NY State Assembly Bill 2009-A701

Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 03, 2010	print number 701a
Feb 03, 2010	amend and recommit to environmental conservation
Jan 06, 2010	referred to environmental conservation
Jun 18, 2009	ordered to third reading rules cal.458 rules report cal.458 reported
Jun 15, 2009	reported referred to rules
Jun 02, 2009	reported referred to codes
Jan 07, 2009	referred to environmental conservation

Bill Amendments

Original

A (Active)

2009-A701 - Details

See Senate Version of this Bill:: S3666
Current Committee:: Assembly Environmental Conservation
Law Section:: Environmental Conservation Law
Laws Affected:: Add Art 15 Title 35 §§15-3501 - 15-3509, En Con L
Versions Introduced in 2011-2012 Legislative Session:: A370

2009-A701 - Summary

Codifies the public right of passage upon navigable waterways of the state for purposes of commerce or recreation; permits restrictions to protect scientific research.

2009-A701 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   701

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of  A.  HOYT, SCHROEDER, KOON, GALEF, CLARK, JAFFEE,
  ROSENTHAL -- Multi-Sponsored by -- M. of A.  BOYLAND,  CAHILL,  GLICK,
  GORDON,  GOTTFRIED,  JACOBS,  LAVINE, McENENY, PERRY, REILLY, SWEENEY,
  WEISENBERG -- read once and referred to the Committee on Environmental
  Conservation

AN ACT to amend the environmental conservation law, in relation  to  the
  public  right of passage upon the navigable waterways of the state and
  the rights of private property owners over which such waterways pass

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 15 of the environmental conservation law is amended
by adding a new title 33 to read as follows:
                                TITLE 33
                           NAVIGABLE WATERWAYS
SECTION 15-3301. STATEMENT OF LEGISLATIVE FINDINGS, POLICY AND INTENT.
        15-3303. DEFINITIONS.
        15-3305. PUBLIC RIGHT OF PASSAGE.
        15-3307. COMMON LAW REMEDIES PRESERVED.
        15-3309. INTERPRETATION; SEVERABILITY.
S 15-3301. STATEMENT OF LEGISLATIVE FINDINGS, POLICY AND INTENT.
  1.  THE  LEGISLATURE HEREBY FINDS THAT WATERWAYS IN THE STATE THAT ARE
SUBJECT TO THE PUBLIC RIGHT OF NAVIGATION AS THIS RIGHT  IS  DEFINED  IN
COMMON LAW CONSTITUTE A VALUABLE COMMERCIAL AND RECREATIONAL RESOURCE OF
THE STATE AND, AS SUCH, THEY PROVIDE IMPORTANT HEALTH BENEFITS AND LOCAL
AND  STATEWIDE ECONOMIC BENEFITS. THE LEGISLATURE FURTHER FINDS THAT THE
COURTS OF THE STATE HAVE HISTORICALLY  APPLIED  A  COMMON  LAW  TEST  TO
DETERMINE  WHETHER  PARTICULAR  WATERWAYS  ARE NAVIGABLE IN FACT AND ARE
THEREFORE SUBJECT TO THE PUBLIC RIGHT OF NAVIGATION, AND THAT ON  WATER-
WAYS  FOR  WHICH  SUCH DETERMINATIONS HAVE NOT BEEN MADE BOTH THE PUBLIC
AND THE AFFECTED PRIVATE PROPERTY OWNERS MAY BE UNCERTAIN AS TO  WHETHER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD02867-01-9

