§ 75. Grants of land under water. This section authorizes grants,
leases, easements, and lesser interests, including permits, for the use
of state-owned land underwater and the cession of jurisdiction thereof
consistent with the public interest in the use of state-owned lands
underwater for purposes of navigation, commerce, fishing, bathing, and
recreation; environmental protection; and access to the navigable waters
of the state; with due regard for the need of affected owners of private
property to safeguard their property.

1. Of navigable rivers and lakes.

2. Of the Hudson river adjacent to the state of New Jersey.

3. Of the former bed of Onondaga creek in Onondaga county and of
Tibbetts brook in Bronx county, whether or not now under water, and
regardless of upland ownership.

4. Adjacent to and surrounding Great Barn island in the city and
county of New York, and between high and low water mark on such island,
but not so as to affect the navigation of the waters surrounding such
island.

5. Adjacent to and surrounding Staten Island, but not so as to extend
more than five hundred feet into the water from low water mark on said
island, except where the legally established pier and bulkhead lines
extend more than five hundred feet beyond low water mark, in which case
grants may be made to such lines.

6. Adjacent to and surrounding Long Island, and all that part of the
former or present county of Westchester lying on the East river or Long
Island sound, but not beyond any permanent exterior water line
established by law.

7. (a) The commissioner of general services may grant in perpetuity or
otherwise, to the owners of the land adjacent to the land underwater
specified in this section, to promote the commerce of this state or for
the purpose of beneficial enjoyment thereof by such owners, or for
agricultural purposes, or for public park, beach, street, highway,
parkway, playground, recreation or conservation purposes, so much of
said land underwater as the commissioner deems necessary for that
purpose. No such grant shall be made to any person other than the
proprietor of the adjacent land. Any such grant made to any other person
shall be void, except that, subject to the other provisions of this
section, the commissioner of general services may transfer jurisdiction
over state-owned lands underwater to a state agency for the purpose of
protecting environmentally sensitive lands underwater even if the state
agency is not the proprietor of the adjacent upland. The commissioner
may also lease such land underwater to such owner of the adjacent upland
or, with the consent of such owner of the adjacent upland, to others,
for terms up to forty years. No such grant or lease shall be made of any
lands belonging to the city of New York, or so as to interfere with the
rights of that city or of the Hudson River Railroad Company, or of its
successor the New York Central and Hudson River Railroad Company. In
making any grant, lease, permit or other conveyance, the commissioner of
general services shall, upon administrative findings, and to the extent
practicable, reserve such interests or attach such conditions to
preserve the public interest in use of state-owned lands underwater and
waterways for navigation, commerce, fishing, bathing, recreation,
environmental protection and access to the navigable waters of the
state, with due regard for the need of affected owners of private
property to safeguard their property. The commissioner shall by official
rules establish criteria and guidelines for determinations with respect
to the leasing or selling of such lands underwater.

Where the boundary line between land underwater and the adjacent land
lies within a public road or street, and the name of the owner or owners
of such adjacent land or the place of residence cannot be ascertained to
the satisfaction of the commissioner, grants or leases may be made by
the commissioner in his or her discretion to the owner or owners of the
land adjoining the road or street inshore of such land underwater in the
manner herein provided, but a grant or lease so made shall not be
regarded as depriving any other person of the exercise of his or her
riparian rights.

Where the title to such public road or street is in a county, city,
town or village, grants or leases may be made by the commissioner in the
manner herein provided to the owner of the land adjoining the road or
street inshore of such land underwater, but no such grant shall be made
unless the consent thereto of such county, city, town or village shall
first be filed with the commissioner, or unless, having been duly
personally served with a notice of application of such grant, the
county, city, town or village fails to file an objection with the
commissioner or, having filed such objection, fails to present to the
commissioner sufficient proof or other reasons satisfactory to the
commissioner why the grant should not be made.

