including placement of
erosion protection structures or use of non-structural measures so there
will be no measurable increase in erosion to the development site or at
other locations.

(c) regulation of activities or development, including placement of
erosion protection structures, so as to minimize adverse effects upon
natural protective features, existing erosion protection structures or
natural resources, such as significant fish and wildlife habitat.

(d) standards and criteria shall provide that erosion protection
structures that are proposed for construction or reconstruction shall
have a reasonable probability of controlling long-term erosion on the
immediate site for a period of at least thirty years and that a
long-term maintenance program is provided for such structures; however
such standards and criteria may allow for such protection structures to
be constructed of materials which by themselves have a working life of
less than thirty years, when the maintenance program assures that they
will be regularly maintained and replaced as necessary to attain the
required thirty years of erosion protection.

(e) restoration and stabilization standards for activities which are
to be undertaken in connection with activities or development to insure
that land areas are maintained and where necessary restored to minimize
erosion on the site or to other nearby lands.

4. The rules and regulations shall provide procedure pursuant to which
the strict application of their standards and criteria may be varied or
modified in cases where practical difficulty or unnecessary hardship is
shown, provided that in granting any such variance, the following
criteria are met:

(a) for any proposed activities and development where public funds are
utilized the public benefits clearly outweigh the long-range adverse

(b) no reasonable prudent alternative site is available.

(c) all responsible means and measures to mitigate adverse impacts on
natural systems in the area have been incorporated into the project
design and will be implemented at the developer's expense.

(d) the development will be reasonably safe from flood and erosion

(e) the variance provided will be the minimum necessary to overcome
the practical difficulty or unnecessary hardship which was the basis for
requesting such variance.

5. Notwithstanding section 34-0105 or 34-0106 of this article, in the
case of any department, bureau, commission, board or other agency of the
state, or any public benefit corporation, any member of which is
appointed by the governor, a permit shall be obtained from the
department pursuant to section 34-0109 of this article provided,
however, in cases where there is a local law or ordinance in effect the
commissioner shall make a finding prior to the issuance of the permit
that the conditions of such local law or ordinance have been met,
insofar as such conditions relate to the standards and criteria adopted
pursuant to section 34-0108 of this article.