Bill Text: NY A03374 | 2011-2012 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 34-1)
Status: (Engrossed - Dead) 2012-01-04 - ordered to third reading cal.133 [A03374 Detail]
Download: New_York-2011-A03374-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3374
2011-2012 Regular Sessions
I N A S S E M B L Y
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:
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;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02985-01-1
A. 3374 2
1 (f) erosion control by serving as sedimentation areas and filtering
2 basins, absorbing silt and organic matter and protecting channels and
3 harbors;
4 (g) education and scientific research by providing readily accessible
5 outdoor bio-physical laboratories, living classrooms and vast training
6 and education resources; [and]
7 (h) open space and aesthetic appreciation by providing often the only
8 remaining open areas along crowded river fronts and coastal Great Lakes
9 regions; [and]
10 (i) sources of nutrients in freshwater food cycles and nursery grounds
11 and sanctuaries for freshwater fish[.];
12 (J) PRESERVATION OF PLANT SPECIES THAT ARE RARE, ENDANGERED, OR
13 EXPLOITABLY VULNERABLE AS DEFINED IN SECTION 9-1503 OF THIS CHAPTER; AND
14 (K) PRESERVATION OF COMMUNITIES OF PLANTS AND ANIMALS THAT ARE DEEMED
15 BY THE COMMISSIONER TO BE RARE IN THE STATE OR IN A REGION OF THE STATE.
16 S 2. The opening paragraph of subdivision 1 and subdivision 2 of
17 section 24-0107 of the environmental conservation law, as amended by
18 chapter 654 of the laws of 1977, are amended to read as follows:
19 "Freshwater wetlands" means lands and waters of the state [as shown on
20 the freshwater wetlands map which] THAT ARE ONE ACRE OR MORE IN SIZE OR,
21 ADJACENT TO A WATER BODY, INCLUDING AN INTERMITTENT WATER BODY OR, IN
22 THE DISCRETION OF THE COMMISSIONER, OF SIGNIFICANT LOCAL IMPORTANCE FOR
23 ONE OR MORE OF THE SPECIFIC BENEFITS SET FORTH IN SUBDIVISION SEVEN OF
24 SECTION 24-0105 OF THIS TITLE. FRESHWATER WETLANDS SHALL contain any or
25 all of the following:
26 2. "Freshwater wetlands map" shall mean a map [promulgated] DEVELOPED
27 by the department pursuant to section 24-0301 of this article on which
28 are indicated the boundaries of any freshwater wetlands. THESE MAPS WILL
29 SERVE THE PURPOSE OF EDUCATING THE PUBLIC ON THE LOCATION OF WETLANDS.
30 S 3. Subdivisions 1, 2, 3, 4, 5 and 6 of section 24-0301 of the envi-
31 ronmental conservation law, subdivisions 1, 2 and 3 as amended by chap-
32 ter 654 of the laws of 1977 and subdivisions 4, 5 and 6 as amended by
33 chapter 16 of the laws of 2010, are amended to read as follows:
34 1. The commissioner shall, as soon as practicable, conduct a study to
35 identify and map those individual freshwater wetlands in the state of
36 New York [which shall have an area of at least twelve and four-tenths
37 acres or more, or if less than twelve and four-tenths acres, (a) have,
38 in the discretion of the commissioner, and subject to review of his
39 action by the board created pursuant to title eleven of this article,
40 unusual local importance for one or more of the specific benefits set
41 forth in subdivision seven of section 24-0105] (A) AS DEFINED IN SECTION
42 24-0107 OF THIS ARTICLE or (b) THAT are located within the Adirondack
43 park and meet the definition of wetlands contained in subdivision
44 sixty-eight of section eight hundred two [of article twenty-seven] of
45 the executive law, and shall determine their characteristics. This study
46 shall, in addition to such other data as the commissioner may determine
47 to be included, consist of the freshwater wetlands inventory of the
48 department [of environmental conservation], currently being made,
49 together with other available data on freshwater wetlands, whether
50 assisted by the state of New York under the tidal wetlands act or other-
51 wise, or assembled by federal or local governmental or private agencies,
52 all of which information shall be assembled and integrated, as applica-
53 ble, into a map of freshwater wetlands of the state of New York. Such
54 study may, in the discretion of the commissioner, be carried out on a
55 sectional or regional basis, as indicated by need, subject to overall
56 completion in an expeditious fashion subject to the terms of this chap-
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1 ter. [This map, and any orders issued pursuant to the provisions of this
2 article, shall comprise a part of the statewide environmental plan as
3 provided for in section 3-0303 of this chapter.] As soon as practicable
4 the commissioner shall file with the secretary of state a detailed
5 description of the technical methods and requirements to be utilized in
6 compiling the inventory, and he shall afford the public an opportunity
7 to submit comments thereon.
