S T A T E O F N E W Y O R K
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4968
2009-2010 Regular Sessions
I N A S S E M B L Y
February 10, 2009
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Introduced by M. of A. BRODSKY -- Multi-Sponsored by -- M. of A. BREN-
NAN, GOTTFRIED -- read once and referred to the Committee on Environ-
mental Conservation
AN ACT to amend the environmental conservation law, in relation to
protecting essential habitats of endangered and threatened species
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The legislature hereby finds and declares that the
protection and perpetuation of endangered and threatened species
contribute significantly to the general welfare of the state; endangered
and threatened species provide ecological, educational, scientific,
aesthetic, and public health benefits. Habitat damage or destruction is
a primary cause of species' becoming endangered or threatened. Unless
protective measures are taken, additional species may become extirpated
or extinct.
It is further declared to be the policy of the state and the purpose
of this legislation to conserve endangered and threatened species by
protecting their habitats on publicly owned land.
S 2. Subdivision 1 of section 11-0535 of the environmental conserva-
tion law, as amended by chapter 706 of the laws of 2005, is amended to
read as follows:
1. DEFINITIONS AND EXCLUSIONS. For the purposes of this section[,
"endangered]:
A. "ENDANGERED species" shall mean those species of fish, shellfish,
crustacea and wildlife designated by the department, by regulation filed
with the [Secretary of State] SECRETARY OF STATE, as seriously threat-
ened with extinction, "threatened species" shall mean those species of
fish and wildlife designated by the department, by regulation filed with
the [Secretary of State] SECRETARY OF STATE, which are likely to become
endangered species within the foreseeable future throughout all or a
significant portion of their range, and "species of special concern"
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08678-01-9
A. 4968 2
shall mean those species of fish and wildlife designated by the depart-
ment, by regulation filed with the [Secretary of State] SECRETARY OF
STATE, which are found by the department to be at risk of becoming
threatened in New York. Such regulation shall include, but not be limit-
ed to, endangered and threatened species as so designated by the [Secre-
tary of the Interior,] SECRETARY OF THE INTERIOR, provided, however,
that such regulation shall take effect sixty days after it has been
filed with the [Secretary of State,] SECRETARY OF STATE; and provided,
further, that the commissioner may exclude any such species as the
commissioner may determine after investigation to be no longer endan-
gered or threatened from the restrictions of this section. FOR PURPOSES
OF SUBDIVISIONS FOUR AND FIVE OF THIS SECTION REGARDING DESIGNATION OF
ESSENTIAL HABITAT, "ENDANGERED SPECIES" SHALL ALSO MEAN PLANTS WHICH ARE
ENDANGERED, THREATENED, OR RARE SPECIES PURSUANT TO SECTION 9-1503 OF
THIS CHAPTER.
B. "ESSENTIAL HABITAT" SHALL MEAN THE SPECIFIC, MINIMUM GEOGRAPHIC
AREA VITAL TO ENSURE CONTINUED OCCUPATION BY AN INDIVIDUAL OR POPULATION
OF AN ENDANGERED OR THREATENED SPECIES, INCLUDING THE IMMEDIATE PHYSICAL
AND BIOLOGICAL FEATURES REQUIRED BY THE SPECIES FOR CONTINUED USE OF THE
HABITAT. IT INCLUDES HABITAT USED FOR YEAR-ROUND OR SEASONAL RESIDENCE;
REPRODUCTION, INCLUDING BREEDING, SPAWNING, NESTING, REARING OF YOUNG;
WINTERING HABITAT IN WHICH A SPECIES SPENDS AN EXTENDED AMOUNT OF TIME
EACH YEAR; OR MAJOR CONCENTRATION AREAS OF DOCUMENTED CURRENT USE.
