Bill Text: NY A07850 | 2021-2022 | General Assembly | Introduced

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Bill Title: Relates to freshwater wetlands; defines specific classes of wetlands.

Spectrum: Moderate Partisan Bill (Democrat 72-10)

Status: (Introduced - Dead) 2022-01-05 - referred to environmental conservation [A07850 Detail]

Download: New_York-2021-A07850-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          7850

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                      May 27, 2021
                                       ___________

        Introduced  by  M.  of  A.  ENGLEBRIGHT -- read once and referred to the
          Committee on Environmental Conservation

        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          freshwater  wetlands;  and  to  repeal  certain provisions 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. Subdivisions 2, 3 and 7 of section 24-0105 of the environ-
     2  mental conservation law, as added by chapter 614 of the  laws  of  1975,
     3  subdivision  7  as  renumbered  by  chapter 654 of the laws of 1977, are
     4  amended to read as follows:
     5    2. Considerable acreage of freshwater wetlands in  the  state  of  New
     6  York  has  been  lost,  despoiled  or  impaired by unregulated draining,
     7  dredging, filling,  excavating,  building,  pollution  or  other  [acts]
     8  activities  inconsistent  with  the  natural  uses of such areas. [Other
     9  freshwater] Freshwater wetlands are in jeopardy of being lost, despoiled
    10  or impaired by such [unrelated  acts]  activities  and  because  of  the
    11  recent curtailment of federal wetland protections.
    12    3.  Recurrent  flooding aggravated or caused by the loss of freshwater
    13  wetlands has serious effects upon  natural  ecosystems.  The  increasing
    14  severity  and  duration of storm-related flooding due to climate change,
    15  which has caused billions of dollars of property damage  in  the  state,
    16  makes protection of all freshwater wetlands in the state of vital impor-
    17  tance.
    18    7. Any loss of freshwater wetlands deprives the people of the state of
    19  some  or  all  of  the  many  and  multiple  benefits to be derived from
    20  wetlands, to wit:
    21    (a) flood and storm control by the hydrologic absorption  and  storage
    22  capacity of freshwater wetlands;
    23    (b)  wildlife  habitat  by  providing  breeding,  nesting  and feeding
    24  grounds and cover for many forms of wildlife, wildfowl  and  shorebirds,
    25  including  migratory wildfowl and rare, endangered or threatened species
    26  [such as the bald eagle and osprey];

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09969-05-1
        A. 7850                             2