A. 701                              2

SUCH  WATERWAYS ARE SUBJECT TO SUCH RIGHT. THE LEGISLATURE FURTHER FINDS
THAT WATERWAYS THAT SATISFY THE COMMON LAW TEST ARE  NAVIGABLE  IN  FACT
AND  THAT THE BED AND BANKS OF SUCH WATERWAYS ARE SUBJECT TO A SERVITUDE
OR  EASEMENT  FOR THE PURPOSE OF NAVIGATION THAT IS HELD IN TRUST BY THE
STATE FOR THE PEOPLE OF THE STATE AND HAS BEEN SO HELD FROM THE TIME  OF
THE ORIGINAL GRANTS FROM THE STATE OR SOVEREIGN. THE LEGISLATURE FURTHER
FINDS THAT THIS NAVIGATIONAL EASEMENT PROVIDES A PUBLIC RIGHT OF PASSAGE
AND  THAT WATERWAYS THAT ARE SUBJECT TO SUCH EASEMENTS ARE CONSIDERED TO
BE PUBLIC HIGHWAYS  FOR  NAVIGATIONAL  PURPOSES,  INCLUDING  WHERE  SUCH
WATERWAYS  ARE  SITUATED ON PRIVATE PROPERTY. THE LEGISLATURE ALSO FINDS
THAT THE PUBLIC RIGHT OF NAVIGATION  INCLUDES  SEVERAL  ESSENTIAL  INCI-
DENTAL RIGHTS THAT MAY BE EXERCISED BY THE PUBLIC AS NECESSARY TO ACCOM-
PLISH  SAFE  PASSAGE. ALSO, THE LEGISLATURE FINDS THAT IN EXERCISING THE
PUBLIC RIGHT OF NAVIGATION THE PUBLIC IS REQUIRED BY LAW TO RESPECT  THE
RIGHTS  OF PRIVATE PROPERTY OWNERS AND MAY NOT ENTER ON PRIVATE PROPERTY
FOR PURPOSES OTHER THAN TO EXERCISE THE LAWFUL RIGHT OF SAFE PASSAGE AND
THEN ONLY TO THE MOST MINIMALLY INTRUSIVE EXTENT POSSIBLE.
  2. THE LEGISLATURE HEREBY DECLARES  ITS  INTENT  TO  ENSURE  THAT  THE
PUBLIC  SHALL BE ABLE TO FREELY NAVIGATE ON WATERWAYS THAT ARE NAVIGABLE
IN FACT AND TO ENSURE THAT THE RIGHTS OF PRIVATE PROPERTY OWNERS ARE NOT
VIOLATED OR INFRINGED UPON BY THOSE WHO ENGAGE IN THE  PUBLIC  RIGHT  OF
NAVIGATION.  THE  LEGISLATURE  FURTHER  DECLARES ITS INTENT TO DETERMINE
WHICH WATERWAYS IN THE STATE ARE NAVIGABLE IN FACT UNDER THE COMMON LAW.
  3. THE LEGISLATURE HEREBY DECLARES IT TO BE THE POLICY OF THE STATE TO
PROTECT THE COMMERCIAL AND RECREATIONAL USES OF  ALL  WATERWAYS  IN  THE
STATE  THAT  ARE NAVIGABLE IN FACT UNDER THE COMMON LAW, TO PRESERVE AND
PROTECT THE PUBLIC  RIGHT  OF  PASSAGE  UPON  THESE  WATERWAYS,  AND  TO
PRESERVE  AND  PROTECT  THE RIGHTS OF OWNERS OF PRIVATE PROPERTY THROUGH
WHICH THESE WATERWAYS PASS.
S 15-3303. DEFINITIONS.
  THE FOLLOWING TERMS WHEN USED IN THIS TITLE SHALL BE  DEEMED  TO  MEAN
AND INCLUDE:
  1.  "COMMERCE" SHALL MEAN ANY REMUNERATIVE ACTIVITY INCLUDING, WITHOUT
LIMITATION, USE OF A WATERWAY FOR THE TRANSPORT OF GOODS OR MINERALS  IN
VESSELS,  FLOATING  LOGS  TO  MILLS OR MARKET AND TRANSPORTING PEOPLE OR
GUIDING PEOPLE FOR HIRE IN VESSELS.
  2. "LINING" SHALL MEAN REGULATING THE PASSAGE OF  A  VESSEL  ALONG  AN
OBSTRUCTED  STREAM SEGMENT BY MEANS OF LINES CONTROLLED FROM THE BED AND
BANKS OF THE STREAM, PROVIDED THAT USE OF THE BED AND BANKS OF A  STREAM
FOR SUCH PURPOSE SHALL BE TO THE MINIMUM AND LEAST INTRUSIVE EXTENT THAT
IS REASONABLY NECESSARY TO ACCOMPLISH SAFE PASSAGE.
  3.  "NAVIGABLE  IN  FACT"  SHALL MEAN ANY WATERWAY WHICH SATISFIES THE
COMMON LAW TEST THAT THE WATERWAY, IN ITS  NATURAL  STATE  AND  ORDINARY
VOLUME  OF  WATER,  HAS PRACTICAL UTILITY TO THE PUBLIC AS A HIGHWAY FOR
TRADE, TRAVEL OR TRANSPORT. BOTH UTILITY FOR COMMERCIAL USE AND CAPACITY
FOR RECREATIONAL USE CAN BE CONSIDERED IN DETERMINING WHETHER A WATERWAY
HAS PRACTICAL UTILITY TO THE PUBLIC AS A HIGHWAY FOR  TRADE,  TRAVEL  OR
TRANSPORT. A WATERWAY MAY BE NAVIGABLE IN FACT EVEN IF IT IS NOT CAPABLE
OF  BEING  NAVIGATED AGAINST ITS CURRENT AND EVEN IF THE CAPACITY OF THE
STREAM FOR SUPPORTING NAVIGATION IS NOT CONTINUOUS OVER TIME, AS LONG AS
THE CAPACITY NECESSARY TO SUPPORT NAVIGATION CONTINUES FOR A  SUFFICIENT
LENGTH  OF TIME TO MAKE THE STREAM USEFUL AS A HIGHWAY FOR TRADE, TRAVEL
OR TRANSPORT. A WATERWAY MAY ALSO BE NAVIGABLE IN FACT  EVEN  THOUGH  IT
CONTAINS  OCCASIONAL  RAPIDS,  FALLS,  DAMS  OR OTHER NATURAL OR MANMADE
OBSTRUCTIONS.

