Bill Text: NY S07617 | 2015-2016 | General Assembly | Introduced

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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 4-0)

Status: (Introduced - Dead) 2016-05-11 - REFERRED TO ENVIRONMENTAL CONSERVATION [S07617 Detail]

Download: New_York-2015-S07617-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          7617
                    IN SENATE
                                      May 11, 2016
                                       ___________
        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;
    23    (g)  education and scientific research by providing readily accessible
    24  outdoor bio-physical laboratories, living classrooms and  vast  training
    25  and education resources; [and]
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14921-01-6
        S. 7617                             2
     1    (h)  open space and aesthetic appreciation by providing often the only
     2  remaining open areas along crowded river fronts and coastal Great  Lakes
     3  regions; [and]
     4    (i) sources of nutrients in freshwater food cycles and nursery grounds
     5  and sanctuaries for freshwater fish[.];
     6    (j)  preservation  of  plant  species  that  are  rare, endangered, or
     7  exploitably vulnerable as defined in section 9-1503 of this chapter; and
     8    (k) preservation of communities of plants and animals that are  deemed
     9  by the commissioner to be rare in the state or in a region of the state.
    10    §  2.  The  opening  paragraph  of  subdivision 1 and subdivision 2 of
    11  section 24-0107 of the environmental conservation  law,  as  amended  by
    12  chapter 654 of the laws of 1977, are amended to read as follows:
    13    "Freshwater wetlands" means lands and waters of the state [as shown on
    14  the freshwater wetlands map which] that are one acre or more in size or,
    15  adjacent  to  a  water body, including an intermittent water body or, in
    16  the discretion of the commissioner, of significant local importance  for
    17  one  or  more of the specific benefits set forth in subdivision seven of
    18  section 24-0105 of this title.  Freshwater wetlands shall contain any or
    19  all of the following:
    20    2. "Freshwater wetlands map" shall mean a map [promulgated]  developed
    21  by  the  department pursuant to section 24-0301 of this article on which
    22  are indicated the boundaries of any freshwater wetlands. These maps will
    23  serve the purpose of educating the public on the location of wetlands.
    24    § 3. Subdivisions 1, 2, 3, 4, 5 and 6 of section 24-0301 of the  envi-
    25  ronmental  conservation  law,  subdivision 1 as amended by section 37 of
    26  part D of chapter 60 of the laws  of  2012,  subdivisions  2  and  3  as
    27  amended  by  chapter 654 of the laws of 1977 and subdivisions 4, 5 and 6
    28  as amended by chapter 16 of the laws of 2010, are  amended  to  read  as
    29  follows:
    30    1.  The commissioner shall, as soon as practicable, conduct a study to
    31  identify and map those individual freshwater wetlands in  the  state  of
    32  New  York  [which  shall have an area of at least twelve and four-tenths
    33  acres or more, or if less than twelve and four-tenths acres,  (a)  have,
    34  in  the  discretion of the commissioner unusual local importance for one
    35  or more of the specific benefits  set  forth  in  subdivision  seven  of
    36  section  24-0105  of this article] as defined in section 24-0107 of this
    37  article or (b) that are located within the Adirondack park and meet  the
    38  definition  of  wetlands contained in subdivision sixty-eight of section
    39  eight hundred two of the executive law, and shall determine their  char-
    40  acteristics.  This  study  shall,  in addition to such other data as the
    41  commissioner may determine to be included,  consist  of  the  freshwater
    42  wetlands  inventory  of  the department [of environmental conservation],
    43  currently being made, together with other available data  on  freshwater
    44  wetlands,  whether  assisted  by  the  state of New York under the tidal
    45  wetlands act or otherwise, or assembled by federal or local governmental
    46  or private agencies, all of which information  shall  be  assembled  and
    47  integrated,  as  applicable,  into  a  map of freshwater wetlands of the
    48  state of New York. Such study may, in the discretion of the  commission-
    49  er,  be  carried  out  on a sectional or regional basis, as indicated by
    50  need, subject to overall completion in an expeditious fashion subject to
    51  the terms of this chapter. [This map, and any orders issued pursuant  to
    52  the  provisions  of this article, shall comprise a part of the statewide
    53  environmental plan as provided for in section 3-0303 of  this  chapter.]
