senate Bill S4617

2011-2012 Legislative Session

Relates to the definition of freshwater wetlands; repealer

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Senate Actions - UPPERCASE
Jan 04, 2012 referred to environmental conservation
Apr 13, 2011 referred to environmental conservation

S4617 - Bill Details

Current Committee:
Senate Environmental Conservation
Law Section:
Environmental Conservation Law
Laws Affected:
Amd §§24-0105, 24-0107, 24-0301, 24-0701, 24-0703, 24-0901 & 24-0903, rpld §24-1305, En Con L
Versions Introduced in 2009-2010 Legislative Session:
S4956

S4617 - Bill Texts

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Relates to the definition of freshwater wetlands; repeals section relating to the applicability of the freshwater wetlands article; provides authority of Department of Environmental Conservation over wetlands which are one acre or more; amends permitting requirements for subdivision of land.

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BILL NUMBER:S4617

TITLE OF BILL:
An act
to amend the environmental conservation law, in relation to freshwater
wetlands and repealing section 24-1305 of such law relating thereto

PURPOSE OR GENERAL IDEA OF BILL:
To provide the Department of Environmental Conservation with
regulatory authority over freshwater wetlands of one acre or more in
size and other wetlands of significant local importance.

SUMMARY OF PROVISIONS:
Section one amends section 24-0105 of the ECL to revise and add to the
list of benefits derived from wetlands.

Section two of the bill amends section 24-0107 of the ECL to amend the
definition of "Freshwater Wetland" to include wetlands that are one
acre or more in size or adjacent to a water body or of significant
local importance. This section also amends subdivision two of section
24-0107 of the ECL to indicate that DEC's "Freshwater Wetlands Map"
shall not serve as the basis for regulation by the Department and
shall be only educational in purpose.

Section three of the bill amends section 24-0301 of the ECL to specify
the substantive and procedural requirements for the freshwater
wetlands map.

Section four of the bill amends section 24-0701 of the ECL to specify
the permitting requirements for Freshwater wetlands, including the
requirement for a wetlands permit for the subdivision of land.

Section five of the bill amends section 24-0703 of the ECL to specify
the requirements for DEC to respond to requests for determination of
wetland status.

Section six of the bill amends section 24-0901 of the ECL to remove
reference to the wetlands map in relation to consultations with local
governments.

Section seven of the bill amends section 24-0903 of the ECL to remove
reference to the wetlands map in relation to the DEC determination of
compatible land uses.

Section eight of the bill repeals section 24-1305 of the ECL.

Section nine of the bill is the effective date.

JUSTIFICATION:
Wetlands improve drinking water quality by providing a buffer zone to
intercept polluted runoff before it contaminates our lakes, rivers
and coastal waters. Wetlands act as natural water filters, absorbing
pollutants, pesticides, nitrogen, and phosphorus and other
contaminants before they infiltrate our drinking water. Additionally,
wetlands absorb flood waters and serve as buffers during storms,
saving billions of dollars in property damage annually.


In a closely divided 5-4 decision, the United States Supreme Court
recently ruled that the federal government no longer has jurisdiction
over isolated wetlands. With the Supreme Court ruling in SWANCC,
estimates from the EPA and Corps of Engineers show at least
20% and possibly 50% of existing wetlands, constituting millions of
acres nationwide, will be left unprotected. In New York State,
estimates are even higher. While a number of states (including all the
northeastern States) already have the regulatory authority to step in
and regulate the wetlands that Corps of Engineers formerly
oversaw, New York's DEC is currently limited to regulating mapped
wetlands of a size greater than 12.4 acres. If we do not protect New
York's wetlands, we jeopardize our drinking water and property
values.
This legislation gives DEC the regulatory authority necessary to
protect New York's wetlands by eliminating the mapping and reducing
the size limitations on DEC's regulatory authority over wetlands.

LEGISLATIVE HISTORY:
2009-10: S.4956 (Thompson) - Senate Environmental Conservation
2008: S.3835 (Marcellino) - Senate Environmental Conservation
2007: S.3835 (Marcellino) - Senate Rules
2006: S.2081 (Marcellino) - 3rd Reading
2005: S.2081 (Marcellino) - Senate Rules

FISCAL IMPLICATIONS:
None.