A. 701                              3

  4. "PASSAGE" SHALL MEAN THE ACT OF NAVIGATION, INCLUDING THE RIGHT  TO
ENGAGE  IN  INCIDENTAL ACTIVITIES WHICH ARE, UNDER THE CIRCUMSTANCES, AN
INSEPARABLE AND INDISPENSABLE PART OF SAFE NAVIGATION, INCLUDING BUT NOT
LIMITED TO SCRAPING OR PUSHING OFF THE  BED  OF  THE  WATERWAY,  POLING,
LINING, PORTAGING AND SCOUTING.
  5. "POLING" SHALL MEAN PROPELLING A VESSEL BY USING A POLE TO PUSH OFF
THE BED OR BANKS OF A WATERWAY.
  6.  "PORTAGING"  SHALL MEAN TRANSPORTING OR CARRYING A VESSEL UPON THE
BED OR BANKS OF AN OBSTRUCTED STREAM SEGMENT, PROVIDED THAT USE  OF  THE
BED  OR  BANKS OF A STREAM FOR SUCH PURPOSES SHALL BE TO THE MINIMUM AND
LEAST INTRUSIVE EXTENT THAT IS REASONABLY NECESSARY TO  ACCOMPLISH  SAFE
PASSAGE.
  7.  "RECREATION"  SHALL  MEAN  ANY  ACTIVITY WHICH IS NOT COMMERCE, AS
DEFINED IN THIS SECTION, INCLUDING BUT NOT LIMITED  TO  PERSONAL  TRAVEL
FOR  PLEASURE OR TO TRANSPORT GOODS OVER A WATERWAY AS A MEANS OF ACCESS
TO A PRIMARY OR SECONDARY RESIDENCE.
  8. "SCOUTING" SHALL MEAN  INSPECTION  OF  RAPIDS  OR  OTHER  POTENTIAL
NATURAL  OR  MANMADE  OBSTRUCTIONS TO SAFE PASSAGE IN ORDER TO DETERMINE
WHETHER AND BY WHAT ROUTE SAFE PASSAGE IS POSSIBLE, PROVIDED THAT USE OF
THE BED AND BANKS OF A STREAM FOR SUCH PURPOSE SHALL BE TO  THE  MINIMUM
AND  LEAST  INTRUSIVE  EXTENT THAT IS REASONABLY NECESSARY TO ACCOMPLISH
SAFE PASSAGE.
  9. "VESSEL" SHALL MEAN ANY WATERCRAFT DESIGNED FOR NAVIGATION, INCLUD-
ING SKIFFS, ROW BOATS, CANOES, RAFTS AND OTHER SMALL CRAFT.
  10. "WATERWAY" SHALL MEAN ANY NON-TIDAL  WATERBODY,  INCLUDING  LAKES,
PONDS,  RIVERS,  CREEKS  OR STREAMS, REGARDLESS OF WHETHER THE WATERBODY
HAS BEEN DETERMINED TO BE NAVIGABLE IN FACT AT COMMON LAW.
S 15-3305. PUBLIC RIGHT OF PASSAGE.
  1. THE PUBLIC HAS A RIGHT OF PASSAGE FOR ANY LAWFUL PURPOSE, INCLUDING
COMMERCE, TRAVEL AND RECREATION, ON ALL WATERWAYS OF THE STATE THAT  ARE
NAVIGABLE IN FACT.
  2. THE PUBLIC RIGHT OF PASSAGE ON WATERWAYS THAT ARE NAVIGABLE IN FACT
DOES  NOT  INCLUDE  THE  RIGHT  TO  ENTER  PRIVATE  PROPERTY FOR HIKING,
PICNICKING, NATURE OBSERVATION, CAMPING, EGRESSING FROM OR  ACCESSING  A
WATERWAY, OR ANY OTHER PURPOSE NOT RELATED TO PASSAGE.
  3.  THE  COMMISSIONER SHALL HAVE THE AUTHORITY TO PROMULGATE RULES AND
REGULATIONS TO IMPLEMENT THIS SECTION,  INCLUDING  BUT  NOT  LIMITED  TO
RULES  AND  REGULATIONS  WHICH IDENTIFY AND DESIGNATE WATERWAYS THAT ARE
NAVIGABLE IN FACT, USING THE COMMON LAW TEST SET FORTH IN SUBDIVISION  3
OF  SECTION  15-3303  OF  THIS TITLE, AND WHICH ADDRESS ISSUES OF PUBLIC
SAFETY OR NATURAL RESOURCE PROTECTION. THE COMMISSIONER  MAY  AMEND  ANY
SUCH  RULES AND REGULATIONS AS MAY BE APPROPRIATE FROM TIME TO TIME. THE
COMMISSIONER SHALL NOT HAVE THE POWER TO DETERMINE THAT WATERWAYS  WHICH
SATISFY THE COMMON LAW TEST ARE NOT NAVIGABLE IN FACT AND SHALL NOT HAVE
THE  POWER  TO  DETERMINE THAT WATERWAYS WHICH DO NOT SATISFY THE COMMON
LAW TEST ARE NAVIGABLE IN FACT.
  4. THE PUBLIC RIGHT OF PASSAGE ON THE WATERWAYS THAT ARE NAVIGABLE  IN
FACT  IS SUBJECT TO ALL OTHER APPLICABLE PROVISIONS OF LAW AND RULES AND
REGULATIONS THAT REGULATE OR LIMIT THE USE OF VESSELS.
S 15-3307. COMMON LAW REMEDIES PRESERVED.
  NOTHING IN THIS TITLE SHALL BE CONSTRUED TO LIMIT ANY REMEDY AVAILABLE
IN COMMON LAW, STATUTE OR RULE OR REGULATION FOR OBSTRUCTING, HINDERING,
HARASSING OR OTHERWISE INTERFERING WITH THE PUBLIC RIGHT OF  PASSAGE  BY
PERSONS  LAWFULLY  EXERCISING THE RIGHT OF PASSAGE ON WATERWAYS THAT ARE
NAVIGABLE IN FACT. WARNING OF A DANGEROUS CONDITION SHALL NOT IN  ITSELF
BE  DEEMED AN INTERFERENCE WITH THE PUBLIC RIGHT OF NAVIGATION. FURTHER-

