Relates to freshwater wetlands
download bill text pdf| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Mar 23, 2022 |
referred to environmental conservation |
S T A T E O F N E W Y O R K
________________________________________________________________________
9599
I N A S S E M B L Y
March 23, 2022
___________
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
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 1, 2, 3 and 7 of section 24-0105 of the envi-
ronmental conservation law, as added by chapter 614 of the laws of 1975
and subdivision 7 as renumbered by chapter 654 of the laws of 1977, are
amended to read as follows:
1. The freshwater wetlands of the state of New York are invaluable
resources for flood protection, wildlife habitat, open space, CLIMATE
CHANGE MITIGATION THROUGH THE ACCUMULATION AND STORAGE OF LARGE AMOUNTS
OF CARBON, and water resources.
2. Considerable acreage of freshwater wetlands in the state of New
York has been lost, despoiled or impaired by unregulated draining,
dredging, filling, excavating, building, pollution or other [acts]
ACTIVITIES inconsistent with the natural uses of such areas. [Other
freshwater] FRESHWATER wetlands are in jeopardy of being lost, despoiled
or impaired by such [unrelated acts] ACTIVITIES AND BECAUSE OF THE
CURTAILMENT OF FEDERAL WETLAND PROTECTIONS.
3. Recurrent flooding aggravated or caused by the loss of freshwater
wetlands has serious effects upon natural ecosystems AND COMMUNITIES.
THE INCREASING FREQUENCY, SEVERITY AND DURATION OF STORM-RELATED FLOOD-
ING DUE TO CLIMATE CHANGE, WHICH HAS CAUSED BILLIONS OF DOLLARS OF PROP-
ERTY DAMAGE IN THE STATE, MAKES PROTECTION OF ALL FRESHWATER WETLANDS IN
THE STATE OF VITAL IMPORTANCE.
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], FISH, REPTILES AND AMPHIBIANS,
INSECTS AND OTHER INVERTEBRATES;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14802-04-2
A. 9599 2
(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 AND CARBON SINKS;
(f) erosion control by serving as sedimentation areas and filtering
basins, absorbing silt and organic matter and protecting channels and
harbors;
(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 and paragraphs (c) and (d) of subdivision 1
and subdivisions 2, 3 and 8 of section 24-0107 of the environmental
conservation law, as amended by chapter 654 of the laws of 1977, are
amended and five new subdivisions 9, 10, 11, 12 and 13 are added to read
as follows:
"Freshwater wetlands" means lands and waters of the state [as shown on
the freshwater wetlands map which] THAT ARE NOT TIDAL WETLANDS AS
DEFINED IN SUBDIVISION ONE OF SECTION 25-0103 OF THIS CHAPTER ARE ONE
ACRE OR MORE IN SIZE OR, ADJACENT TO A WATER BODY, INCLUDING AN INTER-
MITTENT WATER BODY, OR OF SIGNIFICANT LOCAL IMPORTANCE FOR ONE OR MORE
OF THE SPECIFIC BENEFITS SET FORTH IN SUBDIVISION SEVEN OF SECTION
24-0105 OF THIS TITLE, OF UNUSUAL IMPORTANCE, OR AT THE DISCRETION OF
THE COMMISSIONER. FRESHWATER WETLANDS SHALL contain any or all of the
following:
(c) lands and waters substantially enclosed by aquatic or semi-aquatic
vegetation as set forth in paragraph (a) OF THIS SUBDIVISION or by dead
vegetation as set forth in paragraph (b) OF THIS SUBDIVISION, the regu-
lation of which is necessary to protect and preserve the aquatic and
semi-aquatic vegetation; [and]
(d) LANDS AND SUBMERGED LANDS THAT HAVE A PREDOMINANCE OF HYDRIC SOILS
AND THAT ARE INUNDATED OR SATURATED BY SURFACE OR GROUNDWATER AT A
FREQUENCY AND DURATION SUFFICIENT TO SUPPORT, AND THAT UNDER NORMAL
CIRCUMSTANCES DO SUPPORT, A PREVALENCE OF HYDROPHYTIC VEGETATION TYPI-
CALLY ADAPTED FOR LIFE IN SATURATED SOIL CONDITIONS; AND
(E) the waters overlying the areas set forth in PARAGRAPHS (a) [and],
(b) AND (D) OF THIS SUBDIVISION and the lands underlying THE AREA SET
FORTH IN PARAGRAPH (c) OF THIS SUBDIVISION.
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.