C. "ESSENTIAL HABITAT" DOES NOT MEAN: (1) INCIDENTAL AREAS PASSED IN
MIGRATION, OTHER AREAS OF CASUAL USE, OR POTENTIAL HABITAT; OR
(2) LAND IN AGRICULTURAL PRODUCTION FOR AT LEAST TWO OF THE LAST FIVE
YEARS THAT THE OWNER INTENDS TO MAINTAIN IN AGRICULTURAL PRODUCTION.
LAND IN AGRICULTURAL PRODUCTION IS LAND PRODUCING FIELD CROPS, FRUITS,
VEGETABLES, OR HORTICULTURAL SPECIALTIES AND LAND USED INTENSIVELY FOR
PRODUCING LIVESTOCK THROUGH REGULAR AND FREQUENT GRAZING OR REGULAR AND
FREQUENT HARVESTING OF HAY, WHERE SUCH LAND IS A PART OF AN AGRICULTURAL
OPERATION OF NOT LESS THAN TEN ACRES WITH AN ANNUAL GROSS SALE VALUE OF
NOT LESS THAN TEN THOUSAND DOLLARS. SUCH LAND IN AGRICULTURAL PRODUCTION
DOES NOT INCLUDE WOODLAND OR LAND USED FOR PROCESSING OR RETAILING FARM
PRODUCTS.
D. "ACTIVITY" SHALL MEAN ANY LAND USE, SUBDIVISION, CONSTRUCTION, OR
ACTION WHICH AFFECTS WILDLIFE OR ALTERS VEGETATION, LANDS, SOIL, WATER,
OR ECOLOGICAL STABILITY OF AN ESSENTIAL HABITAT OF ENDANGERED OR THREAT-
ENED SPECIES.
S 3. Section 11-0535 of the environmental conservation law is amended
by adding two new subdivisions 4 and 5 to read as follows:
4. DESIGNATION. A. WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS
SUBDIVISION, THE DEPARTMENT SHALL PUBLISH A NOTICE OF PROPOSED RULEMAK-
ING AND CONDUCT PUBLIC HEARINGS ON PROPOSED REGULATIONS DEALING WITH
ESSENTIAL HABITATS ON LANDS OWNED BY THE STATE OR ANY MUNICIPAL OR
PUBLIC CORPORATION AS PROVIDED IN THIS SUBDIVISION. SUCH REGULATIONS
SHALL INCLUDE, BUT NOT BE LIMITED TO: CRITERIA FOR THE DESIGNATION OF
ESSENTIAL HABITATS; ACTIVITIES LIKELY TO RESULT IN DESTRUCTION OR
ADVERSE MODIFICATION OF ESSENTIAL HABITATS; CRITERIA FOR DETERMINING
WHETHER OR NOT AN ACTIVITY IS CONSISTENT WITH THE PURPOSES OF THIS
SECTION; AND PROCEDURES FOR APPROVAL OF ACTIVITIES. TIMBER HARVESTING,
AND ASSOCIATED ACTIVITIES NECESSARY TO CONDUCT IT, SHALL BE CONSIDERED
TO BE CONSISTENT WITH THE PURPOSES OF THIS SECTION, EXCEPT IN SPECIFIC
AREAS WHERE SUCH ACTIVITIES WOULD CAUSE THE DESTRUCTION OR ADVERSE
MODIFICATION OF SUCH HABITAT. IN SUCH AREAS, ONLY THE SPECIFIC ACTIV-
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ITIES THAT WOULD CAUSE DESTRUCTION OR ADVERSE MODIFICATION SHALL BE
DEEMED INCONSISTENT WITH THIS SECTION.
