S T A T E O F N E W Y O R K
________________________________________________________________________
370
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
Introduced by M. of A. HOYT, SCHROEDER, GALEF, CLARK, JAFFEE, ROSENTHAL
-- Multi-Sponsored by -- M. of A. BOYLAND, CAHILL, GLICK, GOTTFRIED,
JACOBS, LAVINE, McENENY, PERRY, REILLY, SWEENEY -- read once and
referred to the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to the
public right of passage upon the navigable waterways of the state and
the rights of private property owners over which such waterways pass
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Article 15 of the environmental conservation law is amended
by adding a new title 35 to read as follows:
TITLE 35
NAVIGABLE WATERWAYS
SECTION 15-3501. STATEMENT OF LEGISLATIVE FINDINGS, POLICY AND INTENT.
15-3503. DEFINITIONS.
15-3505. PUBLIC RIGHT OF PASSAGE.
15-3507. COMMON LAW REMEDIES PRESERVED.
15-3509. INTERPRETATION; SEVERABILITY.
S 15-3501. STATEMENT OF LEGISLATIVE FINDINGS, POLICY AND INTENT.
1. THE LEGISLATURE HEREBY FINDS THAT WATERWAYS IN THE STATE THAT ARE
SUBJECT TO THE PUBLIC RIGHT OF NAVIGATION AS THIS RIGHT IS DEFINED IN
COMMON LAW CONSTITUTE A VALUABLE COMMERCIAL AND RECREATIONAL RESOURCE OF
THE STATE AND, AS SUCH, THEY PROVIDE IMPORTANT HEALTH BENEFITS AND LOCAL
AND STATEWIDE ECONOMIC BENEFITS. THE LEGISLATURE FURTHER FINDS THAT THE
COURTS OF THE STATE HAVE HISTORICALLY APPLIED A COMMON LAW TEST TO
DETERMINE WHETHER PARTICULAR WATERWAYS ARE NAVIGABLE IN FACT AND ARE
THEREFORE SUBJECT TO THE PUBLIC RIGHT OF NAVIGATION, AND THAT ON WATER-
WAYS FOR WHICH SUCH DETERMINATIONS HAVE NOT BEEN MADE BOTH THE PUBLIC
AND THE AFFECTED PRIVATE PROPERTY OWNERS MAY BE UNCERTAIN AS TO WHETHER
SUCH WATERWAYS ARE SUBJECT TO SUCH RIGHT. THE LEGISLATURE FURTHER FINDS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01214-01-1
A. 370 2
THAT WATERWAYS THAT SATISFY THE COMMON LAW TEST ARE NAVIGABLE IN FACT
AND THAT THE BED AND BANKS OF SUCH WATERWAYS ARE SUBJECT TO A SERVITUDE
OR EASEMENT FOR THE PURPOSE OF NAVIGATION THAT IS HELD IN TRUST BY THE
STATE FOR THE PEOPLE OF THE STATE AND HAS BEEN SO HELD FROM THE TIME OF
THE ORIGINAL GRANTS FROM THE STATE OR SOVEREIGN. THE LEGISLATURE FURTHER
FINDS THAT THIS NAVIGATIONAL EASEMENT PROVIDES A PUBLIC RIGHT OF PASSAGE
AND THAT WATERWAYS THAT ARE SUBJECT TO SUCH EASEMENTS ARE CONSIDERED TO
BE PUBLIC HIGHWAYS FOR NAVIGATIONAL PURPOSES, INCLUDING WHERE SUCH
WATERWAYS ARE SITUATED ON PRIVATE PROPERTY. THE LEGISLATURE ALSO FINDS
THAT THE PUBLIC RIGHT OF NAVIGATION INCLUDES SEVERAL ESSENTIAL INCI-
DENTAL RIGHTS THAT MAY BE EXERCISED BY THE PUBLIC AS NECESSARY TO ACCOM-
PLISH SAFE PASSAGE. ALSO, THE LEGISLATURE FINDS THAT IN EXERCISING THE
PUBLIC RIGHT OF NAVIGATION THE PUBLIC IS REQUIRED BY LAW TO RESPECT THE
RIGHTS OF PRIVATE PROPERTY OWNERS AND MAY NOT ENTER ON PRIVATE PROPERTY
FOR PURPOSES OTHER THAN TO EXERCISE THE LAWFUL RIGHT OF SAFE PASSAGE AND
THEN ONLY TO THE MOST MINIMALLY INTRUSIVE EXTENT POSSIBLE.
