S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3666--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 27, 2009
                               ___________

Introduced by Sens. FLANAGAN, MORAHAN, RANZENHOFER, VOLKER -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on Environmental Conservation -- recommitted to the Committee on Envi-
  ronmental  Conservation  in  accordance  with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to amend the environmental conservation law, in relation to the
  public right of passage upon the navigable waterways of the state  and
  the rights of private property owners over which such waterways pass

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 15 of the environmental conservation law is amended
by adding a new title 35 to read as follows:
                                TITLE 35
                           NAVIGABLE WATERWAYS
SECTION 15-3501. STATEMENT OF LEGISLATIVE FINDINGS, POLICY AND INTENT.
        15-3503. DEFINITIONS.
        15-3505. PUBLIC RIGHT OF PASSAGE.
        15-3507. COMMON LAW REMEDIES PRESERVED.
        15-3509. INTERPRETATION; SEVERABILITY.
S 15-3501. STATEMENT OF LEGISLATIVE FINDINGS, POLICY AND INTENT.
  1. THE LEGISLATURE HEREBY FINDS THAT WATERWAYS IN THE STATE  THAT  ARE
SUBJECT  TO  THE  PUBLIC RIGHT OF NAVIGATION AS THIS RIGHT IS DEFINED IN
COMMON LAW CONSTITUTE A VALUABLE COMMERCIAL AND RECREATIONAL RESOURCE OF
THE STATE AND, AS SUCH, THEY PROVIDE IMPORTANT HEALTH BENEFITS AND LOCAL
AND STATEWIDE ECONOMIC BENEFITS. THE LEGISLATURE FURTHER FINDS THAT  THE
COURTS  OF  THE  STATE  HAVE  HISTORICALLY  APPLIED A COMMON LAW TEST TO
DETERMINE WHETHER PARTICULAR WATERWAYS ARE NAVIGABLE  IN  FACT  AND  ARE
THEREFORE  SUBJECT TO THE PUBLIC RIGHT OF NAVIGATION, AND THAT ON WATER-
WAYS FOR WHICH SUCH DETERMINATIONS HAVE NOT BEEN MADE  BOTH  THE  PUBLIC
AND  THE AFFECTED PRIVATE PROPERTY OWNERS MAY BE UNCERTAIN AS TO WHETHER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02867-02-0
              

