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8. UPON THE CREATION OF A MITIGATION BANK FOR WHICH A MITIGATION BANK-
ING PERMIT HAS BEEN OBTAINED PURSUANT TO ARTICLE TWENTY-SIX OF THIS
CHAPTER, A LOCAL GOVERNMENT WHEREIN SUCH MITIGATION BANK IS LOCATED
WHICH HAS ADOPTED AND IS IMPLEMENTING A LOCAL FRESHWATER WETLANDS
PROTECTION LAW OR ORDINANCE SHALL AMEND AND READJUST ITS FRESHWATER
WETLANDS MAP TO REFLECT THE DELINEATION OF SUCH MITIGATION BANK AS A
FRESHWATER WETLAND ON SUCH MAP.
S 3. Subdivision 1 of section 24-0703 of the environmental conserva-
tion law, as amended by chapter 233 of the laws of 1979, is amended to
read as follows:
1. Any person proposing to conduct or cause to be conducted a regu-
lated activity upon any freshwater wetland shall file an application for
a permit with the clerk of the local government having jurisdiction or
the department, as the case may be. Review of the application shall be
made by the local government or the commissioner, as the case may be, in
accordance with applicable law and such rules hereunder as may be
adopted by the commissioner. Such application shall include a detailed
description of the proposed activity and a map showing the area of
freshwater wetland directly affected, with the location of the proposed
activity thereon; A DETAILED EXPLANATION OF THE STEPS TAKEN TO, FIRST,
AVOID SIGNIFICANT IMPAIRMENT, AND THEN, MINIMIZE LOSSES OF FRESHWATER
WETLAND FOR SUCH REGULATED ACTIVITY AND WHY ANY AND ALL LOSSES WERE
UNAVOIDABLE FOR SUCH PROPOSED REGULATED ACTIVITY AND, WHERE REQUIRED,
THE APPLICANT'S PLAN INCLUDING THE USE OF MITIGATION BANKING CREDITS FOR
MITIGATION OR MINIMIZATION OF THE LOSSES RESULTING FROM THE IMPAIRMENT
TO THE AFFECTED FRESHWATER WETLANDS BY REASON OF SUCH REGULATED
ACTIVITY. The clerk or commissioner shall cause notice of such applica-
tion to be mailed to all local governments where the proposed activity
or any part of it is located.
S 4. Subdivision 3 of section 24-0705 of the environmental conserva-
tion law, as amended by chapter 654 of the laws of 1977, is amended to
read as follows:
3. No permit shall be granted under this section unless the proposed
activity is consistent with the land use regulations applicable pursuant
to section 24-0903 of this article within the boundaries of the local
government involved [and], with the policy set forth in section 24-0103
of this article[.], AND UNLESS THE APPLICANT HAS DEMONSTRATED:
(A) THAT THE REGULATED ACTIVITY:
(1) (I) IS WATER DEPENDENT AND REQUIRES ACCESS TO THE FRESHWATER
WETLAND AS A CENTRAL ELEMENT OF ITS BASIC FUNCTION; OR
(II) IS NOT WATER DEPENDENT AND HAS NO PRACTICABLE ALTERNATIVE;
(2) WILL MINIMIZE ALTERATION OR IMPAIRMENT OF THE FRESHWATER WETLAND,
INCLUDING EXISTING TOPOGRAPHY, VEGETATION, FISH AND WILDLIFE RESOURCES
AND HYDROLOGICAL CONDITIONS;
(3) WILL NOT CAUSE OR CONTRIBUTE TO DEGRADATION OF GROUNDWATERS OR
SURFACE WATERS; AND,
(4) IS COMPENSATED FOR BY MITIGATION CREDITS THROUGH A MITIGATION BANK
OR OTHERWISE AT A RATIO REQUIRED BY THE COMMISSIONER WHICH SHALL NOT BE
LESS THAN ONE TO ONE FOR EACH DEBIT (AS DEFINED IN ARTICLE TWENTY-SIX OF
THIS CHAPTER) RESULTING FROM THE REGULATED ACTIVITY; AND,
(5) IS CONSISTENT WITH ANY LAND USE REGULATION PLAN FOR FRESHWATER
WETLANDS FOR THE AFFECTED AREA DEVELOPED PURSUANT TO THIS ARTICLE AND
ANY COMPREHENSIVE WATER MANAGEMENT PLAN FOR THE AFFECTED AREA DEVELOPED
PURSUANT TO THIS CHAPTER; AND,
(B) THAT PRACTICABLE ALTERNATIVES HAVE BEEN ANALYZED AND THAT THE
REGULATED ACTIVITY HAS NO PRACTICABLE ALTERNATIVE. IN EVALUATING WHETHER
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THE PROPOSED REGULATED ACTIVITY HAS A PRACTICABLE ALTERNATIVE THE LOCAL
GOVERNMENT OR THE COMMISSIONER AS THE CASE MAY BE SHALL CONSIDER:
(1) WHETHER THE BASIC PROJECT PURPOSE CANNOT PRACTICABLY BE ACCOM-
PLISHED UTILIZING ONE OR MORE OTHER SITES IN THE SAME GENERAL AREA THAT
WOULD AVOID OR RESULT IN LESS ADVERSE IMPACT ON FRESHWATER WETLANDS;
(2) WHETHER A REDUCTION IN THE SIZE, SCOPE, CONFIGURATION OR DENSITY
OF THE PROJECT AS PROPOSED AND ALL ALTERNATIVE DESIGNS THAT WOULD RESULT
IN LESS IMPACT ON THE FRESHWATER WETLAND WOULD NOT ACCOMPLISH THE BASIC
PURPOSE OF THE PROJECT;
(3) IN CASES WHERE THE APPLICANT HAS REJECTED ALTERNATIVES TO THE
PROJECT AS PROPOSED DUE TO CONSTRAINTS SUCH AS INADEQUATE ZONING INFRAS-
TRUCTURE, OR PARCEL SIZE, WHETHER THE APPLICANT HAS MADE REASONABLE
ATTEMPTS TO REMOVE OR ACCOMMODATE THESE CONSTRAINTS; AND
(4) THE ECONOMIC VALUE OF THE PROPOSED REGULATED ACTIVITY IN MEETING A
DEMONSTRATED PUBLIC NEED IN THE AREA AND THE ECOLOGICAL AND ECONOMIC
VALUE ASSOCIATED WITH THE FRESHWATER WETLAND.
S 5. Subdivision 2 of section 24-0801 of the environmental conserva-
tion law, as added by chapter 654 of the laws of 1977, is amended to
read as follows:
2. Where the activities otherwise subject to regulation under this
article involve freshwater wetlands located within the boundaries of the
Adirondack park, the inquiries referred to and the applications provided
for in section 24-0703 of this article shall be made to and filed with
the Adirondack park agency at its headquarters office, under such regu-
lations and procedures as the Adirondack park agency may promulgate. The
Adirondack park agency shall review the application in place of the
commissioner or local government as provided in section 24-0705 of this
article, having due regard for the declaration of policy and statement
of findings set forth in this article and for the considerations set
forth in [subdivision] SUBDIVISIONS one AND THREE of section 24-0705 of
this article. The agency shall in addition determine prior to the grant-
ing of any permit that the proposed activity will be consistent with the
Adirondack park land use and development plan and would not have an
undue adverse impact upon the natural, scenic, aesthetic, ecological,
wildlife, historic, recreational or open space resources of the park,
taking into account the economic and social or other benefits to be
derived from the activity. Any person may seek review of a ruling made
solely pursuant to the provisions of this article by the Adirondack park
agency pursuant to the provisions of title eleven of this article or
article seventy-eight of the civil practice law and rules.
S 6. Subdivision 6 of section 25-0201 of the environmental conserva-
tion law, as added by chapter 790 of the laws of 1973, is amended to
read as follows:
6. The commissioner shall supervise the maintenance of such boundary
maps, which shall be available to the public for inspection and examina-
tion. The statewide inventory shall be readjusted from time to time as
may be necessary to reflect such natural changes as have occurred
through erosion, accretion, and otherwise and also to reflect such other
changes as have occurred as a result of the granting of permits pursuant
to section 25-0403 of this [act] ARTICLE OR THE CREATION AND MAINTENANCE
OF TIDAL WETLANDS MITIGATION BANKS PURSUANT TO ARTICLE TWENTY-SIX OF
THIS CHAPTER.
S 7. Subdivision 1 of section 25-0402 of the environmental conserva-
tion law, as added by chapter 790 of the laws of 1973, is amended to
read as follows:
A. 4514 4
1. Any person proposing to conduct or cause to be conducted an activ-
ity regulated under this act upon any inventoried tidal wetland shall
file an application for a permit with the commissioner, in such form and
containing such information as the commissioner may prescribe. The
applicant shall have the burden of demonstrating that the proposed
activity will be in complete accord with the policy and provisions of
this act. Such application shall include a detailed description of the
proposed work and a map showing the area of tidal wetland directly
affected, with the location of the proposed work thereon, together with
the names of the owners of record of adjacent lands and the known claim-
ants of water rights in or adjacent to the tidal wetlands of whom the
applicant has notice AND A DETAILED EXPLANATION OF THE STEPS TAKEN TO
FIRST, AVOID SIGNIFICANT IMPAIRMENT, AND THEN, MINIMIZE LOSSES OF TIDAL
WETLANDS FOR SUCH REGULATED ACTIVITY AND WHY ANY AND ALL LOSSES WERE
UNAVOIDABLE FOR SUCH PROPOSED REGULATED ACTIVITY AND, THE APPLICANT'S
PLAN INCLUDING THE USE OF MITIGATION BANKING CREDITS, IF APPLICABLE, FOR
MITIGATION OR MINIMIZATION OF THE LOSSES RESULTING FROM THE IMPAIRMENT
OF THE AFFECTED TIDAL WETLANDS BY REASON OF SUCH REGULATED ACTIVITY.
The commissioner shall cause a copy of such application to be mailed to
the chief administrative officer in the municipality where the proposed
work or any part of it is located.
S 8. Subdivision 1 of section 25-0403 of the environmental conserva-
tion law, as amended by chapter 233 of the laws of 1979, is amended to
read as follows:
1. In granting, denying or limiting any permit under this [act] ARTI-
CLE, the commissioner shall consider the compatibility of the proposed
activity with reference to the public health and welfare, marine fisher-
ies, shellfisheries, wildlife, flood and hurricane and storm dangers,
[and] the land-use regulations promulgated pursuant to section 25-0302
of this [act] ARTICLE, AND WHETHER THE APPLICANT HAS DEMONSTRATED:
(A) THAT THE REGULATED ACTIVITY:
(1) (I) IS WATER DEPENDENT AND REQUIRES ACCESS TO THE TIDAL WETLAND AS
A CENTRAL ELEMENT OF ITS BASIC FUNCTIONS; OR,
(II) IS NOT WATER DEPENDENT AND HAS NO PRACTICABLE ALTERNATIVE;
(2) WILL MINIMIZE ALTERATION OR IMPAIRMENT OF THE TIDAL WETLAND
INCLUDING EXISTING TOPOGRAPHY, VEGETATION, FISH AND WILDLIFE RESOURCES
AND HYDROLOGICAL CONDITIONS;
(3) WILL NOT CAUSE OR CONTRIBUTE TO A DEGRADATION OF GROUNDWATERS,
SURFACE WATERS OR TIDAL WATERS;
(4) IS COMPENSATED FOR BY MITIGATION CREDITS THROUGH A MITIGATION BANK
OR OTHERWISE AT A RATIO REQUIRED BY THE COMMISSIONER WHICH SHALL NOT BE
LESS THAN ONE TO ONE FOR EACH DEBIT (AS DEFINED IN ARTICLE TWENTY-SIX OF
THIS CHAPTER) RESULTING FROM THE REGULATED ACTIVITY; AND,
(5) IS CONSISTENT WITH THE COMMISSIONER'S LAND-USE REGULATIONS FOR THE
AFFECTED TIDAL WETLANDS DEVELOPED PURSUANT TO SECTION 25-0302 OF THIS
ARTICLE, AND ANY COASTAL ZONE MANAGEMENT PLAN OR COMPREHENSIVE WATER
MANAGEMENT PLAN FOR THE AFFECTED AREA DEVELOPED PURSUANT TO THIS CHAP-
TER; AND,
(B) THAT PRACTICABLE ALTERNATIVES HAVE BEEN ANALYZED AND THAT THE
REGULATED ACTIVITY HAS NO PRACTICABLE ALTERNATIVE. IN EVALUATING WHETHER
THE PROPOSED REGULATED ACTIVITY HAS A PRACTICABLE ALTERNATIVE THE
COMMISSIONER SHALL CONSIDER:
(1) WHETHER THE BASIC PROJECT PURPOSE CANNOT PRACTICABLY BE ACCOM-
PLISHED UTILIZING ONE OR MORE OTHER SITES IN THE SAME GENERAL AREA THAT
WOULD AVOID OR RESULT IN LESS ADVERSE IMPACT ON TIDAL WETLANDS;
A. 4514 5
(2) WHETHER A REDUCTION IN THE SIZE, SCOPE, CONFIGURATION OR DENSITY
OF THE PROJECT AS PROPOSED AND REASONABLE ALTERNATIVE DESIGNS THAT WOULD
RESULT IN LESS IMPACT ON THE FRESHWATER WETLAND WOULD NOT ACCOMPLISH THE
BASIC PURPOSE OF THE PROJECT;
(3) IN CASES WHERE THE APPLICANT HAS REJECTED ALTERNATIVES TO THE
PROJECT PROPOSED DUE TO CONSTRAINTS SUCH AS INADEQUATE ZONING INFRAS-
TRUCTURE, OR PARCEL SIZE, WHETHER THE APPLICANT HAS MADE REASONABLE
ATTEMPTS TO REMOVE OR ACCOMMODATE THESE CONSTRAINTS; AND,
(4) THE ECONOMIC VALUE OF THE PROPOSED REGULATED ACTIVITY IN MEETING A
DEMONSTRATED PUBLIC NEED IN THE AREA AND THE ECOLOGICAL AND ECONOMIC
VALUE ASSOCIATED WITH THE TIDAL WETLAND.
S 9. The environmental conservation law is amended by adding a new
article 26 to read as follows:
ARTICLE 26
ESTABLISHMENT AND OPERATION OF BOTH FRESHWATER WETLANDS
AND TIDAL WETLANDS MITIGATION BANKS
SECTION 26-0101. SHORT TITLE.
26-0103. LEGISLATIVE FINDINGS.
26-0105. DEFINITIONS.
26-0107. WETLANDS MITIGATION BANKING COMMISSION.
26-0109. MITIGATION BANK PERMITS.
26-0111. RIGHT OF APPEAL.
26-0113. MITIGATION BANK CRITERIA.
26-0115. MITIGATION BANK PHASES AND ADDITIONS.
26-0117. MITIGATION BANKING JOINT VENTURES, LIMITED LIABILITY
COMPANIES AND LIMITED LIABILITY PARTNERSHIPS.
26-0119. MITIGATION BANK PERMIT APPLICATIONS.
26-0121. ESTABLISHMENT OF MITIGATION CREDITS.
26-0123. CONTRIBUTION OF LANDS.
26-0125. CONTRIBUTION OF FUNDS.
26-0127. MITIGATION SERVICE AREAS.
26-0129. LAND USE RESTRICTIONS ON MITIGATION BANKS.
26-0131. FINANCIAL RESPONSIBILITY.
26-0133. MITIGATION BANK PERMIT AND MITIGATION BANK CONCEPTUAL
APPROVAL.
26-0135. SURRENDER, TRANSFER OR MODIFICATION OF MITIGATION BANK
PERMITS.
26-0137. USE OF CERTAIN FUNDS RECEIVED FROM A PUBLIC OR A PUBL-
IC-PRIVATE MITIGATION BANK.
26-0139. CONTRACTS FOR ARCHITECTURAL, ENGINEERING AND SURVEYING
SERVICES FOR PUBLIC WETLANDS MITIGATION BANKS.
26-0141. TAX ABATEMENT.
26-0143. PRIOR APPLICATIONS AND PERMITS.