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

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

                                  4617

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 13, 2011
                               ___________

Introduced  by  Sen.  AVELLA -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  freshwater wetlands and repealing section 24-1305 of such law relating
  thereto

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

  Section 1. Subdivision 7  of  section  24-0105  of  the  environmental
conservation  law,  as  added  by chapter 614 of the laws of 1975 and as
renumbered by chapter 654 of the laws of 1977, is  amended  to  read  as
follows:
  7. Any loss of freshwater wetlands deprives the people of the state of
some  or  all  of  the  many  and  multiple  benefits to be derived from
wetlands, to wit:
  (a) flood and storm control by the hydrologic absorption  and  storage
capacity of freshwater wetlands;
  (b)  wildlife  habitat  by  providing  breeding,  nesting  and feeding
grounds and cover for many forms of wildlife, wildfowl  and  shorebirds,
including  migratory wildfowl and rare, ENDANGERED OR THREATENED species
such as the bald eagle and osprey;
  (c) protection of subsurface water resources and provision  for  valu-
able watersheds and recharging ground water supplies;
  (d)  recreation  by  providing  areas  for  hunting, fishing, boating,
hiking, bird watching, photography, camping and other uses;
  (e) pollution treatment by serving as biological and  chemical  oxida-
tion basins;
  (f)  erosion  control  by serving as sedimentation areas and filtering
basins, absorbing silt and organic matter and  protecting  channels  and
harbors;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10701-01-1

S. 4617                             2

  (g)  education and scientific research by providing readily accessible
outdoor bio-physical laboratories, living classrooms and  vast  training
and education resources; [and]
  (h)  open space and aesthetic appreciation by providing often the only
remaining open areas along crowded river fronts and coastal Great  Lakes
regions; [and]
  (i) sources of nutrients in freshwater food cycles and nursery grounds
and sanctuaries for freshwater fish[.];
  (J)  PRESERVATION  OF  PLANT  SPECIES  THAT  ARE  RARE, ENDANGERED, OR
EXPLOITABLY VULNERABLE AS DEFINED IN SECTION 9-1503 OF THIS CHAPTER; AND
  (K) PRESERVATION OF COMMUNITIES OF PLANTS AND ANIMALS THAT ARE  DEEMED
BY THE COMMISSIONER TO BE RARE IN THE STATE OR IN A REGION OF THE STATE.
  S  2.  The  opening  paragraph  of  subdivision 1 and subdivision 2 of
section 24-0107 of the environmental conservation  law,  as  amended  by
chapter 654 of the laws of 1977, are amended to read as follows:
  "Freshwater wetlands" means lands and waters of the state [as shown on
the freshwater wetlands map which] THAT ARE ONE ACRE OR MORE IN SIZE OR,
ADJACENT  TO  A  WATER BODY, INCLUDING AN INTERMITTENT WATER BODY OR, IN
THE DISCRETION OF THE COMMISSIONER, OF SIGNIFICANT LOCAL IMPORTANCE  FOR
ONE  OR  MORE OF THE SPECIFIC BENEFITS SET FORTH IN SUBDIVISION SEVEN OF
SECTION 24-0105 OF THIS TITLE.  FRESHWATER WETLANDS SHALL contain any or
all of the following:
  2. "Freshwater wetlands map" shall mean a map [promulgated]  DEVELOPED
by  the  department pursuant to section 24-0301 of this article on which
are indicated the boundaries of any freshwater wetlands. THESE MAPS WILL
SERVE THE PURPOSE OF EDUCATING THE PUBLIC ON THE LOCATION OF WETLANDS.
  S 3. Subdivisions 1, 2, 3, 4, 5 and 6 of section 24-0301 of the  envi-
ronmental  conservation law, subdivisions 1, 2 and 3 as amended by chap-
ter 654 of the laws of 1977, and subdivisions 4, 5 and 6 as  amended  by
chapter 16 of the laws of 2010, are amended to read as follows:
  1.  The commissioner shall, as soon as practicable, conduct a study to
identify and map those individual freshwater wetlands in  the  state  of
New  York  [which  shall have an area of at least twelve and four-tenths
acres or more, or if less than twelve and four-tenths acres,  (a)  have,
in  the  discretion  of  the  commissioner, and subject to review of his
action by the board created pursuant to title eleven  of  this  article,
unusual  local  importance  for one or more of the specific benefits set
forth in subdivision seven of section 24-0105] (A) AS DEFINED IN SECTION
24-0107 OF THIS ARTICLE or (b) THAT are located  within  the  Adirondack
park  and  meet  the  definition  of  wetlands  contained in subdivision
sixty-eight of section eight hundred two [of  article  twenty-seven]  of
the executive law, and shall determine their characteristics. This study
shall,  in addition to such other data as the commissioner may determine
to be included, consist of the  freshwater  wetlands  inventory  of  the
department   [of  environmental  conservation],  currently  being  made,
together with other  available  data  on  freshwater  wetlands,  whether
assisted by the state of New York under the tidal wetlands act or other-
wise, or assembled by federal or local governmental or private agencies,
all  of which information shall be assembled and integrated, as applica-
ble, into a map of freshwater wetlands of the state of  New  York.  Such
study  may,  in  the discretion of the commissioner, be carried out on a
sectional or regional basis, as indicated by need,  subject  to  overall
completion  in an expeditious fashion subject to the terms of this chap-
ter. [This map, and any orders issued pursuant to the provisions of this
article, shall comprise a part of the statewide  environmental  plan  as
provided  for in section 3-0303 of this chapter.] As soon as practicable

