S T A T E O F N E W Y O R K
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7932
2013-2014 Regular Sessions
I N A S S E M B L Y
June 11, 2013
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Introduced by M. of A. GABRYSZAK -- read once and referred to the
Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to
establishing a pilot program regarding regulation of freshwater
wetlands that are delineated within sanitary sewer districts within
district nine of the department of environmental conservation; and
providing for the repeal of such provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Article 24 of the environmental conservation law is amended
by adding a new title 12 to read as follows:
TITLE 12
WETLANDS PROTECTION PILOT PROJECT
SECTION 24-1201. DECLARATION OF POLICY.
24-1202. DEFINITIONS.
24-1203. DEVELOPMENT ACTIVITIES IN CERTAIN WETLANDS.
24-1204. WETLANDS PERMITS.
24-1205. PILOT PROGRAM TASKFORCE.
24-1206. REPORTS.
S 24-1201. DECLARATION OF POLICY.
THE GENERAL WELFARE OF THE CITIZENS OF THE STATE IS BEST SERVED BY
SUCCESSFULLY BALANCING ENVIRONMENTAL PROTECTION WITH SOCIAL, ECONOMIC,
AND AGRICULTURAL ECONOMIC NEEDS OF THE STATE, AND WITH RESPECT TO
WETLAND PROTECTION, THIS BALANCE IS BEST SERVED BY THE ESTABLISHMENT OF
A POLICY THAT DEFINES WHERE AND HOW TO BEST APPLY ENVIRONMENTAL
PROTECTIONS.
FURTHERMORE, THE LEGISLATURE RECOGNIZES THAT SIGNIFICANT PORTIONS OF
THE LANDSCAPE OF REGION NINE OF THE DEPARTMENT ARE TYPICALLY MARKED BY
POORLY DRAINED SOILS AND FLAT TOPOGRAPHY. ACCORDINGLY MUCH OF THE LAND
MASS IS SUSCEPTIBLE TO SUBJECTIVE DELINEATION AS REGULATED WETLAND. SUCH
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11361-01-3
A. 7932 2
DELINEATION OF WHAT IS TYPICAL RATHER THAN WHAT IS RARE UNDULY DISRUPTS
THE BALANCE OF ENVIRONMENTAL PROTECTION AND ECONOMIC NEED.
SIMILAR PUBLIC POLICY GUIDANCE EXISTS RELATIVE TO TAX POLICY INTENDED
TO INCENTIVIZE OTHER LAND USE ACTIVITIES. THE LEGISLATURE RECOGNIZES
THAT PUBLIC POLICY IS WELL ESTABLISHED TO INCENTIVIZE DESIRABLE OUTCOMES
WITH RESPECT TO LAND USE ACTIVITIES, IN APPROPRIATE LOCATIONS OF THE
STATE, AS DETERMINED BY LOCAL AUTHORITIES CONSISTENT WITH STATE LAW
(E.G., AGRICULTURE AND DEVELOPMENT). TO FACILITATE VARIOUS LAND USES,
PROVISIONS EXIST IN STATE LAW FOR THE CREATION OF SPECIAL TAX DISTRICTS,
SUCH AS AGRICULTURAL DISTRICTS AND SANITARY SEWER DISTRICTS.
PUBLIC POLICY GOVERNING THE FORMATION OF THESE DISTRICTS IS WELL
DESCRIBED. AGRICULTURAL DISTRICTS, WHERE AGRICULTURAL ACTIVITIES ARE
PROMOTED, ARE NOT TO BE EXTENDED INTO SANITARY SEWER DISTRICTS WHERE
LAND DEVELOPMENT ACTIVITIES ARE ANTICIPATED AND ENCOURAGED. CONVERSELY,
SANITARY SEWER DISTRICTS ARE NOT BE EXTENDED INTO AGRICULTURAL
DISTRICTS.
THERE IS GOOD REASON FOR THIS POLICY, AND ITS UNDERSTANDING IS IMPOR-
TANT WITH RESPECT TO WETLAND PROTECTION POLICY.
THE LEGISLATURE RECOGNIZES THAT TO PROTECT THE FARM INDUSTRY AND
ASSIST PROPERTY OWNERS IN THE PRESERVATION OF AGRICULTURAL ACTIVITIES,
TAX RELIEF IS ACCORDED TO THOSE PROPERTY OWNERS WITHIN SPECIFIED
DISTRICTS WHO AGREE TO KEEP THEIR PROPERTIES IN AGRICULTURE.