     1    (c) protection of subsurface water resources and provision  for  valu-
     2  able watersheds and recharging ground water supplies;
     3    (d)  recreation  by  providing  areas  for  hunting, fishing, boating,
     4  hiking, bird watching, photography, camping and other uses;
     5    (e) pollution treatment by serving as biological and  chemical  oxida-
     6  tion basins;
     7    (f)  erosion  control  by serving as sedimentation areas and filtering
     8  basins, absorbing silt and organic matter and  protecting  channels  and
     9  harbors;
    10    (g)  education and scientific research by providing readily accessible
    11  outdoor bio-physical laboratories, living classrooms and  vast  training
    12  and education resources; [and]
    13    (h)  open space and aesthetic appreciation by providing often the only
    14  remaining open areas along crowded river fronts and coastal Great  Lakes
    15  regions; [and]
    16    (i) sources of nutrients in freshwater food cycles and nursery grounds
    17  and sanctuaries for freshwater fish[.];
    18    (j) preservation of plant species that are rare, endangered or threat-
    19  ened,  or  exploitably  vulnerable  as defined in section 9-1503 of this
    20  chapter; and
    21    (k) preservation of communities of plants and animals that are  deemed
    22  by the commissioner to be rare in the state or in a region of the state.
    23    §  2.  The opening paragraph and paragraphs (c) and (d) of subdivision
    24  1, and subdivisions 2, 3 and 8 of section 24-0107 of  the  environmental
    25  conservation  law,  as  amended  by chapter 654 of the laws of 1977, are
    26  amended and two new subdivisions 9 and 10 are added to read as follows:
    27    "Freshwater wetlands" means lands and waters of the state [as shown on
    28  the freshwater wetlands map] that have an area of at  least  twelve  and
    29  four-tenths acres or, if less than twelve and four-tenths acres in size,
    30  are of unusual importance and which contain any or all of the following:
    31    (c) lands and waters substantially enclosed by aquatic or semi-aquatic
    32  vegetation  as set forth in paragraph (a) of this subdivision or by dead
    33  vegetation as set forth in paragraph (b) of this subdivision, the  regu-
    34  lation  of  which  is  necessary to protect and preserve the aquatic and
    35  semi-aquatic vegetation; and
    36    (d) the waters overlying the areas set forth in paragraphs (a) and (b)
    37  of this subdivision and the  lands  underlying  paragraph  (c)  of  this
    38  subdivision.
    39    2.    "Freshwater  wetlands  map"  shall mean a map promulgated by the
    40  department pursuant to section 24-0301 of  this  article  on  which  are
    41  indicated  the boundaries of any freshwater wetlands. Freshwater wetland
    42  maps will serve the purpose of educating the public on  the  approximate
    43  location  of  wetlands,  are  for educational purposes only, and are not
    44  controlling for purposes of determining if a wetlands permit is required
    45  pursuant to section 24-0701 of this article.
    46    3. "Boundaries of a freshwater wetland" shall mean the outer limit  of
    47  the vegetation specified in paragraphs (a) and (b) of subdivision one of
    48  this  section  [24-0107]  and of the lands and waters specified in para-
    49  graph (c) of such subdivision.
    50    8. "Pollution" shall mean the presence in the environment of  [man-in-
    51  duced] human-induced conditions or contaminants in quantities or charac-
    52  teristics  which are or may be injurious to human, plant or wildlife, or
    53  other animal life or to property.
    54    9. "Unusual importance" shall mean a freshwater wetland, regardless of
    55  size, that possesses one or more of  the  following  characteristics  as
    56  determined by the department:
        A. 7850                             3

     1    (a) it is located in an area designated as a special flood hazard area
     2  on  the most current federal emergency management agency flood insurance
     3  rate map that has experienced significant flooding in the past;
     4    (b) it contains occupied habitat or habitat for an essential behavior,
     5  as  confirmed  by the department, of an endangered or threatened species
     6  or a species of special concern as defined under section 11-0535 of this
     7  chapter and/or listed as a species of greatest conservation need in  New
     8  York's wildlife action plan;
     9    (c) it is classified by the department as a Class I wetland;
    10    (d)  it  is classified by the department as a Class II wetland and the
    11  department determines based on criteria established by  regulation  that
    12  its  wetland functions and values are of local or regional significance;
    13  or
    14    (e) it was previously classified and mapped by  the  department  as  a
    15  wetland of unusual local importance.
    16    10.  "Delineation"  shall  mean  a  precise description of a regulated
    17  freshwater wetland as defined in subdivisions  one  and  three  of  this
    18  section, including the regulated adjacent area with sufficient scale and
    19  clarity to permit ready identification.
    20    §  3. Subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the environ-
    21  mental conservation law are REPEALED.
    22    § 4. Subdivisions 6, 7 and 8 of section 24-0301 of  the  environmental
    23  conservation  law, subdivision 6 as amended by chapter 16 of the laws of
    24  2010 and subdivision 7 as amended and subdivision 8 as added by  chapter
    25  654 of the laws of 1977, are amended to read as follows:
    26    [6.]  1.  Except  as  provided  in  subdivision  [eight] three of this
    27  section, the commissioner shall supervise the maintenance of [such boun-
    28  dary] freshwater wetlands maps, which shall be available to  the  public
    29  [for inspection and examination at the regional office of the department
    30  in  which the wetlands are wholly or partly located and in the office of
    31  the clerk of each county in which each such wetland or a portion thereof
    32  is located] on the department's  website.  The  commissioner  may,  upon
    33  notice  in  a  form and manner to be determined by the department to the
    34  property owner or owners affected, readjust the map [thereafter to clar-
    35  ify the boundaries of the wetlands, to correct any errors on the map, to
    36  effect any additions, deletions or technical changes on the map, and  to
    37  reflect  changes as have occurred as a result of the granting of permits
    38  pursuant to section 24-0703 of this article, or  natural  changes  which
    39  may  have  occurred  through erosion, accretion, or otherwise. Notice of
    40  such readjustment shall be given in the same  manner  as  set  forth  in
    41  subdivision  five of this section for the promulgation of final freshwa-
    42  ter wetlands maps. In addition, at the time notice is provided  pursuant
    43  to  subdivision  five of this section, the commissioner shall update any
    44  digital image of the map posted on the department's website  to  reflect
    45  such readjustment] at any time prior to the filing of the delineation of
    46  a  freshwater wetland boundary to more accurately depict the approximate
    47  location of wetlands.
    48    [7.] 2. Except as  provided  in  subdivision  [eight]  three  of  this
    49  section,  the  commissioner  may,  upon  his  or her own initiative, and
    50  shall, upon a written request by a landowner whose  land  or  a  portion
    51  thereof may be included within a wetland, or upon the written request of
    52  another  person or persons or an official body whose interests are shown
    53  to be affected, cause to be delineated  [more  precisely]  the  boundary
    54  line or lines of a freshwater wetland or a portion thereof and the regu-
    55  lated  freshwater  wetland adjacent area as set forth in subdivision two
    56  of section 24-0701 of this article. [Such more precise delineation of  a
        A. 7850                             4

