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

                                  7617

                            I N  S E N A T E

                              May 11, 2016
                               ___________

Introduced  by  Sen. LATIMER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  freshwater wetlands and repealing section 24-1305 of such law relating
  thereto

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

  Section 1. Subdivision 7  of  section  24-0105  of  the  environmental
conservation  law,  as  added  by chapter 614 of the laws of 1975 and as
renumbered by chapter 654 of the laws of 1977, is  amended  to  read  as
follows:
  7. Any loss of freshwater wetlands deprives the people of the state of
some  or  all  of  the  many  and  multiple  benefits to be derived from
wetlands, to wit:
  (a) flood and storm control by the hydrologic absorption  and  storage
capacity of freshwater wetlands;
  (b)  wildlife  habitat  by  providing  breeding,  nesting  and feeding
grounds and cover for many forms of wildlife, wildfowl  and  shorebirds,
including  migratory wildfowl and rare, ENDANGERED OR THREATENED species
such as the bald eagle and osprey;
  (c) protection of subsurface water resources and provision  for  valu-
able watersheds and recharging ground water supplies;
  (d)  recreation  by  providing  areas  for  hunting, fishing, boating,
hiking, bird watching, photography, camping and other uses;
  (e) pollution treatment by serving as biological and  chemical  oxida-
tion basins;
  (f)  erosion  control  by serving as sedimentation areas and filtering
basins, absorbing silt and organic matter and  protecting  channels  and
harbors;
  (g)  education and scientific research by providing readily accessible
outdoor bio-physical laboratories, living classrooms and  vast  training
and education resources; [and]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14921-01-6

              

S. 7617                             2

  (h)  open space and aesthetic appreciation by providing often the only
remaining open areas along crowded river fronts and coastal Great  Lakes
regions; [and]
  (i) sources of nutrients in freshwater food cycles and nursery grounds
and sanctuaries for freshwater fish[.];
  (J)  PRESERVATION  OF  PLANT  SPECIES  THAT  ARE  RARE, ENDANGERED, OR
EXPLOITABLY VULNERABLE AS DEFINED IN SECTION 9-1503 OF THIS CHAPTER; AND
  (K) PRESERVATION OF COMMUNITIES OF PLANTS AND ANIMALS THAT ARE  DEEMED
BY THE COMMISSIONER TO BE RARE IN THE STATE OR IN A REGION OF THE STATE.
  S  2.  The  opening  paragraph  of  subdivision 1 and subdivision 2 of
section 24-0107 of the environmental conservation  law,  as  amended  by
chapter 654 of the laws of 1977, are amended to read as follows:
  "Freshwater wetlands" means lands and waters of the state [as shown on
the freshwater wetlands map which] THAT ARE ONE ACRE OR MORE IN SIZE OR,
ADJACENT  TO  A  WATER BODY, INCLUDING AN INTERMITTENT WATER BODY OR, IN
THE DISCRETION OF THE COMMISSIONER, OF SIGNIFICANT LOCAL IMPORTANCE  FOR
ONE  OR  MORE OF THE SPECIFIC BENEFITS SET FORTH IN SUBDIVISION SEVEN OF
SECTION 24-0105 OF THIS TITLE.  FRESHWATER WETLANDS SHALL contain any or
all of the following:
  2. "Freshwater wetlands map" shall mean a map [promulgated]  DEVELOPED
by  the  department pursuant to section 24-0301 of this article on which
are indicated the boundaries of any freshwater wetlands. THESE MAPS WILL
SERVE THE PURPOSE OF EDUCATING THE PUBLIC ON THE LOCATION OF WETLANDS.
  S 3. Subdivisions 1, 2, 3, 4, 5 and 6 of section 24-0301 of the  envi-
ronmental  conservation  law,  subdivision 1 as amended by section 37 of
part D of chapter 60 of the laws  of  2012,  subdivisions  2  and  3  as
amended  by  chapter 654 of the laws of 1977 and subdivisions 4, 5 and 6
as amended by chapter 16 of the laws of 2010, are  amended  to  read  as
follows:
  1.  The commissioner shall, as soon as practicable, conduct a study to
identify and map those individual freshwater wetlands in  the  state  of
New  York  [which  shall have an area of at least twelve and four-tenths
acres or more, or if less than twelve and four-tenths acres,  (a)  have,
in  the  discretion of the commissioner unusual local importance for one
or more of the specific benefits  set  forth  in  subdivision  seven  of
section  24-0105  of this article] AS DEFINED IN SECTION 24-0107 OF THIS
ARTICLE or (b) THAT are located within the Adirondack park and meet  the
definition  of  wetlands contained in subdivision sixty-eight of section
eight hundred two of the executive law, and shall determine their  char-
acteristics.  This  study  shall,  in addition to such other data as the
commissioner may determine to be included,  consist  of  the  freshwater
wetlands  inventory  of  the department [of environmental conservation],
currently being made, together with other available data  on  freshwater
wetlands,  whether  assisted  by  the  state of New York under the tidal
wetlands act or otherwise, or assembled by federal or local governmental
or private agencies, all of which information  shall  be  assembled  and
integrated,  as  applicable,  into  a  map of freshwater wetlands of the
state of New York. Such study may, in the discretion of the  commission-
er,  be  carried  out  on a sectional or regional basis, as indicated by
need, subject to overall completion in an expeditious fashion subject to
the terms of this chapter. [This map, and any orders issued pursuant  to
the  provisions  of this article, shall comprise a part of the statewide
environmental plan as provided for in section 3-0303 of  this  chapter.]
As soon as practicable the commissioner shall file with the secretary of
state  a  detailed description of the technical methods and requirements