26-0145. SEVERABILITY.
S 26-0101. SHORT TITLE.
THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS THE "WETLANDS MITI-
GATION BANKING ACT".
S 26-0103. LEGISLATIVE FINDINGS.
THE LEGISLATURE FINDS THAT THE ADVERSE IMPACTS OF ACTIVITIES REGULATED
UNDER ARTICLES 24 AND 25 OF THIS CHAPTER, INCLUDING THE LOSS OF THE
CHEMICAL, PHYSICAL AND BIOLOGICAL FUNCTIONS OF FRESHWATER WETLANDS,
TIDAL WETLANDS AND OTHER AQUATIC RESOURCES MAY BE OFFSET THROUGH THE
CREATION AND OPERATION OF WETLAND MITIGATION BANKS FOR FRESHWATER
WETLANDS AND TIDAL WETLANDS RESPECTIVELY, THAT WOULD RESTORE, ENHANCE OR
IN EXCEPTIONAL CIRCUMSTANCES, PRESERVE SUCH WETLANDS AND/OR OTHER AQUAT-
A. 4514 6
IC RESOURCES FOR THE PURPOSE OF PROVIDING COMPENSATORY MITIGATION IN
ADVANCE OF AUTHORIZED IMPACTS TO SIMILAR RESOURCES AND PROVIDE GREATER
FLEXIBILITY TO PERSONS NEEDING TO COMPLY WITH SUCH MITIGATION REQUIRE-
MENTS AND CAN HAVE SEVERAL ADVANTAGES OVER INDIVIDUAL MITIGATION
PROJECTS INCLUDING, BUT NOT LIMITED TO THOSE LISTED BELOW:
1. IT MAY BE MORE ADVANTAGEOUS FOR MAINTAINING THE INTEGRITY OF THE
AQUATIC ECOSYSTEM TO CONSOLIDATE COMPENSATORY MITIGATION INTO A SINGLE
LARGE PARCEL OR CONTIGUOUS PARCELS WHEN ECOLOGICALLY APPROPRIATE;
2. ESTABLISHMENT OF A MITIGATION BANK CAN BRING TOGETHER FINANCIAL
RESOURCES, PLANNING AND SCIENTIFIC EXPERTISE NOT PRACTICABLE TO MANY
PROJECT SPECIFIC COMPENSATORY MITIGATION PROPOSALS. THIS CONSOLIDATION
OF RESOURCES CAN INCREASE THE POTENTIAL FOR THE ESTABLISHMENT AND LONG-
TERM MANAGEMENT OF SUCCESSFUL MITIGATION THAT MAXIMIZES OPPORTUNITIES
FOR CONTRIBUTING TO BIODIVERSITY AND/OR WATERSHED FUNCTION;
3. USE OF MITIGATION BANKS MAY REDUCE PERMIT PROCESSING TIMES AND
PROVIDE MORE COST-EFFECTIVE COMPENSATORY MITIGATION OPPORTUNITIES FOR
PROJECTS THAT QUALIFY;
4. COMPENSATORY MITIGATION IS TYPICALLY IMPLEMENTED AND FUNCTIONING IN
ADVANCE OF PROJECT IMPACTS, THEREBY REDUCING THE TEMPORAL LOSSES OF
AQUATIC FUNCTIONS AND UNCERTAINTY OVER WHETHER THE MITIGATION WILL BE
SUCCESSFUL IN OFFSETTING PROJECT IMPACTS;
5. CONSOLIDATION OF COMPENSATORY MITIGATION WITHIN A MITIGATION BANK
INCREASES THE EFFICIENCY OF LIMITED AGENCY RESOURCES IN THE REVIEW AND
COMPLIANCE MONITORING OF MITIGATION PROJECTS, AND THUS IMPROVES THE
RELIABILITY OF EFFORTS TO RESTORE, CREATE OR ENHANCE WETLANDS FOR MITI-
GATION PURPOSES; AND,
6. THE EXISTENCE OF MITIGATION BANKS CAN CONTRIBUTE TOWARDS ATTAINMENT
OF THE GOAL FOR NO OVERALL NET LOSS OF THE STATE'S WETLANDS BY PROVIDING
OPPORTUNITIES TO COMPENSATE FOR AUTHORIZED IMPACTS WHEN MITIGATION MIGHT
NOT OTHERWISE BE APPROPRIATE OR PRACTICABLE.
S 26-0105. DEFINITIONS.
THE WORDS AND PHRASES SET FORTH IN THE FOLLOWING SUBDIVISIONS OF THIS
SECTION WHEN USED IN THIS ARTICLE SHALL HAVE THE MEANING DEFINED IN SUCH
SUBDIVISIONS FOR THE PURPOSES OF THIS ARTICLE, UNLESS OTHERWISE APPARENT
FROM, OR, REQUIRED BY, THE CONTEXT:
1. "FRESHWATER WETLANDS" SHALL MEAN FRESHWATER WETLANDS AS DEFINED IN
SUBDIVISION 1 OF SECTION 24-0107 OF THIS CHAPTER AND SUBDIVISION 68 OF
SECTION 802 OF THE EXECUTIVE LAW.
2. "FRESHWATER WETLANDS MAP" SHALL MEAN A MAP PROMULGATED BY THE
DEPARTMENT PURSUANT TO SUBDIVISION 2 OF SECTION 24-0301 OF THIS CHAPTER.
3. "BOUNDARIES OF A FRESHWATER WETLAND" SHALL MEAN BOUNDARIES OF A
FRESHWATER WETLAND AS DEFINED IN SUBDIVISION 3 OF SECTION 24-0107 OF
THIS CHAPTER.
4. "TIDAL WETLANDS" SHALL MEAN TIDAL WETLANDS AS DEFINED IN SUBDIVI-
SION 1 OF SECTION 25-0103 OF THIS CHAPTER.
5. "TIDAL WETLANDS INVENTORY" SHALL MEAN THE INVENTORY OF TIDAL
WETLANDS COMPILED BY THE COMMISSIONER PURSUANT TO SECTION 25-0201 OF
THIS CHAPTER.
6. "TIDAL WETLANDS BOUNDARY MAPS" SHALL MEAN THE TIDAL WETLANDS BOUND-
ARY MAPS COMPILED AND MAINTAINED BY THE COMMISSIONER PURSUANT TO SECTION
25-0201 OF THIS CHAPTER.
7. "BANKER" SHALL MEAN AN ENTITY THAT CREATES, OPERATES, MANAGES, OR
MAINTAINS A MITIGATION BANK PURSUANT TO A MITIGATION BANK PERMIT.
8. "BOARD" SHALL MEAN THE FRESHWATER APPEALS BOARD.
9. "COMMISSION" SHALL MEAN THE WETLANDS MITIGATION BANKING COMMISSION.
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10. "COMMISSIONER" SHALL MEAN THE COMMISSIONER OF ENVIRONMENTAL
CONSERVATION.
11. "COMPENSATORY MITIGATION" SHALL MEAN THE RESTORATION, CREATION,
ENHANCEMENT, OR IN EXCEPTIONAL CIRCUMSTANCES, PRESERVATION OF FRESHWATER
WETLANDS, TIDAL WETLANDS AND/OR OTHER AQUATIC RESOURCES, AS THE CASE MAY
BE, FOR THE PURPOSE OF COMPENSATING FOR UNAVOIDABLE ADVERSE IMPACTS TO
SUCH WETLANDS OR OTHER AQUATIC RESOURCES WHICH REMAIN AS A RESULT OF
PERMITTED ACTIVITY AFTER ALL APPROPRIATE AND PRACTICABLE AVOIDANCE AND
MINIMIZATION HAS BEEN ACHIEVED.
12. "CONSENSUS" SHALL MEAN THE RESULT OF A PROCESS BY WHICH THE
COMMISSION, AS DEFINED IN SUBDIVISION 9 OF THIS SECTION, SYNTHESIZES ITS
CONCERNS AND IDEAS TO ATTEMPT TO FORM A COLLABORATIVE AGREEMENT ACCEPTA-
BLE TO ALL MEMBERS, BUT WHICH, IF SUCH UNANIMITY CANNOT BE ACHIEVED,
UPON THE MOTION OF THE CHAIR OF THE COMMISSION IS ACCEPTED BY A MAJORITY
OF THE COMMISSION.
13. "CREATION" SHALL MEAN THE ESTABLISHMENT OF A FRESHWATER WETLAND,
TIDAL WETLAND OR OTHER AQUATIC RESOURCE, AS THE CASE MAY BE, WHERE ONE
DID NOT FORMERLY EXIST.
14. "DEBIT" SHALL MEAN A UNIT OF MEASURE REPRESENTING THE LOSS OF
AQUATIC FUNCTIONS AT AN IMPACT OR PROJECT SITE.
15. "DEPARTMENT" SHALL MEAN THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION.
16. "ECOLOGICAL VALUE" SHALL MEAN THE VALUE OF FUNCTIONS PERFORMED BY
UPLANDS, WETLANDS, OTHER SURFACE WATERS OR TIDAL WATERS TO THE ABUN-
DANCE, DIVERSITY, AND HABITATS OF FISH, WILDLIFE, AND LISTED SPECIES.
THESE FUNCTIONS INCLUDE, BUT ARE NOT LIMITED TO, PROVIDING COVER AND
REFUGE; BREEDING, NESTING, DENNING, AND NURSERY AREAS; CORRIDORS FOR
WILDLIFE MOVEMENT; FOOD CHAIN SUPPORT; AND NATURAL WATER STORAGE,
NATURAL FLOW ATTENUATION, AND WATER QUALITY IMPROVEMENT, WHICH ENHANCES
FISH, WILDLIFE AND LISTED SPECIES UTILIZATION.
17. "ENHANCEMENT" SHALL MEAN ACTIVITIES CONDUCTED IN EXISTING FRESHWA-
TER WETLANDS, TIDAL WATER WETLANDS, OR OTHER AQUATIC RESOURCES WHICH
INCREASE ONE OR MORE AQUATIC FUNCTIONS.
18. "LOCAL GOVERNMENT" SHALL MEAN A VILLAGE, TOWN, CITY, OR COUNTY.
19. "MITIGATION" SHALL MEAN SEQUENTIALLY AVOIDING IMPACTS, MINIMIZING
IMPACTS, AND COMPENSATING FOR REMAINING UNAVOIDABLE IMPACTS.
20. "MITIGATION BANK" SHALL MEAN A SITE WHERE FRESHWATER WETLANDS,
TIDAL WETLANDS AND/OR OTHER AQUATIC RESOURCES (AS THE CASE MAY BE) ARE
PERMITTED TO BE RESTORED, CREATED, ENHANCED, OR IN EXCEPTIONAL CIRCUM-
STANCES, PRESERVED FOR THE PURPOSE OF PROVIDING COMPENSATORY MITIGATION
IN ADVANCE OF AUTHORIZED IMPACTS TO SIMILAR RESOURCES MITIGATION.
21. "PRIVATE MITIGATION BANK" SHALL MEAN A MITIGATION BANK OWNED BY A
PERSON OR PERSONS THAT ARE NOT FROM THE PUBLIC SECTOR.
22. "PUBLIC MITIGATION BANK" SHALL MEAN A MITIGATION BANK OWNED BY A
PERSON OR PERSONS THAT ARE FROM THE PUBLIC SECTOR.
23. "PUBLIC-PRIVATE MITIGATION BANK" SHALL MEAN A MITIGATION BANK
OWNED IN PART BY A PERSON OR PERSONS FROM THE PRIVATE SECTOR AND IN PART
BY A PERSON OR PERSONS FROM THE PUBLIC SECTOR, WHETHER IN THE FORM OF A
PARTNERSHIP, JOINT VENTURE OR LIMITED LIABILITY COMPANY.
24. "MITIGATION BANKING" SHALL MEAN THE ESTABLISHMENT AND OPERATION OF
ONE OR MORE MITIGATION BANKS FOR THE PURPOSE OF PROVIDING COMPENSATION
CREDITS FOR LOSSES TO FRESHWATER WETLANDS OR TIDAL WETLANDS AND/OR OTHER
AQUATIC RESOURCES (AS THE CASE MAY BE) FROM FUTURE ACTIVITIES AND
IMPACTS AUTHORIZED BY PERMIT UNDER THIS ARTICLE.
25. "MITIGATION BANKING INSTRUMENT" SHALL MEAN A MITIGATION BANK
PERMIT.
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26. "MITIGATION BANK PERMIT" SHALL MEAN A PERMIT ISSUED TO A BANKER TO
CONSTRUCT, OPERATE, MANAGE AND MAINTAIN A MITIGATION BANK.
27. "MITIGATION CREDIT" AND "MITIGATION BANK CREDIT" SHALL MEAN A UNIT
OF MEASURE WHICH REPRESENTS THE INCREASE IN ECOLOGICAL VALUE RESULTING
FROM WETLANDS RESTORATION, ENHANCEMENT, PRESERVATION OR CREATION ACTIV-
ITIES.
28. "MITIGATION SERVICE AREA" SHALL MEAN THE DESIGNATED GEOGRAPHIC
AREA OR PREDEFINED RADIUS (E.G. WATERSHED OR COUNTY) WHEREIN A MITI-
GATION BANK CAN REASONABLY BE EXPECTED TO PROVIDE APPROPRIATE COMPEN-
SATION FOR IMPACTS TO WETLANDS AND/OR OTHER AQUATIC RESOURCES SO THAT
MITIGATION CREDITS FROM SUCH MITIGATION BANK MAY BE USED TO OFFSET
ADVERSE IMPACTS OF ACTIVITIES REGULATED UNDER THIS ARTICLE.
29. "MUNICIPALITY" SHALL MEAN A VILLAGE, TOWN, CITY, OR COUNTY.
30. "NOT-FOR-PROFIT CORPORATION" SHALL MEAN A CORPORATION FORMED
PURSUANT TO THE NOT-FOR-PROFIT CORPORATION LAW AND WHICH QUALIFIES FOR
TAX EXEMPT STATUS UNDER THE FEDERAL INTERNAL REVENUE CODE.
31. "OFFSITE REGIONAL MITIGATION" SHALL MEAN MITIGATION ON AN AREA OF
LAND OFF THE SITE OF AN ACTIVITY PERMITTED UNDER THIS ARTICLE, WHERE AN
APPLICANT PROPOSES TO MITIGATE THE ADVERSE IMPACTS OF ONLY THE APPLI-
CANT'S SPECIFIC ACTIVITY AS A REQUIREMENT OF THE PERMIT, WHICH PROVIDES
REGIONAL ECOLOGICAL VALUE, AND WHICH IS NOT A MITIGATION BANK PERMITTED
PURSUANT TO THIS ARTICLE.
32. "PAYMENT SCHEDULE" SHALL MEAN A MINIMUM SCHEDULE OF PER ACRE MITI-
GATION CREDIT PAYMENT AMOUNT ESTABLISHED BY THE MITIGATION BANK AND
CERTIFIED BY THE COMMISSION TO BE SUFFICIENT TO MEET THE FINANCIAL
RESPONSIBILITY REQUIREMENTS OF THE MITIGATION BANK, AND WHICH PAYMENT
AMOUNT IS BASED, AT LEAST IN PART, ON THE ECOLOGICAL FUNCTIONS AND
VALUES OF WETLANDS PERMITTED TO BE LOST AND ON THE COST OF RESTORING OR
CREATING OR PRESERVING WETLANDS CAPABLE OF PERFORMING THE SAME OR SIMI-
LAR FUNCTIONS, INCLUDING DIRECTLY RELATED COSTS OF WETLANDS RESTORATION
PLANNING, LONG-TERM MONITORING AND MAINTENANCE OF A MITIGATION BANKING
PROJECT PERMITTED PURSUANT TO THIS ARTICLE.
