S T A T E   O F   N E W   Y O R K
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    S. 871--A                                             A. 2583--A

                       2009-2010 Regular Sessions

                      S E N A T E - A S S E M B L Y

                            January 21, 2009
                               ___________

IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
  ed, and when printed to be committed to the Committee on Environmental
  Conservation  -- recommitted to the Committee on Environmental Conser-
  vation  in  accordance  with  Senate  Rule  6,  sec.  8  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

IN  ASSEMBLY  -- Introduced by M. of A. THIELE -- read once and referred
  to the Committee on Environmental Conservation -- recommitted  to  the
  Committee  on  Environmental  Conservation 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 local
  tidal wetlands protection

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

  Section 1. Article 25 of the environmental conservation law is amended
by adding a new title 5 to read as follows:
                                 TITLE 5
                          LOCAL IMPLEMENTATION
SECTION 25-0501. LOCAL TIDAL WETLANDS PROTECTION PROCEDURES.
        25-0503. TRANSFER OF FUNCTION TO COUNTY; SUPERSESSION BY DEPART-
                   MENT.
        25-0505. EXEMPTION FROM LOCAL IMPLEMENTATION.
        25-0507. RESERVATION OF LOCAL JURISDICTION.
        25-0509. RELATIONSHIP TO OTHER LAWS.
S 25-0501. LOCAL TIDAL WETLANDS PROTECTION PROCEDURES.
  1. ON OR AFTER SEPTEMBER 1, 2010, EACH  LOCAL  GOVERNMENT  MAY  ADOPT,
AMEND,  AND,  UPON  THE  FILING  OF  THE APPROPRIATE TIDAL WETLANDS MAP,
IMPLEMENT A TIDAL WETLANDS PROTECTION LAW  OR  ORDINANCE  IN  ACCORDANCE
WITH  THIS  ARTICLE  TO  BE  APPLICABLE  TO ALL TIDAL WETLANDS WHOLLY OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05123-02-0
              