S. 7617                             3

to be utilized in compiling the  inventory,  and  he  shall  afford  the
public an opportunity to submit comments thereon.
  2. Upon completion of a freshwater wetlands inventory, the commission-
er shall prepare a [tentative] DRAFT freshwater wetlands map delineating
the boundaries of such wetlands as determined by the study and inventory
conducted  pursuant  to  subdivision one of this section. The map may be
prepared for different sections or regions of the state  separately,  as
the  commissioner  shall  determine.  The commissioner shall consult and
cooperate with the Adirondack  park  agency  in  the  preparation  of  a
[tentative]  DRAFT  freshwater  wetlands  map  for  any  area within the
Adirondack park.
  3. The [tentative] DRAFT freshwater wetlands map shall set  forth  the
boundaries  of  such  wetlands as accurately as is practicable to inform
the owners thereof, the public and the  department  of  the  approximate
location of the actual boundaries of the wetlands, subject to motion for
delineation pursuant to this section, or more precise definition thereof
in  the discretion of the commissioner. The commissioner shall take into
consideration, whenever possible, the boundaries of the local government
or governments within which the wetlands are located.
  4. Upon completion of the [tentative] DRAFT  freshwater  wetlands  map
for  a particular area, the commissioner or his designated hearing offi-
cer shall hold a public hearing in that  area  in  order  to  afford  an
opportunity  for  any person to propose additions or deletions from such
map. The commissioner shall give notice of such hearing to  [each  owner
of  record  as  shown  on  the latest completed tax assessment rolls, of
lands designated as such wetlands as shown on said map and also to]  the
chief  administrative  officer and clerk of each local government within
the boundaries of which any such wetland or a portion thereof is located
and, in the case of a [tentative] DRAFT freshwater wetlands map for  any
area  within  the  Adirondack  park,  to  the Adirondack park agency, by
certified mail not less than thirty days prior to the date set for  such
hearing  and  shall  assure that a copy of the relevant map is available
for public inspection at a convenient location in such local government.
The map filed with a local government may,  at  the  local  government's
request,  be  either a physical copy of the [tentative] DRAFT freshwater
wetlands map, or, if available, a digital file that represents  it.  The
commissioner  shall also cause notice of such hearing to be published at
least once, not more than thirty days nor fewer than ten days before the
date set for such hearing, in at least  two  newspapers  having  general
circulation in the area where such wetlands are located. The commission-
er  may post on the department's website a digital image that represents
the [tentative] DRAFT freshwater wetlands map.
  5. [After considering the testimony given  at  such  hearing  and  any
other  facts which may be deemed pertinent, after considering the rights
of affected property owners and the  ecological  balance  in  accordance
with  the  policy  and  purposes  of  this  article, and, in the case of
wetlands or portions thereof within the Adirondack park, after  consult-
ing  with  the Adirondack park agency, the commissioner shall promulgate
by order the final freshwater wetlands map.  Such  order  shall  not  be
promulgated  less  than sixty days from the date of the hearing required
by subdivision four of this section. A copy of the order, together  with
a  copy  of  such  map or relevant portion thereof shall be filed in the
office of the clerk of each local government in which each such  wetland
or  a  portion thereof is located and, in the case of a map for any area
within the Adirondack park, with  the  Adirondack  park  agency.]  AFTER
CONSIDERATION  OF  COMMENTS  FROM  THE  PUBLIC THE COMMISSIONER MAY MAKE

