NY State Senate Bill S5116C

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

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Actions

view actions (18)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 03, 2022	committed to rules
Jan 12, 2022	advanced to third reading
Jan 11, 2022	2nd report cal.
Jan 10, 2022	1st report cal.77
Jan 05, 2022	referred to environmental conservation returned to senate died in assembly
Jun 08, 2021	referred to environmental conservation delivered to assembly passed senate
May 20, 2021	amended on third reading 5116c
May 12, 2021	advanced to third reading
May 11, 2021	2nd report cal. amended 5116b
May 10, 2021	1st report cal.979
Apr 23, 2021	print number 5116a
Apr 23, 2021	amend and recommit to environmental conservation
Feb 24, 2021	referred to environmental conservation

Votes

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Jan 10, 2022 - Environmental Conservation committee Vote

S5116C

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

show Environmental Conservation committee vote details

Environmental Conservation Committee Vote: Jan 10, 2022

aye (7)

nay (2)

Ritchie
Stec

aye wr (2)

Jun 8, 2021 - floor Vote

S5116C

floor

Aye

Nay

Absent

Excused

Abstained

May 10, 2021 - Environmental Conservation committee Vote

S5116A

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

show committee vote details

Committee Vote: May 10, 2021

aye (6)

nay (3)

aye wr (2)

Bill Amendments

Original

C (Active)

Original

C (Active)

Co-Sponsors

S5116 - Details

See Assembly Version of this Bill:: A7850
Current Committee:: Senate Rules
Law Section:: Environmental Conservation Law
Laws Affected:: Rpld §24-0301 subs 1 - 5, amd En Con L, generally

S5116 - Summary

Relates to freshwater wetlands; defines specific classes of wetlands.

S5116 - Sponsor Memo

 
BILL NUMBER: S5116

SPONSOR: HARCKHAM
 
TITLE OF BILL:

An act to amend the environmental conservation law, in relation to
freshwater wetlands; and to repeal certain provisions of such law relat-
ing thereto

 
PURPOSE:

Relates to freshwater wetlands; repealer SUMMARY OF PROVISIONS:

Section 1 amends § 24-0105 of the Environmental Conservation Law (ECL)
to revise and add to the list of benefits derived from Wetlands.

Section 2 amends § 24-0107 of the ECL to amend the definition of "fresh-
water wetlands" to include wetlands that have an area of at least twelve
and four-tenths acres or, if less than twelve and four-tenths acres in
size, are of unusual importance. The term "unusual importance" is
defined under subdivision two of § 24-0107 of the ECL.  Additionally,
Subdivision two of § 24-0107 of the ECL states that DEC's "freshwater

wetlands map" shall not serve as the basis for regulation by the Depart-
ment and shall be only educational in Purposes only, and are not
controlling for purposes of determining if a wetlands permit is required
pursuant to section 24-0701 of section.

Section 3 subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the ECL
are repealed.

Section 4 amends subdivisions 6, 7 and 8 of section 24-0301 to specify
the procedural requirements for the freshwater wetlands map.  Provisions
include allowing the commissioner to update any digital image of the map
posted on the department's website at any time to more accurately depict
the approximate location of wetlands.

Section 5 amends subdivisions 1 and 4 of section 24-0701 of the ECL
specifying the permitting requirements for freshwater wetlands, includ-
ing the requirements for a wetlands permit for the subdivision of land.

Section 6 amends subdivision 5 of section 24-0703 to specify the
requirements for DEC to respond to requests for determination of wetland
status.

Section 7 amends subdivision 1 of section 24-0901 of the ECL to remove
reference to the wetlands map in relation to consultations with local
governments.n =

Section 8 amends section 24-0903 to remove reference to the wetlands map
in relation to the DEC determination of compatible land uses.

Section 9 amends section 70-0117 of the ECL to designate credit of the
fees collected to the marine resources account of the conservation fund.

Section 10 amends section 71-2303 of the ECL to specify violations,
determinants for said violations and their penalties.



Section 11 amends section 71-2305 of the ECL to permit that the attorney
general shall prosecute persons alleged to have violated article twen-
ty-four of chapter 614 of the laws of 1975.

Section 12 states the effective date.

 
JUSTIFICATION:

For the past two decades, New York has been entangled in the federal
legal debate over what constitutes a wetland and who has the authority
to protect them. New Yorkers rely on swamps, fens, bogs, and wet meadows
to filter pollutants from our waterways, recharge our aquifers, and
absorb catastrophic floods. Yet there often appears to be little public
awareness that we are filling, dredging and draining wetlands at an
alarming rate - at least until we find our neighborhoods underwater or
our public water supplies contaminated.

