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S05576 Summary:

Amd §§24-0105, 24-0107, 24-0301, 24-0701, 24-0703, 24-0901 & 24-0903, rpld §24-1305, En Con L
Relates to the definition of freshwater wetlands; repeals section relating to the applicability of the freshwater wetlands article; provides authority of DEC over wetlands which are one acre or more; amends permitting requirements for subdivision of land.
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S05576 Memo:

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S05576 Text:

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                    IN SENATE
                                       May 7, 2019
        Introduced  by  Sen.  MAYER  -- 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

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Subdivision 7  of  section  24-0105  of  the  environmental
     2  conservation  law,  as  added  by chapter 614 of the laws of 1975 and as
     3  renumbered by chapter 654 of the laws of 1977, is  amended  to  read  as
     4  follows:
     5    7. Any loss of freshwater wetlands deprives the people of the state of
     6  some  or  all  of  the  many  and  multiple  benefits to be derived from
     7  wetlands, to wit:
     8    (a) flood and storm control by the hydrologic absorption  and  storage
     9  capacity of freshwater wetlands;
    10    (b)  wildlife  habitat  by  providing  breeding,  nesting  and feeding
    11  grounds and cover for many forms of wildlife, wildfowl  and  shorebirds,
    12  including  migratory wildfowl and rare, endangered or threatened species
    13  such as the bald eagle and osprey;
    14    (c) protection of subsurface water resources and provision  for  valu-
    15  able watersheds and recharging ground water supplies;
    16    (d)  recreation  by  providing  areas  for  hunting, fishing, boating,
    17  hiking, bird watching, photography, camping and other uses;
    18    (e) pollution treatment by serving as biological and  chemical  oxida-
    19  tion basins;
    20    (f)  erosion  control  by serving as sedimentation areas and filtering
    21  basins, absorbing silt and organic matter and  protecting  channels  and
    22  harbors;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 5576                             2

     1    (g)  education and scientific research by providing readily accessible
     2  outdoor bio-physical laboratories, living classrooms and  vast  training
     3  and education resources; [and]
     4    (h)  open space and aesthetic appreciation by providing often the only
     5  remaining open areas along crowded river fronts and coastal Great  Lakes
     6  regions; [and]
     7    (i) sources of nutrients in freshwater food cycles and nursery grounds
     8  and sanctuaries for freshwater fish[.];
     9    (j)  preservation  of  plant  species  that  are  rare, endangered, or
    10  exploitably vulnerable as defined in section 9-1503 of this chapter; and
    11    (k) preservation of communities of plants and animals that are  deemed
    12  by the commissioner to be rare in the state or in a region of the state.
    13    §  2.  The  opening  paragraph  of  subdivision 1 and subdivision 2 of
    14  section 24-0107 of the environmental conservation  law,  as  amended  by
    15  chapter 654 of the laws of 1977, are amended to read as follows:
    16    "Freshwater wetlands" means lands and waters of the state [as shown on
    17  the freshwater wetlands map which] that are one acre or more in size or,
    18  adjacent  to  a  water body, including an intermittent water body or, in
    19  the discretion of the commissioner, of significant local importance  for
    20  one  or  more of the specific benefits set forth in subdivision seven of
    21  section 24-0105 of this title.  Freshwater wetlands shall contain any or
    22  all of the following:
    23    2. "Freshwater wetlands map" shall mean a map [promulgated]  developed
    24  by  the  department pursuant to section 24-0301 of this article on which
    25  are indicated the boundaries of any freshwater wetlands. These maps will
    26  serve the purpose of educating the public on the location of wetlands.
    27    § 3. Subdivisions 1, 2, 3, 4, 5 and 6 of section 24-0301 of the  envi-
    28  ronmental  conservation  law,  subdivision 1 as amended by section 37 of
    29  part D of chapter 60 of the laws  of  2012,  subdivisions  2  and  3  as
    30  amended  by  chapter 654 of the laws of 1977 and subdivisions 4, 5 and 6
    31  as amended by chapter 16 of the laws of 2010, are  amended  to  read  as
    32  follows:
    33    1.  The commissioner shall, as soon as practicable, conduct a study to
    34  identify and map those individual freshwater wetlands in  the  state  of
    35  New  York  [which  shall have an area of at least twelve and four-tenths
    36  acres or more, or if less than twelve and four-tenths acres,  (a)  have,
    37  in  the  discretion of the commissioner unusual local importance for one
    38  or more of the specific benefits  set  forth  in  subdivision  seven  of
    39  section  24-0105  of this article] as defined in section 24-0107 of this
    40  article or (b) that are located within the Adirondack park and meet  the
    41  definition  of  wetlands contained in subdivision sixty-eight of section
    42  eight hundred two of the executive law, and shall determine their  char-
    43  acteristics.  This  study  shall,  in addition to such other data as the
    44  commissioner may determine to be included,  consist  of  the  freshwater
    45  wetlands  inventory  of  the department [of environmental conservation],
    46  currently being made, together with other available data  on  freshwater
    47  wetlands,  whether  assisted  by  the  state of New York under the tidal
    48  wetlands act or otherwise, or assembled by federal or local governmental
    49  or private agencies, all of which information  shall  be  assembled  and
    50  integrated,  as  applicable,  into  a  map of freshwater wetlands of the
    51  state of New York. Such study may, in the discretion of the  commission-
    52  er,  be  carried  out  on a sectional or regional basis, as indicated by
    53  need, subject to overall completion in an expeditious fashion subject to
    54  the terms of this chapter. [This map, and any orders issued pursuant  to
    55  the  provisions  of this article, shall comprise a part of the statewide
    56  environmental plan as provided for in section 3-0303 of  this  chapter.]