    54  As soon as practicable the commissioner shall file with the secretary of
    55  state  a  detailed description of the technical methods and requirements
        S. 7617                             3
     1  to be utilized in compiling the  inventory,  and  he  shall  afford  the
     2  public an opportunity to submit comments thereon.
     3    2. Upon completion of a freshwater wetlands inventory, the commission-
     4  er shall prepare a [tentative] draft freshwater wetlands map delineating
     5  the boundaries of such wetlands as determined by the study and inventory
     6  conducted  pursuant  to  subdivision one of this section. The map may be
     7  prepared for different sections or regions of the state  separately,  as
     8  the  commissioner  shall  determine.  The commissioner shall consult and
     9  cooperate with the Adirondack  park  agency  in  the  preparation  of  a
    10  [tentative]  draft  freshwater  wetlands  map  for  any  area within the
    11  Adirondack park.
    12    3. The [tentative] draft freshwater wetlands map shall set  forth  the
    13  boundaries  of  such  wetlands as accurately as is practicable to inform
    14  the owners thereof, the public and the  department  of  the  approximate
    15  location of the actual boundaries of the wetlands, subject to motion for
    16  delineation pursuant to this section, or more precise definition thereof
    17  in  the discretion of the commissioner. The commissioner shall take into
    18  consideration, whenever possible, the boundaries of the local government
    19  or governments within which the wetlands are located.
    20    4. Upon completion of the [tentative] draft  freshwater  wetlands  map
    21  for  a particular area, the commissioner or his designated hearing offi-
    22  cer shall hold a public hearing in that  area  in  order  to  afford  an
    23  opportunity  for  any person to propose additions or deletions from such
    24  map. The commissioner shall give notice of such hearing to  [each  owner
    25  of  record  as  shown  on  the latest completed tax assessment rolls, of
    26  lands designated as such wetlands as shown on said map and also to]  the
    27  chief  administrative  officer and clerk of each local government within
    28  the boundaries of which any such wetland or a portion thereof is located
    29  and, in the case of a [tentative] draft freshwater wetlands map for  any
    30  area  within  the  Adirondack  park,  to  the Adirondack park agency, by
    31  certified mail not less than thirty days prior to the date set for  such
    32  hearing  and  shall  assure that a copy of the relevant map is available
    33  for public inspection at a convenient location in such local government.
    34  The map filed with a local government may,  at  the  local  government's
    35  request,  be  either a physical copy of the [tentative] draft freshwater
    36  wetlands map, or, if available, a digital file that represents  it.  The
    37  commissioner  shall also cause notice of such hearing to be published at
    38  least once, not more than thirty days nor fewer than ten days before the
    39  date set for such hearing, in at least  two  newspapers  having  general
    40  circulation in the area where such wetlands are located. The commission-
    41  er  may post on the department's website a digital image that represents
    42  the [tentative] draft freshwater wetlands map.
    43    5. [After considering the testimony given  at  such  hearing  and  any
    44  other  facts which may be deemed pertinent, after considering the rights
    45  of affected property owners and the  ecological  balance  in  accordance
    46  with  the  policy  and  purposes  of  this  article, and, in the case of
    47  wetlands or portions thereof within the Adirondack park, after  consult-
    48  ing  with  the Adirondack park agency, the commissioner shall promulgate
    49  by order the final freshwater wetlands map.  Such  order  shall  not  be
    50  promulgated  less  than sixty days from the date of the hearing required
    51  by subdivision four of this section. A copy of the order, together  with
    52  a  copy  of  such  map or relevant portion thereof shall be filed in the
    53  office of the clerk of each local government in which each such  wetland
    54  or  a  portion thereof is located and, in the case of a map for any area
    55  within the Adirondack park, with  the  Adirondack  park  agency.]  After
    56  consideration  of  comments  from  the  public the commissioner may make
        S. 7617                             4
     1  alterations to the draft map consistent with  section  24-0107  of  this
     2  article.  The commissioner shall finalize the map and file a copy of the
     3  map with the office of the clerk of each local government with jurisdic-
     4  tion over part or all of the region shown on the map. The map filed with
     5  a  local  government may, at the local government's request, be either a
     6  physical copy of the final freshwater wetlands map, or, if available,  a
     7  digital  file that represents it. [The commissioner shall simultaneously
     8  give notice of such order to each owner of lands, as shown on the latest
     9  completed tax assessment rolls, designated as such wetlands by mailing a
    10  copy of such order to such owner by certified mail in any case  where  a
    11  notice  by  certified  mail was not sent pursuant to subdivision four of
    12  this section, and in all other cases by first class  mail.  The  commis-
    13  sioner  shall  also  give notice of such order at such time to the chief
    14  administrative officer of each local government within the boundaries of
    15  which any such wetland or a portion thereof is located. At the  time  of
    16  filing  with  such  clerk or clerks, the commissioner shall also cause a
    17  copy of such order to be published in at  least  two  newspapers  having
    18  general  circulation  in  the area where such wetlands are located.] The
    19  commissioner may post on the department's website a digital  image  that
    20  represents the final freshwater wetlands map.