Currently, for a wetland to be subject to regulation under NY state law,
it must be delineated on existing freshwater wetlands maps prepared by
DEC after lengthy public comment. Most of these maps have not been
updated in over 20 years, making them woefully incomplete, and the
amendment process can be time consuming and overly burdensome in admin-
istrative costs. There are hundreds of thousands of acres of wetlands in
high development areas of New York that are not on official maps but
desperately require protection. This legislation will remove the juris-
dictional barriers that these maps have created, and allow DEC to imme-
diately protect and regulate wetlands if they meet the basic scientific
definition of these critical habitat areas - featuring hydrophilic
plants and hydric soils. Commissioner Seggos estimated that if this
reform was enshrined in law it will be the equivalent of adding 1
million acres of wetland under the state's protection. That number just
represents wetlands that are 12.4 acres and larger that were never offi-
cially mapped by the state. Existing state law will also allow DEC to
identify and protect smaller wetlands of unusual importance that were
once encumbered by the state's regressive mapping protocol and never
officially recognized. Currently, New York is the only state in the
Northeast not to assume regulatory authority over its own wetlands.  The
new reforms would preserve DEC's authority over wetlands 12.4 acres and
larger but expand the Departments authority over smaller wetlands of
'unusual importance' that: are class 1 wetlands, or class II wetlands
that possess valuable characteristics like: effective for community
flood water control, within an urban area, possessing rare plant or
animal species, or important to maintaining clean drinking water.

 
LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
This act shall take effect immediately, provided, however that sections
two, three, four, five, six, and seven and eight of this act shall take
effect on January 1, 2022.

S5116 - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5116
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 24, 2021
                                ___________
 
 Introduced  by Sen. HARCKHAM -- 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  to  repeal  certain provisions 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. Subdivisions 2, 3 and 7 of section 24-0105 of the environ-
 mental conservation law, as added by chapter 614 of the  laws  of  1975,
 subdivision  7  as  renumbered  by  chapter 654 of the laws of 1977, are
 amended to read as follows:
   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
 RECENT CURTAILMENT OF FEDERAL WETLAND PROTECTIONS.
   3.  Recurrent  flooding aggravated or caused by the loss of freshwater
 wetlands has serious effects upon  natural  ecosystems.  THE  INCREASING
 SEVERITY  AND  DURATION OF STORM-RELATED FLOODING DUE TO CLIMATE CHANGE,
 WHICH HAS CAUSED BILLIONS OF DOLLARS OF PROPERTY DAMAGE  IN  THE  STATE,
 MAKES PROTECTION OF ALL FRESHWATER WETLANDS IN THE STATE OF VITAL IMPOR-
 TANCE.
   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,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD09969-01-1

 S. 5116                             2
 
 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;
   (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 THREAT-
 ENED, 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, 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 a new subdivision 9 is added to read as follows:
   "Freshwater wetlands" means lands and waters of the state [as shown on
 the  freshwater  wetlands  map] THAT HAVE AN AREA OF AT LEAST TWELVE AND
 FOUR-TENTHS ACRES OR, IF LESS THAN TWELVE AND FOUR-TENTHS ACRES IN SIZE,
 ARE OF UNUSUAL IMPORTANCE AND which 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) the waters overlying the areas set forth in PARAGRAPHS (a) and (b)
 OF  THIS  SUBDIVISION  and  the  lands  underlying PARAGRAPH (c) OF THIS
 SUBDIVISION.
   2.  "Freshwater wetlands map" shall mean  a  map  promulgated  by  the
 department  pursuant  to  section  24-0301  of this article on which are
 indicated the boundaries of any freshwater wetlands. FRESHWATER  WETLAND
 MAPS  WILL  SERVE THE PURPOSE OF EDUCATING THE PUBLIC ON THE APPROXIMATE
 LOCATION OF WETLANDS, ARE FOR EDUCATIONAL PURPOSES  ONLY,  AND  ARE  NOT
 CONTROLLING FOR PURPOSES OF DETERMINING IF A WETLANDS PERMIT IS REQUIRED
 PURSUANT TO SECTION 24-0701 OF THIS ARTICLE.
   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.

 S. 5116                             3
 
   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:
   (A)  IT  IS  LOCATED  IN  A WATERSHED THAT HAS EXPERIENCED SIGNIFICANT
 FLOODING IN THE PAST OR IS EXPECTED TO EXPERIENCE  SIGNIFICANT  FLOODING
 IN THE FUTURE FROM SEVERE STORM EVENTS RELATED TO CLIMATE CHANGE;
   (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 HABITAT FOR AN ESSENTIAL BEHAVIOR OF AN ENDANGERED  OR
 THREATENED  SPECIES  OR  A  SPECIES  OF SPECIAL CONCERN AS DEFINED UNDER
 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 IS CLASSIFIED BY THE DEPARTMENT AS A CLASS I WETLAND;
   (F)  IT  IS CLASSIFIED BY THE DEPARTMENT AS A CLASS II WETLAND AND THE
 DEPARTMENT DETERMINES BASED ON CRITERIA ESTABLISHED BY  REGULATION  THAT
 ITS  WETLAND FUNCTIONS AND VALUES ARE OF LOCAL OR REGIONAL SIGNIFICANCE;
 OR
   (G) IT IS DETERMINED BY THE COMMISSIONER TO BE OF  SIGNIFICANT  IMPOR-
 TANCE TO PROTECTING THE STATE'S WATER QUALITY.
   §  3. Subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the environ-
 mental conservation law are REPEALED.
   § 4. Subdivisions 6, 7 and 8 of section 24-0301 of  the  environmental
 conservation  law, subdivision 6 as amended by chapter 16 of the laws of
 2010 and subdivision 7 as amended and subdivision 8 as added by  chapter
 654 of the laws of 1977, are amended to read as follows:
   [6.]  1.  Except  as  provided  in  subdivision  [eight] THREE of this
 section, the commissioner shall supervise the maintenance of [such boun-
 dary] FRESHWATER 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] 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. Notice of such readjustment shall be given in
 the same manner as set forth in subdivision five of this section for the
 promulgation 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 readjustment] AT ANY TIME  TO  MORE
 ACCURATELY DEPICT THE APPROXIMATE LOCATION OF WETLANDS.
   [7.]  2.  Except  as  provided  in  subdivision  [eight] THREE of this
 section, the commissioner may, upon his own initiative, and shall,  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 AND THE REGULATED FRESHWATER
 WETLAND ADJACENT AREA AS SET FORTH IN SUBDIVISION TWO OF SECTION 24-0701
 OF THIS ARTICLE. [Such more precise delineation of a freshwater  wetland