S. 3666--A                          2

SUCH WATERWAYS ARE SUBJECT TO SUCH RIGHT. THE LEGISLATURE FURTHER  FINDS
THAT  WATERWAYS  THAT  SATISFY THE COMMON LAW TEST ARE NAVIGABLE IN FACT
AND THAT THE BED AND BANKS OF SUCH WATERWAYS ARE SUBJECT TO A  SERVITUDE
OR  EASEMENT  FOR THE PURPOSE OF NAVIGATION THAT IS HELD IN TRUST BY THE
STATE FOR THE PEOPLE OF THE STATE AND HAS BEEN SO HELD FROM THE TIME  OF
THE ORIGINAL GRANTS FROM THE STATE OR SOVEREIGN. THE LEGISLATURE FURTHER
FINDS THAT THIS NAVIGATIONAL EASEMENT PROVIDES A PUBLIC RIGHT OF PASSAGE
AND  THAT WATERWAYS THAT ARE SUBJECT TO SUCH EASEMENTS ARE CONSIDERED TO
BE PUBLIC HIGHWAYS  FOR  NAVIGATIONAL  PURPOSES,  INCLUDING  WHERE  SUCH
WATERWAYS  ARE  SITUATED ON PRIVATE PROPERTY. THE LEGISLATURE ALSO FINDS
THAT THE PUBLIC RIGHT OF NAVIGATION  INCLUDES  SEVERAL  ESSENTIAL  INCI-
DENTAL RIGHTS THAT MAY BE EXERCISED BY THE PUBLIC AS NECESSARY TO ACCOM-
PLISH  SAFE  PASSAGE. ALSO, THE LEGISLATURE FINDS THAT IN EXERCISING THE
PUBLIC RIGHT OF NAVIGATION THE PUBLIC IS REQUIRED BY LAW TO RESPECT  THE
RIGHTS  OF PRIVATE PROPERTY OWNERS AND MAY NOT ENTER ON PRIVATE PROPERTY
FOR PURPOSES OTHER THAN TO EXERCISE THE LAWFUL RIGHT OF SAFE PASSAGE AND
THEN ONLY TO THE MOST MINIMALLY INTRUSIVE EXTENT POSSIBLE.
  2. THE LEGISLATURE HEREBY DECLARES  ITS  INTENT  TO  ENSURE  THAT  THE
PUBLIC  SHALL BE ABLE TO FREELY NAVIGATE ON WATERWAYS THAT ARE NAVIGABLE
IN FACT AND TO ENSURE THAT THE RIGHTS OF PRIVATE PROPERTY OWNERS ARE NOT
VIOLATED OR INFRINGED UPON BY THOSE WHO ENGAGE IN THE  PUBLIC  RIGHT  OF
NAVIGATION.  THE  LEGISLATURE  FURTHER  DECLARES ITS INTENT TO DETERMINE
WHICH WATERWAYS IN THE STATE ARE NAVIGABLE IN FACT UNDER THE COMMON LAW.
  3. THE LEGISLATURE HEREBY DECLARES IT TO BE THE POLICY OF THE STATE TO
PROTECT THE COMMERCIAL AND RECREATIONAL USES OF  ALL  WATERWAYS  IN  THE
STATE  THAT  ARE NAVIGABLE IN FACT UNDER THE COMMON LAW, TO PRESERVE AND
PROTECT THE PUBLIC  RIGHT  OF  PASSAGE  UPON  THESE  WATERWAYS,  AND  TO
PRESERVE  AND  PROTECT  THE RIGHTS OF OWNERS OF PRIVATE PROPERTY THROUGH
WHICH THESE WATERWAYS PASS.
S 15-3503. DEFINITIONS.
  THE FOLLOWING TERMS WHEN USED IN THIS TITLE SHALL BE  DEEMED  TO  MEAN
AND INCLUDE:
  1.  "COMMERCE" SHALL MEAN ANY REMUNERATIVE ACTIVITY INCLUDING, WITHOUT
LIMITATION, USE OF A WATERWAY FOR THE TRANSPORT OF GOODS OR MINERALS  IN
VESSELS,  FLOATING  LOGS  TO  MILLS OR MARKET AND TRANSPORTING PEOPLE OR
GUIDING PEOPLE FOR HIRE IN VESSELS.
  2. "LINING" SHALL MEAN REGULATING THE PASSAGE OF  A  VESSEL  ALONG  AN
OBSTRUCTED  STREAM SEGMENT BY MEANS OF LINES CONTROLLED FROM THE BED AND
BANKS OF THE STREAM, PROVIDED THAT USE OF THE BED AND BANKS OF A  STREAM
FOR SUCH PURPOSE SHALL BE TO THE MINIMUM AND LEAST INTRUSIVE EXTENT THAT
IS REASONABLY NECESSARY TO ACCOMPLISH SAFE PASSAGE.
  3.  "NAVIGABLE  IN  FACT"  SHALL MEAN ANY WATERWAY WHICH SATISFIES THE
COMMON LAW TEST THAT THE WATERWAY, IN ITS  NATURAL  STATE  AND  ORDINARY
VOLUME  OF  WATER,  HAS PRACTICAL UTILITY TO THE PUBLIC AS A HIGHWAY FOR
TRADE, TRAVEL OR TRANSPORT. BOTH UTILITY FOR COMMERCIAL USE AND CAPACITY
FOR RECREATIONAL USE CAN BE CONSIDERED IN DETERMINING WHETHER A WATERWAY
HAS PRACTICAL UTILITY TO THE PUBLIC AS A HIGHWAY FOR  TRADE,  TRAVEL  OR
TRANSPORT. A WATERWAY MAY BE NAVIGABLE IN FACT EVEN IF IT IS NOT CAPABLE
OF  BEING  NAVIGATED AGAINST ITS CURRENT AND EVEN IF THE CAPACITY OF THE
STREAM FOR SUPPORTING NAVIGATION IS NOT CONTINUOUS OVER TIME, AS LONG AS
THE CAPACITY NECESSARY TO SUPPORT NAVIGATION CONTINUES FOR A  SUFFICIENT
LENGTH  OF TIME TO MAKE THE STREAM USEFUL AS A HIGHWAY FOR TRADE, TRAVEL
OR TRANSPORT. A WATERWAY MAY ALSO BE NAVIGABLE IN FACT  EVEN  THOUGH  IT
CONTAINS  OCCASIONAL  RAPIDS,  FALLS,  DAMS  OR OTHER NATURAL OR MANMADE
OBSTRUCTIONS.