    21    6.  Except  as  provided  in  subdivision  eight  of this section, the
    22  commissioner shall supervise the  maintenance  of  such  boundary  maps,
    23  which shall be available to the public for inspection and examination at
    24  the  regional  office of the department in which the wetlands are wholly
    25  or partly located and in the office of the clerk of each county in which
    26  each such wetland or a portion thereof is located. The commissioner  may
    27  readjust  the  map thereafter to clarify the boundaries of the wetlands,
    28  to correct any errors on the map, to effect any additions, deletions  or
    29  technical changes on the map, and to reflect changes as have occurred as
    30  a  result of the granting of permits pursuant to section 24-0703 of this
    31  article, or natural changes which may  have  occurred  through  erosion,
    32  accretion,  or  otherwise. Notice of such readjustment shall be given in
    33  the same manner as set forth in subdivision [five] four of this  section
    34  for  the  [promulgation]  development of final freshwater wetlands maps.
    35  [In addition, at the time notice is  provided  pursuant  to  subdivision
    36  five of this section, the commissioner shall update any digital image of
    37  the  map  posted  on  the department's website to reflect such readjust-
    38  ment.]
    39    § 4. Subdivisions 1, 2 and 4 of section 24-0701 of  the  environmental
    40  conservation  law, subdivisions 1 and 2 as amended by chapter 654 of the
    41  laws of 1977 and subdivision 4 as amended by chapter 697 of the laws  of
    42  1979, are amended and a new subdivision 9 is added to read as follows:
    43    1.  [After  issuance  of  the  official freshwater wetlands map of the
    44  state, or of any selected section or region  thereof,  any]  Any  person
    45  desiring  to  conduct  on freshwater wetlands [as so designated thereon]
    46  any of the regulated activities set forth in  subdivision  two  of  this
    47  section must obtain a permit as provided in this title.
    48    2.  Activities  subject  to  regulation  under subdivision one of this
    49  section shall include subdivision of parcels of land containing freshwa-
    50  ter wetlands and any form of draining, dredging, excavation, removal  of
    51  soil,  mud,  sand, shells, gravel or other aggregate from any freshwater
    52  wetland, either directly or indirectly; and any form of  dumping,  fill-
    53  ing,  or  depositing  of any soil, stones, sand, gravel, mud, rubbish or
    54  fill of any kind, either directly or  indirectly;  erecting  any  struc-
    55  tures,   roads,  the  driving  of  pilings,  or  placing  of  any  other
    56  obstructions whether or not changing the ebb and flow of the water;  any
        S. 7617                             5
     1  form  of  pollution,  including  but not limited to, installing a septic
     2  tank, running a sewer outfall, discharging sewage treatment effluent  or
     3  other  liquid  wastes  into or so as to drain into a freshwater wetland;
     4  and  any  other  activity which substantially impairs any of the several
     5  functions served by freshwater wetlands or the benefits  derived  there-
     6  from  which  are  set  forth  in  section 24-0105 of this article. These
     7  activities are subject to regulation whether or not they occur upon  the
     8  wetland  itself,  if they impinge upon or otherwise substantially affect
     9  the wetlands and are located not more than one  hundred  feet  from  the
    10  boundary  of  such  wetland.  Provided, that a greater distance from any
    11  such wetland may be regulated pursuant to this article by the  appropri-
    12  ate  local  government  or by the department, whichever has jurisdiction
    13  over such wetland, where necessary to protect and preserve the wetland.