2. THE LEGISLATURE HEREBY DECLARES ITS INTENT TO ENSURE THAT THE
PUBLIC SHALL BE ABLE TO FREELY NAVIGATE ON WATERWAYS THAT ARE NAVIGABLE
IN FACT AND TO ENSURE THAT THE RIGHTS OF PRIVATE PROPERTY OWNERS ARE NOT
VIOLATED OR INFRINGED UPON BY THOSE WHO ENGAGE IN THE PUBLIC RIGHT OF
NAVIGATION. THE LEGISLATURE FURTHER DECLARES ITS INTENT TO DETERMINE
WHICH WATERWAYS IN THE STATE ARE NAVIGABLE IN FACT UNDER THE COMMON LAW.
3. THE LEGISLATURE HEREBY DECLARES IT TO BE THE POLICY OF THE STATE TO
PROTECT THE COMMERCIAL AND RECREATIONAL USES OF ALL WATERWAYS IN THE
STATE THAT ARE NAVIGABLE IN FACT UNDER THE COMMON LAW, TO PRESERVE AND
PROTECT THE PUBLIC RIGHT OF PASSAGE UPON THESE WATERWAYS, AND TO
PRESERVE AND PROTECT THE RIGHTS OF OWNERS OF PRIVATE PROPERTY THROUGH
WHICH THESE WATERWAYS PASS.
S 15-3503. DEFINITIONS.
THE FOLLOWING TERMS WHEN USED IN THIS TITLE SHALL BE DEEMED TO MEAN
AND INCLUDE:
1. "COMMERCE" SHALL MEAN ANY REMUNERATIVE ACTIVITY INCLUDING, WITHOUT
LIMITATION, USE OF A WATERWAY FOR THE TRANSPORT OF GOODS OR MINERALS IN
VESSELS, FLOATING LOGS TO MILLS OR MARKET AND TRANSPORTING PEOPLE OR
GUIDING PEOPLE FOR HIRE IN VESSELS.
2. "LINING" SHALL MEAN REGULATING THE PASSAGE OF A VESSEL ALONG AN
OBSTRUCTED STREAM SEGMENT BY MEANS OF LINES CONTROLLED FROM THE BED AND
BANKS OF THE STREAM, PROVIDED THAT USE OF THE BED AND BANKS OF A STREAM
FOR SUCH PURPOSE SHALL BE TO THE MINIMUM AND LEAST INTRUSIVE EXTENT THAT
IS REASONABLY NECESSARY TO ACCOMPLISH SAFE PASSAGE.
3. "NAVIGABLE IN FACT" SHALL MEAN ANY WATERWAY WHICH SATISFIES THE
COMMON LAW TEST THAT THE WATERWAY, IN ITS NATURAL STATE AND ORDINARY
VOLUME OF WATER, HAS PRACTICAL UTILITY TO THE PUBLIC AS A HIGHWAY FOR
TRADE, TRAVEL OR TRANSPORT. BOTH UTILITY FOR COMMERCIAL USE AND CAPACITY
FOR RECREATIONAL USE CAN BE CONSIDERED IN DETERMINING WHETHER A WATERWAY
HAS PRACTICAL UTILITY TO THE PUBLIC AS A HIGHWAY FOR TRADE, TRAVEL OR
TRANSPORT. A WATERWAY MAY BE NAVIGABLE IN FACT EVEN IF IT IS NOT CAPABLE
OF BEING NAVIGATED AGAINST ITS CURRENT AND EVEN IF THE CAPACITY OF THE
STREAM FOR SUPPORTING NAVIGATION IS NOT CONTINUOUS OVER TIME, AS LONG AS
THE CAPACITY NECESSARY TO SUPPORT NAVIGATION CONTINUES FOR A SUFFICIENT
LENGTH OF TIME TO MAKE THE STREAM USEFUL AS A HIGHWAY FOR TRADE, TRAVEL
OR TRANSPORT. A WATERWAY MAY ALSO BE NAVIGABLE IN FACT EVEN THOUGH IT
CONTAINS OCCASIONAL RAPIDS, FALLS, DAMS OR OTHER NATURAL OR MANMADE
OBSTRUCTIONS.