SUCH MAPS DEPICT THE APPROXIMATE LOCATION OF WETLANDS AND ARE NOT NECES-
SARILY DETERMINATIVE AS TO WHETHER A PERMIT IS REQUIRED PURSUANT TO
SECTION 24-0701 OF THIS ARTICLE. THERE IS A REBUTTABLE PRESUMPTION THAT
MAPPED AND UNMAPPED AREAS MEETING THE DEFINITION OF A FRESHWATER WETLAND
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IN THIS SECTION ARE REGULATED AND SUBJECT TO PERMIT REQUIREMENTS. THIS
PRESUMPTION MAY BE REBUTTED BY PRESENTING INFORMATION TO THE DEPARTMENT
THAT THE AREA DOES NOT MEET THE DEFINITION CONTAINED IN THIS SECTION. A
WETLAND DELINEATION BY THE DEPARTMENT IS REQUIRED TO IDENTIFY THE REGU-
LATED BOUNDARIES OF A FRESHWATER WETLAND IN A PARTICULAR LOCATION.
3. "Boundaries of a freshwater wetland" shall mean the outer limit of
the vegetation specified in paragraphs (a) and (b) of subdivision one of
THIS section [24-0107] and of the lands and waters specified in para-
graph (c) of such subdivision.
8. "Pollution" shall mean the presence in the environment of [man-in-
duced] HUMAN-INDUCED conditions or contaminants in quantities or charac-
teristics which are or may be injurious to human, plant or wildlife, or
other animal life or to property.
9. "UNUSUAL IMPORTANCE" SHALL MEAN A FRESHWATER WETLAND, REGARDLESS OF
SIZE, THAT POSSESSES ONE OR MORE OF THE FOLLOWING CHARACTERISTICS AS
DETERMINED BY THE DEPARTMENT PURSUANT TO REGULATIONS:
(A) IT IS LOCATED IN AN AREA DESIGNATED AS A SPECIAL FLOOD HAZARD AREA
ON THE MOST CURRENT FEDERAL EMERGENCY MANAGEMENT AGENCY FLOOD INSURANCE
RATE MAP;
(B) IT IS LOCATED WITHIN AN URBANIZED AREA AS DEFINED BY THE UNITED
STATES CENSUS BUREAU;
(C) IT CONTAINS A PLANT SPECIES OCCURRING IN FEWER THAN THIRTY-FIVE
SITES STATEWIDE OR HAVING FEWER THAN FIVE THOUSAND INDIVIDUALS STATE-
WIDE;
(D) IT CONTAINS OCCUPIED HABITAT OR HABITAT FOR AN ESSENTIAL BEHAVIOR
OF AN ENDANGERED OR THREATENED SPECIES OR A SPECIES OF SPECIAL CONCERN
AS DEFINED PURSUANT TO SECTION 11-0535 OF THIS CHAPTER AND/OR LISTED AS
A SPECIES OF GREATEST CONSERVATION NEED IN NEW YORK'S WILDLIFE ACTION
PLAN;
(E) IT WAS PREVIOUSLY CLASSIFIED BY THE DEPARTMENT AS A WETLAND ON OR
BEFORE APRIL FIRST, TWO THOUSAND TWENTY-FOUR;
(F) THE DEPARTMENT DETERMINES BASED ON CRITERIA ESTABLISHED BY REGU-
LATION THAT ITS WETLAND FUNCTIONS AND VALUES ARE OF LOCAL OR REGIONAL
SIGNIFICANCE;
(G) IT IS A VERNAL POOL OR OTHERWISE ISOLATED WETLAND THAT PROVIDES
CRITICAL HABITAT FOR SEMI-AQUATIC ORGANISMS;
(H) IT HAS ONE OR MORE OF THE SPECIFIC BENEFITS SET FORTH IN SUBDIVI-
SION SEVEN OF SECTION 24-0105 OF THIS TITLE;
(I) IT IS LOCATED IN A WATERSHED THAT HAS EXPERIENCED, OR IS EXPECTED
TO EXPERIENCE, SIGNIFICANT FLOODING IN THE FUTURE FROM SEVERE STORM
EVENTS;
(J) IT WAS PREVIOUSLY CLASSIFIED AS A WETLAND OF UNUSUAL LOCAL IMPOR-
TANCE; OR
(K) IT IS OF SIGNIFICANT IMPORTANCE IN PROTECTING THE STATE'S WATER
QUALITY.