B. FOLLOWING PROMULGATION OF THE REGULATIONS, THE DEPARTMENT MAY
INITIALLY DESIGNATE AN AREA WHICH IT JUDGES TO MEET THE DEFINITION OF AN
ESSENTIAL HABITAT. SUCH INITIAL DESIGNATION SHALL BE MADE BY PUBLISHING
A NOTICE OF PROPOSED RULEMAKING AND CONCURRENTLY NOTIFYING, BY FIRST
CLASS MAIL, EACH PUBLIC OWNER OF RECORD. SUCH NOTICE SHALL LOCATE THE
AREA ON A STANDARD TOPOGRAPHIC MAP AND SHALL ALSO INCLUDE A COPY OF THE
MAP AND GUIDELINES AND STANDARDS FOR USE SPECIFIC TO THE PARTICULAR
AREA. SUCH INITIAL DESIGNATION, GUIDELINES, AND STANDARDS SHALL TAKE
EFFECT IMMEDIATELY UPON RECEIPT OF NOTICE THEREOF BY THE PUBLIC OWNER OF
RECORD.
C. THE DEPARTMENT MAY MAKE A DESIGNATION PERMANENT BY PUBLISHING A
NOTICE OF ADOPTION IF AN AFFECTED PUBLIC OWNER OF RECORD DOES NOT WITHIN
FORTY-FIVE DAYS OF NOTIFICATION REQUEST A PUBLIC HEARING. IF AN AFFECTED
OWNER OF RECORD REQUESTS A PUBLIC HEARING, THE DEPARTMENT SHALL HOLD A
HEARING WITHIN THREE MONTHS OF THE REQUEST. THE DEPARTMENT SHALL GIVE
NOTICE OF SUCH HEARING TO EACH AFFECTED PUBLIC OWNER OF RECORD OF LANDS
AND WATERS INITIALLY DESIGNATED AS ESSENTIAL HABITATS AND TO THE CHIEF
ADMINISTRATIVE OFFICER AND, FOR LAND NOT OWNED BY A LOCAL GOVERNMENT,
THE CLERK OF THE LOCAL GOVERNMENT WITHIN THE BOUNDARIES OF WHICH ANY
SUCH INITIAL DESIGNATION IS LOCATED, BY FIRST CLASS MAIL, NOT LESS THAN
THIRTY DAYS PRIOR TO THE DATE SET FOR SUCH HEARING. THE DEPARTMENT SHALL
ALSO GIVE NOTICE OF SUCH HEARING BY PUBLICATION OF NOTICE, NOT MORE THAN
THIRTY DAYS NOR FEWER THAN TEN DAYS BEFORE THE DATE SET FOR SUCH HEAR-
ING, IN AT LEAST ONE NEWSPAPER HAVING GENERAL CIRCULATION IN THE AREA
INVOLVED AND IN THE ENVIRONMENTAL NOTICE PUBLICATION PROVIDED FOR UNDER
SECTION 3-0306 OF THIS CHAPTER, AND SHALL ENSURE THAT A COPY OF THE
INITIAL DESIGNATION IS AVAILABLE FOR PUBLIC INSPECTION AND EXAMINATION
AT THE REGIONAL OFFICE OF THE DEPARTMENT FOR THE REGION IN WHICH THE
INITIAL DESIGNATED ESSENTIAL HABITATS ARE LOCATED AND IN THE OFFICE OF
THE CLERK OF EACH LOCAL GOVERNMENT IN WHICH SUCH ESSENTIAL HABITATS ARE
LOCATED. WITHIN THREE MONTHS OF THE CONCLUSION OF THE PUBLIC HEARING,
THE COMMISSIONER, AFTER REVIEWING THE HEARING RECORD, SHALL RENDER A
DECISION. THE DEPARTMENT SHALL, BY FIRST CLASS MAIL, PROVIDE THE CHIEF
ADMINISTRATIVE OFFICER AND CLERK OF THE LOCAL GOVERNMENT WITHIN WHICH
THE ESSENTIAL HABITAT IS LOCATED WITH A COPY OF THE DECISION.
D. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE PROCEDURES FOR
INITIAL AND PERMANENT DESIGNATIONS ARE GOVERNED BY THIS SECTION; NO
PROVISION OF THE STATE ADMINISTRATIVE PROCEDURE ACT EXCEPT PARAGRAPH (D)
OF SUBDIVISION ONE OF SECTION TWO HUNDRED TWO OF SUCH ACT SHALL APPLY;
AND THE PROVISIONS OF ARTICLE FIVE OF THIS CHAPTER SHALL NOT APPLY.