(b) No wharf, dock, pier, jetty, platform, breakwater, mooring or
other structure shall be constructed, erected, anchored, suspended,
placed or substantially replaced, altered, modified, enlarged, or
expanded in, on or above state-owned lands underwater, nor shall any
fill be placed on such lands underwater, unless a lease, easement,
permit, or other interest is obtained from the commissioner, which
authorizes the use and occupancy of those state-owned lands underwater
to be affected by such act or acts, provided however, that there shall
be excepted in the uniform regulations issued pursuant to paragraph (f)
of this subdivision any existing structure for non-commercial use
constructed prior to June seventeenth, nineteen hundred ninety-two, by
or on behalf of the owner of adjacent upland who owned prior to June
seventeenth, nineteen hundred ninety-two, which has a surface area, as
measured at the outermost perimeter, including surface waters between or
encompassed within the structure of less than five thousand square feet
in area, and with respect to docking facilities, has a capacity of no
more than seven boats thirty feet in length. For the purposes of this
subdivision, the term "structure" shall not include discharge or intake
pipes, pipelines, cables, or conduits. Thereafter there shall be so
excepted any structure constructed by or on behalf of the owner of
adjacent uplands that:

(i) has a surface area, as measured at the outermost perimeter,
including surface waters directly between or encompassed within the
structure, of less than four thousand square feet in area and not
exceeding fifteen feet in height, as measured at the uppermost point,
above the mean high water line and, with respect to docking facilities,
has a capacity of five or fewer boats thirty feet in length and, with
respect to mooring facilities, has a capacity of fewer than ten boats
thirty feet in length; provided that the commissioner may by rule
promulgated pursuant to paragraph (f) of this subdivision determine,
based on a different surface area or other criteria of size and use,
that other types of structure in particular circumstances do not
represent significant encroachments on state-owned lands underwater, and

(ii) is water dependent, which shall mean, for purposes of this
section, an activity which can only be conducted on, in, over or
adjacent to a water body because such activity requires direct access to
that water body, and which involves, as an integral part of such
activity, the use of the water.

(c) The requirements of obtaining a lease, easement, permit or other
interest from the commissioner pursuant to the rules set forth in
paragraph (f) of this subdivision shall not apply to the person or
entity who was the upland owner on June seventeenth, nineteen hundred
ninety-two, of lands adjacent to filled state-owned lands underwater or
formerly underwater, in respect of those filled lands, including
accompanying seawalls; provided however, that any right, title and
interest of the state in and to any such state-owned lands shall in no
respect be diminished or impaired by the provisions of this section, nor
by any exemption in the uniform regulations authorized by paragraph (f)
of this subdivision.

Upon any transfer of such lands, or at the request of the owner of the
adjacent upland, the commissioner may convey such lesser interest as may
be minimally required to allow a conveyance of marketable title by that
owner of the adjacent land. Consideration charged in such instances
shall reflect the interest so conveyed.

(d) (i) The commissioner of environmental conservation and the
secretary of state shall review any proposed lease, easement, permit or
other interest, except for facilities in existence on June seventeenth,
nineteen hundred ninety-two, and which are not the subject of an action
by the attorney general for unlawful occupation of state lands under
water on the effective date of this paragraph. The commissioner of
environmental conservation shall recommend conditions to protect the
environment and natural resources. The commissioner of general services
shall incorporate those conditions in any lease, easement, permit or
other interest, giving due regard as well to the recommendations of the
secretary of state with respect to coastal issues, or shall deny the
proposal if the commissioner of environmental conservation, upon
administrative findings, determines that the environment or natural
resources cannot be adequately protected. Such lease, easement, permit,
or other conveyance of an interest shall state the purpose for which it
is made, and shall also be subject to all applicable federal, state and
local laws, rules, regulations and codes.

(ii) The owner, occupier or any other person or entity (except those
against whom there has been commenced on the effective date of this
paragraph an action by the attorney general, for unlawful occupation of
state lands under water) with a legal or beneficial interest in any
structure not excepted by paragraph (b) of this subdivision and
occupying state lands underwater on the effective date of the rules
authorized by paragraph (f) of this subdivision, as adopted pursuant to
subdivision five of section two hundred two of the state administrative
procedure act, shall make application for such lease, easement, permit
or other interest within one year from that effective date.