THE LEGISLATURE ALSO RECOGNIZES THE SIGNIFICANT PUBLIC INVESTMENT IN
INFRASTRUCTURE THAT HAS BEEN MADE IN THE STATE TO PROTECT THE PUBLIC
HEALTH AND THE QUALITY OF THE WATERS OF THE STATE, SPECIFICALLY WITH
RESPECT TO THE DESIGN AND CONSTRUCTION OF SANITARY SEWERAGE COLLECTION
AND TREATMENT SYSTEMS. THE LEGISLATURE ALSO RECOGNIZES THAT PUBLIC SAFE-
TY IS WELL ESTABLISHED REGARDING SANITARY SEWERAGE SYSTEMS IN THAT:
1. SANITARY SEWERAGE SYSTEMS THROUGHOUT THE STATE HAVE BEEN, AND WILL
BE, DESIGNED AND CONSTRUCTED IN ANTICIPATION OF EXISTING AND FUTURE
DEVELOPMENT AS DICTATED BY THE LAND USE PATTERNS ORDAINED BY LOCAL MUNI-
CIPALITIES CONSISTENT WITH STATE LAW.
2. THE LAW PROVIDES FOR THE FORMATION OF SANITARY SEWER DISTRICTS TO
PROVIDE A MECHANISM FOR THE FAIR TAXATION OF PROPERTIES AND EXPECTED
IMPROVED PROPERTIES WITHIN SANITARY SEWER DISTRICTS, IN ORDER THAT THE
PUBLIC MAY BE REPAID FOR ITS INVESTMENT IN THE DESIGN AND CONSTRUCTION
OF SUCH SANITARY SEWERAGE SYSTEMS, AND TO PROVIDE CONTINUING OPERATION
AND MAINTENANCE OF SUCH SYSTEMS.
3. ACCORDINGLY, INTENSE DEVELOPMENT ACTIVITIES ARE INCENTIVIZED WITHIN
THE SANITARY SEWER DISTRICTS OF THE STATE.
CONSISTENT WITH THIS CLEAR DIRECTION IN PUBLIC POLICY AND THE AFORE-
MENTIONED POLICY OF THE STATE THAT ENVIRONMENTAL LAWS BE CONSISTENT WITH
THE GENERAL WELFARE AND BENEFICIAL ECONOMIC, SOCIAL AND AGRICULTURAL
DEVELOPMENT OF THE STATE, LAND DEVELOPMENT IMPROVEMENTS THAT INCREASE
THE ASSESSED VALUE OF PROPERTIES WITHIN THE SANITARY SEWER DISTRICTS OF
REGION NINE OF THE DEPARTMENT AND THAT PROMOTE THE ECONOMIC WELFARE OF
THE STATE, SHALL TAKE PRECEDENCE OVER FRESHWATER WETLAND PROTECTION,
EXCEPT IN SUCH LOCATIONS WHERE WETLAND HABITATS ARE CLEARLY AND OBJEC-
TIVELY IDENTIFIED AS THOSE LANDS COMMONLY UNDERSTOOD TO BE SWAMPS,
MARSHES, BOGS, SLOUGHS, FENS, WITH SURFACE WATER ON SITE AT LEAST ONE
HUNDRED EIGHTY DAYS IN A CALENDAR YEAR.
IN ORDER FOR WETLAND PROTECTION GOALS TO TAKE PRECEDENCE OVER LAND
DEVELOPMENT ACTIVITIES AND THE CONSTITUTIONALLY PROTECTED PROPERTY
RIGHTS OF INDIVIDUALS WITHIN THE SANITARY SEWER DISTRICTS OF REGION NINE
OF THE DEPARTMENT, THE WETLAND HABITAT MUST BE UNIVERSALLY IDENTIFIABLE
BY REASONABLE, ECONOMICAL AND COMMONLY AVAILABLE METHODS SUCH AS AERIAL
A. 7932 3
PHOTOGRAPHY. TYPICALLY THESE AREAS HAVE ALREADY BEEN IDENTIFIED AND
PROMULGATED AS REGULATED WETLANDS. IN MANY INSTANCES, ADDITIONAL
PROTECTIONS HAVE BEEN AFFORDED TO THESE HABITATS AS PROPERTIES SO ENCUM-
BERED WERE REMOVED FROM THE SERVICE AREAS OF THE SANITARY SEWER SYSTEMS.