     1  freshwater  wetland boundary line or lines shall be of appropriate scale
     2  and sufficient clarity to permit the ready identification of  individual
     3  buildings  and  of  other  major  man-made  structures  or facilities or
     4  significant  geographical  features  with respect to the boundary of any
     5  freshwater wetland.] The commissioner shall [undertake to delineate  the
     6  boundary  of  a  particular wetland or wetlands, or a particular part of
     7  the boundary thereof only upon a showing by the  applicant  therefor  of
     8  good  cause  for  such more precise delineation and the establishment of
     9  such more precise line] file any delineation of a wetland boundary  made
    10  or  accepted  by  the department and such delineation shall be effective
    11  and binding for a period of five years from the date such delineation is
    12  filed.  The commissioner shall supervise the filing and  maintenance  of
    13  delineations, which shall be made available to the public on the depart-
    14  ment's website.
    15    [8.]  3. The supervision of the maintenance of any freshwater wetlands
    16  map or portion thereof applicable  to  wetlands  within  the  Adirondack
    17  park, the readjustment and precise delineation of wetland boundary lines
    18  and  the  other  functions  and  duties  ascribed to the commissioner by
    19  subdivisions [six and seven] one  and  two  of  this  section  shall  be
    20  performed  by the Adirondack park agency, which shall make such maps and
    21  delineations available [for public inspection  and  examination  at  its
    22  headquarters] on the agency's website.
    23    §  5.  Subdivisions 1, 2 and 4 of section 24-0701 of the environmental
    24  conservation law, subdivisions 1 and 2 as amended by chapter 654 of  the
    25  laws  of 1977 and subdivision 4 as amended by chapter 697 of the laws of
    26  1979, are amended to read as follows:
    27    1. [After issuance of the official  freshwater  wetlands  map  of  the
    28  state,  or  of  any  selected section or region thereof, any] Any person
    29  desiring to conduct on freshwater wetlands [as so designated thereon] or
    30  on the regulated freshwater wetland adjacent area as set forth in subdi-
    31  vision two of this section any of the regulated activities set forth  in
    32  subdivision two of this section must obtain a permit as provided in this
    33  title.
    34    2.  Activities  subject to regulation shall include any form of drain-
    35  ing, dredging, excavation, removal of soil, mud, sand, shells, gravel or
    36  other aggregate from any freshwater wetland, either  directly  or  indi-
    37  rectly;  and  any  form  of dumping, filling, or depositing of any soil,
    38  stones, sand, gravel, mud, rubbish or fill of any kind, either  directly
    39  or  indirectly;  erecting any structures, roads, the driving of pilings,
    40  or placing of any other obstructions whether or not changing the ebb and
    41  flow of the water; any form of pollution, including but not limited  to,
    42  installing  a  septic  tank, running a sewer outfall, discharging sewage
    43  treatment effluent or other liquid wastes into or so as to drain into  a
    44  freshwater  wetland;  and any other activity which substantially impairs
    45  any of the several functions served by freshwater wetlands or the  bene-
    46  fits  derived  therefrom  which are set forth in section 24-0105 of this
    47  article. These activities are subject to regulation whether or not  they
    48  occur  upon  the  wetland  itself,  if  they  impinge  upon or otherwise
    49  substantially affect the wetlands and are located: (a) not more than one
    50  hundred feet from the boundary of [such] a wetland: (i) that has an area
    51  of at least twelve and four-tenths acres; (ii)  that  is  a  wetland  of
    52  unusual  importance and has an area of at least ten acres; (iii) that is
    53  classified as a Class I wetland by the department and has an area of  at
    54  least  five  acres; or (iv) that was previously classified and mapped by
    55  the department as a wetland of unusual local importance;  (b)  not  more
    56  than  fifty  feet  from  the boundary of a wetland if it is a wetland of
        A. 7850                             5