Except where timely application for such an interest has been made
within one year pursuant to this subdivision, the commissioner is
authorized to require the term of such lease, easement, permit, or other
interest to be retroactive to the effective date of the rules so
adopted. Any instrument conveying an interest in real property which is
made retroactive shall include provision for payment of consideration
for the portion of the term which extends retroactively including, where
appropriate, interest on such consideration at the same rate then
currently in effect and applied to judgments rendered in the court of
claims.

(iii) The commissioner shall make reasonable efforts to provide notice
to persons affected by the requirements of this section.

(e)(i) The commissioner may impose a fee in connection with the
issuance of any such lease, easement, permit, or other interest, which
fee shall be established by rule pursuant to paragraph (f) of this
subdivision, and which shall take into account other factors affecting
value including but not limited to classes of structure, types of use
(including whether the use is for public or private purposes), location
and region, size, usefulness of the parcel standing alone and such other
criteria as the commissioner may determine, but which shall exclude the
value of improvements thereon constructed and maintained by the
adjoining upland owner. The rules and regulations required by paragraph
(f) of this subdivision shall prescribe that in the event an applicant
for a lease, easement or other interest in real property shall dispute
and request a reduction of the commissioner's determination of the value
of the interest to be conveyed, the commissioner shall, upon the
applicant's submission of an appraisal of the value of such property
interest conducted in accord with standard and accepted appraisal
methodology by an independent appraiser qualified as prescribed in this
paragraph and which appraisal varies in its conclusion as to value by
ten percent or more of the value previously established by the
commissioner, and upon the applicant's agreement to be bound thereby,
contract with a second independent appraiser, qualified as prescribed in
this paragraph, to render an appraisal of the value of the interest
proposed to be conveyed, the results of which appraisal shall be binding
upon both the applicant and the commissioner of general services. Such
appraiser shall be selected by the commissioner of general services from
among a group of at least three appraisers identified by the applicant
all of whom must be qualified as prescribed in this paragraph and each
of whom must agree to employ standard appraisal methodology. For the
purposes of this provision a qualified appraiser shall be certified by
the secretary of state to transact business as a real estate general
appraiser and shall conduct a regular business of the appraisal of real
property interests. In the event that the appraisal contracted for in
such manner shall conclude that the value of the property interest in
question is equal to the value previously determined by the commissioner
plus or minus ten percent, the entire cost of such appraisal shall be
borne by the applicant, otherwise, the entire cost thereof shall be
borne by the commissioner of general services.

(ii) For leases, easements and conveyances of such interests for
commercial use of structures on state-owned underwater lands, the annual
fee imposed shall not exceed two percent of the user's net annual income
for structures not in existence on the effective date of this paragraph.
Nor, in connection with a structure in existence and in commercial use
on the effective date of this paragraph, shall the fee charged in
connection with such a conveyance made after the effective date of this
subparagraph exceed annually the following schedule for five years
following the effective date of the interest conveyed pursuant to
subdivision (b) of this section provided timely application pursuant to
that subdivision has been made: .2 (two-tenths) of one percent; second
year: .4 (four-tenths) of one percent; third-year: .6 (six-tenths) of
one percent; fourth year: .8 (eight-tenths) of one percent; fifth year,
and thereafter: one percent; provided that all such percentages in this
paragraph shall be that percentage of the net income derived from the
structure or structures on state-owned lands, excluding transactions
involving sales or repair of boats, and sale of gasoline; and the dollar
valuation of the interest conveyed shall not be increased from year to
year during that five year period. The fee charged shall be discounted
ten percent for annual permits.

(iii) For leases, easements and conveyances of such interests for
residential use of non-exempt structures in existence and residential
use on the effective date of this paragraph, the annual fee shall not
exceed the lesser of twenty dollars per slip or one hundred dollars.