4. "PASSAGE" SHALL MEAN THE ACT OF NAVIGATION, INCLUDING THE RIGHT TO
ENGAGE IN INCIDENTAL ACTIVITIES WHICH ARE, UNDER THE CIRCUMSTANCES, AN
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INSEPARABLE AND INDISPENSABLE PART OF SAFE NAVIGATION, INCLUDING BUT NOT
LIMITED TO SCRAPING OR PUSHING OFF THE BED OF THE WATERWAY, POLING,
LINING, PORTAGING AND SCOUTING.
5. "POLING" SHALL MEAN PROPELLING A VESSEL BY USING A POLE TO PUSH OFF
THE BED OR BANKS OF A WATERWAY.
6. "PORTAGING" SHALL MEAN TRANSPORTING OR CARRYING A VESSEL UPON THE
BED OR BANKS OF AN OBSTRUCTED STREAM SEGMENT, PROVIDED THAT USE OF THE
BED OR BANKS OF A STREAM FOR SUCH PURPOSES SHALL BE TO THE MINIMUM AND
LEAST INTRUSIVE EXTENT THAT IS REASONABLY NECESSARY TO ACCOMPLISH SAFE
PASSAGE.
7. "RECREATION" SHALL MEAN ANY ACTIVITY WHICH IS NOT COMMERCE, AS
DEFINED IN THIS SECTION, INCLUDING BUT NOT LIMITED TO PERSONAL TRAVEL
FOR PLEASURE OR TO TRANSPORT GOODS OVER A WATERWAY AS A MEANS OF ACCESS
TO A PRIMARY OR SECONDARY RESIDENCE.
8. "SCOUTING" SHALL MEAN INSPECTION OF RAPIDS OR OTHER POTENTIAL
NATURAL OR MANMADE OBSTRUCTIONS TO SAFE PASSAGE IN ORDER TO DETERMINE
WHETHER AND BY WHAT ROUTE SAFE PASSAGE IS POSSIBLE, PROVIDED THAT USE OF
THE BED AND BANKS OF A STREAM FOR SUCH PURPOSE SHALL BE TO THE MINIMUM
AND LEAST INTRUSIVE EXTENT THAT IS REASONABLY NECESSARY TO ACCOMPLISH
SAFE PASSAGE.
9. "VESSEL" SHALL MEAN ANY WATERCRAFT DESIGNED FOR NAVIGATION, INCLUD-
ING SKIFFS, ROW BOATS, CANOES, RAFTS AND OTHER SMALL CRAFT.
10. "WATERWAY" SHALL MEAN ANY NON-TIDAL WATERBODY, INCLUDING LAKES,
PONDS, RIVERS, CREEKS OR STREAMS, REGARDLESS OF WHETHER THE WATERBODY
HAS BEEN DETERMINED TO BE NAVIGABLE IN FACT AT COMMON LAW.
S 15-3505. PUBLIC RIGHT OF PASSAGE.
1. THE PUBLIC HAS A RIGHT OF PASSAGE FOR ANY LAWFUL PURPOSE, INCLUDING
COMMERCE, TRAVEL AND RECREATION, ON ALL WATERWAYS OF THE STATE THAT ARE
NAVIGABLE IN FACT.