A. 701                              4

MORE, NOTHING IN THIS TITLE SHALL  BE  CONSTRUED  TO  LIMIT  ANY  REMEDY
AVAILABLE  IN COMMON LAW, STATUTE OR RULE AND REGULATION FOR TRESPASS ON
PRIVATE PROPERTY FOR ACTIVITIES OTHER THAN PASSAGE.
S 15-3309. INTERPRETATION; SEVERABILITY.
  1.  THIS TITLE SHALL BE INTERPRETED TO PRESERVE AND PROTECT THE COMMON
LAW RIGHT OF PASSAGE ON WATERWAYS THAT ARE NAVIGABLE IN  FACT  AND  ALSO
SHALL  BE  INTERPRETED  TO  PRESERVE  AND PROTECT THE RIGHTS OF PROPERTY
OWNERS WHO OWN PROPERTY THROUGH WHICH NAVIGABLE IN FACT WATERWAYS FLOW.
  2. THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE, AND IF ANY CLAUSE,
SENTENCE, PARAGRAPH, SUBDIVISION, SECTION OR PART OF THIS TITLE SHALL BE
ADJUDGED BY ANY COURT OF COMPETENT  JURISDICTION  TO  BE  INVALID,  SUCH
JUDGMENT  SHALL  NOT  AFFECT, IMPAIR OR INVALIDATE THE REMAINDER THEREOF
BUT SHALL BE CONFINED IN ITS OPERATION TO THE  CLAUSE,  SENTENCE,  PARA-
GRAPH,  SUBDIVISION,  SECTION  OR  PART THEREOF DIRECTLY INVOLVED IN THE
CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.
  S 2. This act shall take effect April 1, 2010.

2009-A701A (ACTIVE) - Details

See Senate Version of this Bill:: S3666
Current Committee:: Assembly Environmental Conservation
Law Section:: Environmental Conservation Law
Laws Affected:: Add Art 15 Title 35 §§15-3501 - 15-3509, En Con L
Versions Introduced in 2011-2012 Legislative Session:: A370

2009-A701A (ACTIVE) - Summary

Codifies the public right of passage upon navigable waterways of the state for purposes of commerce or recreation; permits restrictions to protect scientific research.

2009-A701A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A701A

TITLE OF BILL:  An act to amend the environmental conservation law, in
relation to the public right of passage upon the navigable waterways of
the state and the rights of private property owners over which such
waterways pass

PURPOSE OR GENERAL IDEA OF BILL: To establish by statute the common law
right of public access to navigable waterways in the state.

SUMMARY OF SPECIFIC PROVISIONS: Adds a new Title 35 to Article 15 to the
Environmental Conservation Law defining and regulating the right of the
public to travel upon the navigable waterways of the state.  Section
15-3301 of the new article recognizes the existing common law of the
state that the public has a right to travel by vessel over navigable
waters where they flow upon private lands.

This article states that the right of the public to use navigable waters
does not permit crossing private land for access to, or egress from,
such waters. However, the right of the public to continue along a navig-
able waterway by portaging on, land if obstructed by a natural or
manmade obstacle, as well as entry upon private land only to the extent
necessary for exercising the right of navigation, is acknowledged. It
requires the public to comply with all relevant statutes, rules and
regulations dealing with travel via navigable waterways.

The bill also authorizes the Commissioner of Environmental Conservation
to designate waterways which in furtherance of public safety and/ or
protection of natural resources can only be used with special limita-
tions, including under a self-registration user system.  The bill refer-
ences the General Obligations Law and makes it clear that landowners
generally cannot be held liable for damages if any member of the public
is injured while exercising their right of passage on navigable water-
ways involving lands owned by such landowners. Definitions are provided
for the following words or term; waterway; commerce; recreation;
passage; lining; portaging; scouting; poling; and self registration
system.