S. 7617                             4

ALTERATIONS TO THE DRAFT MAP CONSISTENT WITH  SECTION  24-0107  OF  THIS
ARTICLE.  THE COMMISSIONER SHALL FINALIZE THE MAP AND FILE A COPY OF THE
MAP WITH THE OFFICE OF THE CLERK OF EACH LOCAL GOVERNMENT WITH JURISDIC-
TION OVER PART OR ALL OF THE REGION SHOWN ON THE MAP. The map filed with
a  local  government may, at the local government's request, be either a
physical copy of the final freshwater wetlands map, or, if available,  a
digital  file that represents it. [The commissioner shall simultaneously
give notice of such order to each owner of lands, as shown on the latest
completed tax assessment rolls, designated as such wetlands by mailing a
copy of such order to such owner by certified mail in any case  where  a
notice  by  certified  mail was not sent pursuant to subdivision four of
this section, and in all other cases by first class  mail.  The  commis-
sioner  shall  also  give notice of such order at such time to the chief
administrative officer of each local government within the boundaries of
which any such wetland or a portion thereof is located. At the  time  of
filing  with  such  clerk or clerks, the commissioner shall also cause a
copy of such order to be published in at  least  two  newspapers  having
general  circulation  in  the area where such wetlands are located.] The
commissioner may post on the department's website a digital  image  that
represents the final freshwater wetlands map.
  6.  Except  as  provided  in  subdivision  eight  of this section, the
commissioner shall supervise the  maintenance  of  such  boundary  maps,
which shall be available to the public for inspection and examination at
the  regional  office of the department in which the wetlands are wholly
or partly located and in the office of the clerk of each county in which
each such wetland or a portion thereof is located. The commissioner  may
readjust  the  map thereafter to clarify the boundaries of the wetlands,
to correct any errors on the map, to effect any additions, deletions  or
technical changes on the map, and to reflect changes as have occurred as
a  result of the granting of permits pursuant to section 24-0703 of this
article, or natural changes which may  have  occurred  through  erosion,
accretion,  or  otherwise. Notice of such readjustment shall be given in
the same manner as set forth in subdivision [five] FOUR of this  section
for  the  [promulgation]  DEVELOPMENT of final freshwater wetlands maps.
[In addition, at the time notice is  provided  pursuant  to  subdivision
five of this section, the commissioner shall update any digital image of
the  map  posted  on  the department's website to reflect such readjust-
ment.]
  S 4. Subdivisions 1, 2 and 4 of section 24-0701 of  the  environmental
conservation  law, subdivisions 1 and 2 as amended by chapter 654 of the
laws of 1977 and subdivision 4 as amended by chapter 697 of the laws  of
1979, are amended and a new subdivision 9 is added to read as follows:
  1.  [After  issuance  of  the  official freshwater wetlands map of the
state, or of any selected section or region  thereof,  any]  ANY  person
desiring  to  conduct  on freshwater wetlands [as so designated thereon]
any of the regulated activities set forth in  subdivision  two  of  this
section must obtain a permit as provided in this title.
  2.  Activities  subject  to  regulation  UNDER SUBDIVISION ONE OF THIS
SECTION shall include SUBDIVISION OF PARCELS OF LAND CONTAINING FRESHWA-
TER WETLANDS AND any form of draining, dredging, excavation, removal  of
soil,  mud,  sand, shells, gravel or other aggregate from any freshwater
wetland, either directly or indirectly; and any form of  dumping,  fill-
ing,  or  depositing  of any soil, stones, sand, gravel, mud, rubbish or
fill of any kind, either directly or  indirectly;  erecting  any  struc-
tures,   roads,  the  driving  of  pilings,  or  placing  of  any  other
obstructions whether or not changing the ebb and flow of the water;  any