10. "HYDRIC SOIL" SHALL MEAN SOIL THAT, IN ITS UNDRAINED CONDITION, IS
SATURATED, FLOODED OR PONDED LONG ENOUGH DURING A GROWING SEASON TO
DEVELOP AN ANAEROBIC CONDITION THAT SUPPORTS THE GROWTH AND REGENERATION
OF HYDROPHYTIC VEGETATION.
11. "HYDROPHYTIC VEGETATION" SHALL MEAN A PLANT OR PLANTS GROWING IN:
(A) WATER; OR
(B) A SUBSTRATE THAT IS AT LEAST PERIODICALLY DEFICIENT IN OXYGEN
DURING A GROWING SEASON AS A RESULT OF EXCESSIVE WATER CONTENT.
12. "VERNAL POOL" SHALL MEAN A SURFACE WATER OR WETLAND THAT PROVIDES
BREEDING HABITAT FOR AMPHIBIANS AND INVERTEBRATES THAT HAVE ADAPTED TO
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THE UNIQUE ENVIRONMENTS PROVIDED BY SUCH POOLS AND WHICH TYPICALLY HAS
THE FOLLOWING CHARACTERISTICS:
(A) CYCLES ANNUALLY FROM FLOODED TO DRY CONDITIONS, ALTHOUGH THE
HYDROPERIOD, SIZE AND SHAPE OF THE POOL MIGHT VARY FROM YEAR TO YEAR;
(B) FORMS IN A SHALLOW DEPRESSION OR BASIN;
(C) HAS NO PERMANENTLY FLOWING OUTLET;
(D) HOLDS WATER FOR AT LEAST TWO CONTINUOUS MONTHS FOLLOWING SPRING
ICE OUT;
(E) LACKS A VIABLE FISH POPULATION; AND
(F) SUPPORTS ONE OR MORE PRIMARY VERNAL POOL INDICATORS AS DEFINED IN
SUBDIVISION THIRTEEN OF THIS SECTION.
13. "PRIMARY VERNAL POOL INDICATORS" SHALL MEAN THE PRESENCE OR PHYS-
ICAL EVIDENCE OF SPECIES INCLUDING, BUT NOT LIMITED TO, AMPHIBIANS,
REPTILES, CRUSTACEANS, MOLLUSKS, ANNELIDS, AND INSECTS.
§ 3. Section 24-0301 of the environmental conservation law, as
amended by chapter 654 of the laws of 1977, subdivision 1 as amended by
section 37 of part D of chapter 60 of the laws of 2012 and subdivisions
4, 5 and 6 as amended by chapter 16 of the laws of 2010, is amended to
read as follows:
§ 24-0301. Commissioner's study.
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, INCLUDING, BUT NOT LIMITED TO
AVAILABLE INTERACTIVE MAPS, 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
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
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[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
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
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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] FRESHWA-
TER WETLANDS 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, AND ON THE DEPARTMENT'S WEBSITE. 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] AT ANY TIME TO DEPICT MORE ACCURATELY THE
LOCATION OF WETLANDS. 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.
7. Except as provided in subdivision eight of this section, the
commissioner may INITIATE, [upon his own initiative,] and shall
INITIATE, upon a written request by a landowner whose land or a portion
thereof may be included within a wetland, or upon the written request of
another person or persons or an official body whose interests are shown
to be affected, cause to be delineated more precisely the boundary line
or lines of a freshwater wetland or a portion thereof. Such more precise
delineation of a freshwater wetland boundary line or lines shall be of
appropriate scale and sufficient clarity to permit the ready identifica-
tion of individual buildings and of other major man-made structures or
facilities or significant geographical features with respect to the
boundary of any freshwater wetland. The commissioner shall undertake to
delineate the boundary of a particular wetland or wetlands, or a partic-
ular part of the boundary thereof only upon a showing by the applicant
therefor of good cause for such more precise delineation and the estab-
lishment of such more precise line.
8. The supervision of the maintenance of any freshwater wetlands map
or portion thereof applicable to wetlands within the Adirondack park,
the readjustment and precise delineation of wetland boundary lines and
the other functions and duties ascribed to the commissioner by subdivi-
sions six and seven of this section shall be performed by the Adirondack
park agency, which shall make such maps available for public inspection
and examination at its headquarters AND ON THE AGENCY'S WEBSITE.