ACCORDINGLY, NO SANITARY SEWER CAPACITY WAS DESIGNATED FOR THE DEVELOP-
MENT OF PROPERTIES CONSTRAINED WITH WETLANDS AND FLOODPLAINS WITHIN
SANITARY SEWER DISTRICTS.
FURTHERMORE, THE LEGISLATURE RECOGNIZES THAT REGULATIONS GOVERNING
CONSTRUCTION AND DEVELOPMENT ACTIVITIES MANDATE THAT TWO PRIMARY BENE-
FITS OF WETLANDS BE PROVIDED BY THE PROJECT DESIGN. THE STATE ALREADY
HAS REQUIRED THAT DEVELOPMENTS PROVIDE FOR THE STORAGE OF STORM WATER
RUNOFF, AND THAT WATER QUALITY/GROUND WATER RECHARGE FEATURES BE
INCLUDED IN THE DESIGN OF ANY CONSTRUCTION SITE GREATER THAN ONE ACRE IN
SIZE. ACCORDINGLY, TO ENABLE A WETLAND HABITAT TO DISPLACE A LAND USE
ACTIVITY WITHIN A SANITARY SEWER DISTRICT IN REGION NINE OF THE DEPART-
MENT, THE HABITAT MUST NOT BE TYPICAL OF THE LOCAL OR REGIONAL LAND-
SCAPE; IT MUST BE A HIGHLY PRODUCTIVE AND DIVERSE ECOSYSTEM; AND PHYS-
ICALLY IT MUST CLEARLY AND OBJECTIVELY BE IDENTIFIABLE AS A LAND THAT IS
COMMONLY UNDERSTOOD TO BE SWAMP, MARSH, BOG, SLOUGH, FEN, ETC., AS
PREVIOUSLY DIRECTED BY THE LEGISLATURE AND PROSCRIBED IN STATE LAW. TO
PROPERLY ACHIEVE THESE ENDS THE LEGISLATURE HEREBY CREATES THIS PILOT
PROGRAM IN DISTRICT NINE OF THE STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION.
S 24-1202. DEFINITIONS.
FOR PURPOSES OF THIS TITLE, "SANITARY SEWER DISTRICT" SHALL MEAN A
SANITARY SEWER DISTRICT CREATED BY A COUNTY PURSUANT TO ARTICLE FIVE-A
OF THE COUNTY LAW; BY A TOWN PURSUANT TO ARTICLE TWELVE OR ARTICLE
TWELVE-A OF THE TOWN LAW; OR A SANITARY SEWER SYSTEM CREATED BY A
VILLAGE PURSUANT TO ARTICLE FOURTEEN OF THE VILLAGE LAW.
S 24-1203. DEVELOPMENT ACTIVITIES IN CERTAIN WETLANDS.
ON ANY LAND WITHIN THE JURISDICTION OF REGION NINE OF THE DEPARTMENT
THAT IS IN A DULY ESTABLISHED SANITARY SEWER DISTRICT, DEVELOPMENT
ACTIVITIES SHALL BE ALLOWED AND SHALL TAKE PRECEDENCE OVER FRESHWATER
WETLANDS REGULATIONS, EXCEPT IN SUCH LOCATIONS WHERE WETLANDS HABITATS
ARE CLEARLY AND OBJECTIVELY IDENTIFIED AS THOSE LANDS COMMONLY UNDER-
STOOD TO BE SWAMPS, MARSHES, SLOUGHS, BOGS, AND FLATS SUPPORTING AQUATIC
OR SEMI-AQUATIC VEGETATION WITH A WATER DURATION OF AT LEAST ONE HUNDRED
EIGHTY DAYS IN A CALENDAR YEAR. THE DEPARTMENT MUST PROVE THAT A PARCEL
QUALIFIES AS A SWAMP, MARSH, SLOUGH, BOG OR FLAT SUPPORTING AQUATIC OR
SEMI-AQUATIC VEGETATION THROUGH GENERALLY ACCEPTED METHODS SUCH AS AERI-
AL PHOTOGRAPHY OR OTHER GENERALLY ACCEPTED METHODS FOR IDENTIFYING
WETLANDS.
S 24-1204. WETLANDS PERMITS.