8 2. Upon completion of a freshwater wetlands inventory, the commission-
9 er shall prepare a [tentative] DRAFT freshwater wetlands map delineating
10 the boundaries of such wetlands as determined by the study and inventory
11 conducted pursuant to subdivision one of this section. The map may be
12 prepared for different sections or regions of the state separately, as
13 the commissioner shall determine. The commissioner shall consult and
14 cooperate with the Adirondack park agency in the preparation of a
15 [tentative] DRAFT freshwater wetlands map for any area within the
16 Adirondack park.
17 3. The [tentative] DRAFT freshwater wetlands map shall set forth the
18 boundaries of such wetlands as accurately as is practicable to inform
19 the owners thereof, the public and the department of the approximate
20 location of the actual boundaries of the wetlands, subject to motion for
21 delineation pursuant to this section, or more precise definition thereof
22 in the discretion of the commissioner. The commissioner shall take into
23 consideration, whenever possible, the boundaries of the local government
24 or governments within which the wetlands are located.
25 4. Upon completion of the [tentative] DRAFT freshwater wetlands map
26 for a particular area, the commissioner or his designated hearing offi-
27 cer shall hold a public hearing in that area in order to afford an
28 opportunity for any person to propose additions or deletions from such
29 map. The commissioner shall give notice of such hearing to [each owner
30 of record as shown on the latest completed tax assessment rolls, of
31 lands designated as such wetlands as shown on said map and also to] the
32 chief administrative officer and clerk of each local government within
33 the boundaries of which any such wetland or a portion thereof is located
34 and, in the case of a [tentative] DRAFT freshwater wetlands map for any
35 area within the Adirondack park, to the Adirondack park agency, by
36 certified mail not less than thirty days prior to the date set for such
37 hearing and shall assure that a copy of the relevant map is available
38 for public inspection at a convenient location in such local government.
39 The map filed with a local government may, at the local government's
40 request, be either a physical copy of the [tentative] DRAFT freshwater
41 wetlands map, or, if available, a digital file that represents it. The
42 commissioner shall also cause notice of such hearing to be published at
43 least once, not more than thirty days nor fewer than ten days before the
44 date set for such hearing, in at least two newspapers having general
45 circulation in the area where such wetlands are located. The commission-
46 er may post on the department's website a digital image that represents
47 the [tentative] DRAFT freshwater wetlands map.
48 5. [After considering the testimony given at such hearing and any
49 other facts which may be deemed pertinent, after considering the rights
50 of affected property owners and the ecological balance in accordance
51 with the policy and purposes of this article, and, in the case of
52 wetlands or portions thereof within the Adirondack park, after consult-
53 ing with the Adirondack park agency, the commissioner shall promulgate
54 by order the final freshwater wetlands map. Such order shall not be
55 promulgated less than sixty days from the date of the hearing required
56 by subdivision four of this section. A copy of the order, together with
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1 a copy of such map or relevant portion thereof shall be filed in the
2 office of the clerk of each local government in which each such wetland
3 or a portion thereof is located and, in the case of a map for any area
4 within the Adirondack park, with the Adirondack park agency.] AFTER
5 CONSIDERATION OF COMMENTS FROM THE PUBLIC THE COMMISSIONER MAY MAKE
6 ALTERATIONS TO THE DRAFT MAP CONSISTENT WITH SECTION 24-0107 OF THIS
7 ARTICLE. THE COMMISSIONER SHALL FINALIZE THE MAP AND FILE A COPY OF THE
8 MAP WITH THE OFFICE OF THE CLERK OF EACH LOCAL GOVERNMENT WITH JURISDIC-
9 TION OVER PART OR ALL OF THE REGION SHOWN ON THE MAP. The map filed with
10 a local government may, at the local government's request, be either a
11 physical copy of the final freshwater wetlands map, or, if available, a
12 digital file that represents it. [The commissioner shall simultaneously
13 give notice of such order to each owner of lands, as shown on the latest
14 completed tax assessment rolls, designated as such wetlands by mailing a
15 copy of such order to such owner by certified mail in any case where a
16 notice by certified mail was not sent pursuant to subdivision four of
17 this section, and in all other cases by first class mail. The commis-
18 sioner shall also give notice of such order at such time to the chief
19 administrative officer of each local government within the boundaries of
20 which any such wetland or a portion thereof is located. At the time of
21 filing with such clerk or clerks, the commissioner shall also cause a
22 copy of such order to be published in at least two newspapers having
23 general circulation in the area where such wetlands are located.] The
24 commissioner may post on the department's website a digital image that
25 represents the final freshwater wetlands map.