E. THE DEPARTMENT SHALL REVIEW EACH PERMANENT DESIGNATION AT LEAST
EVERY FIVE YEARS TO DETERMINE WHETHER TO CONTINUE, RESCIND, OR MODIFY
IT. IF THE DEPARTMENT DETERMINES THAT THE HABITAT IS NO LONGER AN ESSEN-
TIAL HABITAT, THE DESIGNATION SHALL BE VACATED BY THE DEPARTMENT BY
REGULATION FILED WITH THE SECRETARY OF STATE AND GIVING NOTICE BY FIRST
CLASS MAIL TO THE AFFECTED LANDOWNER. THE DISCONTINUATION BY THE DEPART-
MENT OF DESIGNATION OF A SPECIES OR PLANT AS ENDANGERED OR THREATENED
BECAUSE OF A FINDING BY THE DEPARTMENT THAT THE SPECIES OR PLANT HAS
BEEN RESTORED TO SUFFICIENT LEVELS WILL CONCURRENTLY RESCIND THE DESIG-
NATION OF ESSENTIAL HABITAT FOR THAT SPECIES OR PLANT.
F. THE DEPARTMENT SHALL MAINTAIN MAPS ON WHICH DESIGNATIONS ARE SHOWN
AND MAY MODIFY BY MINISTERIAL ACTION SUCH MAPS TO CLARIFY THE BOUNDARIES
OF ANY DESIGNATED ESSENTIAL HABITAT, TO CORRECT ANY ERRORS, TO EFFECT
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ANY MINOR ADDITIONS, DELETIONS, OR TECHNICAL CHANGES ON SUCH MAPS, AND
TO REFLECT ANY CHANGES THAT MAY HAVE OCCURRED.
5. REGULATION. A. AFTER THE INITIAL DESIGNATION BY THE DEPARTMENT, AND
CONTINUING AFTER A DESIGNATION IS MADE PERMANENT, OWNERS OR OTHER
PERSONS MUST, PRIOR TO COMMENCING ANY ACTIVITY, AS DEFINED IN PARAGRAPH
D OF SUBDIVISION ONE OF THIS SECTION, CONSULT WITH THE DEPARTMENT PURSU-
ANT TO REGULATIONS ADOPTED UNDER SUBDIVISION FOUR OF THIS SECTION AND
DEMONSTRATE TO THE SATISFACTION OF THE DEPARTMENT THAT THE PROPOSED
ACTIVITY WILL NOT DESTROY OR ADVERSELY MODIFY THE ESSENTIAL HABITAT.
B. THE REQUIREMENTS OF THIS SECTION SHALL NOT APPLY TO: (1) ANY ACTIV-
ITY PHYSICALLY COMMENCED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-
SION; OR (2) ANY ACTIVITY FOR WHICH EITHER A DETERMINATION OF NO SIGNIF-
ICANT IMPACT OR FINDINGS WERE MADE PURSUANT TO ARTICLE EIGHT OF THIS
CHAPTER, WHERE SUCH DETERMINATION OR FINDINGS GAVE FULL CONSIDERATION TO
THE IMPACT OF THE PROPOSED ACTIVITY UPON THE HABITAT OF AN ENDANGERED OR
THREATENED SPECIES; PROVIDED, HOWEVER, THAT NOTHING IN THIS PARAGRAPH
SHALL PRECLUDE THE DEPARTMENT FROM TAKING ACTION TO MAKE DESIGNATIONS
UNDER THIS SECTION BASED ON HABITAT INFORMATION DISCOVERED AFTER THE
OCCURRENCE OF ACTIVITY DESCRIBED IN EITHER SUBPARAGRAPH ONE OR TWO OF
THIS PARAGRAPH.
