S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6282
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 1, 2017
                                ___________
 
 Introduced  by  M.  of  A.  ENGLEBRIGHT -- read once and referred 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.
                                                            LBD01152-01-7

              

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   (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.
   §  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.
   § 3. Subdivisions 1, 2, 3, 4, 5 and 6 of section 24-0301 of the  envi-
 ronmental  conservation  law,  subdivision 1 as amended by section 37 of
 part D of chapter 60 of the laws  of  2012,  subdivisions  2  and  3  as
 amended  by  chapter 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 unusual local importance for one
 or more of the specific benefits  set  forth  in  subdivision  seven  of
 section  24-0105  of this article] 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 the executive law, and shall determine their  char-
 acteristics.  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 otherwise, or assembled by federal or local governmental
 or private agencies, all of which information  shall  be  assembled  and
 integrated,  as  applicable,  into  a  map of freshwater wetlands of the
 state of New York. Such study may, in the discretion of the  commission-
 er,  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 chapter. [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.]

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 As soon as practicable 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

 A. 6282                             4

 within the Adirondack park, with  the  Adirondack  park  agency.]  AFTER
 CONSIDERATION  OF  COMMENTS  FROM  THE  PUBLIC THE COMMISSIONER 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 JURISDIC-
 TION OVER PART OR ALL OF THE REGION SHOWN ON THE MAP. 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 commis-
 sioner 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 newspapers having
 general circulation in the area where such wetlands  are  located.]  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 of this section, the commissioner shall update any digital image of
 the map posted on the department's website  to  reflect  such  readjust-
 ment.]
   §  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-

 A. 6282                             5
 
 tures,  roads,  the  driving  of  pilings,  or  placing  of  any   other
 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.
   §  5.  Subdivision 5 of section 24-0703 of the environmental conserva-
 tion law, as amended by section 38 of part D of chapter 60 of  the  laws
 of 2012, 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 title 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  regulation.  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  determination  within
 thirty  days,  it  may  extend  such period until a determination can be
 made. Such answer in the affirmative shall be reviewable; 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 furth-
 erance of the policies and purposes of this article.]

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   § 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.
   § 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.]
   §  8.  Section  24-1305  of  the  environmental  conservation  law  is
 REPEALED.
   § 9. This act shall take effect immediately.