§ 4. Subdivision 1 of section 24-0501 of the environmental conserva-
tion law, as amended by chapter 654 of the laws of 1977, is amended to
read as follows:
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1. On or after September 1, 1975, each local government may adopt,
amend, and[, upon the filing of the appropriate freshwater wetlands
map,] implement a freshwater wetlands protection law or ordinance in
accordance with this article to be applicable to all freshwater wetlands
wholly or partially within its jurisdiction. No freshwater wetlands
protection law or ordinance adopted by a county pursuant to this section
shall be applicable within the boundaries of any city, town or village
which has adopted and is implementing a local freshwater wetlands
protection law or ordinance consistent with this article.
§ 5. Section 24-0507 of the environmental conservation law, as amended
by section 42 of part D of chapter 60 of the laws of 2012, is amended to
read as follows:
§ 24-0507. Reservation of local jurisdiction.
Except as provided in this article, jurisdiction over all areas which
would qualify as freshwater wetlands except that they are not designated
as such on the freshwater wetlands map pursuant to section 24-0301 of
this article because they are less than [twelve and four-tenths acres]
ONE ACRE in size, ARE NOT OF UNUSUAL IMPORTANCE AS DEFINED IN SUBDIVI-
SION NINE OF SECTION 24-0107 OF THIS ARTICLE, and are not of unusual
local importance is reserved to the city, town or village in which they
are wholly or partially located, and the implementation of this article
with respect thereto is the responsibility of said city, town or
village, in accordance with section 24-0501 and title twenty-three of
article seventy-one of this chapter, except that a city, town or village
in the exercise of its powers under this section, shall not be subject
to the provisions of subdivision four of section 24-0501, subdivisions
two and three of section 24-0503, or section 24-0505 of this article.
§ 6. 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] OR
THE REGULATED AREAS ADJACENT TO THOSE WETLANDS SET FORTH IN SUBDIVISION
TWO OF THIS SECTION any of the regulated activities set forth in subdi-
vision 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
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
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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 OR SILVICULTURAL USE, THE
activities of farmers and other landowners in grazing and watering live-
stock, 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 IN
SUCH A MANNER AS NOT TO DESTROY OR PERMANENTLY ALTER SUCH WETLANDS 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 produc-
tivity 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. ALL ACTIVITIES ON
LANDS THAT MEET THE DEFINITION OF A FRESHWATER WETLAND SHALL BE SUBJECT
TO THE PROVISION OF THIS ARTICLE ONCE AGRICULTURAL OR SILVICULTURAL
ACTIVITIES CEASE.
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.
§ 7. 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 OR A
REGULATED FRESHWATER WETLAND ADJACENT AREA AND WHETHER A PERMIT UNDER
SUBDIVISION ONE OF SECTION 27-0701 OF THIS CHAPTER IS REQUIRED FOR A
PROPOSED ACTIVITY. The department shall give a definite answer in writ-
ing within [thirty] SIXTY days of such request as to [whether] THE
STATUS OF such parcel [will or will not be so designated] AND WHETHER A
PERMIT IS REQUIRED FOR THE PROPOSED ACTIVITY. Provided that, in the
event that weather or ground conditions prevent the department from
making a determination within [thirty] SIXTY 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 FOR
A PERIOD OF FIVE YEARS FROM THE DATE THE DEPARTMENT ISSUES THE NEGATIVE
ANSWER. [The commissioner may by regulation adopted after public hear-
ing exempt categories or classes of wetlands or individual wetlands
which he determines not to be critical to the furtherance of the poli-
cies and purposes of this article.]
§ 8. Subdivision 1 of section 24-0705 of the environmental conserva-
tion law, as amended by chapter 654 of the laws of 1977, is amended to
read as follows:
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1. In granting, denying or limiting any permit, the local government
or the commissioner shall consider the effect of the proposed activity
with reference to the public health and welfare, CLIMATE CHANGE, fish-
ing, flood, hurricane and storm dangers, and protection or enhancement
of the several functions of the freshwater wetlands and the benefits
derived therefrom which are set forth in section 24-0103 of this arti-
cle. The effects of the proposed activity shall be considered by the
department or a local government, as the case may be, irrespective of
political boundaries.
§ 9. Subdivisions 1 and 4 of section 24-0901 of the environmental
conservation law, subdivision 1 as added by chapter 614 of the laws of
1975 and subdivision 4 as amended by chapter 654 of the laws of 1977,
are 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.
4. A cooperative agreement with any such village, town, city or county
may provide for the development by personnel and facilities of the
department or the payment out of funds appropriated therefor, INCLUDING
BUT NOT LIMITED TO THE ENVIRONMENTAL PROTECTION FUND ESTABLISHED PURSU-
ANT TO SECTION NINETY-TWO-S OF THE STATE FINANCE LAW, for the purpose of
preserving, maintaining, or enhancing such wetlands in accordance with
the policies of this article, and for the furnishing of such personnel,
facilities or funds as may be agreed upon by the parties to the cooper-
ative agreement.