33. "PERSON" SHALL MEAN ANY PUBLIC, PRIVATE, NOT-FOR-PROFIT CORPO-
RATION, LIMITED LIABILITY COMPANY, PROFESSIONAL CORPORATION, FIRM, PART-
NERSHIP, ASSOCIATION, TRUST, ESTATE, JOINT VENTURE, ONE OR MORE INDIVID-
UALS, AND ANY UNIT OF STATE GOVERNMENT OR AGENCY, DEPARTMENT OR BUREAU
THEREOF, OR ANY POLITICAL SUBDIVISION OF THE STATE, ANY INTERNATIONAL
AUTHORITY, BI-STATE AUTHORITY, STATE AUTHORITY, LOCAL PUBLIC AUTHORITY,
PUBLIC BENEFIT CORPORATION, SCHOOL DISTRICT, SUPERVISORY DISTRICT,
DISTRICT CORPORATION, IMPROVEMENT DISTRICT WITHIN A COUNTY, CITY, TOWN,
OR VILLAGE, ANY MUNICIPALITY AS DEFINED IN SUBDIVISION 29 OF THIS
SECTION, OR INDIAN NATION OR TRIBE RECOGNIZED BY THE STATE OR THE UNITED
STATES WITH A RESERVATION WHOLLY OR PARTLY WITHIN THE BOUNDARIES OF NEW
YORK STATE, OR ANY OTHER LEGAL ENTITY WHATSOEVER, OR, PURSUANT TO
SECTION 26-0117 OF THIS ARTICLE, ANY COMBINATION THEREOF.
34. "PERSON FROM THE PUBLIC SECTOR" SHALL MEAN ANY PERSON THAT IS A
PUBLIC CORPORATION, A LIMITED LIABILITY COMPANY FORMED PURSUANT TO
SECTION 1105 OF THE LIMITED LIABILITY COMPANY LAW, ANY UNIT OF STATE
GOVERNMENT OR AGENCY, DEPARTMENT OR BUREAU THEREOF, OR ANY POLITICAL
SUBDIVISION OF THE STATE, ANY INTERNATIONAL AUTHORITY, BI-STATE AUTHORI-
TY, STATE AUTHORITY, LOCAL PUBLIC AUTHORITY, PUBLIC BENEFIT CORPORATION,
SCHOOL DISTRICT, SUPERVISORY DISTRICT, DISTRICT CORPORATION, IMPROVEMENT
DISTRICT WITHIN A COUNTY, CITY, TOWN, OR VILLAGE, ANY MUNICIPALITY AS
DEFINED IN SUBDIVISION 29 OF THIS SECTION, AND INDIAN NATION OR TRIBE
RECOGNIZED BY THE STATE OR THE UNITED STATES WITH A RESERVATION WHOLLY
OR PARTLY WITHIN THE BOUNDARIES OF NEW YORK STATE, OR ANY OTHER BODY
A. 4514 9
CREATED BY THE STATE OF NEW YORK OR THE UNITED STATES FOR A PUBLIC
PURPOSE; FOR THE PURPOSE OF THIS SECTION THE CREATION AND APPROVAL OF A
PRIVATE NOT-FOR-PROFIT ORGANIZATION SUBJECT TO THE APPROVAL OF THE
SUPREME COURT OR OTHER GOVERNMENTAL BODY SHALL NOT BE CONSIDERED THE
CREATION OF A BODY FOR A PUBLIC PURPOSE.
35. "PERSON FROM THE PRIVATE SECTOR" SHALL MEAN ALL PERSONS AS DEFINED
IN SUBDIVISION 33 OF THIS SECTION WHICH ARE NOT DEFINED AS PERSONS FROM
THE PUBLIC SECTOR IN SUBDIVISION 34 OF THIS SECTION.
36. "POLLUTION" SHALL MEAN THE PRESENCE IN THE ENVIRONMENT OF CONDI-
TIONS OR CONTAMINANTS IN QUANTITIES OR CHARACTERISTICS WHICH ARE OR MAY
BE INJURIOUS TO HUMAN, PLANT, OR MARINE LIFE, WILDLIFE, OR OTHER ANIMAL
LIFE, OR TO PROPERTY, OR WHICH UNREASONABLY INTERFERE WITH THE COMFORTA-
BLE ENJOYMENT OF LIFE AND PROPERTY THROUGHOUT FRESHWATER OR TIDAL
WETLANDS AS MAY BE AFFECTED THEREBY.
37. "PRACTICABLE" SHALL MEAN AVAILABLE AND CAPABLE OF BEING DONE AFTER
TAKING INTO CONSIDERATION COST, EXISTING TECHNOLOGY AND LOGISTICS IN THE
LIGHT OF OVERALL PROJECT PURPOSES.
38. "REGIONAL WATERSHED" SHALL MEAN A WATERSHED AS DELINEATED IN THE
OFFICIAL FRESHWATER WETLANDS MAP OF THE STATE, OR OF ANY SELECTED
SECTION OR REGION THEREOF.
39. "SUCCESS" SHALL MEAN WHEN A MITIGATION BANK MEETS THE SUCCESS
CRITERIA PROVIDED IN THE MITIGATION BANK PERMIT.
S 26-0107. WETLANDS MITIGATION BANKING COMMISSION.
1. THERE IS HEREBY CREATED WITHIN THE DEPARTMENT, A COMMISSION TO BE
KNOWN AS THE WETLANDS MITIGATION BANKING COMMISSION. THE PURPOSE OF THE
COMMISSION WILL BE TO OVERSEE THE ESTABLISHMENT, USE AND OPERATION OF
MITIGATION BANKS ESTABLISHED PURSUANT TO THIS ARTICLE INCLUDING THE
ALLOCATION AND ASSIGNMENT OF MITIGATION BANK CREDITS AND DEBITS TO EACH
MITIGATION BANK, AND TO ASSIST AS AUTHORIZED BY THIS ARTICLE, THE STATE,
AND ITS POLITICAL SUBDIVISIONS, IN THE CREATION, RESTORATION, ENHANCE-
MENT AND PRESERVATION OF WETLANDS AND OTHER ECOLOGICAL BENEFITS FOR
AFFECTED COMMUNITIES.
2. THE COMMISSION SHALL CONSIST OF TWENTY-ONE MEMBERS INCLUDING THE
COMMISSIONERS OF ENVIRONMENTAL CONSERVATION, HEALTH AND AGRICULTURE AND
MARKETS OR THEIR DESIGNEES, THE REGIONAL DIRECTOR OF EACH OF THE REGIONS
OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, OR THEIR DESIGNEES; THE
SECRETARY OF STATE, OR THE SECRETARY OF STATE'S DESIGNEE; AND, EIGHT
PERSONS TO BE APPOINTED BY THE GOVERNOR FROM THE GENERAL PUBLIC, TWO OF
WHOM SHALL BE APPOINTED UPON THE RECOMMENDATION OF THE TEMPORARY PRESI-
DENT OF THE SENATE, TWO OF WHOM SHALL BE APPOINTED UPON THE RECOMMENDA-
TION OF THE SPEAKER OF THE ASSEMBLY, ONE OF WHOM SHALL BE APPOINTED UPON
THE RECOMMENDATION OF THE MINORITY LEADER OF THE SENATE AND ONE OF WHOM
SHALL BE APPOINTED UPON THE RECOMMENDATION OF THE MINORITY LEADER OF THE
ASSEMBLY. OF THE PERSONS APPOINTED FROM THE GENERAL PUBLIC, ONE SHALL BE
APPOINTED FROM PERSONS RECOMMENDED BY RECOGNIZED ENVIRONMENTAL AND
CONSERVATION ORGANIZATIONS, ONE FROM PERSONS RECOMMENDED BY RECOGNIZED
BUILDING AND DEVELOPMENTAL ORGANIZATIONS, ONE FROM PERSONS RECOMMENDED
FROM RECOGNIZED AGRICULTURAL ORGANIZATIONS, ONE PERSON RECOMMENDED BY
RECOGNIZED COMMERCIAL FISHING INDUSTRY ORGANIZATIONS, ONE RECOMMENDED BY
RECOGNIZED FISH AND WILDLIFE SPORTING ORGANIZATIONS, ONE FROM RECOGNIZED
MUNICIPAL GOVERNMENT ORGANIZATIONS, ONE FROM THE BUSINESS COUNCIL OF THE
STATE OF NEW YORK AND ONE RECOMMENDED BY THE NEW YORK STATE BAR ASSOCI-
ATION.
EACH OF THE MEMBERS APPOINTED FROM THE GENERAL PUBLIC SHALL SERVE FOR
A TERM OF THREE YEARS AND UNTIL A SUCCESSOR IS APPOINTED AND QUALIFIED.
ALL VACANCIES IN THE OFFICES OF THE MEMBERS APPOINTED FROM THE GENERAL
A. 4514 10
PUBLIC, EXCEPT THOSE CREATED THROUGH THE EXPIRATION OF TERM, SHALL BE
FILLED FOR THE UNEXPIRED TERM ONLY, AND IN THE SAME MANNER, AND WITH A
MEMBER HAVING THE SAME CLASS, AS THE ORIGINAL APPOINTMENT. EACH MEMBER
SHALL BE ELIGIBLE FOR REAPPOINTMENT, BUT MAY BE REMOVED BY THE GOVERNOR
FOR CAUSE. NO MEMBER APPOINTED FROM THE GENERAL PUBLIC SHALL BE AN OFFI-
CER OR EMPLOYEE OF ANY STATE DEPARTMENT OR AGENCY AND NO SUCH MEMBER MAY
APPOINT A DESIGNEE TO TEMPORARILY OR PERMANENTLY ASSUME HIS OR HER PLACE
ON THE COMMISSION.
3. THE COMMISSIONER OR HIS OR HER DESIGNEE SHALL SERVE AS CHAIR OF THE
COMMISSION AND THE COMMISSION SHALL ELECT A VICE CHAIR FROM AMONG THE
APPOINTED MEMBERS TO PRESIDE IN THE ABSENCE OF THE CHAIR.
4. IN ORDER TO OFFSET IN PART, THE OVERHEAD COSTS INCURRED BY THE
MEMBERS OF THE COMMISSION APPOINTED FROM THE GENERAL PUBLIC SUCH MEMBERS
SHALL RECEIVE COMPENSATION FOR THEIR SERVICES AS MEMBERS OF THE COMMIS-
SION AT THE RATE OF TWENTY DOLLARS PER HOUR (INCLUDING TRAVEL TIME), NOT
TO EXCEED ONE HUNDRED SIXTY DOLLARS FOR EACH DAY OF SERVICE ON OFFICIAL
BUSINESS OF THE COMMISSION BUT NOT TO EXCEED TWELVE THOUSAND DOLLARS FOR
ANY ONE CALENDAR YEAR AND EACH OF THE MEMBERS OF THE BOARD SHALL BE
ALLOWED THE NECESSARY AND ACTUAL EXPENSES WHICH EACH SHALL OCCUR IN THE
PERFORMANCE OF THEIR DUTIES UNDER THIS ARTICLE.
5. FOR THE PURPOSES OF THIS SECTION, THE MEMBERS OF THE COMMISSION
APPOINTED FROM THE GENERAL PUBLIC SHALL BE CONSIDERED OFFICERS OR
EMPLOYEES OF PUBLIC ENTITIES AND SHALL BE AFFORDED SUCH DEFENSE AND
INDEMNIFICATION PROVIDED PURSUANT TO SECTION 18 OF THE PUBLIC OFFICERS
LAW.
6. A MAJORITY OF THE MEMBERSHIP OF THE COMMISSION SHALL CONSTITUTE A
QUORUM FOR THE TRANSACTION OF COMMISSION BUSINESS. WHILE THE COMMISSION
SHALL STRIVE TO SEEK A CONSENSUS FOR ITS ACTIONS, ACTION MAY BE TAKEN
AND MOTIONS AND RESOLUTIONS ADOPTED BY THE COMMISSION AT ANY MEETING
THEREOF BY THE AFFIRMATIVE VOTE OF A MAJORITY OF THE FULL MEMBERSHIP OF
THE COMMISSION.
7. THE COMMISSION MAY APPOINT SUCH STAFF OR HIRE SUCH EXPERTS AS IT
MAY REQUIRE WITHIN THE LIMITS OF APPROPRIATIONS MADE FOR THESE PURPOSES.
8. THE COMMISSION MAY CALL TO ITS ASSISTANCE SUCH EMPLOYEES AS ARE
NECESSARY AND MADE AVAILABLE TO IT FROM THE DEPARTMENT AND ANY OTHER
AGENCY OR DEPARTMENT OF THE STATE, ITS POLITICAL SUBDIVISIONS OR AUTHOR-
ITIES.
9. THE COMMISSION, IN CONSULTATION WITH THE DIRECTOR OF THE BUDGET
SHALL SET A SCHEDULE OF FEES AND A PROCEDURE FOR COLLECTING THE SAME,
FOR THE WORK PERFORMED IN CONNECTION WITH THE PERMITS AND APPROVALS
REQUESTED OF THE COMMISSION. SUCH SCHEDULE OF FEES SHALL BE REFLECTIVE
OF THE COST ASSOCIATED WITH THE SERVICE REQUIRED FOR THE PROCESSING AND
HANDLING OF THE VARIOUS MATTERS FOR WHICH THE FEE SCHEDULE IS ADOPTED
INCLUDING THE COST OF THE MEETINGS OF THE COMMISSION AND SHALL BE SUFFI-
CIENT TO OFFSET AS MUCH OF THE EXPENSES OF THE COMMISSION AND ITS WORK
AS IS PRACTICABLE WITHIN THE LEGISLATIVE INTENT OF THIS ACT TO ENCOURAGE
THE CREATION, RESTORATION, MAINTENANCE AND, WHERE APPROPRIATE, USE OF
WETLANDS MITIGATION BANKS.
10. THE COMMISSION MAY ADOPT, PURSUANT TO THE STATE ADMINISTRATIVE
PROCEDURE ACT, AND IN CONSULTATION WITH THE DEPARTMENT, ANY RULES AND
REGULATIONS NECESSARY TO CARRY OUT ITS RESPONSIBILITIES.
S 26-0109. MITIGATION BANK PERMITS.
ANY PERSON SEEKING TO OBTAIN A MITIGATION BANK PERMIT, IN THE EVENT
THE MITIGATION BANK PERTAINS TO THE MITIGATION OF FRESHWATER WETLANDS,
SHALL APPLY FOR SUCH A PERMIT, AS A REGULATED ACTIVITY PURSUANT TO ARTI-
CLE 24 OF THIS CHAPTER, OR, IN THE EVENT THAT THE MITIGATION BANK PERMIT
A. 4514 11
PERTAINS TO MITIGATION OF TIDAL WATER WETLANDS, SHALL APPLY FOR SUCH A
PERMIT AS A REGULATED ACTIVITY PURSUANT TO ARTICLE 25 OF THIS CHAPTER,
PROVIDED, HOWEVER THAT THE APPROVAL OF ANY APPLICATION FOR A MITIGATION
BANK PERMIT PURSUANT TO EITHER ARTICLE 24 OR ARTICLE 25 OF THIS CHAPTER,
SHALL BE ADVISORY ONLY TO THE COMMISSION AND SHALL NOT ASSIGN MITIGATION
BANK CREDITS TO THE MITIGATION BANK WHICH SHALL BE THE RESPONSIBILITY OF
THE COMMISSION, AND SUCH PERMIT SHALL BE EFFECTIVE ONLY UPON THE FURTHER
APPROVAL OF THE COMMISSION IN ACCORDANCE WITH APPLICABLE LAW AND UNDER
SUCH RULES AS MAY BE ADOPTED BY THE COMMISSION AND FURTHER SUBJECT TO
ANY OTHER STATE OR FEDERAL APPROVAL REQUIRED BY ANY OTHER FEDERAL OR
STATE LAW.
S 26-0111. RIGHT OF APPEAL.