        S. 5576                             3
     1  As soon as practicable the commissioner shall file with the secretary of
     2  state  a  detailed description of the technical methods and requirements
     3  to be utilized in compiling the  inventory,  and  he  shall  afford  the
     4  public an opportunity to submit comments thereon.
     5    2. Upon completion of a freshwater wetlands inventory, the commission-
     6  er shall prepare a [tentative] draft freshwater wetlands map delineating
     7  the boundaries of such wetlands as determined by the study and inventory
     8  conducted  pursuant  to  subdivision one of this section. The map may be
     9  prepared for different sections or regions of the state  separately,  as
    10  the  commissioner  shall  determine.  The commissioner shall consult and
    11  cooperate with the Adirondack  park  agency  in  the  preparation  of  a
    12  [tentative]  draft  freshwater  wetlands  map  for  any  area within the
    13  Adirondack park.
    14    3. The [tentative] draft freshwater wetlands map shall set  forth  the
    15  boundaries  of  such  wetlands as accurately as is practicable to inform
    16  the owners thereof, the public and the  department  of  the  approximate
    17  location of the actual boundaries of the wetlands, subject to motion for
    18  delineation pursuant to this section, or more precise definition thereof
    19  in  the discretion of the commissioner. The commissioner shall take into
    20  consideration, whenever possible, the boundaries of the local government
    21  or governments within which the wetlands are located.
    22    4. Upon completion of the [tentative] draft  freshwater  wetlands  map
    23  for  a particular area, the commissioner or his designated hearing offi-
    24  cer shall hold a public hearing in that  area  in  order  to  afford  an
    25  opportunity  for  any person to propose additions or deletions from such
    26  map. The commissioner shall give notice of such hearing to  [each  owner
    27  of  record  as  shown  on  the latest completed tax assessment rolls, of
    28  lands designated as such wetlands as shown on said map and also to]  the
    29  chief  administrative  officer and clerk of each local government within
    30  the boundaries of which any such wetland or a portion thereof is located
    31  and, in the case of a [tentative] draft freshwater wetlands map for  any
    32  area  within  the  Adirondack  park,  to  the Adirondack park agency, by
    33  certified mail not less than thirty days prior to the date set for  such
    34  hearing  and  shall  assure that a copy of the relevant map is available
    35  for public inspection at a convenient location in such local government.
    36  The map filed with a local government may,  at  the  local  government's
    37  request,  be  either a physical copy of the [tentative] draft freshwater
    38  wetlands map, or, if available, a digital file that represents  it.  The
    39  commissioner  shall also cause notice of such hearing to be published at
    40  least once, not more than thirty days nor fewer than ten days before the
    41  date set for such hearing, in at least  two  newspapers  having  general
    42  circulation in the area where such wetlands are located. The commission-
    43  er  may post on the department's website a digital image that represents
    44  the [tentative] draft freshwater wetlands map.
    45    5. [After considering the testimony given  at  such  hearing  and  any
    46  other  facts which may be deemed pertinent, after considering the rights
    47  of affected property owners and the  ecological  balance  in  accordance
    48  with  the  policy  and  purposes  of  this  article, and, in the case of
    49  wetlands or portions thereof within the Adirondack park, after  consult-
    50  ing  with  the Adirondack park agency, the commissioner shall promulgate
    51  by order the final freshwater wetlands map.  Such  order  shall  not  be
    52  promulgated  less  than sixty days from the date of the hearing required
    53  by subdivision four of this section. A copy of the order, together  with
    54  a  copy  of  such  map or relevant portion thereof shall be filed in the
    55  office of the clerk of each local government in which each such  wetland
    56  or  a  portion thereof is located and, in the case of a map for any area