    14    4. [The] On lands in active agricultural use, the activities of  farm-
    15  ers  and  other  landowners  in  grazing  and watering livestock, making
    16  reasonable use of water resources, harvesting natural  products  of  the
    17  wetlands,  selectively  cutting  timber,  draining  land or wetlands for
    18  growing agricultural products and  otherwise  engaging  in  the  use  of
    19  wetlands  or  other  land  for  growing  agricultural  products shall be
    20  excluded from regulated activities and shall not require a permit  under
    21  subdivision  one  [hereof]  of  this section, except that structures not
    22  required for enhancement or maintenance of the agricultural productivity
    23  of the land and any filling activities shall not be excluded  hereunder,
    24  and  provided  that  the use of land [designated as a freshwater wetland
    25  upon the freshwater wetlands map at the  effective  date  thereof]  that
    26  meets  the definition of a freshwater wetland in section 24-0107 of this
    27  article for uses other than those referred to in this subdivision  shall
    28  be subject to the provisions of this article.
    29    9.  Any  permit  obtained  subject  to subdivision one of this section
    30  shall be permanently appended to the deed for  the  real  property  such
    31  regulated action occurred on.
    32    §  5.  Subdivision 5 of section 24-0703 of the environmental conserva-
    33  tion law, as amended by section 38 of part D of chapter 60 of  the  laws
    34  of 2012, is amended to read as follows:
    35    5.  [Prior to the promulgation of the final freshwater wetlands map in
    36  a particular area  and  the  implementation  of  a  freshwater  wetlands
    37  protection  law  or  ordinance,  no person shall conduct, or cause to be
    38  conducted, any activity for which a permit  is  required  under  section
    39  24-0701 of this title on any freshwater wetland unless he has obtained a
    40  permit from the commissioner under this section.] Any person may inquire
    41  of  the  department as to whether or not a given parcel of land [will be
    42  designated] includes a freshwater wetland  subject  to  regulation.  The
    43  department shall give a definite answer in writing within thirty days of
    44  such request as to [whether] the status of such parcel [will or will not
    45  be  so designated].   Provided that, in the event that weather or ground
    46  conditions prevent the department from  making  a  determination  within
    47  thirty  days,  it  may  extend  such period until a determination can be
    48  made. Such answer in the affirmative shall be reviewable; such an answer
    49  in the negative shall be a complete defense to the enforcement  of  this
    50  article  as  to such parcel of land. [The commissioner may by regulation
    51  adopted after public hearing exempt categories or classes of wetlands or
    52  individual wetlands which he determines not to be critical to the furth-
    53  erance of the policies and purposes of this article.]
    54    § 6. Subdivision 1 of section 24-0901 of the  environmental  conserva-
    55  tion  law,  as  added  by chapter 614 of the laws of 1975, is amended to
    56  read as follows:
        S. 7617                             6
     1    1. [Upon completion of the freshwater wetlands map, the]  The  commis-
     2  sioner  shall  confer  with local government officials in each region in
     3  which the inventory has been conducted to establish a  program  for  the
     4  protection of the freshwater wetlands of the state.
     5    §  7.  Subdivision 1 of section 24-0903 of the environmental conserva-
     6  tion law, as added by chapter 614 of the laws of  1975,  is  amended  to
     7  read as follows:
     8    1. [Upon completion of the freshwater wetlands map of the state, or of
     9  any  selected  section or region thereof, the commissioner shall proceed
    10  to classify freshwater wetlands so designated thereon according to their
    11  most appropriate uses, in] In light of the values set forth  in  section
    12  24-0105  of this article and the present conditions of [such] freshwater
    13  wetlands[. The], the commissioner shall determine what  uses  of  [such]
    14  freshwater  wetlands  are  most  compatible with the foregoing and shall
    15  prepare minimum land use regulations  to  permit  only  such  compatible
    16  uses.  [The  classifications  may cover freshwater wetlands in more than
    17  one governmental subdivision.  Permits pursuant to  section  24-0701  of
    18  this  article  are  required  whether  or  not a classification has been
    19  promulgated.]
    20    §  8.  Section  24-1305  of  the  environmental  conservation  law  is
    21  REPEALED.
    22    § 9. This act shall take effect immediately.