ANY PERSON AGGRIEVED BY THE APPROVAL OR DENIAL OF A MITIGATION BANK
PERMIT PURSUANT TO ARTICLE 24 OF THIS CHAPTER SHALL HAVE THE RIGHT TO
APPEAL SUCH DECISION AS PROVIDED IN SECTION 24-1101 AND SECTION 24-1105
OF THIS CHAPTER; ANY PERSON AGGRIEVED BY THE APPROVAL OR DENIAL OF A
MITIGATION BANK PERMIT PURSUANT TO ARTICLE 25 OF THIS CHAPTER SHALL HAVE
THE RIGHT TO APPEAL SUCH DECISION PURSUANT TO SECTION 25-0404 OF THIS
CHAPTER. IN ORDER TO PROVIDE FOR POLICY CONSISTENCY AND UNIFORMITY IN
ENFORCEMENT OF THIS ACT, THE COMMISSION SHALL BE NOTIFIED OF ANY SUCH
APPEAL AND SHALL PROVIDE AN ADVISORY OPINION TO THE REVIEWING AUTHORITY
SETTING FORTH THE COMMISSION'S POSITION AND POLICY WITH REFERENCE TO THE
SUBJECT MATTER OF EACH APPEAL. ANY PERSON AGGRIEVED BY THE ISSUANCE,
DENIAL, SUSPENSION, OR REVOCATION OF A MITIGATION BANK PERMIT APPROVED
BY THE COMMISSION MAY WITHIN THIRTY DAYS FROM THE DATE OF THE COMMIS-
SION'S WRITTEN APPROVAL OR ORDER SEEK JUDICIAL REVIEW PURSUANT TO ARTI-
CLE 78 OF THE CIVIL PRACTICE LAW AND RULES IN THE SUPREME COURT FOR THE
COUNTY IN WHICH THE WETLANDS AFFECTED ARE LOCATED. NOTHING HEREIN SHALL
PREVENT THE COMMISSION FROM PROVIDING BY ITS OWN RULE AND REGULATION AN
APPEAL PROCEDURE WITHIN THE COMMISSION TO PROCESS OR REVIEW ANY
APPROVAL, DENIAL, SUSPENSION OR REVOCATION OF A MITIGATION BANK PERMIT
BUT IN SUCH EVENT THE COMMISSION SHALL FIRST RENDER AN INTERLOCUTORY
DECISION WHICH UNLESS APPEALED AS PROVIDED IN THE COMMISSION'S RULE
WITHIN THIRTY DAYS SHALL BE FINAL, AND SUCH DECISION SHALL BE APPEALABLE
EVEN IF THE AGGRIEVED PARTY DID NOT AVAIL THEMSELVES OF THE OPPORTUNITY
TO UTILIZE THE INTERNAL APPEAL PROCEDURE AFFORDED BY THE COMMISSION'S
RULES.
S 26-0113. MITIGATION BANK CRITERIA.
TO OBTAIN A MITIGATION BANK PERMIT, THE APPLICATION AT A MINIMUM MUST
PROVIDE REASONABLE ASSURANCES THAT:
1. THE PROPOSED MITIGATION BANK WILL IMPROVE ECOLOGICAL CONDITIONS OF
THE REGIONAL WATERSHED OR COASTAL AREA AS THE CASE MAY BE;
2. THE PROPOSED MITIGATION BANK WILL PROVIDE VIABLE AND SUSTAINABLE
ECOLOGICAL AND HYDROLOGICAL FUNCTIONS FOR THE PROPOSED MITIGATION
SERVICE AREA;
3. THE PROPOSED MITIGATION BANK WILL BE EFFECTIVELY MANAGED IN PERPE-
TUITY;
4. THE PROPOSED MITIGATION BANK WILL NOT DESTROY AREAS WITH HIGH
ECOLOGICAL VALUE;
5. THE PROPOSED MITIGATION BANK WILL ACHIEVE MITIGATION SUCCESS;
6. THE PROPOSED MITIGATION BANK WILL BE ADJACENT TO LANDS WHERE THE
EXISTING OR PROPOSED LAND USES THAT ARE PRESENTLY PERMITTED BY LAW WILL
NOT ADVERSELY AFFECT THE PERPETUAL VIABILITY OF THE MITIGATION BANK DUE
TO UNSTABLE LAND USES OR CONDITIONS;
7. ANY SURFACE WATER MANAGEMENT SYSTEM TO BE CONSTRUCTED, ALTERED,
OPERATED, MAINTAINED, ABANDONED, OR REMOVED WITHIN THE MITIGATION BANK
A. 4514 12
WILL MEET THE REQUIREMENTS OF THIS ARTICLE AND THE RULES ADOPTED THERE-
UNDER;
8. IT HAS SUFFICIENT LEGAL AND EQUITABLE INTEREST IN THE PROPERTY TO
ENSURE PERPETUAL PROTECTION AND MANAGEMENT OF THE LANDS WITHIN A MITI-
GATION BANK; AND
9. IT CAN MEET THE FINANCIAL RESPONSIBILITY REQUIREMENTS PRESCRIBED
FOR MITIGATION BANKS.
S 26-0115. MITIGATION BANK PHASES AND ADDITIONS.
1. A MITIGATION BANK MAY BE ESTABLISHED AND OPERATED IN PHASES IF EACH
PHASE INDEPENDENTLY MEETS THE REQUIREMENTS FOR THE ESTABLISHMENT AND
OPERATION OF A MITIGATION BANK. THE NUMBER OF MITIGATION CREDITS
ASSIGNED TO A PHASE OF A MITIGATION BANK MAY BE LESS THAN WOULD BE
ASSIGNED TO THAT PHASE UPON COMPLETION OF ALL PHASES OF THE MITIGATION
BANK. IN SUCH CASE THE COMMISSION SHALL INCREASE THE NUMBER OF MITI-
GATION CREDITS AWARDED TO SUBSEQUENT PHASES OF THE MITIGATION BANK.
2. A MITIGATION BANK MAY APPLY FOR AN AMENDMENT TO ITS PERMIT TO
PERMIT THE ADDITION OF LAND TO A PERMITTED MITIGATION BANK IN THE SAME
MANNER AS IT APPLIED FOR ITS MITIGATION BANK PERMIT AND SUCH ADDITION
SHALL BE ALLOWED WHEN IT IS APPROPRIATE TO DO SO AND THE ADDITION OF THE
LAND RESULTS IN AN INCREASE IN THE ECOLOGICAL VALUE OF THE EXISTING
MITIGATION BANK. ANY SUCH ADDITION SHALL BE ACCOMPLISHED THROUGH A
MODIFICATION TO THE PERMIT WHICH REFLECTS THE CORRESPONDING INCREASE IN
THE TOTAL NUMBER OF MITIGATION CREDITS ASSIGNED TO THE BANK.
S 26-0117. MITIGATION BANKING JOINT VENTURES, LIMITED LIABILITY COMPA-
NIES AND LIMITED LIABILITY PARTNERSHIPS.
NOTWITHSTANDING ANY GENERAL, SPECIAL OR LOCAL LAW, TO THE CONTRARY,
TWO OR MORE PERSONS MAY ENTER INTO A JOINT VENTURE, OR FORM A LIMITED
LIABILITY COMPANY, OR A LIMITED LIABILITY PARTNERSHIP TO CREATE, ESTAB-
LISH, OPERATE AND MAINTAIN ONE OR MORE PRIVATE, PUBLIC OR PUBLIC-PRIVATE
MITIGATION BANK OR BANKS AND TO ACT AS THE BANKER THEREFOR.
S 26-0119. MITIGATION BANK PERMIT APPLICATIONS.
ANY PERSON OR ENTITY PROPOSING TO ESTABLISH A MITIGATION BANK MUST
APPLY FOR A MITIGATION BANK PERMIT. SUCH APPLICATION SHALL BE MADE TO
THE COMMISSION, AND, IF FOR A FRESHWATER MITIGATION BANK TO THE COMMIS-
SIONER OR THE LOCAL GOVERNMENT AS REQUIRED BY ARTICLE 24 OF THIS CHAPTER
OR, IF FOR A TIDAL WATER WETLANDS MITIGATION BANK, TO THE COMMISSIONER
AS REQUIRED BY ARTICLE 25 OF THIS CHAPTER. AN APPLICATION FOR A MITI-
GATION BANK PERMIT SHALL ALSO CONSTITUTE AN APPLICATION FOR A PERMIT TO
CONDUCT A REGULATED ACTIVITY ON EITHER FRESHWATER WETLANDS, PURSUANT TO
ARTICLE 24 OF THIS CHAPTER, OR TIDAL WETLANDS, PURSUANT TO ARTICLE 25 OF
THIS CHAPTER, AS THE CASE MAY BE, AND THE APPLICANT SHALL SUBMIT AS PART
OF ITS APPLICATION, THE INFORMATION REQUIRED BY ARTICLE 24 OR ARTICLE 25
OF THIS CHAPTER, AS THE CASE MAY BE, TO CONDUCT A REGULATED ACTIVITY ON
THE SPECIFIED WETLANDS, THE INFORMATION SPECIFIED BELOW, AS APPROPRIATE
FOR THE PROJECT (EXCEPT FOR ANY SUCH INFORMATION THAT MAY BE WAIVED OR
MODIFIED BY THE COMMISSION IN A SPECIFIC PROJECT FOR GOOD CAUSE SHOWN),
AND SUCH OTHER INFORMATION AS REQUIRED BY THE COMMISSION, COMMISSIONER,
OR WHERE APPLICABLE UNDER ARTICLE 24 OF THIS CHAPTER, THE LOCAL GOVERN-
MENT:
1. A DESCRIPTION OF THE LOCATION OF THE PROPOSED MITIGATION BANK WHICH
SHALL INCLUDE:
(A) A MAP AT REGIONAL SCALE SHOWING THE PROJECT AREA IN RELATION TO
THE REGIONAL WATERSHED AND PROPOSED MITIGATION SERVICE AREA;
(B) A VICINITY MAP SHOWING THE PROJECT AREA IN RELATION TO ADJACENT
LANDS AND OFFSITE AREAS OF ECOLOGICAL OR HYDROLOGIC SIGNIFICANCE WHICH
COULD EFFECT THE LONG-TERM VIABILITY OR ECOLOGICAL VALUE OF THE BANK;
A. 4514 13
(C) AN AERIAL PHOTOGRAPH IDENTIFYING BOUNDARIES OF THE PROJECT AREA;
(D) A HIGHWAY MAP SHOWING POINTS OF ACCESS TO THE MITIGATION BANK FOR
SITE INSPECTION; AND
(E) A LEGAL DESCRIPTION OF THE PROPOSED MITIGATION BANK.
2. A DESCRIPTION OF THE ECOLOGICAL SIGNIFICANCE OF THE PROPOSED MITI-
GATION BANK TO THE REGIONAL WATERSHED IN WHICH IT IS LOCATED.
3. A DESCRIPTION AND ASSESSMENT OF CURRENT SITE CONDITIONS WHICH SHALL
INCLUDE:
(A) A SOILS MAP OF THE PROJECT AREA;
(B) A TOPOGRAPHIC MAP OF THE PROJECT AREA AND ADJACENT HYDROLOGIC
CONTRIBUTING AND RECEIVING AREAS;
(C) A HYDROLOGIC FEATURES MAP OF THE PROJECT AREA AND ADJACENT HYDRO-
LOGIC CONTRIBUTING AND RECEIVING AREAS;
(D) CURRENT HYDROLOGIC CONDITIONS IN THE PROJECT AREA;
(E) A VEGETATION MAP OF THE PROJECT AREA;
(F) ECOLOGICAL BENEFITS CURRENTLY PROVIDED TO THE REGIONAL WATERSHED
BY THE PROJECT AREA;
(G) ADJACENT LANDS, INCLUDING EXISTING OR PROPOSED LAND USES AND
CONDITIONS, AND LAND USE REGULATIONS PROMULGATED FOR FRESHWATER WETLANDS
PURSUANT TO ARTICLE 24 OF THIS CHAPTER, WHERE APPLICABLE, OR TIDAL
WETLANDS REGULATIONS PROMULGATED PURSUANT TO ARTICLE 25 OF THIS CHAPTER,
WHERE APPLICABLE, AND ANY SPECIAL DESIGNATIONS OR CLASSIFICATIONS ASSO-
CIATED WITH ADJACENT LANDS OR WATERS; AND
(H) A DISCLOSURE BY THE APPLICANT OF ANY MATERIAL FACT WHICH WOULD
AFFECT THE CONTEMPLATED USE OF THE PROPERTY.
4. A MITIGATION PLAN DESCRIBING THE ACTIONS PROPOSED TO ESTABLISH,
CONSTRUCT, OPERATE, MANAGE AND MAINTAIN THE MITIGATION BANK WHICH SHALL
INCLUDE:
(A) A DESCRIPTION OF THE ENVIRONMENTAL ENGINEERING FIRM, OR FIRMS OR
IN HOUSE EMPLOYEES TO BE ENGAGED IN THE PLANNING, CONSTRUCTION, OPERA-
TION AND OVERSIGHT OF THE MITIGATION BANK, THEIR EXPERIENCE AND EXPER-
TISE IN SUCH WORK;
(B) A COPY OF THE CONSTRUCTION-LEVEL DRAWINGS DETAILING PROPOSED TOPO-
GRAPHIC ALTERATIONS AND ALL STRUCTURAL COMPONENTS ASSOCIATED WITH
PROPOSED ACTIVITIES;
(C) PROPOSED CONSTRUCTION ACTIVITIES, INCLUDING A DETAILED SCHEDULE
FOR IMPLEMENTATION;
(D) THE PROPOSED VEGETATION PLANTING SCHEME AND DETAILED SCHEDULE FOR
IMPLEMENTATION;
(E) MEASURES TO BE IMPLEMENTED DURING AND AFTER CONSTRUCTION TO AVOID
ADVERSE IMPACTS RELATED TO PROPOSED ACTIVITIES;
(F) A DETAILED LONG-TERM MANAGEMENT PLAN COMPRISING ALL ASPECTS OF
OPERATION AND MAINTENANCE, INCLUDING WATER MANAGEMENT PRACTICES, VEGE-
TATION ESTABLISHMENT, EXOTIC AND NUISANCE SPECIES CONTROL, FIRE MANAGE-
MENT, AND CONTROL OF ACCESS; AND
(G) A PROPOSED MONITORING PLAN TO DEMONSTRATE MITIGATION SUCCESS.
5. AN ASSESSMENT OF IMPROVEMENT OR CHANGES IN ECOLOGICAL VALUE ANTIC-
IPATED AS A RESULT OF PROPOSED MITIGATION ACTIONS WHICH SHALL INCLUDE:
(A) A DESCRIPTION OF ANTICIPATED SITE CONDITIONS IN THE MITIGATION
BANK AFTER THE MITIGATION PLAN IS SUCCESSFULLY IMPLEMENTED;
(B) A COMPARISON OF CURRENT FISH AND WILDLIFE HABITAT TO EXPECTED
HABITAT AFTER THE MITIGATION PLAN IS SUCCESSFULLY IMPLEMENTED; AND
(C) A DESCRIPTION OF THE EXPECTED ECOLOGICAL BENEFITS TO THE REGIONAL
WATERSHED.
A. 4514 14
6. EVIDENCE OF SUFFICIENT LEGAL OR EQUITABLE INTEREST IN THE PROPERTY
WHICH IS TO BECOME THE MITIGATION BANK TO MEET THE REQUIREMENTS OF
SECTION 26-0129 OF THIS ARTICLE.
7. DRAFT DOCUMENTATION OF FINANCIAL RESPONSIBILITY MEETING THE
REQUIREMENTS.
8. ANY ADDITIONAL INFORMATION WHICH MAY BE NECESSARY TO EVALUATE
WHETHER THE PROPOSED MITIGATION BANK MEETS THE CRITERIA OF THIS SECTION.
S 26-0121. ESTABLISHMENT OF MITIGATION CREDITS.
1. BASED UPON THE INFORMATION SUBMITTED BY THE APPLICANT, AND AN
ASSESSMENT OF THE PROPOSED MITIGATION BANK PURSUANT TO THE CRITERIA IN
THIS SECTION, THE COMMISSION WILL ASSIGN A NUMBER OF MITIGATION CREDITS
TO THE PROPOSED MITIGATION BANK, OR PHASES THEREOF.