        S. 5576                             4

     1  within the Adirondack park, with  the  Adirondack  park  agency.]  After
     2  consideration  of  comments  from  the  public the commissioner may make
     3  alterations to the draft map consistent with  section  24-0107  of  this
     4  article.  The commissioner shall finalize the map and file a copy of the
     5  map with the office of the clerk of each local government with jurisdic-
     6  tion over part or all of the region shown on the map. The map filed with
     7  a local government may, at the local government's request, be  either  a
     8  physical  copy of the final freshwater wetlands map, or, if available, a
     9  digital file that represents it. [The commissioner shall  simultaneously
    10  give notice of such order to each owner of lands, as shown on the latest
    11  completed tax assessment rolls, designated as such wetlands by mailing a
    12  copy  of  such order to such owner by certified mail in any case where a
    13  notice by certified mail was not sent pursuant to  subdivision  four  of
    14  this  section,  and  in all other cases by first class mail. The commis-
    15  sioner shall also give notice of such order at such time  to  the  chief
    16  administrative officer of each local government within the boundaries of
    17  which  any  such wetland or a portion thereof is located. At the time of
    18  filing with such clerk or clerks, the commissioner shall  also  cause  a
    19  copy  of  such  order  to be published in at least two newspapers having
    20  general circulation in the area where such wetlands  are  located.]  The
    21  commissioner  may  post on the department's website a digital image that
    22  represents the final freshwater wetlands map.
    23    6. Except as provided  in  subdivision  eight  of  this  section,  the
    24  commissioner  shall  supervise  the  maintenance  of such boundary maps,
    25  which shall be available to the public for inspection and examination at
    26  the regional office of the department in which the wetlands  are  wholly
    27  or partly located and in the office of the clerk of each county in which
    28  each  such wetland or a portion thereof is located. The commissioner may
    29  readjust the map thereafter to clarify the boundaries of  the  wetlands,
    30  to  correct any errors on the map, to effect any additions, deletions or
    31  technical changes on the map, and to reflect changes as have occurred as
    32  a result of the granting of permits pursuant to section 24-0703 of  this
    33  article,  or  natural  changes  which may have occurred through erosion,
    34  accretion, or otherwise. Notice of such readjustment shall be  given  in
    35  the  same manner as set forth in subdivision [five] four of this section
    36  for the [promulgation] development of final  freshwater  wetlands  maps.
    37  [In  addition,  at  the  time notice is provided pursuant to subdivision
    38  five of this section, the commissioner shall update any digital image of
    39  the map posted on the department's website  to  reflect  such  readjust-
    40  ment.]
    41    §  4.  Subdivisions 1, 2 and 4 of section 24-0701 of the environmental
    42  conservation law, subdivisions 1 and 2 as amended by chapter 654 of  the
    43  laws  of 1977 and subdivision 4 as amended by chapter 697 of the laws of
    44  1979, are amended and a new subdivision 9 is added to read as follows:
    45    1. [After issuance of the official  freshwater  wetlands  map  of  the
    46  state,  or  of  any  selected section or region thereof, any] Any person
    47  desiring to conduct on freshwater wetlands [as  so  designated  thereon]
    48  any  of  the  regulated  activities set forth in subdivision two of this
    49  section must obtain a permit as provided in this title.
    50    2. Activities subject to regulation  under  subdivision  one  of  this
    51  section shall include subdivision of parcels of land containing freshwa-
    52  ter  wetlands and any form of draining, dredging, excavation, removal of
    53  soil, mud, sand, shells, gravel or other aggregate from  any  freshwater
    54  wetland,  either  directly or indirectly; and any form of dumping, fill-
    55  ing, or depositing of any soil, stones, sand, gravel,  mud,  rubbish  or
    56  fill  of  any  kind,  either directly or indirectly; erecting any struc-