     1  unusual importance and has an area of at least five acres and less  than
     2  ten acres; and (c) not more than twenty-five feet from the boundary of a
     3  wetland if it is a wetland of unusual importance and has an area of less
     4  than  five  acres.    Provided,  that  a  greater distance from any such
     5  wetland may be regulated pursuant to this  article  by  the  appropriate
     6  local  government  or by the department, whichever has jurisdiction over
     7  such wetland, where necessary to protect and preserve the wetland.
     8    4. [The] On lands in active agricultural  or  silvicultural  use,  the
     9  activities of farmers and other landowners in grazing and watering live-
    10  stock,  making  reasonable  use  of  water resources, harvesting natural
    11  products of the wetlands, selectively cutting timber, draining  land  or
    12  wetlands for growing agricultural products and otherwise engaging in the
    13  use of wetlands or other land for growing agricultural products shall be
    14  excluded  from regulated activities and shall not require a permit under
    15  subdivision one [hereof] of this section,  except  that  structures  not
    16  required for enhancement or maintenance of the agricultural productivity
    17  of  the land and any filling activities shall not be excluded hereunder,
    18  and provided that the use of land [designated as  a  freshwater  wetland
    19  upon  the  freshwater  wetlands  map at the effective date thereof] that
    20  meets the definition of a freshwater wetland in section 24-0107 of  this
    21  article  for uses other than those referred to in this subdivision shall
    22  be subject to the provisions of this article.
    23    § 6. Subdivision 5 of section 24-0703 of the  environmental  conserva-
    24  tion  law,  as amended by section 38 of part D of chapter 60 of the laws
    25  of 2012, is amended to read as follows:
    26    5. [Prior to the promulgation of the final freshwater wetlands map  in
    27  a  particular  area  and  the  implementation  of  a freshwater wetlands
    28  protection law or ordinance, no person shall conduct,  or  cause  to  be
    29  conducted,  any  activity  for  which a permit is required under section
    30  24-0701 of this title on any freshwater wetland unless he has obtained a
    31  permit from the commissioner under this section.] Any person may inquire
    32  of the department as to whether or not a given parcel of land  [will  be
    33  designated]  includes  a  freshwater  wetland subject to regulation or a
    34  regulated freshwater wetland adjacent area and whether  a  permit  under
    35  subdivision one of this section is required for a proposed activity. The
    36  department shall give a definite answer in writing within [thirty] sixty
    37  days  of such request as to [whether] the status of such parcel [will or
    38  will not be so designated] and whether a  permit  is  required  for  the
    39  proposed  activity.  Provided  that, in the event that weather or ground
    40  conditions prevent the department from  making  a  determination  within
    41  [thirty] sixty days, it may extend such period until a determination can
    42  be  made.  Such  answer  in the affirmative shall be reviewable; such an
    43  answer in the negative shall be a complete defense to the enforcement of
    44  this article as to such parcel of land for a period of five  years  from
    45  the  date  the  department issues the negative answer. [The commissioner
    46  may by regulation adopted after  public  hearing  exempt  categories  or
    47  classes of wetlands or individual wetlands which he determines not to be
    48  critical  to  the furtherance of the policies and purposes of this arti-
    49  cle.]
    50    § 7.  Subdivision 1 of section 24-0901 of the environmental  conserva-
    51  tion  law,  as  added  by chapter 614 of the laws of 1975, is amended to
    52  read as follows:
    53    1. [Upon completion of the freshwater wetlands map, the]  The  commis-
    54  sioner  shall  confer  with local government officials in each region in
    55  which the inventory has been conducted to establish a  program  for  the
    56  protection of the freshwater wetlands of the state.
        A. 7850                             6