JUSTIFICATION:  Navigable waterways have been primary arteries of trans-
portation and commerce in New York since its inception. Over time a
substantial body of case law has developed in New York which insures
that these waterways will be accessible and useful to the public. Today
much of the public's use of navigable waterways is for recreational
purposes.  Important in its own right for health and enjoyment, recre-
ational use also is important for tourism and it provides economic bene-
fits to many areas of the state. The 1998 Court of Appeals decision
concerning the South Branch of the Moose River made dear that recre-
ational use is a contemporary manifestation of traditional commercial
use of navigable waterways and it can be an important factor in deter-
mining navigability.

As a result of confusion and misunderstanding that developed over the
years, public use of some navigable waterways has been obstructed ille-
gally by riparian landowners. Obstruction of navigable waterways by
riparian landowners or their lessees is a violation of public rights.
Such illegal actions reduce the availability of the State's waterways
for public enjoyment, with attendant economic loss. Some of these ille-
gal obstructions have been removed as a result of recent land acquisi-
tion by the State. However, at the same time, obstructions have been put
in place elsewhere and more might be put in place in the future unless
these rights are clarified, made more understandable in plain English
and made more accessible by embodiment in a single statute. Such clar-
ification and accessibility will benefit riparian landowners, river
recreationists, law enforcement officers and other parties with a prima-
ry or secondary direct interest

PRIOR LEGISLATIVE HISTORYof :
03/27/08 A7230A  reported referred to codes
04/29/08 reported
05/01/08 advanced to third reading cal. 875
06/18/08 amended on third reading 7230a
06/18/09 Ordered to third reading rules cal. 458

FISCAL IMPLICATIONS: None.

EFFECTIVE  DATE:    This act shall take effect on the 180th day after it
shall have become a law.

2009-A701A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 701--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of  A.  HOYT, SCHROEDER, KOON, GALEF, CLARK, JAFFEE,
  ROSENTHAL -- Multi-Sponsored by -- M. of A.  BOYLAND,  CAHILL,  GLICK,
  GORDON,  GOTTFRIED,  JACOBS,  LAVINE, McENENY, PERRY, REILLY, SWEENEY,
  WEISENBERG -- read once and referred to the Committee on Environmental
  Conservation -- recommitted to the Committee on Environmental  Conser-
  vation  in  accordance  with  Assembly  Rule  3,  sec.  2 -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the environmental conservation law, in relation  to  the
  public  right of passage upon the navigable waterways of the state and
  the rights of private property owners over which such waterways pass

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 15 of the environmental conservation law is amended
by adding a new title 35 to read as follows:
                                TITLE 35
                           NAVIGABLE WATERWAYS
SECTION 15-3501. STATEMENT OF LEGISLATIVE FINDINGS, POLICY AND INTENT.
        15-3503. DEFINITIONS.
        15-3505. PUBLIC RIGHT OF PASSAGE.
        15-3507. COMMON LAW REMEDIES PRESERVED.
        15-3509. INTERPRETATION; SEVERABILITY.
S 15-3501. STATEMENT OF LEGISLATIVE FINDINGS, POLICY AND INTENT.
  1.  THE  LEGISLATURE HEREBY FINDS THAT WATERWAYS IN THE STATE THAT ARE
SUBJECT TO THE PUBLIC RIGHT OF NAVIGATION AS THIS RIGHT  IS  DEFINED  IN
COMMON LAW CONSTITUTE A VALUABLE COMMERCIAL AND RECREATIONAL RESOURCE OF
THE STATE AND, AS SUCH, THEY PROVIDE IMPORTANT HEALTH BENEFITS AND LOCAL
AND  STATEWIDE ECONOMIC BENEFITS. THE LEGISLATURE FURTHER FINDS THAT THE
COURTS OF THE STATE HAVE HISTORICALLY  APPLIED  A  COMMON  LAW  TEST  TO
DETERMINE  WHETHER  PARTICULAR  WATERWAYS  ARE NAVIGABLE IN FACT AND ARE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD02867-03-0

