S T A T E O F N E W Y O R K
________________________________________________________________________
8796
I N S E N A T E
May 18, 2018
___________
Introduced by Sens. MAYER, KRUEGER -- 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.
LBD01152-01-7
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(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.
§ 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.
§ 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
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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
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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.]
§ 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
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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.
§ 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.]
§ 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. 8796 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.
§ 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.]
§ 8. Section 24-1305 of the environmental conservation law is
REPEALED.
§ 9. This act shall take effect immediately.