S. 3666--A                          3

  4. "PASSAGE" SHALL MEAN THE ACT OF NAVIGATION, INCLUDING THE RIGHT  TO
ENGAGE  IN  INCIDENTAL ACTIVITIES WHICH ARE, UNDER THE CIRCUMSTANCES, AN
INSEPARABLE AND INDISPENSABLE PART OF SAFE NAVIGATION, INCLUDING BUT NOT
LIMITED TO SCRAPING OR PUSHING OFF THE  BED  OF  THE  WATERWAY,  POLING,
LINING, PORTAGING AND SCOUTING.
  5. "POLING" SHALL MEAN PROPELLING A VESSEL BY USING A POLE TO PUSH OFF
THE BED OR BANKS OF A WATERWAY.
  6.  "PORTAGING"  SHALL MEAN TRANSPORTING OR CARRYING A VESSEL UPON THE
BED OR BANKS OF AN OBSTRUCTED STREAM SEGMENT, PROVIDED THAT USE  OF  THE
BED  OR  BANKS OF A STREAM FOR SUCH PURPOSES SHALL BE TO THE MINIMUM AND
LEAST INTRUSIVE EXTENT THAT IS REASONABLY NECESSARY TO  ACCOMPLISH  SAFE
PASSAGE.
  7.  "RECREATION"  SHALL  MEAN  ANY  ACTIVITY WHICH IS NOT COMMERCE, AS
DEFINED IN THIS SECTION, INCLUDING BUT NOT LIMITED  TO  PERSONAL  TRAVEL
FOR  PLEASURE OR TO TRANSPORT GOODS OVER A WATERWAY AS A MEANS OF ACCESS
TO A PRIMARY OR SECONDARY RESIDENCE.
  8. "SCOUTING" SHALL MEAN  INSPECTION  OF  RAPIDS  OR  OTHER  POTENTIAL
NATURAL  OR  MANMADE  OBSTRUCTIONS TO SAFE PASSAGE IN ORDER TO DETERMINE
WHETHER AND BY WHAT ROUTE SAFE PASSAGE IS POSSIBLE, PROVIDED THAT USE OF
THE BED AND BANKS OF A STREAM FOR SUCH PURPOSE SHALL BE TO  THE  MINIMUM
AND  LEAST  INTRUSIVE  EXTENT THAT IS REASONABLY NECESSARY TO ACCOMPLISH
SAFE PASSAGE.
  9. "VESSEL" SHALL MEAN ANY WATERCRAFT DESIGNED FOR NAVIGATION, INCLUD-
ING SKIFFS, ROW BOATS, CANOES, RAFTS AND OTHER SMALL CRAFT.
  10. "WATERWAY" SHALL MEAN ANY NON-TIDAL  WATERBODY,  INCLUDING  LAKES,
PONDS,  RIVERS,  CREEKS  OR STREAMS, REGARDLESS OF WHETHER THE WATERBODY
HAS BEEN DETERMINED TO BE NAVIGABLE IN FACT AT COMMON LAW.
S 15-3505. PUBLIC RIGHT OF PASSAGE.
  1. THE PUBLIC HAS A RIGHT OF PASSAGE FOR ANY LAWFUL PURPOSE, INCLUDING
COMMERCE, TRAVEL AND RECREATION, ON ALL WATERWAYS OF THE STATE THAT  ARE
NAVIGABLE IN FACT.
  2. THE PUBLIC RIGHT OF PASSAGE ON WATERWAYS THAT ARE NAVIGABLE IN FACT
DOES  NOT  INCLUDE  THE  RIGHT  TO  ENTER  PRIVATE  PROPERTY FOR HIKING,
PICNICKING, NATURE OBSERVATION, CAMPING, EGRESSING FROM OR  ACCESSING  A
WATERWAY, OR ANY OTHER PURPOSE NOT RELATED TO PASSAGE.
  3.  THE  COMMISSIONER SHALL HAVE THE AUTHORITY TO PROMULGATE RULES AND
REGULATIONS TO IMPLEMENT THIS SECTION,  INCLUDING  BUT  NOT  LIMITED  TO
RULES  AND  REGULATIONS  WHICH IDENTIFY AND DESIGNATE WATERWAYS THAT ARE
NAVIGABLE IN FACT, USING THE COMMON LAW TEST SET FORTH IN SUBDIVISION  3
OF  SECTION  15-3503  OF  THIS TITLE, AND WHICH ADDRESS ISSUES OF PUBLIC
SAFETY OR NATURAL RESOURCE PROTECTION. THE COMMISSIONER  MAY  AMEND  ANY
SUCH  RULES AND REGULATIONS AS MAY BE APPROPRIATE FROM TIME TO TIME. THE
COMMISSIONER SHALL NOT HAVE THE POWER TO DETERMINE THAT WATERWAYS  WHICH
SATISFY THE COMMON LAW TEST ARE NOT NAVIGABLE IN FACT AND SHALL NOT HAVE
THE  POWER  TO  DETERMINE THAT WATERWAYS WHICH DO NOT SATISFY THE COMMON
LAW TEST ARE NAVIGABLE IN FACT.
  4. THE PUBLIC RIGHT OF PASSAGE ON THE WATERWAYS THAT ARE NAVIGABLE  IN
FACT  IS SUBJECT TO ALL OTHER APPLICABLE PROVISIONS OF LAW AND RULES AND
REGULATIONS THAT REGULATE OR LIMIT THE USE OF VESSELS.
S 15-3507. COMMON LAW REMEDIES PRESERVED.
  NOTHING IN THIS TITLE SHALL BE CONSTRUED TO LIMIT ANY REMEDY AVAILABLE
IN COMMON LAW, STATUTE OR RULE OR REGULATION FOR OBSTRUCTING, HINDERING,
HARASSING OR OTHERWISE INTERFERING WITH THE PUBLIC RIGHT OF  PASSAGE  BY
PERSONS  LAWFULLY  EXERCISING THE RIGHT OF PASSAGE ON WATERWAYS THAT ARE
NAVIGABLE IN FACT. WARNING OF A DANGEROUS CONDITION SHALL NOT IN  ITSELF
BE  DEEMED AN INTERFERENCE WITH THE PUBLIC RIGHT OF NAVIGATION. FURTHER-