S. 4617                             3

the commissioner shall file with  the  secretary  of  state  a  detailed
description  of the technical methods and requirements to be utilized in
compiling the inventory, and he shall afford the public  an  opportunity
to submit comments thereon.
  2. Upon completion of a freshwater wetlands inventory, the commission-
er shall prepare a [tentative] DRAFT freshwater wetlands map delineating
the boundaries of such wetlands as determined by the study and inventory
conducted  pursuant  to  subdivision one of this section. The map may be
prepared for different sections or regions of the state  separately,  as
the  commissioner  shall  determine.  The commissioner shall consult and
cooperate with the Adirondack  park  agency  in  the  preparation  of  a
[tentative]  DRAFT  freshwater  wetlands  map  for  any  area within the
Adirondack park.
  3. The [tentative] DRAFT freshwater wetlands map shall set  forth  the
boundaries  of  such  wetlands as accurately as is practicable to inform
the owners thereof, the public and the  department  of  the  approximate
location of the actual boundaries of the wetlands, subject to motion for
delineation pursuant to this section, or more precise definition thereof
in  the discretion of the commissioner. The commissioner shall take into
consideration, whenever possible, the boundaries of the local government
or governments within which the wetlands are located.
  4. Upon completion of the [tentative] DRAFT  freshwater  wetlands  map
for  a particular area, the commissioner or his designated hearing offi-
cer shall hold a public hearing in that  area  in  order  to  afford  an
opportunity  for  any person to propose additions or deletions from such
map. The commissioner shall give notice of such hearing to  [each  owner
of  record  as  shown  on  the latest completed tax assessment rolls, of
lands designated as such wetlands as shown on said map and also to]  the
chief  administrative  officer and clerk of each local government within
the boundaries of which any such wetland or a portion thereof is located
and, in the case of a [tentative] DRAFT freshwater wetlands map for  any
area  within  the  Adirondack  park,  to  the Adirondack park agency, by
certified mail not less than thirty days prior to the date set for  such
hearing  and  shall  assure that a copy of the relevant map is available
for public inspection at a convenient location in such local government.
The map filed with a local government may,  at  the  local  government's
request,  be  either a physical copy of the [tentative] DRAFT freshwater
wetlands map, or, if available, a digital file that represents  it.  The
commissioner  shall also cause notice of such hearing to be published at
least once, not more than thirty days nor fewer than ten days before the
date set for such hearing, in at least  two  newspapers  having  general
circulation in the area where such wetlands are located. The commission-
er  may post on the department's website a digital image that represents
the [tentative] DRAFT freshwater wetlands map.
  5. [After considering the testimony given  at  such  hearing  and  any
other  facts which may be deemed pertinent, after considering the rights
of affected property owners and the  ecological  balance  in  accordance
with  the  policy  and  purposes  of  this  article, and, in the case of
wetlands or portions thereof within the Adirondack park, after  consult-
ing  with  the Adirondack park agency, the commissioner shall promulgate
by order the final freshwater wetlands map.  Such  order  shall  not  be
promulgated  less  than sixty days from the date of the hearing required
by subdivision four of this section. A copy of the order, together  with
a  copy  of  such  map or relevant portion thereof shall be filed in the
office of the clerk of each local government in which each such  wetland
or  a  portion thereof is located and, in the case of a map for any area