2. A MITIGATION CREDIT IS A UNIT OF MEASURE WHICH REPRESENTS THE
INCREASE IN ECOLOGICAL VALUE RESULTING FROM RESTORATION, ENHANCEMENT,
PRESERVATION, OR CREATION ACTIVITIES. THE NUMBER OF CREDITS AVAILABLE
FROM THE BANK WILL BE DETERMINED BY THE COMMISSION AS WELL AS THE METH-
ODOLOGY TO DETERMINE APPROPRIATE CREDIT WITHDRAWAL FROM THE BANK FOR
EACH INDIVIDUAL PROJECT THAT WILL APPLY FOR USE OF THE FUNCTIONING MITI-
GATION BANK. IN DETERMINING THE DEGREE OF IMPROVEMENT IN ECOLOGICAL
VALUE THE FOLLOWING FACTORS WILL BE CONSIDERED:
(A) THE EXTENT TO WHICH TARGET HYDROLOGIC REGIMES CAN BE ACHIEVED AND
MAINTAINED.
(B) THE EXTENT TO WHICH MANAGEMENT ACTIVITIES PROMOTE NATURAL ECOLOGI-
CAL CONDITIONS, INCLUDING NATURAL FIRE PATTERNS.
(C) THE PROXIMITY TO AREAS OF NATIONAL, STATE, OR REGIONAL ECOLOGICAL
SIGNIFICANCE, SUCH AS NATIONAL OR STATE PARKS, AND OTHER REGIONALLY
SIGNIFICANT ECOLOGICAL RESOURCES OR HABITATS, SUCH AS LANDS ACQUIRED OR
TO BE ACQUIRED THROUGH GOVERNMENTAL OR NON-PROFIT LAND ACQUISITION
PROGRAMS FOR ENVIRONMENTAL CONSERVATION, AND THE ESTABLISHMENT OF CORRI-
DORS TO THOSE RESOURCES OR HABITATS.
(D) THE QUALITY AND QUANTITY OF WETLAND OR UPLAND RESTORATION,
ENHANCEMENT, PRESERVATION, OR CREATION.
(E) WHERE APPLICABLE, THE ECOLOGICAL AND HYDROLOGICAL RELATIONSHIP
BETWEEN WETLANDS AND UPLANDS IN THE MITIGATION BANK.
(F) THE EXTENT TO WHICH THE MITIGATION BANK PROVIDES HABITAT FOR FISH
AND WILDLIFE, ESPECIALLY HABITAT FOR SPECIES LISTED AS THREATENED,
ENDANGERED OR OF SPECIAL CONCERN, OR PROVIDES HABITATS WHICH ARE UNIQUE
FOR THAT MITIGATION SERVICE AREA.
(G) THE EXTENT TO WHICH THE LANDS THAT ARE TO BE PRESERVED ARE ALREADY
PROTECTED BY EXISTING STATE, LOCAL OR FEDERAL REGULATIONS OR LAND USE
RESTRICTIONS.
(H) THE EXTENT TO WHICH THE LANDS THAT ARE TO BE PRESERVED WOULD BE
ADVERSELY AFFECTED IF THEY WERE NOT PRESERVED.
(I) ANY SPECIAL DESIGNATION OR CLASSIFICATION OF THE AFFECTED WATERS
AND LANDS.
3. NO CREDIT SHALL BE AVAILABLE FOR EITHER FRESHWATER OR TIDAL WATER
WETLAND CREATION UNTIL THE SUCCESS OF THE CREATED WETLANDS IS DEMON-
STRATED.
4. SOME MITIGATION CREDITS MAY BE WITHDRAWN PRIOR TO MEETING ALL OF
THE PERFORMANCE CRITERIA SPECIFIED IN THE MITIGATION BANK PERMIT. THE
NUMBER OF CREDITS AND SCHEDULE FOR RELEASE SHALL BE DETERMINED BASED
UPON THE PERFORMANCE CRITERIA FOR THE MITIGATION BANK, AND THE SUCCESS
CRITERIA FOR EACH MITIGATION ACTIVITY. A MITIGATION BANK WILL BE CREDIT-
ED WITH ITS MAXIMUM NUMBER OF MITIGATION CREDITS ONLY AFTER MEETING THE
MITIGATION SUCCESS CRITERIA SPECIFIED IN THE PERMIT.
A. 4514 15
5. MITIGATION CREDITS WHETHER OF PUBLIC, PRIVATE OR PUBLIC-PRIVATE
MITIGATION BANKS AVAILABLE FOR WITHDRAWAL MAY BE TRANSFERRED, OR SOLD
TO, OR USED BY PUBLIC, PRIVATE OR PUBLIC-PRIVATE ENTITIES, SUBJECT TO
THE PROVISIONS OF THIS SECTION.
6. IF AT ANY TIME THE COMMISSION DETERMINES THAT THE BANKER IS NOT IN
MATERIAL COMPLIANCE WITH THE TERMS OF THE MITIGATION BANK PERMIT, NO
MITIGATION CREDITS MAY BE WITHDRAWN. MITIGATION CREDITS SHALL AGAIN BE
AVAILABLE FOR WITHDRAWAL IF THE BANKER COMES BACK INTO COMPLIANCE.
7. THE MITIGATION BANK PERMIT SHALL CONTAIN A LEDGER LISTING THE
NUMBER AND TYPE OF MITIGATION CREDITS IN THE MITIGATION BANK. THE LEDGER
WILL PROVIDE THE MAXIMUM NUMBER AND TYPE OF MITIGATION CREDITS WHICH
WOULD BE AVAILABLE FOR WITHDRAWAL WHEN THE MITIGATION BANK MEETS ALL OF
THE PERFORMANCE CRITERIA IN THE PERMIT.
8. MITIGATION CREDITS MAY BE SOLD WHOLE OR IN PART AT THE BANKER'S
DISCRETION. MITIGATION CREDITS MAY BE SOLD OR RESOLD, (IN THE EVENT THEY
WERE SOLD BUT NOT USED OR NO LONGER USED), UNTIL THEY ARE ALL USED TO
OFFSET ADVERSE IMPACTS.
9. THE COMMISSION SHALL MAINTAIN A LEDGER OF THE MITIGATION CREDITS
AVAILABLE IN EACH MITIGATION BANK. MITIGATION CREDITS SHALL BE WITHDRAWN
AS A MINOR MODIFICATION OF THE MITIGATION BANK PERMIT. TO WITHDRAW
MITIGATION CREDITS, THE IMPACT PERMIT APPLICANT MUST SUBMIT TO THE PARTY
GRANTING SUCH PERMIT, DOCUMENTATION FROM THE BANKER DEMONSTRATING THAT
MITIGATION CREDITS HAVE BEEN RESERVED, SOLD OR TRANSFERRED TO THE PERMIT
APPLICANT, AND REQUESTING THAT THE MITIGATION CREDITS BE WITHDRAWN FROM
THE MITIGATION BANK. IF THE PARTY PERMITTING THE IMPACT DETERMINES THAT
USE OF THE MITIGATION CREDITS PROPOSED BY THE APPLICANT IS APPROPRIATE
TO OFFSET THE ADVERSE IMPACTS, IT SHALL NOTIFY THE COMMISSION. UPON
RECEIPT OF THIS NOTICE, THE COMMISSION SHALL DETERMINE IF A SUFFICIENT
NUMBER AND TYPE OF MITIGATION CREDITS ARE AVAILABLE, WITHDRAW THE MITI-
GATION CREDITS, AND NOTIFY THE PARTY PERMITTING THE IMPACT AND THE BANK-
ER BY LETTER OF THE WITHDRAWAL OF THE MITIGATION CREDITS AND THE REMAIN-
ING BALANCE OF MITIGATION CREDITS.
10. THE COMMISSION SHALL ANNUALLY SUBMIT A REPORT OF THE MITIGATION
CREDITS SOLD, TRANSFERRED, OR USED FROM EACH MITIGATION BANK TO THE
COMMISSIONER AND ANY OTHER PARTY INVOLVED IN APPROVING FRESHWATER
WETLANDS IMPACTS PERMITS UNDER ARTICLE 24 OF THIS CHAPTER AND TIDAL
WATER WETLANDS IMPACTS UNDER ARTICLE 25 OF THIS CHAPTER.
S 26-0123. CONTRIBUTION OF LANDS.
A PERMIT APPLICANT MAY CONTRIBUTE LAND TO A MITIGATION BANK IF:
1. THE ADVERSE IMPACTS TO BE OFFSET BY THE LAND DONATION ARE WITHIN
THE MITIGATION SERVICE AREA OF THE MITIGATION BANK, EXCEPT AS PROVIDED;
2. THE LAND WILL OFFSET ADVERSE IMPACTS OF THE PROPOSED PROJECT;
3. THE LAND IS ADJACENT TO OR WILL BECOME A COMMISSION APPROVED MITI-
GATION BANK;
4. THE LAND WILL IMPROVE OR ENHANCE THE ECOLOGICAL VALUE OF A COMMIS-
SION APPROVED MITIGATION BANK;
5. THE LAND WILL BE ENCUMBERED WITH A CONSERVATION EASEMENT OR
CONVEYED IN FEE SIMPLE PURSUANT TO THE REQUIREMENT; AND
6. THE GRANTEE OF THE CONSERVATION EASEMENT OR FEE SIMPLE INTEREST
AGREES TO ACCEPT SUCH CONVEYANCE.
S 26-0125. CONTRIBUTION OF FUNDS.
FUNDS MAY BE CONTRIBUTED TO A MITIGATION BANK BY PURCHASING MITIGATION
CREDITS FROM THE BANKER.
S 26-0127. MITIGATION SERVICE AREAS.
1. A MITIGATION SERVICE AREA WILL BE ESTABLISHED FOR EACH MITIGATION
BANK INCLUDED IN THE MITIGATION BANK PERMIT. EXCEPT AS PROVIDED HEREIN,
A. 4514 16
MITIGATION CREDITS MAY ONLY BE WITHDRAWN TO OFFSET ADVERSE IMPACTS IN
THE MITIGATION SERVICE AREA. THE EXTENT OF THE MITIGATION SERVICE AREA
WILL DEPEND UPON WHETHER ADVERSE IMPACTS WITHIN THE MITIGATION SERVICE
AREA CAN BE ADEQUATELY OFFSET BY THE MITIGATION BANK.
2. IN THE CASE OF A FRESHWATER WETLANDS MITIGATION BANK SUCH MITI-
GATION SERVICE AREA MAY BE LARGER THAN THE REGIONAL WATERSHED IF ADVERSE
IMPACTS TO WETLANDS OUTSIDE THE REGIONAL WATERSHED COULD BE ADEQUATELY
OFFSET BY THE MITIGATION BANK BECAUSE OF LOCAL ECOLOGICAL OR HYDROLOGI-
CAL CONDITIONS, OR SMALLER THAN THE REGIONAL WATERSHED, SUCH AS IN AN
AQUATIC PRESERVE, IF ADVERSE IMPACTS THROUGHOUT THE REGIONAL WATERSHED
COULD NOT BE OFFSET BY THE MITIGATION BANK BECAUSE OF LOCAL ECOLOGICAL
OR HYDROLOGICAL CONDITIONS. IN THE CASE OF A TIDAL WATERS WETLANDS MITI-
GATION BANK, SUCH MITIGATION SERVICE AREA MAY BE LARGER THAN THE
REGIONAL COASTAL AREA IF ADVERSE IMPACTS TO WETLANDS OUTSIDE THE
REGIONAL COASTAL AREA COULD BE ADEQUATELY OFFSET BY THE MITIGATION BANK
BECAUSE OF LOCAL ECOLOGICAL OR HYDROLOGICAL CONDITIONS OR SMALLER THAN
THE REGIONAL COASTAL AREA SUCH AS IN AN AQUATIC PRESERVE, IF ADVERSE
IMPACTS THROUGHOUT THE REGIONAL COASTAL AREA COULD NOT BE OFFSET BY THE
MITIGATION BANK BECAUSE OF LOCAL ECOLOGICAL OR HYDROLOGICAL CONDITIONS.
3. MITIGATION SERVICE AREAS MAY OVERLAP AND MULTIPLE MITIGATION
SERVICE AREAS MAY BE APPROVED FOR A REGIONAL WATERSHED IN THE CASE OF A
FRESHWATER MITIGATION BANK OR FOR A REGIONAL COASTAL AREA IN THE CASE OF
A TIDAL WATER MITIGATION BANK.
4. IN ADDITION TO PROJECTS LOCATED WHOLLY WITHIN THE MITIGATION
SERVICE AREA OF A MITIGATION BANK, THE FOLLOWING PROJECTS ARE ELIGIBLE
TO USE A MITIGATION BANK IF THE REQUIREMENTS ARE MET:
(A) PROJECTS WITH ADVERSE IMPACTS PARTIALLY LOCATED WITHIN THE MITI-
GATION SERVICE AREA.
(B) LINEAR PROJECTS, SUCH AS ROADWAYS, TRANSMISSION LINES, DISTRIB-
UTION LINES, PIPELINES, OR RAILWAYS.
(C) PROJECTS WITH TOTAL ADVERSE IMPACTS OF LESS THAN ONE-HALF ACRE IN
SIZE.
5. WHEN MITIGATION CREDITS ARE APPLIED TO OFFSET ADVERSE IMPACTS WITH-
IN THE REGIONAL WATERSHED, OR COASTAL AREA, THE MITIGATION CREDIT
REQUIREMENT SHALL BE THE SAME AS THAT SPECIFIED FOR MITIGATION ON THE
PROJECT SITE.
6. WHEN MITIGATION CREDITS ARE APPLIED TO OFFSET ADVERSE IMPACTS
OUTSIDE THE REGIONAL WATERSHED, OR COASTAL ZONE, THE MITIGATION CREDIT
REQUIREMENT MAY BE HIGHER THAN THAT SPECIFIED FOR MITIGATION ON THE
PROJECT SITE, EXCEPT FOR LINEAR PROJECTS, AS REFERENCED IN PARAGRAPH (B)
OF SUBDIVISION 4 OF THIS SECTION, WHEN THE IMPACT OF BEING OFFSET IS
WITHIN THE MITIGATION SERVICE AREA OF THE MITIGATION BANK TO BE USED.
S 26-0129. LAND USE RESTRICTIONS ON MITIGATION BANKS.
1. BEFORE MITIGATION CREDITS MAY BE USED FROM A MITIGATION BANK OR ANY
PHASE OF A MITIGATION BANK, THE BANKER SHALL EITHER (A) CAUSE A FEE
INTEREST TO BE CONVEYED TO THE COMMISSION, THE DEPARTMENT, OR THE STATE,
OR (B) CAUSE A CONSERVATION EASEMENT TO BE CONVEYED TO THE COMMISSION,
THE DEPARTMENT OR THE STATE AND SUCH FEE OR EASEMENT INTEREST MAY BE
JOINTLY CONVEYED TO SUCH ADDITIONAL GRANTEES AS THE GRANTOR SHALL DECIDE
WITH THE RIGHT OF SUCH GRANTEE TO CONVEY THEIR INTEREST TO SUCCESSORS IN
INTEREST IN THE PROPERTY WHERE THE CREDITS HAVE BEEN OR ARE TO BE USED
TO OFFSET WETLAND IMPACTS. MITIGATION BANKS ON FEDERALLY OWNED LAND
SHALL BE ENCUMBERED IN PERPETUITY BY CONSERVATION EASEMENTS OR OTHER
MECHANISMS ENSURING PRESERVATION IN ACCORDANCE WITH THE MITIGATION BANK
PERMIT.
A. 4514 17
2. ALL CONSERVATION EASEMENTS SHALL BE GRANTED IN PERPETUITY WITHOUT
ENCUMBRANCES, UNLESS SUCH ENCUMBRANCES DO NOT ADVERSELY AFFECT THE
ECOLOGICAL VIABILITY OF THE MITIGATION BANK. ALL CONSERVATION EASEMENTS
SHALL BE OF A FORM AND CONTENT SUFFICIENT TO ENSURE PRESERVATION OF THE
MITIGATION BANK ACCORDING TO THE PERMIT, AND SHALL, AT A MINIMUM, BE
CONSISTENT WITH ALL THE REQUIREMENTS AND RESTRICTIONS.