A. 701--A                           2

THEREFORE SUBJECT TO THE PUBLIC RIGHT OF NAVIGATION, AND THAT ON  WATER-
WAYS  FOR  WHICH  SUCH DETERMINATIONS HAVE NOT BEEN MADE BOTH THE PUBLIC
AND THE AFFECTED PRIVATE PROPERTY OWNERS MAY BE UNCERTAIN AS TO  WHETHER
SUCH  WATERWAYS ARE SUBJECT TO SUCH RIGHT. THE LEGISLATURE FURTHER FINDS
THAT WATERWAYS THAT SATISFY THE COMMON LAW TEST ARE  NAVIGABLE  IN  FACT
AND  THAT THE BED AND BANKS OF SUCH WATERWAYS ARE SUBJECT TO A SERVITUDE
OR EASEMENT FOR THE PURPOSE OF NAVIGATION THAT IS HELD IN TRUST  BY  THE
STATE  FOR THE PEOPLE OF THE STATE AND HAS BEEN SO HELD FROM THE TIME OF
THE ORIGINAL GRANTS FROM THE STATE OR SOVEREIGN. THE LEGISLATURE FURTHER
FINDS THAT THIS NAVIGATIONAL EASEMENT PROVIDES A PUBLIC RIGHT OF PASSAGE
AND THAT WATERWAYS THAT ARE SUBJECT TO SUCH EASEMENTS ARE CONSIDERED  TO
BE  PUBLIC  HIGHWAYS  FOR  NAVIGATIONAL  PURPOSES,  INCLUDING WHERE SUCH
WATERWAYS ARE SITUATED ON PRIVATE PROPERTY. THE LEGISLATURE  ALSO  FINDS
THAT  THE  PUBLIC  RIGHT  OF NAVIGATION INCLUDES SEVERAL ESSENTIAL INCI-
DENTAL RIGHTS THAT MAY BE EXERCISED BY THE PUBLIC AS NECESSARY TO ACCOM-
PLISH SAFE PASSAGE. ALSO, THE LEGISLATURE FINDS THAT IN  EXERCISING  THE
PUBLIC  RIGHT OF NAVIGATION THE PUBLIC IS REQUIRED BY LAW TO RESPECT THE
RIGHTS OF PRIVATE PROPERTY OWNERS AND MAY NOT ENTER ON PRIVATE  PROPERTY
FOR PURPOSES OTHER THAN TO EXERCISE THE LAWFUL RIGHT OF SAFE PASSAGE AND
THEN ONLY TO THE MOST MINIMALLY INTRUSIVE EXTENT POSSIBLE.
  2.  THE  LEGISLATURE  HEREBY  DECLARES  ITS  INTENT TO ENSURE THAT THE
PUBLIC SHALL BE ABLE TO FREELY NAVIGATE ON WATERWAYS THAT ARE  NAVIGABLE
IN FACT AND TO ENSURE THAT THE RIGHTS OF PRIVATE PROPERTY OWNERS ARE NOT
VIOLATED  OR  INFRINGED  UPON BY THOSE WHO ENGAGE IN THE PUBLIC RIGHT OF
NAVIGATION. THE LEGISLATURE FURTHER DECLARES  ITS  INTENT  TO  DETERMINE
WHICH WATERWAYS IN THE STATE ARE NAVIGABLE IN FACT UNDER THE COMMON LAW.
  3. THE LEGISLATURE HEREBY DECLARES IT TO BE THE POLICY OF THE STATE TO
PROTECT  THE  COMMERCIAL  AND  RECREATIONAL USES OF ALL WATERWAYS IN THE
STATE THAT ARE NAVIGABLE IN FACT UNDER THE COMMON LAW, TO  PRESERVE  AND
PROTECT  THE  PUBLIC  RIGHT  OF  PASSAGE  UPON  THESE  WATERWAYS, AND TO
PRESERVE AND PROTECT THE RIGHTS OF OWNERS OF  PRIVATE  PROPERTY  THROUGH
WHICH THESE WATERWAYS PASS.
S 15-3503. DEFINITIONS.
  THE  FOLLOWING  TERMS  WHEN USED IN THIS TITLE SHALL BE DEEMED TO MEAN
AND INCLUDE:
  1. "COMMERCE" SHALL MEAN ANY REMUNERATIVE ACTIVITY INCLUDING,  WITHOUT
LIMITATION,  USE OF A WATERWAY FOR THE TRANSPORT OF GOODS OR MINERALS IN
VESSELS, FLOATING LOGS TO MILLS OR MARKET  AND  TRANSPORTING  PEOPLE  OR
GUIDING PEOPLE FOR HIRE IN VESSELS.
  2.  "LINING"  SHALL  MEAN  REGULATING THE PASSAGE OF A VESSEL ALONG AN
OBSTRUCTED STREAM SEGMENT BY MEANS OF LINES CONTROLLED FROM THE BED  AND
BANKS  OF THE STREAM, PROVIDED THAT USE OF THE BED AND BANKS OF A STREAM
FOR SUCH PURPOSE SHALL BE TO THE MINIMUM AND LEAST INTRUSIVE EXTENT THAT
IS REASONABLY NECESSARY TO ACCOMPLISH SAFE PASSAGE.
  3. "NAVIGABLE IN FACT" SHALL MEAN ANY  WATERWAY  WHICH  SATISFIES  THE
COMMON  LAW  TEST  THAT  THE WATERWAY, IN ITS NATURAL STATE AND ORDINARY
VOLUME OF WATER, HAS PRACTICAL UTILITY TO THE PUBLIC AS  A  HIGHWAY  FOR
TRADE, TRAVEL OR TRANSPORT. BOTH UTILITY FOR COMMERCIAL USE AND CAPACITY
FOR RECREATIONAL USE CAN BE CONSIDERED IN DETERMINING WHETHER A WATERWAY
HAS  PRACTICAL  UTILITY  TO THE PUBLIC AS A HIGHWAY FOR TRADE, TRAVEL OR
TRANSPORT. A WATERWAY MAY BE NAVIGABLE IN FACT EVEN IF IT IS NOT CAPABLE
OF BEING NAVIGATED AGAINST ITS CURRENT AND EVEN IF THE CAPACITY  OF  THE
STREAM FOR SUPPORTING NAVIGATION IS NOT CONTINUOUS OVER TIME, AS LONG AS
THE  CAPACITY NECESSARY TO SUPPORT NAVIGATION CONTINUES FOR A SUFFICIENT
LENGTH OF TIME TO MAKE THE STREAM USEFUL AS A HIGHWAY FOR TRADE,  TRAVEL
OR  TRANSPORT.  A  WATERWAY MAY ALSO BE NAVIGABLE IN FACT EVEN THOUGH IT