§ 10. Subdivisions 1 and 5 of section 24-0903 of the environmental
conservation law, as added by chapter 614 of the laws of 1975, are
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] THE commissioner shall
proceed to classify freshwater wetlands so designated thereon according
to their most appropriate uses, 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 compat-
ible 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.
5. Prior to the adoption of any land use regulations governing fresh-
water wetlands, the commissioner shall hold a public hearing thereon in
the area in which the affected freshwater wetlands are located, and give
fifteen days prior notice thereof by POSTING ON THE DEPARTMENT'S WEBSITE
AND BY publication at least once in a newspaper having general circu-
lation in the area of the local government involved. The commissioner
shall promulgate the regulations within thirty days of such hearing and
publish such order at least once in a newspaper having general circu-
lation in the area of the local government affected and make such plan
available for public inspection and review; AND MAY ALSO POST SUCH
INFORMATION ON THE DEPARTMENT'S WEBSITE. ANY such order shall not take
effect until thirty days after the filing thereof with the clerk of the
county in which such wetland is located.
§ 11. Article 24 of the environmental conservation law is amended by
adding a new title 11 to read as follows:
A. 9599 10
TITLE 11
FRESHWATER WETLANDS APPEAL BOARD
SECTION 24-1101. FRESHWATER WETLANDS APPEAL BOARD.
24-1103. POWERS.
§ 24-1101. FRESHWATER WETLANDS APPEAL BOARD.
1. THERE IS HEREBY CREATED IN THE DEPARTMENT AN APPEALS BOARD TO BE
KNOWN AS THE FRESHWATER WETLANDS APPEALS BOARD, HEREINAFTER IN THIS
ARTICLE REFERRED TO AS THE BOARD, CONSISTING OF FIVE MEMBERS.
2. THREE MEMBERS OF SUCH BOARD SHALL BE APPOINTED BY THE GOVERNOR FOR
TERMS OF TWO YEARS, ONE OF WHO SHALL BE THE CHAIR OF THE BOARD AND SERVE
AS ITS CHIEF EXECUTIVE OFFICER; AND TWO MEMBERS SHALL BE APPOINTED EACH
BY THE SENATE MAJORITY AND ASSEMBLY MAJORITY FOR A TERM OF THREE YEARS.
NO MEMBER OF THE BOARD SHALL BE AN EMPLOYEE OF THE STATE OR ANY POLI-
TICAL SUBDIVISION THEREOF. THE CHAIR OF THE BOARD SHALL HAVE THE POWER
AND THE DUTY TO PROMOTE THE EFFICIENT TRANSACTION OF THE BUSINESS OF THE
BOARD. EACH MEMBER SHALL CONTINUE TO HOLD OFFICE UNTIL A SUCCESSOR IS
APPOINTED OR DESIGNATED AND DULY QUALIFIED. A MEMBER CHOSEN TO FILL A
VACANCY CREATED OTHERWISE THAN BY EXPIRATION OF A TERM SHALL BE DESIG-
NATED OR APPOINTED AS THE CASE MAY BE, FOR THE UNEXPIRED TERM OF THE
MEMBER THEY ARE SUCCEEDING.
3. APPEALS SHALL BE HEARD BY ONE MEMBER OF THE BOARD IN ONE OF THE
COUNTIES WHEREIN THE FRESHWATER WETLANDS AFFECTED BY SUCH APPEAL ARE
LOCATED AND A MAJORITY VOTE OF THE MEMBERS OF THE ENTIRE BOARD SHALL BE
NECESSARY FOR A DETERMINATION OF SUCH APPEAL.
4. THE CHAIR OF THE BOARD AND TWO OTHER EXECUTIVE APPOINTMENTS SHALL
BE ATTORNEYS, ADMITTED TO PRACTICE BEFORE THE SUPREME COURT. EACH MEMBER
OF THE BOARD SHALL BE REIMBURSED FOR ACTUAL AND NECESSARY EXPENSES
INCURRED IN THE PERFORMANCES OF THEIR DUTIES.
§ 24-1103. POWERS.