3. ALL REAL PROPERTY CONVEYANCES SHALL BE IN FEE SIMPLE AND BY STATU-
TORY WARRANTY DEED, SPECIAL WARRANTY DEED, OR OTHER DEED, WITHOUT ENCUM-
BRANCES THAT ADVERSELY AFFECT THE INTEGRITY OF THE BANK AND ARE ACCEPTA-
BLE TO THE COMMISSION. THE COMMISSION WILL ACCEPT A QUIT CLAIM DEED TO
AID THE CLEARING OF MINOR TITLE DEFECTS OR OTHERWISE RESOLVE A BOUNDARY
QUESTION IN THE MITIGATION BANK.
4. THE GRANTOR OF THE PROPERTY OR CONSERVATION EASEMENT SHALL PROVIDE
THE FOLLOWING UNLESS THE COMMISSION DETERMINES SUCH ITEMS ARE NOT NECES-
SARY TO ENSURE PRESERVATION OF THE MITIGATION BANK ACCORDING TO THE
PERMIT:
(A) A SURVEY OF PROPERTY OR THE AREA WITHIN THE CONSERVATION EASEMENT.
THE SURVEY MUST BE CERTIFIED, BY A LAND SURVEYOR REGISTERED IN THE STATE
OF NEW YORK, TO MEET THE REQUIREMENTS OF THE COMMISSION, AND THE MINIMUM
TECHNICAL STANDARDS SET FORTH BY THE NEW YORK BOARD OF PROFESSIONAL LAND
SURVEYORS.
(B) A CERTIFIED APPRAISAL OF THE MARKET VALUE OF THE PROPERTY OR
INTEREST TO BE CONVEYED TO DETERMINE THE APPROPRIATE AMOUNT OF TITLE
INSURANCE.
(C) ASSURANCE OF THE MARKETABILITY OF THE INTEREST IN REAL PROPERTY
BEING ACQUIRED IN THE FORM OF A MARKETABLE TITLE COMMITMENT AND OWNER'S
TITLE POLICY IN AN AMOUNT AT LEAST EQUAL TO THE FAIR MARKET VALUE. THE
COVERAGE, FORM AND EXCEPTIONS OF THE TITLE INSURANCE POLICY SHALL ENSURE
THAT THE MITIGATION BANK WILL BE PRESERVED ACCORDING TO THE MITIGATION
BANK PERMIT.
(D) IF A FEE SIMPLE INTEREST IS BEING CONVEYED, A PHASE I ENVIRON-
MENTAL AUDIT IDENTIFYING ANY ENVIRONMENTAL PROBLEMS WHICH MAY AFFECT THE
LIABILITY OF THE STATE AND COMMISSION AND ANY ADDITIONAL AUDITS AS ARE
NECESSARY TO ENSURE THAT THE STATE AND THE COMMISSION WILL NOT BE LIABLE
FOR THOSE ENVIRONMENTAL PROBLEMS.
5. THE DEPARTMENT SHALL REQUIRE ADDITIONAL DOCUMENTATION OR ACTIONS
FROM THE GRANTOR OF THE CONSERVATION EASEMENT OR FEE INTEREST IF SUCH
ADDITIONAL DOCUMENTATION OR ACTIONS ARE NECESSARY TO ENSURE THAT THE
MITIGATION BANK WILL BE PRESERVED ACCORDING TO THE MITIGATION BANK
PERMIT.
6. THE GRANTOR SHALL PAY THE DOCUMENTARY REVENUE STAMP TAX AND ALL
OTHER TAXES OR COSTS ASSOCIATED WITH THE CONVEYANCE, INCLUDING THE COST
OF RECORDING THE DEED OR EASEMENT AND ANY OTHER RECORDABLE INSTRUMENTS
REQUIRED BY THE COMMISSION, UNLESS PROHIBITED OR EXEMPT BY LAW, AS A
CONDITION OF THE RECEIPT OF THE CONVEYANCE.
7. ALL REAL ESTATE TAXES AND ASSESSMENTS WHICH ARE OR WHICH MAY BECOME
A LIEN AGAINST THE PROPERTY SHALL BE SATISFIED OF RECORD BY THE GRANTOR
BEFORE OR AT CLOSING. IF NECESSARY, THE GRANTOR SHALL PLACE FUNDS IN
ESCROW WITH THE APPROPRIATE MUNICIPAL TAX COLLECTOR.
8. THE GRANTOR SHALL REMOVE ALL ABANDONED PERSONAL PROPERTY AND SOLID
WASTE FROM THE PROPERTY THAT REDUCES THE PROPOSED ECOLOGICAL VALUE OF
THE PROPERTY, THAT ADVERSELY AFFECTS THE CONSTRUCTION, IMPLEMENTATION OR
MANAGEMENT OF THE BANK, OR THAT POSES A SUBSTANTIAL RISK OF LIABILITY TO
THE STATE OR COMMISSION AS A CONDITION OF RECEIPT OF THE CONVEYANCE.
9. THE GRANTOR SHALL PROVIDE IN THE CONSERVATION EASEMENT THAT THE
BANKER, THE STATE AND THE COMMISSION SHALL HAVE ACCESS TO THE PROPERTY
A. 4514 18
TO PERFORM ALL ACTS NECESSARY TO ENSURE COMPLIANCE WITH THE MITIGATION
BANK PERMIT AND ANY PERMITS ISSUED UNDER THIS ARTICLE.
10. THE BANKER SHALL RECORD THE CONSERVATION EASEMENT OR PROPERTY DEED
WITHIN THIRTY DAYS OF ISSUANCE OF THE MITIGATION BANK PERMIT, OR AS
OTHERWISE REQUIRED IN THE MITIGATION BANK PERMIT. THE BANKER SHALL
SUBMIT TO THE COMMISSION A CERTIFIED COPY OF THE RECORDED CONSERVATION
EASEMENT OR PROPERTY DEED WITHIN THIRTY DAYS OF RECORDING.
S 26-0131. FINANCIAL RESPONSIBILITY.
1. REQUIRED PROOF OF FINANCIAL RESPONSIBILITY. TO PROVIDE REASONABLE
ASSURANCES THAT THE PROPOSED MITIGATION BANK WILL MEET THE REQUIREMENTS
OF THIS SECTION AND THE ASSOCIATED PERMIT CONDITIONS, BANKERS OF PRIVATE
MITIGATION BANKS SHALL PROVIDE PROOF OF FINANCIAL RESPONSIBILITY FOR:
(A) THE CONSTRUCTION AND IMPLEMENTATION PHASE OF THE BANK, AND (B) THE
LONG-TERM MANAGEMENT OF THE BANK, AS REQUIRED IN THIS SECTION. BANKERS
OF PUBLIC MITIGATION BANKS AND PUBLIC-PRIVATE MITIGATION BANKS SHALL
PROVIDE PROOF OF FINANCIAL RESPONSIBILITY. THE AMOUNT OF FINANCIAL
RESPONSIBILITY PROVIDED IN THE MECHANISMS REQUIRED IN THIS SECTION SHALL
BE BASED ON THE COST ESTIMATES DETERMINED.
2. FINANCIAL RESPONSIBILITY DOCUMENTATION OF REQUIRED MECHANISMS. THE
APPLICANT SHALL PROVIDE DRAFT DOCUMENTATION OF THE REQUIRED FINANCIAL
RESPONSIBILITY MECHANISMS DESCRIBED BELOW WITH THE PERMIT APPLICATION,
AND SHALL SUBMIT TO THE COMMISSION THE EXECUTED OR FINALIZED DOCUMENTA-
TION WITHIN THE TIME FRAMES SPECIFIED IN THE PERMIT. THE PROVISIONS OF
THIS SECTION SHALL ALSO APPLY FOR ANY MODIFICATIONS TO THE MITIGATION
BANK PERMIT.
3. GENERAL TERMS FOR FINANCIAL RESPONSIBILITY MECHANISMS. IN ADDITION
TO THE SPECIFIC PROVISIONS REGARDING FINANCIAL RESPONSIBILITY MECHANISMS
FOR CONSTRUCTION, IMPLEMENTATION AND LONG-TERM MANAGEMENT, THE FOLLOWING
TERMS SHALL BE COMPLIED WITH:
(A) THE FINANCIAL RESPONSIBILITY MECHANISMS SHALL NAME THE COMMISSION
AS SOLE BENEFICIARY OR SHALL BE PAYABLE TO THE COMMISSION. THE FINANCIAL
RESPONSIBILITY MECHANISM SHALL BE RETAINED BY THE COMMISSION IF IT IS OF
A TYPE WHICH IS RETAINED BY THE BENEFICIARY ACCORDING TO INDUSTRY STAND-
ARDS.
(B) THE FINANCIAL RESPONSIBILITY MECHANISMS SHALL BE ESTABLISHED WITH
A STATE OR NATIONAL BANK, SAVINGS AND LOAN ASSOCIATION, OR OTHER FINAN-
CIAL INSTITUTION, LICENSED IN THIS STATE. IN THE CASE OF LETTERS OF
CREDIT, THE LETTER OF CREDIT MUST BE ISSUED BY AN ENTITY WHICH HAS
AUTHORITY TO ISSUE LETTERS OF CREDIT AND WHOSE LETTER OF CREDIT OPER-
ATIONS ARE REGULATED AND EXAMINED BY A FEDERAL OR STATE AGENCY. IN THE
CASE OF A SURETY BOND, THE SURETY BOND MUST BE ISSUED BY A SURETY COMPA-
NY REGISTERED WITH THIS STATE.
(C) NO PERSON SHALL WITHDRAW OR TRANSFER ANY PORTION OF THE MONEYS
PROVIDED FOR FINANCIAL RESPONSIBILITY WITHOUT FIRST OBTAINING PRIOR
WRITTEN APPROVAL FROM THE COMMISSION, WHICH WILL BE GRANTED ONLY IF SUCH
WITHDRAWAL OR TRANSFER DOES NOT REDUCE THE AMOUNT OF FINANCIAL RESPONSI-
BILITY BELOW THE COST REQUIREMENTS.
(D) THE FINANCIAL RESPONSIBILITY MECHANISMS SHALL NOT EXPIRE OR TERMI-
NATE PRIOR TO COMPLETION OF THE APPLICABLE PERMIT CONDITIONS.
(E) THE FINANCIAL RESPONSIBILITY MECHANISMS SHALL NOT BE TERMINATED OR
CANCELED BY THE BANKER. WITHIN NINETY DAYS OF RECEIPT OF A NOTICE OF
CANCELLATION OF A FINANCIAL RESPONSIBILITY MECHANISM OR OTHER ACTUAL OR
CONSTRUCTIVE NOTICE OF CANCELLATION, THE BANKER SHALL PROVIDE AN ALTER-
NATE FINANCIAL RESPONSIBILITY MECHANISM WHICH MEETS THE REQUIREMENTS OF
THIS SECTION.
A. 4514 19
(F) IF THE MITIGATION BANK HAS FAILED TO COMPLY WITH THE TERMS AND
CONDITIONS OF THE PERMIT, THE COMMISSION UPON REASONABLE NOTICE MAY DRAW
UPON THE FINANCIAL MECHANISM.
4. FINANCIAL RESPONSIBILITY FOR CONSTRUCTION AND IMPLEMENTATION. (A)
NO FINANCIAL RESPONSIBILITY SHALL BE REQUIRED WHERE THE CONSTRUCTION AND
IMPLEMENTATION OF THE MITIGATION BANK, OR A PHASE THEREOF, IS COMPLETED
AND SUCCESSFUL PRIOR TO THE WITHDRAWAL OF ANY CREDITS.
(B) FINANCIAL RESPONSIBILITY FOR THE CONSTRUCTION AND IMPLEMENTATION
OF EACH PHASE OF THE MITIGATION BANK MAY BE ESTABLISHED BY GUARANTEE
BONDS, PERFORMANCE BONDS, INSURANCE CERTIFICATES, IRREVOCABLE LETTERS OF
CREDIT, TRUST FUND AGREEMENTS, OR SECURITIES. IF BONDS OR AN IRREVOCABLE
LETTER OF CREDIT ARE USED AS THE FINANCIAL MECHANISM, A STANDBY TRUST
FUND SHALL BE ESTABLISHED, IN A FORM MEETING STANDARD INDUSTRY PRAC-
TICES, IN WHICH ALL PAYMENTS UNDER THE BONDS OR IRREVOCABLE LETTER OF
CREDIT SHALL BE DIRECTLY DEPOSITED.
(C) THE AMOUNT OF FINANCIAL RESPONSIBILITY ESTABLISHED SHALL EQUAL THE
COST OF CONSTRUCTION AND IMPLEMENTATION OF EACH PHASE OF THE MITIGATION
BANK WHICH IS BEING IMPLEMENTED. WHEN A CURRENT PHASE HAS BEEN COMPLETE-
LY CONSTRUCTED, IMPLEMENTED, AND TRENDING TOWARD SUCCESS IN COMPLIANCE
WITH THE PERMIT, THE RESPECTIVE AMOUNT OF FINANCIAL RESPONSIBILITY SHALL
BE RELEASED.
(D) THE FINANCIAL RESPONSIBILITY MECHANISM SHALL BECOME EFFECTIVE AT
LEAST SIXTY DAYS PRIOR TO INITIATION OF CONSTRUCTION OF THE NEXT PHASE
OF THE MITIGATION BANK, OR AS OTHERWISE REQUIRED BY THE MITIGATION BANK
PERMIT PRIOR TO INITIATION OF IMPLEMENTATION AND CONSTRUCTION OF THE
SUBJECT PHASE.
5. FINANCIAL RESPONSIBILITY FOR LONG-TERM MANAGEMENT. (A) A BANKER
SHALL ESTABLISH A TRUST FUND AGREEMENT TO PROVIDE FINANCIAL RESPONSIBIL-
ITY FOR THE LONG-TERM MANAGEMENT OF THE MITIGATION BANK, OR PHASE THERE-
OF. TRUST FUND AGREEMENTS SHALL BE SUBMITTED IN A FORMAT WHICH MEETS
STANDARD INDUSTRY PRACTICES.
(B) THE AMOUNT OF FINANCIAL RESPONSIBILITY SHALL EQUAL THE COST OF
LONG-TERM MANAGEMENT, PURSUANT TO PARAGRAPH (C) OF SUBDIVISION 6 OF THIS
SECTION FOR ALL PREVIOUSLY CONSTRUCTED PHASES AND THE CURRENT PHASE FOR
WHICH CREDITS HAVE BEEN APPROVED FOR WITHDRAWAL.
(C) THE TRUST FUND AGREEMENT SHALL BE EFFECTIVE AND FULLY FUNDED AT
LEAST SIXTY DAYS PRIOR TO THE WITHDRAWAL OF CREDITS FROM THE MITIGATION
BANK, OR PHASE THEREOF, OR AS OTHERWISE PROVIDED IN THE MITIGATION BANK
PERMIT PRIOR TO THE WITHDRAWAL OF CREDITS.
6. COST ESTIMATES. (A) FOR THE PURPOSES OF DETERMINING THE AMOUNT OF
FINANCIAL RESPONSIBILITY THAT IS REQUIRED IN THIS SECTION, THE BANKER
SHALL SUBMIT A DETAILED WRITTEN ESTIMATE, IN CURRENT DOLLARS, OF THE
TOTAL COST OF CONSTRUCTION AND IMPLEMENTATION AND LONG-TERM MANAGEMENT
OF THE MITIGATION BANK.
(B) THE COST ESTIMATE FOR CONSTRUCTION AND IMPLEMENTATION SHALL
INCLUDE ALL COSTS ASSOCIATED WITH COMPLETING CONSTRUCTION AND IMPLEMEN-
TATION OF THE MITIGATION BANK, OR PHASE THEREOF, INCLUDING EARTHMOVING,
PLANTING, STRUCTURE INSTALLATION, CONSULTANT FEES, MONITORING ACTIVITIES
AND REPORTS.