S. 871--A                           2                         A. 2583--A

PARTIALLY WITHIN ITS JURISDICTION. NO TIDAL WETLANDS PROTECTION  LAW  OR
ORDINANCE ADOPTED BY A COUNTY PURSUANT TO THIS SECTION SHALL BE APPLICA-
BLE WITHIN THE BOUNDARIES OF ANY CITY, TOWN OR VILLAGE WHICH HAS ADOPTED
AND  IS  IMPLEMENTING A LOCAL TIDAL WETLANDS PROTECTION LAW OR ORDINANCE
CONSISTENT WITH THIS ARTICLE.
  2. SUCH TIDAL WETLANDS PROTECTION LAW OR ORDINANCE MAY BE IN SUCH FORM
AND WITH SUCH PROCEDURES PRESCRIBED AS MAY BE DETERMINED  BY  THE  LOCAL
GOVERNMENT  ADOPTING  THE  SAME,  OR IT MAY SET FORTH THE PROCEDURES AND
CONCEPTS CONTAINED IN THIS ARTICLE; PROVIDED,  HOWEVER,  THAT  NO  LOCAL
TIDAL  WETLANDS PROTECTION LAW OR ORDINANCE ENACTED PURSUANT TO SUBDIVI-
SION ONE OF THIS SECTION SHALL BE LESS PROTECTIVE OF TIDAL  WETLANDS  OR
EFFECTIVENESS OF ADMINISTRATIVE AND JUDICIAL REVIEW, THAN THE PROCEDURES
SET  FORTH IN THIS ARTICLE, NOR SHALL SUCH LOCAL LAW OR ORDINANCE AFFECT
THE ACTIVITIES EXEMPTED FROM PERMIT BY SECTION 25-0401 OF THIS ARTICLE.
  3. ADOPTION BY A LOCAL GOVERNMENT, PURSUANT  TO  THIS  ARTICLE,  OF  A
LOCAL  TIDAL  WETLANDS  PROTECTION  LAW OR ORDINANCE BY REFERENCE TO THE
PROCEDURES AND CONCEPTS SET FORTH IN THIS SECTION SHALL BE SUFFICIENT IF
REFERENCE IS MADE TO THE PROCEDURES AND CONCEPTS OF  THIS  ARTICLE  WITH
EXCEPTIONS,   ADDITIONS,   AND  MODIFICATIONS  THERETO  NOTED;  AND  THE
ADOPTION, ONCE EFFECTED, SHALL INCLUDE SUBSEQUENT  STATUTORY  AMENDMENTS
TO THIS ARTICLE AS AFORESAID; SUBJECT, AGAIN, TO EXCEPTION, ADDITION, OR
MODIFICATION  BY SUCH MUNICIPALITY, WITHOUT TIME LIMITATION. AT ANY TIME
AFTER A LOCAL ADOPTION OF THE PROCEDURES CONTAINED IN  THIS  ARTICLE,  A
LOCAL GOVERNMENT SUBJECT TO THIS SECTION MAY RESCIND ITS ADOPTION THERE-
OF  AND SIMULTANEOUSLY ADOPT A LOCAL TIDAL WETLANDS PROTECTION PROCEDURE
IN ACCORDANCE WITH SUBDIVISIONS 1 AND 2 OF THIS SECTION.
  4. IF A CITY, TOWN OR VILLAGE FAILS TO ADOPT  AND  IMPLEMENT  A  TIDAL
WETLANDS  PROTECTION LAW OR ORDINANCE IN ACCORDANCE WITH THIS ARTICLE BY
THE DATE THE APPLICABLE TIDAL WETLANDS MAP IS FILED BY  THE  DEPARTMENT,
IT  SHALL  BE  DEEMED  TO HAVE TRANSFERRED THE FUNCTION TO THE COUNTY IN
ACCORDANCE WITH SECTION 25-0503 OF THIS TITLE. IF THE COUNTY FAILS WITH-
IN NINETY DAYS AFTER THE DATE OF FILING OF THE APPLICABLE TIDAL WETLANDS
MAP OR BY SEPTEMBER 1, 2010, WHICHEVER IS LATER, TO ADOPT AND  IMPLEMENT
A  TIDAL  WETLANDS  PROTECTION  LAW OR ORDINANCE IN ACCORDANCE WITH THIS
ARTICLE, IT SHALL BE DEEMED TO HAVE  TRANSFERRED  THE  FUNCTION  TO  THE
DEPARTMENT.  WITHIN  THIRTY  DAYS AFTER THE ADOPTION OF A TIDAL WETLANDS
PROTECTION LAW OR ORDINANCE PURSUANT TO THIS ARTICLE, THE LOCAL  GOVERN-
MENT  SHALL  NOTIFY  THE DEPARTMENT THEREOF, UNDER SUCH TERMS AND CONDI-
TIONS AS THE DEPARTMENT MAY PRESCRIBE, TOGETHER WITH ITS  TECHNICAL  AND
ADMINISTRATIVE  CAPACITY  TO  ADMINISTER  THE  ACT.  FAILURE  OF A LOCAL
GOVERNMENT TO GIVE SUCH NOTICE SHALL CONSTITUTE A TRANSFER  OF  FUNCTION
PURSUANT TO THIS SUBDIVISION AND SECTION 25-0503 OF THIS TITLE.
  5.  A  LOCAL GOVERNMENT OR THE DEPARTMENT SHALL HAVE THE RIGHT, IN ITS
REGULATION OF TIDAL WETLANDS WITHIN ITS  JURISDICTION,  TO  CHARGE  SUCH
FEES AND EXPENSES TO AN APPLICANT FOR OFFICIAL ACTION AS SHALL ENABLE IT
TO RECOVER THE COSTS INCURRED BY REASON OF SUCH APPLICATION.
  6.  ANY  LOCAL  GOVERNMENT  WHICH  DEFAULTS OR TRANSFERS ITS AUTHORITY
PURSUANT TO SUBDIVISION FOUR OF THIS SECTION OR SECTION 25-0503 OF  THIS
TITLE,  MAY RECOVER SUCH AUTHORITY AT ANY TIME BY ADOPTING A LOCAL TIDAL
WETLAND PROTECTION LOCAL LAW OR ORDINANCE CONSISTENT WITH  THIS  ARTICLE
AND NOTIFYING THE COUNTY AND THE DEPARTMENT OF THE ADOPTION. SUCH NOTICE
SHALL  BE GIVEN BY CERTIFIED MAIL WITHIN TEN DAYS OF THE ADOPTION THERE-
OF. SUCH LOCAL LAW OR ORDINANCE SHALL NOT BECOME EFFECTIVE IN LESS  THAN
SIXTY NOR MORE THAN ONE HUNDRED DAYS FROM THE ADOPTION THEREOF.