A. 701--A                           3

CONTAINS OCCASIONAL RAPIDS, FALLS, DAMS  OR  OTHER  NATURAL  OR  MANMADE
OBSTRUCTIONS.
  4.  "PASSAGE" SHALL MEAN THE ACT OF NAVIGATION, INCLUDING THE RIGHT TO
ENGAGE IN INCIDENTAL ACTIVITIES WHICH ARE, UNDER THE  CIRCUMSTANCES,  AN
INSEPARABLE AND INDISPENSABLE PART OF SAFE NAVIGATION, INCLUDING BUT NOT
LIMITED  TO  SCRAPING  OR  PUSHING  OFF THE BED OF THE WATERWAY, POLING,
LINING, PORTAGING AND SCOUTING.
  5. "POLING" SHALL MEAN PROPELLING A VESSEL BY USING A POLE TO PUSH OFF
THE BED OR BANKS OF A WATERWAY.
  6. "PORTAGING" SHALL MEAN TRANSPORTING OR CARRYING A VESSEL  UPON  THE
BED  OR  BANKS OF AN OBSTRUCTED STREAM SEGMENT, PROVIDED THAT USE OF THE
BED OR BANKS OF A STREAM FOR SUCH PURPOSES SHALL BE TO THE  MINIMUM  AND
LEAST  INTRUSIVE  EXTENT THAT IS REASONABLY NECESSARY TO ACCOMPLISH SAFE
PASSAGE.
  7. "RECREATION" SHALL MEAN ANY ACTIVITY  WHICH  IS  NOT  COMMERCE,  AS
DEFINED  IN  THIS  SECTION, INCLUDING BUT NOT LIMITED TO PERSONAL TRAVEL
FOR PLEASURE OR TO TRANSPORT GOODS OVER A WATERWAY AS A MEANS OF  ACCESS
TO A PRIMARY OR SECONDARY RESIDENCE.
  8.  "SCOUTING"  SHALL  MEAN  INSPECTION  OF  RAPIDS OR OTHER POTENTIAL
NATURAL OR MANMADE OBSTRUCTIONS TO SAFE PASSAGE IN  ORDER  TO  DETERMINE
WHETHER AND BY WHAT ROUTE SAFE PASSAGE IS POSSIBLE, PROVIDED THAT USE OF
THE  BED  AND BANKS OF A STREAM FOR SUCH PURPOSE SHALL BE TO THE MINIMUM
AND LEAST INTRUSIVE EXTENT THAT IS REASONABLY  NECESSARY  TO  ACCOMPLISH
SAFE PASSAGE.
  9. "VESSEL" SHALL MEAN ANY WATERCRAFT DESIGNED FOR NAVIGATION, INCLUD-
ING SKIFFS, ROW BOATS, CANOES, RAFTS AND OTHER SMALL CRAFT.
  10.  "WATERWAY"  SHALL  MEAN ANY NON-TIDAL WATERBODY, INCLUDING LAKES,
PONDS, RIVERS, CREEKS OR STREAMS, REGARDLESS OF  WHETHER  THE  WATERBODY
HAS BEEN DETERMINED TO BE NAVIGABLE IN FACT AT COMMON LAW.
S 15-3505. PUBLIC RIGHT OF PASSAGE.
  1. THE PUBLIC HAS A RIGHT OF PASSAGE FOR ANY LAWFUL PURPOSE, INCLUDING
COMMERCE,  TRAVEL AND RECREATION, ON ALL WATERWAYS OF THE STATE THAT ARE
NAVIGABLE IN FACT.
  2. THE PUBLIC RIGHT OF PASSAGE ON WATERWAYS THAT ARE NAVIGABLE IN FACT
DOES NOT INCLUDE  THE  RIGHT  TO  ENTER  PRIVATE  PROPERTY  FOR  HIKING,
PICNICKING,  NATURE  OBSERVATION, CAMPING, EGRESSING FROM OR ACCESSING A
WATERWAY, OR ANY OTHER PURPOSE NOT RELATED TO PASSAGE.
  3. THE COMMISSIONER SHALL HAVE THE AUTHORITY TO PROMULGATE  RULES  AND
REGULATIONS  TO  IMPLEMENT  THIS  SECTION,  INCLUDING BUT NOT LIMITED TO
RULES AND REGULATIONS WHICH IDENTIFY AND DESIGNATE  WATERWAYS  THAT  ARE
NAVIGABLE  IN FACT, USING THE COMMON LAW TEST SET FORTH IN SUBDIVISION 3
OF SECTION 15-3503 OF THIS TITLE, AND WHICH  ADDRESS  ISSUES  OF  PUBLIC
SAFETY  OR  NATURAL  RESOURCE PROTECTION. THE COMMISSIONER MAY AMEND ANY
SUCH RULES AND REGULATIONS AS MAY BE APPROPRIATE FROM TIME TO TIME.  THE
COMMISSIONER  SHALL NOT HAVE THE POWER TO DETERMINE THAT WATERWAYS WHICH
SATISFY THE COMMON LAW TEST ARE NOT NAVIGABLE IN FACT AND SHALL NOT HAVE
THE POWER TO DETERMINE THAT WATERWAYS WHICH DO NOT  SATISFY  THE  COMMON
LAW TEST ARE NAVIGABLE IN FACT.
  4.  THE PUBLIC RIGHT OF PASSAGE ON THE WATERWAYS THAT ARE NAVIGABLE IN
FACT IS SUBJECT TO ALL OTHER APPLICABLE PROVISIONS OF LAW AND RULES  AND
REGULATIONS THAT REGULATE OR LIMIT THE USE OF VESSELS.
S 15-3507. COMMON LAW REMEDIES PRESERVED.
  NOTHING IN THIS TITLE SHALL BE CONSTRUED TO LIMIT ANY REMEDY AVAILABLE
IN COMMON LAW, STATUTE OR RULE OR REGULATION FOR OBSTRUCTING, HINDERING,
HARASSING  OR  OTHERWISE INTERFERING WITH THE PUBLIC RIGHT OF PASSAGE BY
PERSONS LAWFULLY EXERCISING THE RIGHT OF PASSAGE ON WATERWAYS  THAT  ARE