26 6. Except as provided in subdivision eight of this section, the
27 commissioner shall supervise the maintenance of such boundary maps,
28 which shall be available to the public for inspection and examination at
29 the regional office of the department in which the wetlands are wholly
30 or partly located and in the office of the clerk of each county in which
31 each such wetland or a portion thereof is located. The commissioner may
32 readjust the map thereafter to clarify the boundaries of the wetlands,
33 to correct any errors on the map, to effect any additions, deletions or
34 technical changes on the map, and to reflect changes as have occurred as
35 a result of the granting of permits pursuant to section 24-0703 of this
36 article, or natural changes which may have occurred through erosion,
37 accretion, or otherwise. Notice of such readjustment shall be given in
38 the same manner as set forth in subdivision [five] FOUR of this section
39 for the [promulgation] DEVELOPMENT of final freshwater wetlands maps.
40 [In addition, at the time notice is provided pursuant to subdivision
41 five of this section, the commissioner shall update any digital image of
42 the map posted on the department's website to reflect such readjust-
43 ment.]
44 S 4. Subdivisions 1, 2 and 4 of section 24-0701 of the environmental
45 conservation law, subdivisions 1 and 2 as amended by chapter 654 of the
46 laws of 1977 and subdivision 4 as amended by chapter 697 of the laws of
47 1979, are amended and a new subdivision 9 is added to read as follows:
48 1. [After issuance of the official freshwater wetlands map of the
49 state, or of any selected section or region thereof, any] ANY person
50 desiring to conduct on freshwater wetlands [as so designated thereon]
51 any of the regulated activities set forth in subdivision two of this
52 section must obtain a permit as provided in this title.
53 2. Activities subject to regulation UNDER SUBDIVISION ONE OF THIS
54 SECTION shall include SUBDIVISION OF PARCELS OF LAND CONTAINING FRESHWA-
55 TER WETLANDS AND any form of draining, dredging, excavation, removal of
56 soil, mud, sand, shells, gravel or other aggregate from any freshwater
A. 3374 5
1 wetland, either directly or indirectly; and any form of dumping, fill-
2 ing, or depositing of any soil, stones, sand, gravel, mud, rubbish or
3 fill of any kind, either directly or indirectly; erecting any struc-
4 tures, roads, the driving of pilings, or placing of any other
5 obstructions whether or not changing the ebb and flow of the water; any
6 form of pollution, including but not limited to, installing a septic
7 tank, running a sewer outfall, discharging sewage treatment effluent or
8 other liquid wastes into or so as to drain into a freshwater wetland;
9 and any other activity which substantially impairs any of the several
10 functions served by freshwater wetlands or the benefits derived there-
11 from which are set forth in section 24-0105 of this article. These
12 activities are subject to regulation whether or not they occur upon the
13 wetland itself, if they impinge upon or otherwise substantially affect
14 the wetlands and are located not more than one hundred feet from the
15 boundary of such wetland. Provided, that a greater distance from any
16 such wetland may be regulated pursuant to this article by the appropri-
17 ate local government or by the department, whichever has jurisdiction
18 over such wetland, where necessary to protect and preserve the wetland.