ANY WETLANDS PERMIT ISSUED BY THE DEPARTMENT IN THE PILOT STUDY AREA
DURING THE COURSE OF THIS PILOT PROJECT SHALL BE VALID FOR ALL PURPOSES
NOTWITHSTANDING ANY CHANGES IN LAW, REGULATION OR POLICY THAT RESULT
FROM THE PILOT STUDY. ANY PERMIT APPLIED FOR DURING THE PENDENCY OF THE
PILOT PROGRAM SHALL BE EVALUATED UNDER THE REGULATIONS APPLICABLE DURING
THE PENDENCY OF THE PILOT PROGRAM.
S 24-1205. PILOT PROGRAM TASKFORCE.
THERE IS HEREBY CREATED A LEGISLATIVE TASKFORCE TO MONITOR THE RESULTS
OF THIS PILOT PROGRAM. THE TASK FORCE SHALL BE MADE UP OF THE CHAIR OF
THE SENATE ENVIRONMENTAL CONSERVATION COMMITTEE, THE RANKING MINORITY
MEMBER OF THE SENATE ENVIRONMENTAL CONSERVATION COMMITTEE, THE CHAIR OF
THE SENATE ECONOMIC DEVELOPMENT COMMITTEE, THE RANKING MINORITY MEMBER
OF THE SENATE ECONOMIC DEVELOPMENT COMMITTEE, THE CHAIR OF THE ASSEMBLY
A. 7932 4
ENVIRONMENTAL CONSERVATION COMMITTEE, THE RANKING MINORITY MEMBER OF THE
ASSEMBLY ENVIRONMENTAL CONSERVATION COMMITTEE, THE CHAIR OF THE ASSEMBLY
ECONOMIC DEVELOPMENT COMMITTEE AND THE RANKING MINORITY MEMBER OF THE
ASSEMBLY ECONOMIC DEVELOPMENT COMMITTEE.
S 24-1206. REPORTS.
THE DEPARTMENT SHALL MONITOR THE IMPACT OF THE DEVELOPMENT AUTHORIZED
BY SECTION 24-1203 OF THIS TITLE ON THOSE WETLANDS AS DEFINED IN SUCH
SECTION THAT EXIST WITHIN THE BORDERS OF SANITARY SEWER DISTRICTS IN
DISTRICT NINE. THE DEPARTMENT SHALL FILE AN ANNUAL REPORT OUTLINING ITS
FINDINGS ON JUNE FIRST OF EACH YEAR WITH THE GOVERNOR AND WITH THE
LEGISLATIVE TASK FORCE ESTABLISHED HEREIN. THE REPORT SHALL INCLUDE THE
FOLLOWING FOR EACH SITE DEVELOPED DURING THE PILOT PROJECT:
1. SPECIFIC BENCHMARK MEASUREMENTS FOR EACH WETLAND AS DEFINED IN
SECTION 24-1203 OF THIS TITLE.
2. ANNUAL MEASURES OF THE IMPACT OF DEVELOPMENT ON THE CHANGES IN
SPECIES AND/OR HABITAT IN THE WETLANDS AREAS SO IDENTIFIED AND A DETER-
MINATION WHETHER THE HARM IS SUBSTANTIAL TOGETHER WITH IDENTIFICATION OF
THE CRITERIA USED TO MEASURE THE HARM.
3. WHETHER, WITH RESPECT TO EACH DEVELOPMENT STUDIED, THE POLICY
IMPLEMENTED IN THE PILOT PROGRAM HAS ENCOURAGED DEVELOPMENT IN AREAS IN
EXISTING SANITARY SEWER DISTRICTS THEREBY DISCOURAGING THE PROLIFERATION
OF INFRASTRUCTURE AND/OR THE CONSEQUENT DISRUPTION OF OTHER WETLANDS
OUTSIDE EXISTING SANITARY SEWER DISTRICTS.
4. A COST/BENEFIT ANALYSIS SHOWING THE SAVINGS AND/OR COSTS TO MUNICI-
PALITIES OF THE ABILITY TO USE SANITARY SEWER SYSTEMS THAT HAVE BEEN
INSTALLED BUT THE USE OF WHICH MIGHT BE LOST BECAUSE THE SANITARY SEWER
SYSTEM IS IN AN AREA WHERE A WETLAND DETERMINATION WOULD PREVENT DEVEL-
OPMENT BUT FOR THE EXISTENCE OF THIS PILOT PROGRAM.
S 2. This act shall take effect immediately and shall expire and be
deemed repealed on December 31, 2016.