(C) THE COST ESTIMATE FOR THE LONG-TERM MANAGEMENT OF THE MITIGATION
BANK SHALL BE BASED ON THE COSTS OF MAINTAINING AND OPERATING ANY STRUC-
TURES, CONTROLLING NUISANCE OR EXOTIC SPECIES, FIRE MANAGEMENT, CONSULT-
ANT FEES, MONITORING ACTIVITIES AND REPORTS, AND ANY OTHER COSTS ASSOCI-
ATED WITH LONG-TERM MANAGEMENT. THE AMOUNT OF FINANCIAL RESPONSIBILITY
SHALL EQUAL THE COST OF LONG-TERM MANAGEMENT FOR ALL PREVIOUSLY
A. 4514 20
CONSTRUCTED PHASES AND THE CURRENT PHASE FOR WHICH THE WITHDRAWAL OF
CREDITS IS IMMINENT.
(D) THE BANKER SHALL SUBMIT THE ESTIMATES, TOGETHER WITH VERIFIABLE
DOCUMENTATION, TO THE COMMISSION ALONG WITH THE PROOF OF FINANCIAL
RESPONSIBILITY.
(E) THE COSTS SHALL BE ESTIMATED BASED ON A THIRD PARTY PERFORMING THE
WORK AT THE FAIR MARKET VALUE OF SERVICES. THE SOURCE OF ANY COST ESTI-
MATES SHALL BE INDICATED.
7. COST ADJUSTMENTS. (A) THE BANKER SHALL, EVERY TWO YEARS, ADJUST THE
AMOUNT OF FINANCIAL RESPONSIBILITY PROVIDED FOR CONSTRUCTION, IMPLEMEN-
TATION, AND LONG-TERM MANAGEMENT. EVERY TWO YEARS THE BANKER SHALL
SUBMIT TO THE COMMISSION A COST ADJUSTMENT STATEMENT ACCOMPANIED BY
SUPPORTING DOCUMENTATION. CONSTRUCTION, IMPLEMENTATION, AND LONG-TERM
MANAGEMENT COSTS SHALL BE LISTED SEPARATELY.
(B) AT EACH COST ADJUSTMENT, THE BANKER SHALL REVISE THE CONSTRUCTION
AND IMPLEMENTATION COST ESTIMATE FOR INFLATION AND CHANGES IN THE COSTS
TO COMPLETE THE CURRENT PHASE OF THE MITIGATION BANK.
(C) AT EACH COST ADJUSTMENT, THE BANKER SHALL REVISE THE LONG-TERM
MANAGEMENT COST ESTIMATE FOR INFLATION AND CHANGES IN THE COSTS TO CARRY
OUT THE LONG-TERM MANAGEMENT CONDITIONS OF THE PERMIT.
(D) REVISED COST ESTIMATES SHALL BE USED AS THE BASIS FOR MODIFYING
THE FINANCIAL MECHANISM. IF THE VALUE OF THE FINANCIAL MECHANISM IS LESS
THAN THE TOTAL AMOUNT OF THE CURRENT CONSTRUCTION AND IMPLEMENTATION AND
LONG-TERM MANAGEMENT COST ESTIMATES, THE BANKER SHALL INCREASE THE VALUE
OF THE FINANCIAL MECHANISM TO REFLECT THE NEW ESTIMATE WITHIN SIXTY
DAYS. IF THE VALUE OF THE FUNDING MECHANISM IS GREATER THAN THE TOTAL
AMOUNT OF THE CURRENT COST ESTIMATE, THE BANKER MAY REDUCE THE VALUE OF
THE FUNDING MECHANISM TO REFLECT THE NEW ESTIMATE UPON RECEIVING DEPART-
MENT APPROVAL.
(E) THE COMMISSION SHALL REQUIRE ADJUSTMENT OF THE AMOUNT OF FINANCIAL
RESPONSIBILITY PROVIDED FOR CONSTRUCTION, IMPLEMENTATION OR LONG-TERM
MANAGEMENT AT TIMES OTHER THAN THE COST ADJUSTMENT PERIOD WHEN THE COSTS
ASSOCIATED WITH COMPLIANCE WITH THE PERMIT CONDITIONS EXCEED THE CURRENT
AMOUNT OF FINANCIAL RESPONSIBILITY AND SUCH FINANCIAL ASSURANCES ARE
NECESSARY TO ENSURE THAT THE MITIGATION BANK WILL BE CONSTRUCTED ACCORD-
ING TO THE PERMIT.
8. SPECIAL FINANCIAL RESPONSIBILITY REQUIREMENTS FOR PUBLIC AND PUBL-
IC-PRIVATE MITIGATION BANKS. (A) PUBLIC AND PUBLIC-PRIVATE ENTITIES
OTHER THAN THE DEPARTMENT AND THE COMMISSION SHALL DEMONSTRATE REASON-
ABLE ASSURANCES THAT IT CAN MEET THE CONSTRUCTION AND IMPLEMENTATION
REQUIREMENTS IN THE MITIGATION BANK PERMIT BY ANY OF THE MECHANISMS IN
THE PREVIOUS SUBDIVISIONS OF THIS SECTION, OR BY OTHER FINANCIAL MECH-
ANISMS WHICH ARE SUFFICIENT TO MEET THE REQUIREMENTS OF THIS SECTION.
(B) PUBLIC ENTITIES OTHER THAN THE DEPARTMENT AND COMMISSION SHALL
ESTABLISH A TRUST FUND FOR THE LONG-TERM MANAGEMENT OF THE MITIGATION
BANK IN ACCORDANCE WITH SUBDIVISION 7 OF THIS SECTION. THE TRUST FUND
AGREEMENT FOR LONG-TERM MANAGEMENT MAY BE FUNDED AS MITIGATION CREDITS
ARE WITHDRAWN, PROVIDED THAT THE TRUST FUND AGREEMENT IS FULLY FUNDED
WHEN ALL MITIGATION CREDITS ARE WITHDRAWN. PUBLIC ENTITIES SHALL COMPLY
WITH THE COST ADJUSTMENT PROVISIONS IN SUBDIVISION 7 OF THIS SECTION.
S 26-0133. MITIGATION BANK PERMIT AND MITIGATION BANK CONCEPTUAL
APPROVAL.
IF THE MITIGATION BANK PROPOSAL HAS BEEN OTHERWISE APPROVED IN ACCORD-
ANCE WITH ARTICLE 24 OR 25 OF THIS CHAPTER, AS APPLICABLE, FOR A PERMIT,
TO CONDUCT AN IMPACTED ACTIVITY AND MEETS THE CRITERIA IN THIS SECTION,
THE COMMISSION SHALL ISSUE A MITIGATION BANK PERMIT TO THE BANKER. AN
A. 4514 21
AUTHORIZATION UNDER THIS SECTION MAY BE ISSUED IN TWO FORMS: A MITI-
GATION BANK PERMIT OR A MITIGATION BANK CONCEPTUAL APPROVAL.
1. THE MITIGATION BANK PERMIT AUTHORIZES THE IMPLEMENTATION AND OPERA-
TION OF THE MITIGATION BANK AND SETS FORTH THE RIGHTS AND RESPONSIBIL-
ITIES OF THE BANKER AND THE COMMISSION FOR THE IMPLEMENTATION, MANAGE-
MENT, MAINTENANCE AND OPERATION OF THE MITIGATION BANK. THE MITIGATION
BANK PERMIT SHALL INCLUDE THE FOLLOWING:
(A) A DESCRIPTION OF THE MITIGATION SERVICE AREA.
(B) THE MAXIMUM NUMBER OF MITIGATION CREDITS AVAILABLE FOR USE WHEN
THE MITIGATION BANK, OR PHASE THEREOF, IS DEEMED SUCCESSFUL, THE TYPE OF
MITIGATION CREDITS AWARDED, AND THE NUMBER AND SCHEDULE OF MITIGATION
CREDITS AVAILABLE FOR USE PRIOR TO SUCCESS.
(C) THE SUCCESS CRITERIA BY WHICH THE MITIGATION BANK WILL BE EVALU-
ATED. "SUCCESS" MEANS WHEN A MITIGATION BANK MEETS THE SUCCESS CRITERIA
PROVIDED IN SECTION 26-0113 OF THIS ARTICLE AND IN THE MITIGATION BANK
PERMIT.
(D) THE FINANCIAL RESPONSIBILITY MECHANISM OR MECHANISMS WHICH MUST BE
EMPLOYED BY THE BANKER, INCLUDING THE PROCEDURE FOR DRAWING ON THE
FINANCIAL MECHANISMS BY THE COMMISSION, AND PROVISIONS FOR ADJUSTMENT OF
THE FINANCIAL RESPONSIBILITY MECHANISM.
(E) REQUIREMENTS FOR THE EXECUTION AND RECORDING OF THE CONSERVATION
EASEMENT OR CONVEYANCE OF THE FEE INTEREST AS PROVIDED IN SECTION
26-0129 OF THIS ARTICLE.
(F) A LEDGER LISTING MITIGATION CREDITS AVAILABLE IN THE MITIGATION
BANK.
(G) A SCHEDULE FOR IMPLEMENTATION OF THE MITIGATION BANK, AND ANY
PHASES THEREIN.
(H) THE LONG-TERM MANAGEMENT REQUIREMENTS FOR THE MITIGATION BANK.
2. A MITIGATION BANK PERMIT SHALL AUTOMATICALLY EXPIRE FIVE YEARS FROM
THE DATE OF ISSUANCE IF THE BANKER HAS NOT RECORDED A CONSERVATION EASE-
MENT OR CONVEYED FEE SIMPLE INTEREST, AS APPROPRIATE, OVER THE REAL
PROPERTY WITHIN THE MITIGATION BANK, OR PHASE THEREOF, IN ACCORDANCE
WITH THE MITIGATION BANK PERMIT; OR, WHEN NO PROPERTY INTEREST IS
REQUIRED TO BE RECORDED, THE MITIGATION BANK PERMIT SHALL AUTOMATICALLY
EXPIRE IF NO CONSTRUCTION HAS BEEN COMMENCED PURSUANT THERETO. EXCEPT AS
PROVIDED ABOVE, A MITIGATION BANK PERMIT SHALL BE PERPETUAL UNLESS
REVOKED OR MODIFIED.
3. A MITIGATION BANK CONCEPTUAL APPROVAL ESTIMATES THE LEGAL AND
FINANCIAL REQUIREMENTS NECESSARY FOR EVALUATION OF THE MITIGATION BANK,
INFORMATION NECESSARY FOR EVALUATION OF THE MITIGATION BANK PERMIT
APPLICATION, AND POTENTIAL MITIGATION CREDITS TO BE AWARDED PURSUANT TO
THE MITIGATION BANK PERMIT. THE MITIGATION BANK CONCEPTUAL APPROVAL DOES
NOT AUTHORIZE THE USE OR WITHDRAWAL OF MITIGATION CREDITS, OR ANY
CONSTRUCTION WITHIN THE MITIGATION BANK. THE LEVEL OF DETAIL PROVIDED IN
THE MITIGATION BANK CONCEPTUAL APPROVAL WILL DEPEND ON THE LEVEL OF
DETAIL SUBMITTED WITH THE APPLICATION. A MITIGATION BANK CONCEPTUAL
APPROVAL SHALL BE VALID FOR A TERM OF FIVE YEARS FROM THE DATE OF ISSU-
ANCE.
S 26-0135. SURRENDER, TRANSFER OR MODIFICATION OF MITIGATION BANK
PERMITS.
1. A BANKER MAY APPLY TO SURRENDER A MITIGATION BANK PERMIT, OR
PERMITTED PHASE THEREOF, BY SUBMITTING A WRITTEN REQUEST TO THE COMMIS-
SION. THE WRITTEN REQUEST MUST IDENTIFY WHICH PHASE OF THE MITIGATION
WORK PERFORMED IN THAT PHASE, AND DESCRIBE THE CONSERVATION PROPERTY
INTEREST ENCUMBERING THAT PHASE. THE COMMISSION SHALL AUTHORIZE RELEASE
FROM A MITIGATION BANK PERMIT WHEN NO CREDITS HAVE BEEN SOLD FOR THE
A. 4514 22
PORTION REQUESTED TO BE RELEASED, AND RELINQUISHMENT OF SUCH PORTION OR
PHASE WOULD NOT COMPROMISE THE ECOLOGICAL VALUE OF THE REMAINING
PORTIONS OF THE MITIGATION BANK.
2. IF A PROPERTY INTEREST HAS BEEN CONVEYED AS PROVIDED IN SECTION
26-0129 OF THIS ARTICLE FOR A MITIGATION BANK PERMIT WHICH IS SURREN-
DERED AS PROVIDED ABOVE, THE COMMISSION SHALL CONVEY THE PROPERTY INTER-
EST BACK TO THE GRANTOR OF THAT INTEREST OF THAT PORTION OF THE PROPER-
TY, THE RELEASE OF WHICH WOULD NOT COMPROMISE THE ECOLOGICAL VALUE OF
THE REMAINING PORTIONS OF THE MITIGATION BANK.
3. IF A SURFACE WATER MANAGEMENT SYSTEM HAS BEEN CONSTRUCTED OR
ALTERED WITHIN THE MITIGATION BANK, THE BANKER SHALL OBTAIN ANY PERMITS
REQUIRED PURSUANT TO THIS CHAPTER OR THE PUBLIC HEALTH LAW, TO OPERATE
OR ABANDON THE SURFACE WATER MANAGEMENT SYSTEM.
4. TO TRANSFER A MITIGATION BANK PERMIT, THE BANKER SHALL MEET THE
REQUIREMENTS OF THIS ARTICLE AND THE ENTITY TO WHOM THE PERMIT WILL BE
TRANSFERRED MUST PROVIDE REASONABLE ASSURANCES THAT IT CAN MEET THE
REQUIREMENTS OF THIS SECTION.
5. A MITIGATION BANK PERMIT CAN BE ISSUED AS A MODIFICATION OF A MITI-
GATION BANK CONCEPTUAL APPROVAL.
S 26-0137. USE OF CERTAIN FUNDS RECEIVED FROM A PUBLIC OR A PUBLIC-PRI-
VATE MITIGATION BANK.
A PORTION OF THE FUNDS RECEIVED BY A PUBLIC ENTITY FROM A PUBLIC MITI-
GATION BANK OR FROM A PUBLIC-PRIVATE MITIGATION BANK FROM THE SALE OF
CREDITS SHALL BE DEDICATED FOR THE CONSTRUCTION AND IMPLEMENTATION OF
THE MITIGATION BANK, AND A PORTION OF THE FUNDS SHALL BE DEDICATED FOR
THE LONG-TERM MANAGEMENT OF THE BANK AS SET FORTH IN THE MITIGATION BANK
PERMIT. FUNDS DERIVED BY THE PUBLIC ENTITY FROM THE SALE OF MITIGATION
CREDITS WHICH ARE NOT NECESSARY FOR THE CONSTRUCTION, IMPLEMENTATION,
AND LONG-TERM MANAGEMENT OF SUCH MITIGATION BANK SHALL BE USED AS
FOLLOWS: FIFTY PERCENT OF SUCH FUNDS SHALL BE RETURNED TO THE PUBLIC
ENTITY OR ENTITIES WHICH ARE OWNERS OR PART OWNERS OF SUCH MITIGATION
BANK FOR THEIR GENERAL PURPOSES AND FIFTY PERCENT OF SUCH FUNDS SHALL BE
PAID OVER TO THE ENVIRONMENTAL PROTECTION FUND ESTABLISHED BY SECTION
92-S OF THE STATE FINANCE LAW TO BE USED PURSUANT TO SUBDIVISION 4 OF
SUCH SECTION FOR THE PURPOSE OF ASSISTING LOCAL COMMUNITIES IN THE
CREATION AND PRESERVATION OF FRESHWATER AND TIDAL WETLANDS BY PROVIDING
THE LOCAL CONTRIBUTION, IN WHOLE OR IN PART TO AUGMENT OR SUPPLEMENT
OTHER STATE ASSISTANCE FOR SUCH PURPOSES PROVIDED PURSUANT TO TITLE 7 OF
ARTICLE 51 OR ARTICLE 54 OR ARTICLE 56 OF THIS CHAPTER, AND TO ASSIST
FINANCIALLY IN OTHER WETLANDS PROJECTS UNDERTAKEN BY THE DEPARTMENT OR
IN OTHER ENVIRONMENTAL RESTORATION PROGRAMS UNDERTAKEN PURSUANT TO TITLE
7 OF ARTICLE 51 OR ARTICLE 54 OR ARTICLE 56 OF THIS CHAPTER, OR EXPAN-
SION OF OTHER LAND ACQUISITION OR RESTORATION PROJECTS WHICH IMPROVE
REGIONAL OR STATE ECOLOGICAL CONDITIONS.