(iv) Nothing in this paragraph shall preclude the commissioner of
general services from agreeing, upon the request of and negotiation with
the owner or user of adjacent upland, to such other conveyances or
agreements consistent with this section providing for different periodic
payments, or a more flexible payment structure, than the fee caps and
fees, respectively, set forth for commercial and residential facilities
herein. Moreover, notwithstanding the fee caps set in this section, the
commissioner may exceed those caps if required to cover the yearly pro
rata share, over the term of the conveyance or interest, of the
administrative costs in connection with that conveyance or interest.

(f) The commissioner, in consultation with the commissioner of
environmental conservation, the secretary of state, the office of parks,
recreation and historic preservation and other interested state agencies
administering state-owned lands underwater, shall promulgate pursuant to
article two of the state administrative procedure act such rules with
respect to grants, leases, easements and lesser interests for the use of
state-owned land underwater, and the cession of jurisdiction thereof, as
in his or her judgment are reasonable and necessary to protect the
interests of the people in such lands underwater. Such regulations shall
include without being limited to: the fees to be charged, consistent
with the provisions of this section, including mitigation of such fees
in the event of economic hardship on existing commercial enterprises;
fee limitations to administrative expenses for municipal uses which are
public, non-commercial and offer services free or for nominal fees, and
for uses undertaken and operated for public and non-commercial purposes
by not-for-profit corporations characterized as charitable corporations
as defined in paragraph (a) of section one hundred two (Definitions) of
the not-for-profit corporation law, and for uses undertaken and operated
for public purposes by a corporation formed pursuant to the religious
corporation law or by a corporation formed pursuant to a special act of
this state and which has as its principal purpose a religious purpose;
such further exemptions for projects as the commissioner determines do
not represent significant encroachments; limitations on grants,
including conversion grants, with respect to underwater lands consistent
with the public purposes of this subdivision and limiting such grants to
exceptional circumstances; and factors to be examined in considering an
application for a lease, easement or other interest. Those factors shall
include without limitation the following: (i) the environmental impact
of the project; (ii) the values for natural resource management,
recreational uses, and commercial uses of the pertinent underwater land;
(iii) the size, character and effects of the project in relation to
neighboring uses; (iv) the potential for interference with navigation,
public uses of the waterway and rights of other riparian owners; (v) the
effect of the project on the natural resource interests of the state in
the lands; (vi) the water-dependent nature of the use; (vii) and any
adverse economic impact on existing commercial enterprises. The final
promulgation of rules establishing fees or fee structures shall be
subject to the approval of the director of the budget.

(g) (i) From one year after the effective date of the rules authorized
by paragraph (f) of this subdivision and adopted pursuant to subdivision
five of section two hundred two of the state administrative procedure
act, and thereafter, any person who violates any of the provisions of
this subdivision; or who fails to perform any duty imposed by this
subdivision; or who violates or fails to comply with any rule,
regulation, determination or order of the commissioner promulgated
pursuant to this subdivision may be enjoined from continuing such
violation, and in any event shall be liable for a civil penalty of not
more than five hundred dollars for each such violation and an additional
civil penalty of not more than one hundred dollars for each day during
which such violation continues; provided, however, that such penalties
shall be imposed by the commissioner only after written notice and an
opportunity to be heard are given to the owner, occupier or other person
or entity having a legal or beneficial interest in a prohibited
structure or area of fill which notice shall be transmitted by certified
mail, return receipt requested and which shall set forth the provisions
of this section, a description of the prohibited structure or area of
fill, the amount of the penalty, that the person must comply with the
provisions of this section within thirty days, and the specific date
thirty days thereafter following which the person shall be subject to
such penalty and after which further penalties shall accrue on a daily
basis.

(ii) If the commissioner of environmental conservation notifies the
commissioner of any failure to comply with conditions of a lease,
easement or other interest, the commissioner shall investigate such
suspected violation. The commissioner, on his or her own initiative or
at the request of the commissioner of environmental conservation, shall
thereafter take enforcement action as described herein or request the
attorney general to institute an action to enjoin such violation and to
recover any damages therefor.