1. THE BOARD SHALL HAVE THE POWER AND IT SHALL BE ITS DUTY:
(A) TO MEET AND FUNCTION AT ANY PLACE WITHIN THE STATE;
(B) TO ADOPT, PROMULGATE, AMEND AND RESCIND SUITABLE PROCEDURAL RULES
WITH RESPECT TO THE FUNCTIONING OF THE BOARD AND THE SETTING OF TIME
LIMITS FOR THE HEARING OF APPEALS, THE RENDERING OF DECISIONS THEREON,
AND THE FILING OF THE DETERMINATIONS, DECISION OR ORDER OF THE BOARD
WITH THE CLERK OF THE COUNTY IN WHICH THE FRESHWATER WETLAND IS LOCATED;
(C) TO HEAR APPEALS BY ANY PARTY TO ANY PROCEEDING BEFORE THE COMMIS-
SIONER OR LOCAL JURISDICTION FROM ALL ORDERS OR DECISIONS OF THE COMMIS-
SIONER OR LOCAL JURISDICTION ISSUED OR MADE PURSUANT TO THIS ARTICLE,
PROVIDED SUCH APPEALS ARE COMMENCED BY THE FILING OF A NOTICE OF APPEAL
WITH THE BOARD WITHIN THIRTY DAYS OF SERVICE OF SUCH ORDER OR AFTER
NOTICE OF SUCH DECISION GIVEN, AS THE CASE MAY BE;
(D) TO REVIEW ANY DECISION OR ORDER OF THE COMMISSIONER OR LOCAL
GOVERNMENT MADE PURSUANT TO THIS ARTICLE UPON APPEAL THEREFROM BY ANY
PERSON OR MUNICIPAL CORPORATION AFFECTED THEREBY, PROVIDING SUCH REVIEW
IS COMMENCED BY THE FILING WITH THE BOARD OF A NOTICE OF REVIEW WITHIN
THIRTY DAYS OF FILING OF SERVICE OF SUCH ORDER OR AFTER NOTICE OF SUCH
DECISION GIVEN, AS THE CASE MAY BE;
(E) TO RECEIVE BRIEFS, AND, WHERE THE BOARD DEEMS IT ADVISABLE, TO
HEAR ORAL ARGUMENT WITH RESPECT TO SUCH APPEALS;
(F) TO REQUIRE THE SUBMISSION TO IT BY THE COMMISSIONER OR LOCAL
JURISDICTION OF AN ORIGINAL OR CERTIFIED COPY OF THE ENTIRE RECORD ON
WHICH ANY ORDER OR DECISION APPEALED FROM IS BASED, WHICH RECORD MAY NOT
BE REPRODUCED; AND
A. 9599 11
(G) TO STAY THE EFFECTIVENESS OF ANY ORDER OR DECISION OF THE COMMIS-
SIONER OR LOCAL JURISDICTION PENDING THE DETERMINATION OF AN APPEAL IN
PROPER CASES AND ON SUCH TERMS AND CONDITIONS AS THE BOARD MAY REQUIRE.
2. THE BOARD MAY AFFIRM, REMAND OR REVERSE ANY ORDER OR DECISION OF
THE COMMISSIONER OR LOCAL GOVERNMENT OR REMAND THE MATTER TO THE COMMIS-
SIONER OR LOCAL GOVERNMENT FOR FURTHER PROCEEDINGS IN WHOLE, OR WITH
RESPECT TO ANY PART THEREOF, OR WITH RESPECT TO ANY PARTY, PROVIDED
HOWEVER THAT THE BOARD SHALL LIMIT ITS REVIEW TO WHETHER THE ORDER OR
DECISION OF THE COMMISSIONER OR LOCAL GOVERNMENT IS:
(A) IN CONFORMITY WITH THE CONSTITUTION AND THE LAWS OF THE STATE AND
THE UNITED STATES;
(B) WITHIN THE COMMISSIONER'S OR LOCAL GOVERNMENT'S STATUTORY JURIS-
DICTION OR AUTHORITY;
(C) MADE IN ACCORDANCE WITH PROCEDURES REQUIRED BY LAW OR ESTABLISHED
BY APPROPRIATE RULES OR REGULATIONS OF THE COMMISSIONER OR LOCAL GOVERN-
MENT;
(D) SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD; OR
(E) NOT ARBITRARY, CAPRICIOUS OR CHARACTERIZED BY ABUSE OR DISCRETION
OR CLEARLY UNWARRANTED EXERCISE OF DISCRETION.