S. 3666--A                          4

MORE, NOTHING IN THIS TITLE SHALL  BE  CONSTRUED  TO  LIMIT  ANY  REMEDY
AVAILABLE  IN COMMON LAW, STATUTE OR RULE AND REGULATION FOR TRESPASS ON
PRIVATE PROPERTY FOR ACTIVITIES OTHER THAN PASSAGE.
S 15-3509. INTERPRETATION; SEVERABILITY.
  1.  THIS TITLE SHALL BE INTERPRETED TO PRESERVE AND PROTECT THE COMMON
LAW RIGHT OF PASSAGE ON WATERWAYS THAT ARE NAVIGABLE IN  FACT  AND  ALSO
SHALL  BE  INTERPRETED  TO  PRESERVE  AND PROTECT THE RIGHTS OF PROPERTY
OWNERS WHO OWN PROPERTY THROUGH WHICH NAVIGABLE IN FACT WATERWAYS FLOW.
  2. THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE, AND IF ANY CLAUSE,
SENTENCE, PARAGRAPH, SUBDIVISION, SECTION OR PART OF THIS TITLE SHALL BE
ADJUDGED BY ANY COURT OF COMPETENT  JURISDICTION  TO  BE  INVALID,  SUCH
JUDGMENT  SHALL  NOT  AFFECT, IMPAIR OR INVALIDATE THE REMAINDER THEREOF
BUT SHALL BE CONFINED IN ITS OPERATION TO THE  CLAUSE,  SENTENCE,  PARA-
GRAPH,  SUBDIVISION,  SECTION  OR  PART THEREOF DIRECTLY INVOLVED IN THE
CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.