S. 7617                             5

form  of  pollution,  including  but not limited to, installing a septic
tank, running a sewer outfall, discharging sewage treatment effluent  or
other  liquid  wastes  into or so as to drain into a freshwater wetland;
and  any  other  activity which substantially impairs any of the several
functions served by freshwater wetlands or the benefits  derived  there-
from  which  are  set  forth  in  section 24-0105 of this article. These
activities are subject to regulation whether or not they occur upon  the
wetland  itself,  if they impinge upon or otherwise substantially affect
the wetlands and are located not more than one  hundred  feet  from  the
boundary  of  such  wetland.  Provided, that a greater distance from any
such wetland may be regulated pursuant to this article by the  appropri-
ate  local  government  or by the department, whichever has jurisdiction
over such wetland, where necessary to protect and preserve the wetland.
  4. [The] ON LANDS IN ACTIVE AGRICULTURAL USE, THE activities of  farm-
ers  and  other  landowners  in  grazing  and watering livestock, making
reasonable use of water resources, harvesting natural  products  of  the
wetlands,  selectively  cutting  timber,  draining  land or wetlands for
growing agricultural products and  otherwise  engaging  in  the  use  of
wetlands  or  other  land  for  growing  agricultural  products shall be
excluded from regulated activities and shall not require a permit  under
subdivision  one  [hereof]  OF  THIS SECTION, except that structures not
required for enhancement or maintenance of the agricultural productivity
of the land and any filling activities shall not be excluded  hereunder,
and  provided  that  the use of land [designated as a freshwater wetland
upon the freshwater wetlands map at the  effective  date  thereof]  THAT
MEETS  THE DEFINITION OF A FRESHWATER WETLAND IN SECTION 24-0107 OF THIS
ARTICLE for uses other than those referred to in this subdivision  shall
be subject to the provisions of this article.
  9.  ANY  PERMIT  OBTAINED  SUBJECT  TO SUBDIVISION ONE OF THIS SECTION
SHALL BE PERMANENTLY APPENDED TO THE DEED FOR  THE  REAL  PROPERTY  SUCH
REGULATED ACTION OCCURRED ON.
  S  5.  Subdivision 5 of section 24-0703 of the environmental conserva-
tion law, as amended by section 38 of part D of chapter 60 of  the  laws
of 2012, is amended to read as follows:
  5.  [Prior to the promulgation of the final freshwater wetlands map in
a particular area  and  the  implementation  of  a  freshwater  wetlands
protection  law  or  ordinance,  no person shall conduct, or cause to be
conducted, any activity for which a permit  is  required  under  section
24-0701 of this title on any freshwater wetland unless he has obtained a
permit from the commissioner under this section.] Any person may inquire
of  the  department as to whether or not a given parcel of land [will be
designated] INCLUDES a freshwater wetland  subject  to  regulation.  The
department shall give a definite answer in writing within thirty days of
such request as to [whether] THE STATUS OF such parcel [will or will not
be  so designated].   Provided that, in the event that weather or ground
conditions prevent the department from  making  a  determination  within
thirty  days,  it  may  extend  such period until a determination can be
made. Such answer in the affirmative shall be reviewable; such an answer
in the negative shall be a complete defense to the enforcement  of  this
article  as  to such parcel of land. [The commissioner may by regulation
adopted after public hearing exempt categories or classes of wetlands or
individual wetlands which he determines not to be critical to the furth-
erance of the policies and purposes of this article.]
  S 6. Subdivision 1 of section 24-0901 of the  environmental  conserva-
tion  law,  as  added  by chapter 614 of the laws of 1975, is amended to
read as follows:

S. 7617                             6

  1. [Upon completion of the freshwater wetlands map, the]  THE  commis-
sioner  shall  confer  with local government officials in each region in
which the inventory has been conducted to establish a  program  for  the
protection of the freshwater wetlands of the state.
  S  7.  Subdivision 1 of section 24-0903 of the environmental conserva-
tion law, as added by chapter 614 of the laws of  1975,  is  amended  to
read as follows:
  1. [Upon completion of the freshwater wetlands map of the state, or of
any  selected  section or region thereof, the commissioner shall proceed
to classify freshwater wetlands so designated thereon according to their
most appropriate uses, in] IN light of the values set forth  in  section
24-0105  of this article and the present conditions of [such] FRESHWATER
wetlands[. The], THE commissioner shall determine what  uses  of  [such]
FRESHWATER  wetlands  are  most  compatible with the foregoing and shall
prepare minimum land use regulations  to  permit  only  such  compatible
uses.  [The  classifications  may cover freshwater wetlands in more than
one governmental subdivision.  Permits pursuant to  section  24-0701  of
this  article  are  required  whether  or  not a classification has been
promulgated.]
  S  8.  Section  24-1305  of  the  environmental  conservation  law  is
REPEALED.
  S 9. This act shall take effect immediately.