S 26-0139. CONTRACTS FOR ARCHITECTURAL, ENGINEERING AND SURVEYING
SERVICES FOR PUBLIC WETLANDS MITIGATION BANKS.
NOTWITHSTANDING ANY GENERAL OR SPECIAL LAW TO THE CONTRARY, THE NEW
YORK STATE POLICY TO NEGOTIATE CONTRACTS FOR ARCHITECTURAL AND/OR ENGI-
NEERING SERVICES AND/OR SURVEYING SERVICES ON THE BASIS OF DEMONSTRATED
COMPETENCE AND QUALIFICATION FOR THE TYPE OF PROFESSIONAL SERVICES
REQUIRED AND AT FAIR AND REASONABLE FEES, SET OUT IN SECTION 136-A OF
THE STATE FINANCE LAW SHALL BE FOLLOWED BY ALL PUBLIC ENTITIES PROCURING
SUCH SERVICE FOR THE PLANNING, CONSTRUCTION AND OPERATION OF PUBLIC
WETLANDS MITIGATION BANKS. EXCEPT THAT SUCH ENTITIES MAY USE THE
SERVICES OF ANY SUCH PROFESSIONS WHICH ARE UNDER CONTRACT WITH THE
DEPARTMENT FOR SIMILAR WORK IN PROGRESS ON ANOTHER SITE OR ON A STANDBY
A. 4514 23
BASIS FOR SIMILAR WORK WITH THE DEPARTMENT THROUGH THE UTILIZATION OF
SUCH STATE CONTRACTS AS PROVIDED BY RULES AND REGULATIONS OF THE DEPART-
MENT AND THE OFFICE OF THE COMPTROLLER.
S 26-0141. TAX ABATEMENT.
ANY WETLANDS MITIGATION BANK REGULATED PURSUANT TO THIS ARTICLE SHALL
BE DEEMED SUBJECT TO A LIMITATION ON THE USE OF SUCH WETLANDS FOR THE
PURPOSES OF PROPERTY TAX EVALUATION, IN THE SAME MANNER AS IF AN EASE-
MENT OR RIGHT HAD BEEN ACQUIRED PURSUANT TO THE GENERAL MUNICIPAL LAW.
ASSESSED VALUE SHALL BE BASED ON THE USES REMAINING TO THE OWNER THERE-
OF. ANY PUBLIC OR PUBLIC-PRIVATE WETLANDS MITIGATION BANK SHALL NOT BE
SUBJECT TO REAL PROPERTY TAXATION BUT SHALL MAKE A YEARLY PAYMENT IN
LIEU OF TAXES TO THE TAXING JURISDICTION WHEREIN THE WETLANDS BANK IS
LOCATED WHICH SHALL REFLECT THE SERVICES PROVIDED BY SUCH TAXING JURIS-
DICTIONS.
S 26-0143. PRIOR APPLICATIONS AND PERMITS.
ANY APPLICATION FOR A WETLANDS MITIGATION BANK OR OFFSITE MITIGATION
PLAN FOR WHICH A PERMIT HAS BEEN GRANTED OR WHICH IS PENDING WITH AND
DETERMINED COMPLETE UNDER ARTICLE 24 OR ARTICLE 25 OF THIS CHAPTER, ON
OR BEFORE THE EFFECTIVE DATE OF THIS ARTICLE, SHALL CONTINUE TO BE
SUBJECT TO THE RULES OF THE AUTHORITY THAT GRANTED THE PERMIT OR BEFORE
WHICH THE APPLICATION IS PENDING ON OR BEFORE THE EFFECTIVE DATE OF THIS
ARTICLE UNLESS THE APPLICANT OR PERMITTEE ELECTS TO BE SUBJECT TO THIS
ARTICLE AND THE RULES ADOPTED SUBSEQUENT TO ITS EFFECTIVE DATE. ANY
MODIFICATION TO A MITIGATION BANK WHICH IS APPLIED FOR WITHIN TWENTY
YEARS OF THE EFFECTIVE DATE OF THIS ARTICLE AND WHICH DOES NOT INVOLVE
THE ADDITION OF NEW LAND THAT WAS NOT PREVIOUSLY INCLUDED IN THE MITI-
GATION BANK APPROVAL OR PERMIT SHALL BE SUBJECT TO THE RULES WHICH WERE
IN EFFECT AT THE TIME SUCH PERMIT WAS GRANTED OR SUCH APPLICATION DEEMED
TO BE COMPLETE, UNLESS THE PERMITTEE OR APPLICANT ELECTS TO BE SUBJECT
TO THIS ARTICLE AND THE RULES ADOPTED TO IMPLEMENT IT.
S 26-0145. SEVERABILITY.
THE PROVISIONS OF THIS ARTICLE SHALL BE SEVERABLE, AND IF ANY SECTION,
CLAUSE, SENTENCE, PARAGRAPH, SUBDIVISION OR PART OF THIS ARTICLE 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 SECTION, CLAUSE, SENTENCE,
PARAGRAPH, SUBDIVISION OR PART THEREOF DIRECTLY INVOLVED IN THE CONTRO-
VERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.
S 10. Section 51-0701 of the environmental conservation law is amended
by adding a new subdivision 6 to read as follows:
6. THE MONEYS RECEIVED BY THE STATE AND DEPOSITED IN THE WETLANDS
MITIGATION BANK ACCOUNT OF THE ENVIRONMENTAL PROTECTION FUND AS ESTAB-
LISHED BY SUBPARAGRAPH (V) OF PARAGRAPH A OF SUBDIVISION TWO OF SECTION
NINETY-TWO-S OF THE STATE FINANCE LAW SHALL BE EXPENDED PURSUANT TO
APPROPRIATIONS THEREFOR FOR PROJECTS AUTHORIZED TO BE FUNDED IN THIS
TITLE AND RECOMMENDED BY THE WETLANDS BANKING COMMISSION.
S 11. Paragraph b of subdivision 1 of section 51-0711 of the environ-
mental conservation law, as added by chapter 400 of the laws of 1973, is
amended to read as follows:
b. An agreement by the commissioner to EITHER pay to the municipality,
during the progress of restoration or following completion of restora-
tion as may be agreed upon by the parties, an amount equal to the actual
cost of restoration or the estimated reasonable cost whichever is the
lesser, OR, UNDERTAKE ON BEHALF OF THE MUNICIPALITY TO HAVE THE WORK
PERFORMED THROUGH A PRIVATE CONTRACTOR PURSUANT TO A STATE CONTRACT FOR
THE SPECIFIC PROJECT OR THROUGH A STANDBY CONTRACTOR FOR SUCH TYPE OF
A. 4514 24
WORK UNDER CONTRACT TO THE DEPARTMENT PURSUANT TO THE PROCEDURES ESTAB-
LISHED BY SUBDIVISION (A) OF SECTION ONE HUNDRED THIRTY-SIX OF THE STATE
FINANCE LAW AND TO PAY SUCH CONTRACTOR DIRECTLY FOR THE ACTUAL COST OF
SUCH WORK AND TO BE ENTITLED TO REIMBURSEMENT FROM SUCH MUNICIPALITY OF
ANY FEDERAL ASSISTANCE RECEIVED BY SUCH MUNICIPALITY FOR SUCH PROJECT
WORK.
S 12. Section 10 of the highway law is amended by adding a new subdi-
vision 46 to read as follows:
46. THE LEGISLATURE FINDS THAT ENVIRONMENTAL MITIGATION FOR THE IMPACT
OF TRANSPORTATION PROJECTS PROPOSED BY THE DEPARTMENT CAN BE MORE EFFEC-
TIVELY ACHIEVED BY REGIONAL LONG RANGE WETLANDS MITIGATION PLANNING
INCLUDING THE USE OF WETLANDS MITIGATION BANKS RATHER THAN ON A
PROJECT-BY-PROJECT BASIS. THE COMMISSIONER, THEREFORE, SHALL HAVE THE
POWER TO ACQUIRE BY GRANT, PURCHASE, OR CONDEMNATION, IN THE NAME OF THE
PEOPLE OF THE STATE OF NEW YORK, ANY PROPERTY WHICH HE DEEMS NECESSARY
FOR WETLANDS MITIGATION PROGRAMS INCLUDING OFFSITE MITIGATION, OR
WETLANDS MITIGATION BANKS EITHER AS A PUBLIC MITIGATION BANK OR TO ENTER
INTO A JOINT VENTURE OR TO CAUSE THE DEPARTMENT TO PARTICIPATE IN A
PUBLIC-PRIVATE MITIGATION BANK THROUGH A JOINT VENTURE OR A LIMITED
LIABILITY COMPANY ARRANGEMENT FOR THE PURPOSE OF CONSTRUCTING, OWNING
AND OPERATING A WETLANDS MITIGATION BANK AS AUTHORIZED BY ARTICLE TWEN-
TY-SIX OF THE ENVIRONMENTAL CONSERVATION LAW AND IN CONFORMANCE THERE-
WITH. THE COMMISSIONER IS FURTHER AUTHORIZED TO SELL MITIGATION BANK
CREDITS FROM SUCH MITIGATION BANK TO A PUBLIC OR PRIVATE ENTITY AFTER
THE DEPARTMENT'S OWN NEEDS FOR AT LEAST A TEN YEAR PERIOD ARE ADDRESSED.
S 13. The public authorities law is amended by adding a new section
358-b to read as follows:
S 358-B. ACQUISITION OF PROPERTY FOR WETLANDS MITIGATION PROGRAMS. THE
LEGISLATURE FINDS THAT ENVIRONMENTAL MITIGATION FOR THE IMPACT OF TRANS-
PORTATION PROJECTS PROPOSED BY THE AUTHORITY CAN BE MORE EFFECTIVELY
ACHIEVED BY REGIONAL, LONG-RANGE MITIGATION PLANNING INCLUDING THE USE
OF WETLANDS MITIGATION BANKS, RATHER THAN ON A PROJECT-BY-PROJECT BASIS.
THE AUTHORITY THEREFORE SHALL HAVE THE POWER TO ACQUIRE BY GRANT,
PURCHASE OR CONDEMNATION, ANY PROPERTY WHICH IT DEEMS NECESSARY FOR
WETLANDS MITIGATION PROGRAMS INCLUDING OFFSITE MITIGATION OR WETLANDS
MITIGATION BANKS EITHER AS A PUBLIC MITIGATION BANK OR TO ENTER INTO A
JOINT VENTURE OR TO CAUSE THE AUTHORITY TO PARTICIPATE IN A PUBLIC-PRI-
VATE MITIGATION BANK THROUGH A JOINT VENTURE OR A LIMITED LIABILITY
COMPANY ARRANGEMENT FOR THE PURPOSE OF CONSTRUCTING, OWNING AND OPERAT-
ING A WETLANDS MITIGATION BANK AS AUTHORIZED BY ARTICLE TWENTY-SIX OF
THE ENVIRONMENTAL CONSERVATION LAW AND IN CONFORMANCE THEREWITH. AND THE
AUTHORITY IS FURTHER EMPOWERED TO SELL MITIGATION BANK CREDITS FROM SUCH
MITIGATION BANK TO A PUBLIC OR PRIVATE ENTITY AFTER THE AUTHORITY'S OWN
NEEDS FOR AT LEAST A TEN YEAR PERIOD ARE ADDRESSED.
S 14. Paragraph a of subdivision 2 of section 92-s of the state
finance law is amended by adding a new subparagraph (v) to read as
follows:
(V) WETLANDS MITIGATION BANK ACCOUNT.
S 15. Section 92-s of the state finance law is amended by adding a new
subdivision 4 to read as follows:
4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, MONEYS DEPOSITED IN THE
WETLANDS MITIGATION BANK ACCOUNT PURSUANT TO SECTION 26-0137 OF THE
ENVIRONMENTAL CONSERVATION LAW SHALL ALSO BE CONSIDERED PART OF THE
ENVIRONMENTAL PROTECTION FUND AND SUCH MONEYS SHALL BE AVAILABLE FOR
APPROPRIATION IN THE CAPITAL BUDGET FOR ANY PURPOSE AND PROJECT PERMIT-
TED BY SECTION 26-0137 OF THE ENVIRONMENTAL CONSERVATION LAW.
A. 4514 25
S 16. The limited liability company law is amended by adding a new
section 1105 to read as follows:
S 1105. FORMATION BY PUBLIC-PRIVATE ENTITIES TO CONSTRUCT, ENHANCE OR
OPERATE A PUBLIC-PRIVATE WETLANDS MITIGATION BANK. NOTWITHSTANDING ANY
GENERAL OR SPECIAL LAW TO THE CONTRARY, ONE OR MORE PUBLIC ENTITIES AS
THAT TERM IS DEFINED IN ARTICLE TWENTY-SIX OF THE ENVIRONMENTAL CONSER-
VATION LAW, MAY JOIN ONE OR MORE PERSONS WHO ARE NOT PUBLIC ENTITIES AS
THOSE TERMS ARE DEFINED IN ARTICLE TWENTY-SIX OF THE ENVIRONMENTAL
CONSERVATION LAW TO FORM A LIMITED LIABILITY COMPANY OR LIMITED LIABIL-
ITY PARTNERSHIP FOR THE CONSTRUCTION, ENHANCEMENT AND OPERATION OF A
PUBLIC-PRIVATE WETLANDS MITIGATION BANK AS THAT TERM IS DEFINED IN ARTI-
CLE TWENTY-SIX OF THE ENVIRONMENTAL CONSERVATION LAW. SUCH LIMITED
LIABILITY COMPANY SHALL BE A DOMESTIC LIMITED LIABILITY COMPANY AND
FORMED AND GOVERNED BY THIS CHAPTER EXCEPT THAT SUCH LIMITED LIABILITY
COMPANY SHALL BE SUBJECT TO TAXATION ON ONLY THAT PORTION OF THE COMPA-
NY'S PROFITS THAT INURE TO THE PRIVATE INTERESTS IN THE LIMITED LIABIL-
ITY COMPANY AND SUCH COMPANY SHALL BE SUBJECT SOLELY TO THE JURISDICTION
OF THE COURT OF CLAIMS WHICH SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIM WHATSOEVER AGAINST SUCH COMPANY OR BETWEEN THE
MEMBERS OF SUCH COMPANY AND THE DISSOLUTION OF SUCH COMPANY. SERVICE OF
PROCESS, HOWEVER, SHALL BE MADE IN ACCORDANCE WITH THE PROVISION OF THIS
CHAPTER AND THE PROVISIONS OF THE COURT OF CLAIMS ACT.
S 17. Section 9 of the court of claims act is amended by adding a new
subdivision 2-b to read as follows:
2-B. TO HEAR AND DETERMINE A CLAIM OF ANY PERSON, CORPORATION OR MUNI-
CIPALITY AGAINST ANY PUBLIC-PRIVATE WETLANDS MITIGATION BANK, LIMITED
LIABILITY COMPANY OR LIMITED LIABILITY PARTNERSHIP FORMED PURSUANT TO
ARTICLE TWENTY-SIX OF THE ENVIRONMENTAL CONSERVATION LAW AND SECTION
ELEVEN HUNDRED FIVE OF THE LIMITED LIABILITY COMPANY LAW OR ANY CLAIM BY
MEMBERS OF SUCH COMPANY AS BETWEEN SUCH MEMBERS AND TO ENTER A DECREE OF
DISSOLUTION OF SUCH COMPANY WHENEVER IT IS NOT REASONABLY PRACTICABLE TO
CARRY ON THE BUSINESS IN CONFORMITY WITH THE ARTICLES OF ORGANIZATION OR
OPERATING AGREEMENT.
S 18. Severability. The provisions of this act shall be severable, and
if any section, clause, sentence, paragraph, subdivision or part of this
act 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 section,
clause, sentence, paragraph, subdivision or part thereof directly
involved in the controversy in which such judgment shall have been
rendered.
S 19. This act shall take effect immediately.