C. NOTHING IN THIS SUBDIVISION SHALL REQUIRE A LANDOWNER TO REHABILI-
TATE AN ESSENTIAL HABITAT ALTERED BY NATURALLY OCCURRING EVENTS OR TO
UNDERTAKE AFFIRMATIVE MANAGEMENT TO IMPROVE HABITAT FOR ENDANGERED OR
THREATENED SPECIES. THE ONLY CIRCUMSTANCES IN WHICH THE COST OF RESTOR-
ING AN ESSENTIAL HABITAT MAY BE REQUIRED OF A LANDOWNER OR OTHER PERSON
CONDUCTING AN ACTIVITY IS AS A SANCTION IN RESPECT TO A VIOLATION OF
THIS PART OR ANY OTHER PROVISION OF THIS CHAPTER.
S 4. Section 71-0925 of the environmental conservation law, is amended
by adding a new subdivision 15 to read as follows:
15. IF THE VIOLATION WAS AN ACT PROHIBITED BY SUBDIVISION FIVE OF
SECTION 11-0535 OF THIS CHAPTER OR BY ANY LAWFUL RULE OR REGULATION OF
THE DEPARTMENT PROMULGATED PURSUANT THERETO, THE COST OF RESTORING THE
ESSENTIAL HABITAT TO ITS CONDITIONS BEFORE THE VIOLATION OR, IF THE
HABITAT CANNOT BE RESTORED, NOT MORE THAN FIFTY THOUSAND DOLLARS.
S 5. Section 71-0921 of the environmental conservation law is amended
by adding two new subdivisions 14 and 15 to read as follows:
14. ANY PERSON WHO KNOWINGLY VIOLATES ANY OF THE PROVISIONS OF SUBDI-
VISION FIVE OF SECTION 11-0535 OF THIS CHAPTER OR OF ANY LAWFUL RULE OR
REGULATION PROMULGATED PURSUANT THERETO SHALL BE GUILTY OF A MISDEMEANOR
PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN NINETY DAYS OR BY A FINE OF
NOT MORE THAN TWO THOUSAND DOLLARS, OR BY BOTH SUCH IMPRISONMENT AND
FINE.
15. (1) ANY PERSON WHO KNOWINGLY OR INTENTIONALLY VIOLATES ANY OF THE
PROVISIONS OF OR WHO FAILS TO PERFORM ANY DUTY IMPOSED BY SECTION
11-0535 OF THIS CHAPTER OR ANY RULES AND REGULATIONS PROMULGATED THERE-
UNDER OR ANY FINAL DETERMINATION OR ORDER OF THE COMMISSIONER RELATED
THERETO SHALL BE GUILTY OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT OF
NOT MORE THAN ONE YEAR OR BY A FINE OF NOT MORE THAN TEN THOUSAND
DOLLARS OR BOTH SUCH IMPRISONMENT AND FINE.
(2) ANY PERSON WHO KNOWINGLY OR INTENTIONALLY VIOLATES ANY OF THE
PROVISIONS OF OR WHO FAILS TO PERFORM ANY DUTY IMPOSED BY SECTION
11-0535 OF THIS CHAPTER, OR ANY RULES AND REGULATIONS PROMULGATED THERE-
UNDER, OR ANY FINAL DETERMINATION OR ORDER OF THE COMMISSIONER RELATED
THERETO, AND WHOSE ACTIVITY THEREBY RESULTS IN PERMANENT DESTRUCTION OF
A HABITAT SUCH THAT THE HABITAT CANNOT BE RESTORED, SHALL BE GUILTY OF A
MISDEMEANOR PUNISHABLE BY IMPRISONMENT OF NOT MORE THAN ONE YEAR OR A
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FINE OF NOT MORE THAN FIFTY THOUSAND DOLLARS OR BOTH SUCH FINE AND
IMPRISONMENT.
S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.