A3374-2011 Actions

• Jan 4, 2012: ordered to third reading cal.133
• Jan 4, 2012: RETURNED TO ASSEMBLY
• Jan 4, 2012: DIED IN SENATE
• May 2, 2011: REFERRED TO ENVIRONMENTAL CONSERVATION
• May 2, 2011: delivered to senate
• May 2, 2011: passed assembly
• Mar 17, 2011: advanced to third reading cal.135
• Mar 15, 2011: reported
• Jan 25, 2011: referred to environmental conservation

A3374-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         3374
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 January 25, 2011
 
 Introduced  by M. of A. SWEENEY, CLARK, PEOPLES-STOKES, JAFFEE, PHEFFER,
 PAULIN, KAVANAGH, LATIMER,  ENGLEBRIGHT,  ROSENTHAL,  MAISEL,  COLTON,
 GALEF,  SCHIMEL,  TITONE  --  Multi-Sponsored  by  --  M.  of A. BING,
 BOYLAND, CAHILL, GLICK, GOTTFRIED, JACOBS, LIFTON, V. LOPEZ,  LUPARDO,
 MAGNARELLI,  MARKEY,  McENENY,  J. MILLER, MILLMAN, SCHROEDER, THIELE,
 WEINSTEIN, WEISENBERG -- read once and referred 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;
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD02985-01-1
 
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 (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]
 (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, subdivisions 1, 2 and 3 as amended by chap
 ter 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, and subject to review of his
 action by the board created pursuant to title eleven  of  this  article,
 unusual  local  importance  for one or more of the specific benefits set
 forth in subdivision seven of section 24-0105] (A) 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  article  twenty-seven]  of
 the executive law, and shall determine their characteristics. 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 other
 wise, or assembled by federal or local governmental or private agencies,
 all  of which information shall be assembled and integrated, as applica
 ble, into a map of freshwater wetlands of the state of  New  York.  Such
 study  may,  in  the discretion of the commissioner, 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 chap
 
       A. 3374                             3
 ter. [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 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. 3374                             4
 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
 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
 
       A. 3374                             5
 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
 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 chapter 233 of the laws of 1979, 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 article 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  regu
 lation.  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 deter
 mination within thirty days, it may extend such period until a  determi
 nation  can  be made. Such answer in the affirmative shall be reviewable
 pursuant to title eleven of this article; 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
 
       A. 3374                             6
 public hearing exempt categories or classes of  wetlands  or  individual
 wetlands  which  he  determines not to be critical to the furtherance 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:

 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.

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