3. THE COMMISSIONER OR LOCAL GOVERNMENT SHALL BE BOUND BY THE DECISION
OF THE BOARD EXCEPT TO THE EXTENT SUCH DECISION IS RESERVED OR OTHERWISE
MODIFIED BY A COURT OF COMPETENT JURISDICTION PURSUANT TO THIS ARTICLE.
§ 12. Section 24-1305 of the environmental conservation law, as added
by chapter 771 of the laws of 1976, is amended to read as follows:
§ 24-1305. Applicability.
The provisions of this article shall not apply to any land use,
improvement or development for which final approval shall have been
obtained prior to the effective date of this article from the local
governmental authority or authorities having jurisdiction over such land
use. As used in this section, the term "final approval" shall mean[:
(a) in the case of the subdivision of land, conditional approval of a
final plat as the term is defined in section two hundred seventy-six of
the town law, and approval as used in section 7-728 of the village law
and section thirty-two of the general cities law;
(b) in the case of a site plan not involving the subdivision of land,
approval by the appropriate body or office of a city, village or town of
the site plan; and
(c) in those cases not covered by subdivision (a) or (b) above,] the
issuance of a building permit or other authorization for the commence-
ment of the use, improvement or development for which such permit or
authorization was issued or in those local governments which do not
require such permits or authorizations, the actual commencement of the
use, improvement or development of the land.
§ 13. Section 54-1501 of the environmental conservation law, as added
by section 5 of part U of chapter 58 of the laws of 2016, is amended to
read as follows:
§ 54-1501. Definition.
For purposes of this title, "climate smart community projects" shall
mean adaptation and mitigation projects, WETLANDS MANAGEMENT, INCLUDING
COOPERATIVE AGREEMENTS PURSUANT TO SECTION 24-0901 OF THIS CHAPTER,
including flood mitigation and coastal and riparian resiliency, green-
house gas reductions outside the power sector and climate change adapta-
tion planning, and clean vehicle projects.
§ 14. Paragraph b of subdivision 1 of section 54-1523 of the environ-
mental conservation law, as added by section 5 of part U of chapter 58
of the laws of 2016, is amended to read as follows:
A. 9599 12
b. nature-based solutions such as wetland protections, INCLUDING
MAPPING AND COOPERATIVE AGREEMENTS PURSUANT TO SECTION 24-0901 OF THIS
CHAPTER, to address physical climate risk due to sea level rise, and/or
storm surges and/or flooding, based on available data predicting the
likelihood of future extreme weather events, including hazard risk anal-
ysis data if applicable;
§ 15. Subdivision 8 of section 70-0117 of the environmental conserva-
tion law, as added by section 1 of part AAA of chapter 59 of the laws of
2009, is amended to read as follows:
8. (a) All persons required to obtain a permit from the department
pursuant to section 24-0701 of this chapter shall submit to the depart-
ment an application fee in an amount not to exceed the following:
(i) [fifty] ONE HUNDRED dollars per application for a [permit for a
minor project as defined in this article or] modification to any exist-
ing permit issued pursuant to section 24-0701 of this chapter;
(ii) [fifty] THREE HUNDRED dollars per application for [a permit for a
residential project defined as associated with] one NEW single family
dwelling and customary appurtenances thereto;
(iii) [one] FIVE hundred dollars per application for A NEW MULTIPLE
SINGLE FAMILY DWELLING, NEW multiple family dwelling and customary
appurtenances thereto;
(iv) [two] ONE THOUSAND DOLLARS PER APPLICATION FOR NEW COMMERCIAL OR
INDUSTRIAL STRUCTURES OR IMPROVEMENTS;
(V) ONE hundred dollars per application for a permit for any other
project as defined in this article.
(b) All persons required to obtain a permit from the department pursu-
ant to section 25-0402 of this chapter shall submit to the department an
application fee in an amount not to exceed the following:
(i) [two] THREE hundred dollars per application for a permit for a
minor project as defined in this article or modification to any existing
permit issued pursuant to section 25-0402 of this chapter;
(ii) [nine hundred] TWO THOUSAND DOLLARS PER APPLICATION FOR A SUBDI-
VISION OF LAND OR NEW COMMERCIAL OR INDUSTRIAL STRUCTURES OR IMPROVE-
MENTS;
(III) ONE THOUSAND dollars per application for a permit for a project
as defined in this article.
(c) All fees collected pursuant to this subdivision shall be deposited
into the environmental protection fund pursuant to section ninety-two-s
of the state finance law.