S. 871--A                           3                         A. 2583--A

  7. THE TECHNICAL SERVICES OF THE DEPARTMENT SHALL BE MADE AVAILABLE TO
MUNICIPALITIES,  ON  A FEE BASIS, IN THE IMPLEMENTATION OF THE PROCEDURE
SET FORTH IN THIS SECTION.
S 25-0503. TRANSFER OF FUNCTION TO COUNTY; SUPERSESSION BY DEPARTMENT.
  1.  IN THE EVENT THAT A TOWN, VILLAGE, CITY OR COUNTY SHALL CERTIFY IN
WRITING, AS PROVIDED IN THIS SECTION, THAT IT DOES NOT POSSESS THE TECH-
NICAL CAPACITY OR THE PROCEDURES TO EFFECTIVELY CARRY OUT  THE  REQUIRE-
MENTS  OF  THIS  TITLE,  SUCH LOCAL FUNCTION SHALL BE TRANSFERRED TO THE
COUNTY OR THE DEPARTMENT, AS THE CASE MAY BE. THE CERTIFICATION  OF  THE
TOWN,  VILLAGE OR CITY SHALL BE BY CERTIFIED MAIL TO THE CHIEF EXECUTIVE
OFFICER OF THE COUNTY, OR, IN THE CASE OF A COUNTY, TO THE COMMISSIONER.
  2. IN THE EVENT THAT THE COMMISSIONER SHALL FIND THAT A LOCAL  GOVERN-
MENT  DOES  NOT POSSESS THE TECHNICAL CAPACITY OR THE IMPLEMENTED PROCE-
DURES TO EFFECTIVELY CARRY OUT THE REQUIREMENTS OF THIS TITLE, AND  THAT
HIS  OR  HER FAILURE TO ACT WILL ENTAIL A DEFAULT, OR THE POTENTIAL OF A
DEFAULT, IN TIDAL WETLANDS REGULATION, THE  COMMISSIONER  MAY  SUPERSEDE
THE  LOCAL  GOVERNMENT  AND  ORDER, ALTERNATIVELY, EITHER THAT THE LOCAL
FUNCTION BE TRANSFERRED TO THE COUNTY, OR  THAT  THE  DEPARTMENT  ITSELF
UNDERTAKE  THE  LOCAL FUNCTION, ALL TO THE EXTENT NECESSARY TO CARRY OUT
THE PURPOSES OF THIS ARTICLE. THE SUPERSESSION OF THE  LOCAL  GOVERNMENT
SHALL  BE  BY  ORDER OF THE COMMISSIONER SENT, BY CERTIFIED MAIL, TO THE
CHIEF EXECUTIVE OFFICER OF THE LOCAL GOVERNMENT INVOLVED.
  3. IN THE EVENT OF TRANSFER OR SUPERSESSION UNDER SUBDIVISION 1  OR  2
OF  THIS SECTION, SUBSEQUENT PROCEEDINGS SHALL BE IN ACCORDANCE WITH THE
FURTHER REQUIREMENTS OF THIS ARTICLE.
S 25-0505. EXEMPTION FROM LOCAL IMPLEMENTATION.
  THE COMMISSIONER, BY RULE, MAY EXEMPT FROM LOCAL IMPLEMENTATION  UNDER
THIS  TITLE  THOSE  TIDAL  WETLANDS  WHICH,  BY  REASON OF THEIR SIZE OR
SPECIAL CHARACTERISTICS OF UNIQUE ENVIRONMENTAL VALUE OR  BY  REASON  OF
COMMON CHARACTERISTICS, ARE APPROPRIATELY TO BE ADMINISTERED PURSUANT TO
THIS  ARTICLE BY THE DEPARTMENT ALONE. SUCH RULE, BASED UPON FINDINGS OF
FACT MADE AFTER PUBLIC HEARING, MAY RELATE TO CLASSES OF WETLANDS  BASED
ON  SIZE  OR  PARTICULAR  CHARACTERISTICS, OR TO PARTICULAR WETLANDS THE