     1    §  8.  Subdivisions  1  and  5 of section 24-0903 of the environmental
     2  conservation law, as added by chapter 614  of  the  laws  of  1975,  are
     3  amended to read as follows:
     4    1. [Upon completion of the freshwater wetlands map of the state, or of
     5  any  selected  section  or  region  thereof, the] The commissioner shall
     6  [proceed to] classify freshwater wetlands so designated thereon  accord-
     7  ing  to their most appropriate uses, in light of the values set forth in
     8  section  24-0105  of  this  article  and  the present conditions of such
     9  wetlands. The commissioner shall determine what uses  of  such  wetlands
    10  are  most  compatible  with the foregoing and shall prepare minimum land
    11  use regulations to permit only such compatible uses. The classifications
    12  may cover freshwater wetlands in more than one governmental subdivision.
    13  Permits pursuant to section 24-0701 of this article are required whether
    14  or not a classification has been promulgated.
    15    5. Prior to the adoption of any land use regulations governing  fresh-
    16  water  wetlands, the commissioner shall hold a public hearing thereon in
    17  the area in which the affected freshwater wetlands are located, and give
    18  fifteen days prior notice thereof by posting on the department's website
    19  or by publication at least once in a  newspaper  having  general  circu-
    20  lation  in  the  area of the local government involved. The commissioner
    21  shall promulgate the regulations within thirty days of such hearing  and
    22  post  such  order  on the department's website or publish such order [at
    23  least once] in a newspaper having general circulation in the area of the
    24  local government affected  and  make  such  plan  available  for  public
    25  inspection  and  review;  such  order shall not take effect until thirty
    26  days after the filing thereof with the clerk of the county in which such
    27  wetland is located.
    28    § 9. Paragraph (c) of subdivision 8 of section 70-0117 of the environ-
    29  mental conservation law, as added by section 1 of part AAA of chapter 59
    30  of the laws of 2009, is amended to read as follows:
    31    (c) [All fees] Fees collected pursuant to [this] paragraph (a) of this
    32  subdivision shall be deposited [into] to the  credit  of  the  [environ-
    33  mental  protection] conservation fund pursuant to section [ninety-two-s]
    34  eighty-three of the state finance law. Fees collected pursuant to  para-
    35  graph  (b)  of  this subdivision shall be deposited to the credit of the
    36  marine resources account of the conservation fund.
    37    (d) Application fees required pursuant to this subdivision will not be
    38  required for any state department.
    39    § 10. Subdivisions 1 and 2 of section  71-2303  of  the  environmental
    40  conservation  law,  as  amended  by  chapter 99 of the laws of 2010, are
    41  amended to read as follows:
    42    1. Administrative sanctions. a. Any person who violates,  disobeys  or
    43  disregards  any  provision  of article twenty-four, including title five
    44  and section 24-0507 thereof or any rule  or  regulation,  local  law  or
    45  ordinance,  permit  or order issued pursuant thereto, shall be liable to
    46  the people of the state for a civil penalty  of  not  to  exceed  eleven
    47  thousand  dollars  for  every such violation and for each day every such
    48  violation occurs, to be assessed, after a hearing or opportunity  to  be
    49  heard upon due notice and with the rights to specification of the charg-
    50  es and representation by counsel at such hearing, by the commissioner or
    51  local  government. Such penalty may be recovered in an action brought by
    52  the attorney general at the request and in the name of the  commissioner
    53  or  local  government in any court of competent jurisdiction. Such civil
    54  penalty may be released or compromised  by  the  commissioner  or  local
    55  government  before the matter has been referred to the attorney general;
    56  and where such matter has been referred to  the  attorney  general,  any
        A. 7850                             7