8. The commissioner may authorize the use and occupation by the United
States of lands of the state under water, for the purpose of improvement
of navigation, including sites for lighthouses, beacons and lighthouse
keepers' dwellings and navy yards and naval stations, and may cede
jurisdiction over any such land but such jurisdiction so ceded shall be
upon the express condition that the state of New York shall retain a
concurrent jurisdiction with the United States in and over the property
and premises so conveyed, so far as that all civil and criminal process,
which may issue under the laws or authority of the state of New York,
may be executed thereon in the same way and manner as if such
jurisdiction had not been ceded, except so far as such process may
affect the real or personal property of the United States. The
provisions of section seventy-seven shall not apply to any authorization
of use and occupation under the provisions of this subdivision.

9. Private rights or rights of property of individuals, if any, of any
nature or description, shall not be taken away nor impaired nor impeded
without due process of law.

10. No grant for public park, beach, street, highway, parkway,
playground, recreation or conservation purposes shall be made under this
section to other than a county, city, town or village. A grant so made
may be made with or without consideration and shall be upon such terms
and conditions as may be imposed by the commissioner. A grant so made
shall be upon the condition that if at any time the land so granted
shall not be used for the purpose set forth therein or shall be used for
any other purpose, the title so granted shall thereupon revert to and be
in the people of the state of New York. Where a grant has heretofore
been made by the commissioner for one or more of the purposes enumerated
herein, the commissioner, in his discretion and upon such terms and
conditions as he may impose and with or without consideration, upon
application by the county board of supervisors, board of estimate,
common council, town board or village board, as the case may be, is
authorized to alter or amend such grant, in respect to the purposes
thereof and with respect to the whole or part of the land under water
therein granted and described, so that the grant may thenceforth
nevertheless be for one or more of the purposes enumerated herein. The
provisions of section seventy-seven of this article shall not apply upon
an application to alter or amend a grant so heretofore made.

11. Where a grant of land under water has previously been made by the
state under the provisions of this article, for the purposes of
commerce, commerce or beneficial enjoyment, restricted beneficial
enjoyment, or otherwise, where the purpose of the grant is less than
that of beneficial enjoyment, and by reason of the nature of which
previous grant there remains in the state a right, title or interest,
the commissioner may, in his discretion, grant such right, title or
interest in or to the whole of the land under water so granted or part
thereof, to the grantee or to one who has succeeded to the title or
interest so previously granted, and a grant so made may be made
regardless of upland ownership and without publication or posting of
notice of application as provided by section seventy-seven of this
article, but no such grant shall be made for less than the appraised
value of the right, title or interest of the state in the land under
water or part thereof, as the case may be, and shall be upon such terms
and conditions as shall be imposed by the commissioner to protect the
interests of the state.

12. The commissioner, in his discretion, upon such terms and
conditions and for such consideration as the commissioner may determine
may grant and convey to the owner or owners of the adjacent land the
right, title and interest of the people of the state of New York in and
to the lands now or formerly under the waters of the arms, branches or
tributaries of any navigable waters of the state which arms, branches or
tributaries have become non-navigable, and a grant so made may be made
without publication or posting of notice of application as provided by
section seventy-seven of this chapter.

13. The powers granted to the commissioner by this section may,
notwithstanding any other law to the contrary, continue to be exercised
by it in respect to lands under the waters of the Niagara and St.
Lawrence rivers except as to those areas thereof that are natural
resources of the state of New York for the creation and development of
hydroelectric power, but the commissioner shall not make any grant of
lands under the water of either of said rivers unless the power
authority of the state of New York shall, prior to the issuance of any
such grant, advise the commissioner, in writing, that such grant, if
made, will not interfere with its St. Lawrence or Niagara project.

14. Proceeds from the sales, leases, grants of easements and lesser
interests, including permits for the use of lands under water pursuant
to this section shall be deposited in the environmental protection fund
established pursuant to section ninety-two-s of the state finance law.