§ 16. Subdivisions 1 and 2 of section 71-2303 of the environmental
conservation law, as amended by chapter 99 of the laws of 2010, are
amended to read as follows:
1. Administrative sanctions. (A) Any person who violates, disobeys or
disregards any provision of article twenty-four, including title five
and section 24-0507 thereof or any rule or regulation, local law or
ordinance, permit or order issued pursuant thereto, shall be liable to
the people of the state for a civil penalty of not to exceed eleven
thousand dollars for every such violation, to be assessed, after a hear-
ing or opportunity to be heard upon due notice and with the rights to
specification of the charges and representation by counsel at such hear-
ing, by the commissioner or local government. Such penalty ASSESSED BY
THE COMMISSIONER OR LOCAL GOVERNMENT may be recovered in an action
brought by the attorney general at the request and in the name of the
commissioner or local government in any court of competent jurisdiction.
Such civil penalty may be released or compromised by the commissioner or
local government before the matter has been referred to the attorney
A. 9599 13
general; and where such matter has been referred to the attorney gener-
al, any such penalty may be released or compromised and any action
commenced to recover the same may be settled and discontinued by the
attorney general with the consent of the commissioner or local govern-
ment. In addition, the commissioner or local government shall have
power, following a hearing held in conformance with the procedures set
forth in section 71-1709 of this article, to direct the violator to
cease [his violation of] VIOLATING the act and to restore the affected
freshwater wetland to its condition prior to the violation, insofar as
that is possible within a reasonable time and under the supervision of
the commissioner or local government. Any such order of the commissioner
or local government shall be enforceable in an action brought by the
attorney general at the request and in the name of the commissioner or
local government in any court of competent jurisdiction. Any civil
penalty or order issued by the commissioner or local government pursuant
to this subdivision shall be reviewable in a proceeding pursuant to
article seventy-eight of the civil practice law and rules.
(B) UPON DETERMINING THAT SIGNIFICANT DAMAGE TO THE FUNCTIONS AND
BENEFITS OF A FRESHWATER WETLAND IS OCCURRING OR IS IMMINENT AS A RESULT
OF ANY VIOLATION OF ARTICLE TWENTY-FOUR OF THIS CHAPTER, INCLUDING BUT
NOT LIMITED TO (I) ACTIVITY TAKING PLACE REQUIRING A PERMIT UNDER ARTI-
CLE TWENTY-FOUR OF THIS CHAPTER BUT FOR WHICH NO PERMIT HAS BEEN GRANTED
OR (II) FAILURE ON THE PART OF A PERMITTEE TO ADHERE TO PERMIT CONDI-
TIONS, THE COMMISSIONER OR LOCAL GOVERNMENT SHALL HAVE POWER TO
DIRECT THE VIOLATOR TO CEASE AND DESIST FROM VIOLATING THE ACT. IN SUCH
CASES THE VIOLATOR SHALL BE PROVIDED AN OPPORTUNITY TO BE HEARD WITHIN
TEN DAYS OF RECEIPT OF THE NOTICE TO CEASE AND DESIST.
2. Criminal sanctions. Any person who violates any provision of arti-
cle twenty-four of this chapter, including any rule or regulation, local
law or ordinance, permit or order issued pursuant thereto, shall, in
addition, for the first offense, be guilty of a violation punishable by
a fine of not less than two thousand nor more than [four] FIVE thousand
dollars; for a second and each subsequent offense [he] THEY shall be
guilty of a misdemeanor punishable by a fine of not less than four thou-
sand nor more than [seven] TEN thousand dollars or a term of imprison-
ment of not less than fifteen days nor more than six months or both.
[Instead of] IN ADDITION TO these punishments, any offender may be
punishable by being ordered by the court to restore the affected fresh-
water wetland OR AREA IMMEDIATELY ADJACENT THERETO to its condition
prior to the offense, insofar as that is possible. The court shall spec-
ify a reasonable time for the completion of such restoration, which
shall be effected under the supervision of the commissioner or local
government. Each offense shall be a separate and distinct offense and,
in the case of a continuing offense, each day's continuance thereof
shall be deemed a separate and distinct offense.
§ 17. Subdivision 1 of section 71-2305 of the environmental conserva-
tion law, as added by chapter 614 of the laws of 1975, is amended to
read as follows:
1. The attorney general, upon [his] THEIR own initiative or upon
complaint of the commissioner or local government, shall prosecute
persons alleged to have violated [any such order of the commissioner or
local government pursuant to] article twenty-four OF THIS CHAPTER.
§ 18. This act shall take effect immediately and shall apply to all
permits issued on or after January 1, 2024.
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