19 4. [The] ON LANDS IN ACTIVE AGRICULTURAL USE, THE activities of farm-
20 ers and other landowners in grazing and watering livestock, making
21 reasonable use of water resources, harvesting natural products of the
22 wetlands, selectively cutting timber, draining land or wetlands for
23 growing agricultural products and otherwise engaging in the use of
24 wetlands or other land for growing agricultural products shall be
25 excluded from regulated activities and shall not require a permit under
26 subdivision one [hereof] OF THIS SECTION, except that structures not
27 required for enhancement or maintenance of the agricultural productivity
28 of the land and any filling activities shall not be excluded hereunder,
29 and provided that the use of land [designated as a freshwater wetland
30 upon the freshwater wetlands map at the effective date thereof] THAT
31 MEETS THE DEFINITION OF A FRESHWATER WETLAND IN SECTION 24-0107 OF THIS
32 ARTICLE for uses other than those referred to in this subdivision shall
33 be subject to the provisions of this article.
34 9. ANY PERMIT OBTAINED SUBJECT TO SUBDIVISION ONE OF THIS SECTION
35 SHALL BE PERMANENTLY APPENDED TO THE DEED FOR THE REAL PROPERTY SUCH
36 REGULATED ACTION OCCURRED ON.
37 S 5. Subdivision 5 of section 24-0703 of the environmental conserva-
38 tion law, as amended by chapter 233 of the laws of 1979, is amended to
39 read as follows:
40 5. [Prior to the promulgation of the final freshwater wetlands map in
41 a particular area and the implementation of a freshwater wetlands
42 protection law or ordinance, no person shall conduct, or cause to be
43 conducted, any activity for which a permit is required under section
44 24-0701 of this article on any freshwater wetland unless he has obtained
45 a permit from the commissioner under this section.] Any person may
46 inquire of the department as to whether or not a given parcel of land
47 [will be designated] INCLUDES a freshwater wetland subject to regu-
48 lation. The department shall give a definite answer in writing within
49 thirty days of such request as to [whether] THE STATUS OF such parcel
50 [will or will not be so designated]. Provided that, in the event that
51 weather or ground conditions prevent the department from making a deter-
52 mination within thirty days, it may extend such period until a determi-
53 nation can be made. Such answer in the affirmative shall be reviewable
54 pursuant to title eleven of this article; such an answer in the negative
55 shall be a complete defense to the enforcement of this article as to
56 such parcel of land. [The commissioner may by regulation adopted after
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1 public hearing exempt categories or classes of wetlands or individual
2 wetlands which he determines not to be critical to the furtherance of
3 the policies and purposes of this article.]
4 S 6. Subdivision 1 of section 24-0901 of the environmental conserva-
5 tion law, as added by chapter 614 of the laws of 1975, is amended to
6 read as follows:
7 1. [Upon completion of the freshwater wetlands map, the] THE commis-
8 sioner shall confer with local government officials in each region in
9 which the inventory has been conducted to establish a program for the
10 protection of the freshwater wetlands of the state.
11 S 7. Subdivision 1 of section 24-0903 of the environmental conserva-
12 tion law, as added by chapter 614 of the laws of 1975, is amended to
13 read as follows:
14 1. [Upon completion of the freshwater wetlands map of the state, or of
15 any selected section or region thereof, the commissioner shall proceed
16 to classify freshwater wetlands so designated thereon according to their
17 most appropriate uses, in] IN light of the values set forth in section
18 24-0105 of this article and the present conditions of [such] FRESHWATER
19 wetlands[. The], THE commissioner shall determine what uses of [such]
20 FRESHWATER wetlands are most compatible with the foregoing and shall
21 prepare minimum land use regulations to permit only such compatible
22 uses. [The classifications may cover freshwater wetlands in more than
23 one governmental subdivision. Permits pursuant to section 24-0701 of
24 this article are required whether or not a classification has been
25 promulgated.]
26 S 8. Section 24-1305 of the environmental conservation law is
27 REPEALED.
28 S 9. This act shall take effect immediately.