        S. 5576                             5
     1  tures,  roads,  the  driving  of  pilings,  or  placing  of  any   other
     2  obstructions  whether or not changing the ebb and flow of the water; any
     3  form of pollution, including but not limited  to,  installing  a  septic
     4  tank,  running a sewer outfall, discharging sewage treatment effluent or
     5  other liquid wastes into or so as to drain into  a  freshwater  wetland;
     6  and  any  other  activity which substantially impairs any of the several
     7  functions served by freshwater wetlands or the benefits  derived  there-
     8  from  which  are  set  forth  in  section 24-0105 of this article. These
     9  activities are subject to regulation whether or not they occur upon  the
    10  wetland  itself,  if they impinge upon or otherwise substantially affect
    11  the wetlands and are located not more than one  hundred  feet  from  the
    12  boundary  of  such  wetland.  Provided, that a greater distance from any
    13  such wetland may be regulated pursuant to this article by the  appropri-
    14  ate  local  government  or by the department, whichever has jurisdiction
    15  over such wetland, where necessary to protect and preserve the wetland.
    16    4. [The] On lands in active agricultural use, the activities of  farm-
    17  ers  and  other  landowners  in  grazing  and watering livestock, making
    18  reasonable use of water resources, harvesting natural  products  of  the
    19  wetlands,  selectively  cutting  timber,  draining  land or wetlands for
    20  growing agricultural products and  otherwise  engaging  in  the  use  of
    21  wetlands  or  other  land  for  growing  agricultural  products shall be
    22  excluded from regulated activities and shall not require a permit  under
    23  subdivision  one  [hereof]  of  this section, except that structures not
    24  required for enhancement or maintenance of the agricultural productivity
    25  of the land and any filling activities shall not be excluded  hereunder,
    26  and  provided  that  the use of land [designated as a freshwater wetland
    27  upon the freshwater wetlands map at the  effective  date  thereof]  that
    28  meets  the definition of a freshwater wetland in section 24-0107 of this
    29  article for uses other than those referred to in this subdivision  shall
    30  be subject to the provisions of this article.
    31    9.  Any  permit  obtained  subject  to subdivision one of this section
    32  shall be permanently appended to the deed for  the  real  property  such
    33  regulated action occurred on.
    34    §  5.  Subdivision 5 of section 24-0703 of the environmental conserva-
    35  tion law, as amended by section 38 of part D of chapter 60 of  the  laws
    36  of 2012, is amended to read as follows:
    37    5.  [Prior to the promulgation of the final freshwater wetlands map in
    38  a particular area  and  the  implementation  of  a  freshwater  wetlands
    39  protection  law  or  ordinance,  no person shall conduct, or cause to be
    40  conducted, any activity for which a permit  is  required  under  section
    41  24-0701 of this title on any freshwater wetland unless he has obtained a
    42  permit from the commissioner under this section.] Any person may inquire
    43  of  the  department as to whether or not a given parcel of land [will be
    44  designated] includes a freshwater wetland  subject  to  regulation.  The
    45  department shall give a definite answer in writing within thirty days of
    46  such request as to [whether] the status of such parcel [will or will not
    47  be  so designated].   Provided that, in the event that weather or ground
    48  conditions prevent the department from  making  a  determination  within
    49  thirty  days,  it  may  extend  such period until a determination can be
    50  made. Such answer in the affirmative shall be reviewable; such an answer
    51  in the negative shall be a complete defense to the enforcement  of  this
    52  article  as  to such parcel of land. [The commissioner may by regulation
    53  adopted after public hearing exempt categories or classes of wetlands or
    54  individual wetlands which he determines not to be critical to the furth-
    55  erance of the policies and purposes of this article.]

        S. 5576                             6
     1    § 6. Subdivision 1 of section 24-0901 of the  environmental  conserva-
     2  tion  law,  as  added  by chapter 614 of the laws of 1975, is amended to
     3  read as follows:
     4    1.  [Upon  completion of the freshwater wetlands map, the] The commis-
     5  sioner shall confer with local government officials in  each  region  in
     6  which  the  inventory  has been conducted to establish a program for the
     7  protection of the freshwater wetlands of the state.
     8    § 7. Subdivision 1 of section 24-0903 of the  environmental  conserva-
     9  tion  law,  as  added  by chapter 614 of the laws of 1975, is amended to
    10  read as follows:
    11    1. [Upon completion of the freshwater wetlands map of the state, or of
    12  any selected section or region thereof, the commissioner  shall  proceed
    13  to classify freshwater wetlands so designated thereon according to their
    14  most  appropriate  uses, in] In light of the values set forth in section
    15  24-0105 of this article and the present conditions of [such]  freshwater
    16  wetlands[.  The],  the  commissioner shall determine what uses of [such]
    17  freshwater wetlands are most compatible with  the  foregoing  and  shall
    18  prepare  minimum  land  use  regulations  to permit only such compatible
    19  uses. [The classifications may cover freshwater wetlands  in  more  than
    20  one  governmental  subdivision.   Permits pursuant to section 24-0701 of
    21  this article are required whether  or  not  a  classification  has  been
    22  promulgated.]
    23    §  8.  Section  24-1305  of  the  environmental  conservation  law  is
    24  REPEALED.
    25    § 9. This act shall take effect immediately.
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