A. 701--A                           4

NAVIGABLE  IN FACT. WARNING OF A DANGEROUS CONDITION SHALL NOT IN ITSELF
BE DEEMED AN INTERFERENCE WITH THE PUBLIC RIGHT OF NAVIGATION.  FURTHER-
MORE,  NOTHING  IN  THIS  TITLE  SHALL  BE CONSTRUED TO LIMIT ANY REMEDY
AVAILABLE  IN COMMON LAW, STATUTE OR RULE AND REGULATION FOR TRESPASS ON
PRIVATE PROPERTY FOR ACTIVITIES OTHER THAN PASSAGE.
S 15-3509. INTERPRETATION; SEVERABILITY.
  1. THIS TITLE SHALL BE INTERPRETED TO PRESERVE AND PROTECT THE  COMMON
LAW  RIGHT  OF  PASSAGE ON WATERWAYS THAT ARE NAVIGABLE IN FACT AND ALSO
SHALL BE INTERPRETED TO PRESERVE AND  PROTECT  THE  RIGHTS  OF  PROPERTY
OWNERS WHO OWN PROPERTY THROUGH WHICH NAVIGABLE IN FACT WATERWAYS FLOW.
  2. THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE, AND IF ANY CLAUSE,
SENTENCE, PARAGRAPH, SUBDIVISION, SECTION OR PART OF THIS TITLE SHALL BE
ADJUDGED  BY  ANY  COURT  OF  COMPETENT JURISDICTION TO BE INVALID, SUCH
JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE  THE  REMAINDER  THEREOF
BUT  SHALL  BE  CONFINED IN ITS OPERATION TO THE CLAUSE, SENTENCE, PARA-
GRAPH, SUBDIVISION, SECTION OR PART THEREOF  DIRECTLY  INVOLVED  IN  THE
CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Find your Senator and share your views on important issues.

Do you support this bill?

Assembly Bill A701

Sponsored By

Archive: Last Bill Status - In Assembly Committee

Actions

Bill Amendments

2009-A701 - Details

2009-A701 - Summary

2009-A701 - Bill Text download pdf

2009-A701A (ACTIVE) - Details

2009-A701A (ACTIVE) - Summary

2009-A701A (ACTIVE) - Sponsor Memo

2009-A701A (ACTIVE) - Bill Text download pdf

Comments

Do you support this bill?

Get Status Alerts for 2009-A701

Assembly Bill A701

Share this bill

Sponsored By

HOYT

Archive: Last Bill Status - In Assembly Committee

Actions

Bill Amendments

2009-A701 - Details

2009-A701 - Summary

2009-A701 - Bill Text download pdf

2009-A701A (ACTIVE) - Details

2009-A701A (ACTIVE) - Summary

2009-A701A (ACTIVE) - Sponsor Memo

2009-A701A (ACTIVE) - Bill Text download pdf

Comments