CHARACTERISTICS OF WHICH MAKE  THEM  SUBJECT  TO  THE  EXERCISE  OF  THE
COMMISSIONER'S  DISCRETION  PURSUANT  TO  THIS SECTION. THE COMMISSIONER
SHALL MAKE AN ORDER TO SUCH EFFECT IN EACH  SUCH  INSTANCE  AND  SEND  A
CERTIFIED COPY THEREOF TO THE EXECUTIVE OFFICER OF EACH LOCAL GOVERNMENT
AFFECTED  THEREBY  WITHIN  TEN DAYS OF HIS OR HER SIGNING THE SAME; SUCH
ORDER SHALL NOT TAKE EFFECT UNTIL FORTY DAYS AFTER SUCH SIGNING.
S 25-0507. RESERVATION OF LOCAL JURISDICTION.
  EXCEPT AS PROVIDED IN THIS ARTICLE, JURISDICTION OVER ALL AREAS  WHICH
WOULD QUALIFY AS TIDAL WETLANDS IS RESERVED TO THE CITY, TOWN OR VILLAGE
IN WHICH THEY ARE WHOLLY OR PARTIALLY LOCATED, AND THE IMPLEMENTATION OF
THIS  ARTICLE  WITH  RESPECT THERETO IS THE RESPONSIBILITY OF SUCH CITY,
TOWN OR VILLAGE, IN ACCORDANCE WITH SECTION 25-0501 OF  THIS  TITLE  AND
TITLE  23  OF  ARTICLE  71  OF THIS CHAPTER, EXCEPT THAT A CITY, TOWN OR
VILLAGE IN THE EXERCISE OF ITS POWERS UNDER THIS SECTION, SHALL  NOT  BE
SUBJECT  TO THE PROVISIONS OF SUBDIVISION 4 OF SECTION 25-0501, SUBDIVI-
SIONS 2 AND 3 OF SECTION 25-0503, OR SECTION 25-0505 OF THIS TITLE,  BUT
SHALL BE SUBJECT TO JUDICIAL REVIEW SECTION 25-0404 OF THIS ARTICLE.
S 25-0509. RELATIONSHIP TO OTHER LAWS.
  NO  PROVISION OF THIS ARTICLE SHALL BE DEEMED TO REMOVE FROM ANY LOCAL
GOVERNMENT ANY AUTHORITY PERTAINING TO THE REGULATION OF TIDAL WETLANDS,
WHETHER SUCH WETLANDS ARE UNDER THE JURISDICTION OF THE DEPARTMENT OR  A
COUNTY PURSUANT TO SUBDIVISION 4 OF SECTION 25-0501 OF THIS TITLE, UNDER
THE  COUNTY, GENERAL CITY, GENERAL MUNICIPAL, MUNICIPAL HOME RULE, TOWN,

S. 871--A                           4                         A. 2583--A

VILLAGE, OR ANY OTHER LAW, PROVIDED, HOWEVER, THAT ANY  SUCH  REGULATION
BY  A LOCAL GOVERNMENT SHALL BE AT LEAST AS PROTECTIVE OF TIDAL WETLANDS
AS THE REGULATIONS IN EFFECT PURSUANT TO THE PROVISIONS OF THIS  CHAPTER
OR ANY RULE OR REGULATION PROMULGATED PURSUANT TO THE PROVISIONS OF THIS
ARTICLE  OR  PURSUANT  TO A LOCAL TIDAL WETLANDS PROTECTION LAW OR ORDI-
NANCE ADOPTED BY A COUNTY PURSUANT TO THE PROVISIONS OF SECTION  25-0501
OF THIS TITLE.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that effective immediate-
ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
necessary for the implementation of this act on its effective  date  are
authorized  and  directed  to  be  made  and completed on or before such
effective date.