S. 4617                             4

within the Adirondack park, with the Adirondack  park  agency.  The  map
filed with a local government may, at the local government's request, be
either  a  physical  copy  of  the final freshwater wetlands map, or, if
available,  a  digital  file  that represents it. The commissioner shall
simultaneously give notice of such order to  each  owner  of  lands,  as
shown  on  the latest completed tax assessment rolls, designated as such
wetlands by mailing a copy of such order to such owner by certified mail
in any case where a notice by certified mail was not  sent  pursuant  to
subdivision  four of this section, and in all other cases by first class
mail. The commissioner shall also give notice of such order at such time
to the chief administrative officer of each local government within  the
boundaries of which any such wetland or a portion thereof is located. At
the  time  of  filing  with such clerk or clerks, the commissioner shall
also cause a copy of such order to be published in at least two  newspa-
pers  having  general  circulation  in  the area where such wetlands are
located.] AFTER CONSIDERATION OF COMMENTS FROM THE  PUBLIC  THE  COMMIS-
SIONER  MAY  MAKE  ALTERATIONS  TO THE DRAFT MAP CONSISTENT WITH SECTION
24-0107 OF THIS ARTICLE. THE COMMISSIONER SHALL  FINALIZE  THE  MAP  AND
FILE  A  COPY  OF  THE  MAP  WITH  THE OFFICE OF THE CLERK OF EACH LOCAL
GOVERNMENT WITH JURISDICTION OVER PART OR ALL OF THE REGION SHOWN ON THE
MAP. The commissioner may post on the  department's  website  a  digital
image that represents the final freshwater wetlands map.
  6.  Except  as  provided  in  subdivision  eight  of this section, the
commissioner shall supervise the  maintenance  of  such  boundary  maps,
which shall be available to the public for inspection and examination at
the  regional  office of the department in which the wetlands are wholly
or partly located and in the office of the clerk of each county in which
each such wetland or a portion thereof is located. The commissioner  may
readjust  the  map thereafter to clarify the boundaries of the wetlands,
to correct any errors on the map, to effect any additions, deletions  or
technical changes on the map, and to reflect changes as have occurred as
a  result of the granting of permits pursuant to section 24-0703 of this
article, or natural changes which may  have  occurred  through  erosion,
accretion,  or  otherwise. Notice of such readjustment shall be given in
the same manner as set forth in subdivision [five] FOUR of this  section
for the [promulgation] DEVELOPMENT of final freshwater wetlands maps. In
addition,  at the time notice is provided pursuant to subdivision [five]
FOUR of this section, the commissioner shall update any digital image of
the map posted on the department's website to reflect such readjustment.
  S 4. Subdivisions 1, 2 and 4 of section 24-0701 of  the  environmental
conservation  law, subdivisions 1 and 2 as amended by chapter 654 of the
laws of 1977 and subdivision 4 as amended by chapter 697 of the laws  of
1979, are amended and a new subdivision 9 is added to read as follows:
  1.  [After  issuance  of  the  official freshwater wetlands map of the
state, or of any selected section or region  thereof,  any]  ANY  person
desiring  to  conduct  on freshwater wetlands [as so designated thereon]
any of the regulated activities set forth in  subdivision  two  of  this
section must obtain a permit as provided in this title.
  2.  Activities  subject  to  regulation  UNDER SUBDIVISION ONE OF THIS
SECTION shall include SUBDIVISION OF PARCELS OF LAND CONTAINING FRESHWA-
TER WETLANDS AND any form of draining, dredging, excavation, removal  of
soil,  mud,  sand, shells, gravel or other aggregate from any freshwater
wetland, either directly or indirectly; and any form of  dumping,  fill-
ing,  or  depositing  of any soil, stones, sand, gravel, mud, rubbish or
fill of any kind, either directly or  indirectly;  erecting  any  struc-
tures,   roads,  the  driving  of  pilings,  or  placing  of  any  other

