|SAME AS||SAME AS A06282|
|COSPNSR||CARLUCCI, HOYLMAN, KRUEGER, SERRANO|
|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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STATE OF NEW YORK ________________________________________________________________________ 1749 2017-2018 Regular Sessions IN SENATE January 10, 2017 ___________ 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: 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. LBD01152-01-7S. 1749 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 on17 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-tenths36 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 one38 or more of the specific benefits set forth in subdivision seven of39 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 to55 the provisions of this article, shall comprise a part of the statewide56 environmental plan as provided for in section 3-0303 of this chapter.]S. 1749 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 owner27 of record as shown on the latest completed tax assessment rolls, of28 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 any46 other facts which may be deemed pertinent, after considering the rights47 of affected property owners and the ecological balance in accordance48 with the policy and purposes of this article, and, in the case of49 wetlands or portions thereof within the Adirondack park, after consult-50 ing with the Adirondack park agency, the commissioner shall promulgate51 by order the final freshwater wetlands map. Such order shall not be52 promulgated less than sixty days from the date of the hearing required53 by subdivision four of this section. A copy of the order, together with54 a copy of such map or relevant portion thereof shall be filed in the55 office of the clerk of each local government in which each such wetland56 or a portion thereof is located and, in the case of a map for any areaS. 1749 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 simultaneously10 give notice of such order to each owner of lands, as shown on the latest11 completed tax assessment rolls, designated as such wetlands by mailing a12 copy of such order to such owner by certified mail in any case where a13 notice by certified mail was not sent pursuant to subdivision four of14 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 chief16 administrative officer of each local government within the boundaries of17 which any such wetland or a portion thereof is located. At the time of18 filing with such clerk or clerks, the commissioner shall also cause a19 copy of such order to be published in at least two newspapers having20 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 subdivision38 five of this section, the commissioner shall update any digital image of39 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 the46 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. 1749 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 wetland27 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 in38 a particular area and the implementation of a freshwater wetlands39 protection law or ordinance, no person shall conduct, or cause to be40 conducted, any activity for which a permit is required under section41 24-0701 of this title on any freshwater wetland unless he has obtained a42 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 be44 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 not47 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 regulation53 adopted after public hearing exempt categories or classes of wetlands or54 individual wetlands which he determines not to be critical to the furth-55 erance of the policies and purposes of this article.]S. 1749 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 of12 any selected section or region thereof, the commissioner shall proceed13 to classify freshwater wetlands so designated thereon according to their14 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 than20 one governmental subdivision. Permits pursuant to section 24-0701 of21 this article are required whether or not a classification has been22 promulgated.] 23 § 8. Section 24-1305 of the environmental conservation law is 24 REPEALED. 25 § 9. This act shall take effect immediately.