     1  such  penalty may be released or compromised and any action commenced to
     2  recover the same may be settled and discontinued by the attorney general
     3  with the consent of the commissioner or local government.  In  addition,
     4  the commissioner or local government shall have power, following a hear-
     5  ing held in conformance with the procedures set forth in section 71-1709
     6  of  this  article,  to  direct  the violator to cease [his violation of]
     7  violating the act and to restore the affected freshwater wetland to  its
     8  condition  prior  to the violation, insofar as that is possible within a
     9  reasonable time and under the supervision of the commissioner  or  local
    10  government. Any such order of the commissioner or local government shall
    11  be  enforceable  in  an  action  brought  by the attorney general at the
    12  request and in the name of the commissioner or local government  in  any
    13  court  of  competent jurisdiction.  Any civil penalty or order issued by
    14  the commissioner or local government pursuant to this subdivision  shall
    15  be  reviewable  in a proceeding pursuant to article seventy-eight of the
    16  civil practice law and rules.
    17    b. Upon determining that significant damage to the functions and bene-
    18  fits of a freshwater  wetland is occurring or is imminent as a result of
    19  any violation of article twenty-four of this chapter, including but  not
    20  limited  to  (i)  activity taking place requiring a permit under article
    21  twenty-four of this chapter but for which no permit has been granted  or
    22  (ii)  failure on the part of a permittee to adhere to permit conditions,
    23  the commissioner or local government shall  have  power  to  direct  the
    24  violator  to cease and desist from violating the act.  In such cases the
    25  violator shall be provided an opportunity to be heard with ten  days  of
    26  receipt of the notice to cease and desist.
    27    2.  Criminal sanctions. Any person who violates any provision of arti-
    28  cle twenty-four of this chapter, including any rule or regulation, local
    29  law or ordinance, permit or order issued  pursuant  thereto,  shall,  in
    30  addition,  for the first offense, be guilty of a violation punishable by
    31  a fine of not less than two thousand nor more than [four] five  thousand
    32  dollars;  for  a  second  and each subsequent offense he or she shall be
    33  guilty of a misdemeanor punishable by a fine of not less than four thou-
    34  sand nor more than [seven] ten thousand dollars or a term  of  imprison-
    35  ment  of  not  less  than fifteen days nor more than six months or both.
    36  Instead of these punishments, any offender may be  punishable  by  being
    37  ordered  by  the court to restore the affected freshwater wetland to its
    38  condition prior to the offense, insofar as that is possible.  The  court
    39  shall  specify a reasonable time for the completion of such restoration,
    40  which shall be effected under the supervision  of  the  commissioner  or
    41  local government.  Each offense shall be a separate and distinct offense
    42  and, in the case of a continuing offense, each day's continuance thereof
    43  shall be deemed a separate and distinct offense.
    44    §  11. Subdivision 1 of section 71-2305 of the environmental conserva-
    45  tion law, as added by chapter 614 of the laws of  1975,  is  amended  to
    46  read as follows:
    47    1.  The  attorney  general,  upon  his  or  her own initiative or upon
    48  complaint of the  commissioner  or  local  government,  shall  prosecute
    49  persons  alleged to have violated [any such order of the commissioner or
    50  local government pursuant to] article twenty-four of this chapter.
    51    § 12. This act shall take effect immediately, provided, however,  that
    52  sections two, three, four, five, six, seven and eight of this  act shall
    53  take effect on January 1, 2023.