2. THE PUBLIC RIGHT OF PASSAGE ON WATERWAYS THAT ARE NAVIGABLE IN FACT
DOES NOT INCLUDE THE RIGHT TO ENTER PRIVATE PROPERTY FOR HIKING,
PICNICKING, NATURE OBSERVATION, CAMPING, EGRESSING FROM OR ACCESSING A
WATERWAY, OR ANY OTHER PURPOSE NOT RELATED TO PASSAGE.
3. THE COMMISSIONER SHALL HAVE THE AUTHORITY TO PROMULGATE RULES AND
REGULATIONS TO IMPLEMENT THIS SECTION, INCLUDING BUT NOT LIMITED TO
RULES AND REGULATIONS WHICH IDENTIFY AND DESIGNATE WATERWAYS THAT ARE
NAVIGABLE IN FACT, USING THE COMMON LAW TEST SET FORTH IN SUBDIVISION 3
OF SECTION 15-3503 OF THIS TITLE, AND WHICH ADDRESS ISSUES OF PUBLIC
SAFETY OR NATURAL RESOURCE PROTECTION. THE COMMISSIONER MAY AMEND ANY
SUCH RULES AND REGULATIONS AS MAY BE APPROPRIATE FROM TIME TO TIME. THE
COMMISSIONER SHALL NOT HAVE THE POWER TO DETERMINE THAT WATERWAYS WHICH
SATISFY THE COMMON LAW TEST ARE NOT NAVIGABLE IN FACT AND SHALL NOT HAVE
THE POWER TO DETERMINE THAT WATERWAYS WHICH DO NOT SATISFY THE COMMON
LAW TEST ARE NAVIGABLE IN FACT.
4. THE PUBLIC RIGHT OF PASSAGE ON THE WATERWAYS THAT ARE NAVIGABLE IN
FACT IS SUBJECT TO ALL OTHER APPLICABLE PROVISIONS OF LAW AND RULES AND
REGULATIONS THAT REGULATE OR LIMIT THE USE OF VESSELS.
S 15-3507. COMMON LAW REMEDIES PRESERVED.
NOTHING IN THIS TITLE SHALL BE CONSTRUED TO LIMIT ANY REMEDY AVAILABLE
IN COMMON LAW, STATUTE OR RULE OR REGULATION FOR OBSTRUCTING, HINDERING,
HARASSING OR OTHERWISE INTERFERING WITH THE PUBLIC RIGHT OF PASSAGE BY
PERSONS LAWFULLY EXERCISING THE RIGHT OF PASSAGE ON WATERWAYS THAT ARE
NAVIGABLE IN FACT. WARNING OF A DANGEROUS CONDITION SHALL NOT IN ITSELF
BE DEEMED AN INTERFERENCE WITH THE PUBLIC RIGHT OF NAVIGATION. FURTHER-
MORE, NOTHING IN THIS TITLE SHALL BE CONSTRUED TO LIMIT ANY REMEDY
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AVAILABLE IN COMMON LAW, STATUTE OR RULE AND REGULATION FOR TRESPASS ON
PRIVATE PROPERTY FOR ACTIVITIES OTHER THAN PASSAGE.
S 15-3509. INTERPRETATION; SEVERABILITY.
1. THIS TITLE SHALL BE INTERPRETED TO PRESERVE AND PROTECT THE COMMON
LAW RIGHT OF PASSAGE ON WATERWAYS THAT ARE NAVIGABLE IN FACT AND ALSO
SHALL BE INTERPRETED TO PRESERVE AND PROTECT THE RIGHTS OF PROPERTY
OWNERS WHO OWN PROPERTY THROUGH WHICH NAVIGABLE IN FACT WATERWAYS FLOW.
2. THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE, AND IF ANY CLAUSE,
SENTENCE, PARAGRAPH, SUBDIVISION, SECTION OR PART OF THIS TITLE SHALL BE
ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID, SUCH
JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE REMAINDER THEREOF
BUT SHALL BE CONFINED IN ITS OPERATION TO THE CLAUSE, SENTENCE, PARA-
GRAPH, SUBDIVISION, SECTION OR PART THEREOF DIRECTLY INVOLVED IN THE
CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.
S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.