S. 4617                             5

obstructions whether or not changing the ebb and flow of the water;  any
form  of  pollution,  including  but not limited to, installing a septic
tank, running a sewer outfall, discharging sewage treatment effluent  or
other  liquid  wastes  into or so as to drain into a freshwater wetland;
and any other activity which substantially impairs any  of  the  several
functions  served  by freshwater wetlands or the benefits derived there-
from which are set forth in  section  24-0105  of  this  article.  These
activities  are subject to regulation whether or not they occur upon the
wetland itself, if they impinge upon or otherwise  substantially  affect
the  wetlands  and  are  located not more than one hundred feet from the
boundary of such wetland. Provided, that a  greater  distance  from  any
such  wetland may be regulated pursuant to this article by the appropri-
ate local government or by the department,  whichever  has  jurisdiction
over such wetland, where necessary to protect and preserve the wetland.
  4.  [The] ON LANDS IN ACTIVE AGRICULTURAL USE, THE activities of farm-
ers and other landowners  in  grazing  and  watering  livestock,  making
reasonable  use  of  water resources, harvesting natural products of the
wetlands, selectively cutting timber,  draining  land  or  wetlands  for
growing  agricultural  products  and  otherwise  engaging  in the use of
wetlands or other  land  for  growing  agricultural  products  shall  be
excluded  from regulated activities and shall not require a permit under
subdivision one [hereof] OF THIS SECTION,  except  that  structures  not
required for enhancement or maintenance of the agricultural productivity
of  the land and any filling activities shall not be excluded hereunder,
and provided that the use of land [designated as  a  freshwater  wetland
upon  the  freshwater  wetlands  map at the effective date thereof] THAT
MEETS THE DEFINITION OF A FRESHWATER WETLAND IN SECTION 24-0107 OF  THIS
ARTICLE  for uses other than those referred to in this subdivision shall
be subject to the provisions of this article.
  9. ANY PERMIT OBTAINED SUBJECT TO  SUBDIVISION  ONE  OF  THIS  SECTION
SHALL  BE  PERMANENTLY  APPENDED  TO THE DEED FOR THE REAL PROPERTY SUCH
REGULATED ACTION OCCURRED ON.
  S 5. Subdivision 5 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:
  5. [Prior to the promulgation of the final freshwater wetlands map  in
a  particular  area  and  the  implementation  of  a freshwater wetlands
protection law or ordinance, no person shall conduct,  or  cause  to  be
conducted,  any  activity  for  which a permit is required under section
24-0701 of this article on any freshwater wetland unless he has obtained
a permit from the commissioner  under  this  section.]  Any  person  may
inquire  of  the  department as to whether or not a given parcel of land
[will be designated] INCLUDES a  freshwater  wetland  subject  to  regu-
lation.  The  department  shall give a definite answer in writing within
thirty days of such request as to [whether] THE STATUS  OF  such  parcel
[will  or  will  not be so designated]. Provided that, in the event that
weather or ground conditions prevent the department from making a deter-
mination within thirty days, it may extend such period until a  determi-
nation  can  be made. Such answer in the affirmative shall be reviewable
pursuant to title eleven of this article; such an answer in the negative
shall be a complete defense to the enforcement of  this  article  as  to
such  parcel  of land. [The commissioner may by regulation adopted after
public hearing exempt categories or classes of  wetlands  or  individual
wetlands  which  he  determines not to be critical to the furtherance of
the policies and purposes of this article.]

S. 4617                             6

  S 6. Subdivision 1 of section 24-0901 of the  environmental  conserva-
tion  law,  as  added  by chapter 614 of the laws of 1975, is amended to
read as follows:
  1.  [Upon  completion of the freshwater wetlands map, the] THE commis-
sioner shall confer with local government officials in  each  region  in
which  the  inventory  has been conducted to establish a program for the
protection of the freshwater wetlands of the state.
  S 7. Subdivision 1 of section 24-0903 of the  environmental  conserva-
tion  law,  as  added  by chapter 614 of the laws of 1975, is amended to
read as follows:
  1. [Upon completion of the freshwater wetlands map of the state, or of
any selected section or region thereof, the commissioner  shall  proceed
to classify freshwater wetlands so designated thereon according to their
most  appropriate  uses, in] IN light of the values set forth in section
24-0105 of this article and the present conditions of [such]  FRESHWATER
wetlands[.  The],  THE  commissioner shall determine what uses of [such]
FRESHWATER wetlands are most compatible with  the  foregoing  and  shall
prepare  minimum  land  use  regulations  to permit only such compatible
uses. [The classifications may cover freshwater wetlands  in  more  than
one  governmental  subdivision.   Permits pursuant to section 24-0701 of
this article are required whether  or  not  a  classification  has  been
promulgated.]
  S  8.  Section  24-1305  of  the  environmental  conservation  law  is
REPEALED.
  S 9. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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