 S. 5116                             4

 boundary  line  or  lines  shall  be of appropriate scale and sufficient
 clarity to permit the ready identification 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 particular part of the boundary
 OR REGULATED ADJACENT AREA thereof only upon a showing by the  applicant
 therefor  of  good  cause  for  such  [more precise] delineation and the
 establishment of such [more precise] line.
   [8.] 3. 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
 subdivisions  [six  and  seven]  ONE  AND  TWO  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] ON
 THE AGENCY'S WEBSITE.
   §  5.  Subdivisions  1  and  4 of section 24-0701 of the environmental
 conservation law, subdivision 1 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 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
 ON THE REGULATED FRESHWATER WETLAND ADJACENT AREA AS SET FORTH IN SUBDI-
 VISION  TWO OF THIS SECTION any of the regulated activities set forth in
 subdivision two of this section must obtain a permit as provided in this
 title.
   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.
   §  6.  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 THIS SECTION IS REQUIRED FOR A PROPOSED ACTIVITY. The

 S. 5116                             5
 
 department shall give a definite answer in writing 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  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 arti-
 cle.]
   § 7.  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.
   §  8.  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  accord-
 ing  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
 wetlands. The commissioner shall determine what uses  of  such  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.
   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
 OR 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
 POST  SUCH  ORDER  ON THE DEPARTMENT'S WEBSITE OR publish such order [at
 least once] in a newspaper having general circulation in the area of the
 local government affected  and  make  such  plan  available  for  public
 inspection  and  review;  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.
   § 9. Paragraph (c) of subdivision 8 of section 70-0117 of the environ-
 mental conservation law, as added by section 1 of part AAA of chapter 59
 of the laws of 2009, is amended to read as follows:
   (c) [All fees] FEES collected pursuant to [this] PARAGRAPH (A) OF THIS
 subdivision shall be deposited into the  environmental  protection  fund
 pursuant  to  section  ninety-two-s  of  the  state  finance  law.  FEES
 COLLECTED PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION SHALL BE  DEPOS-

 S. 5116                             6
 
 ITED  TO  THE CREDIT OF THE MARINE RESOURCES ACCOUNT OF THE CONSERVATION
 FUND.
   (D) APPLICATION FEES REQUIRED PURSUANT TO THIS SUBDIVISION WILL NOT BE
 REQUIRED FOR ANY STATE DEPARTMENT.
   §  10.  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]
 TEN thousand dollars for every such violation, to be assessed,  after  a
 hearing  or  opportunity to be heard upon due notice and with the rights
 to specification of the charges and representation by  counsel  at  such
 hearing,  by  the  commissioner or local government. Such penalty 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  compro-
 mised by the commissioner or local government before the matter has been
 referred  to  the  attorney  general;  and  where  such  matter has been
 referred to the attorney general, 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 commis-
 sioner or local government.  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 jurisdic-
 tion.  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 BENE-
 FITS 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  ARTICLE
 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  CONDITIONS,
 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 WITH 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 shall be guilty  of
 a  misdemeanor  punishable  by a fine of not less than four thousand nor
 more than [seven] TEN thousand dollars or a term of imprisonment of  not

 S. 5116                             7
 
 less  than  fifteen  days  nor  more than six months or both. Instead of
 these punishments, any offender may be punishable by  being  ordered  by
 the  court  to  restore the affected freshwater wetland 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.
   §  11. 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  OR  HER 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.
   § 12. This act shall take effect immediately, provided, however,  that
 sections two, three, four, five, six, seven and eight of this  act shall
 take effect on January 1, 2023.

Co-Sponsors

S5116A - Details

See Assembly Version of this Bill:: A7850
Current Committee:: Senate Rules
Law Section:: Environmental Conservation Law
Laws Affected:: Rpld §24-0301 subs 1 - 5, amd En Con L, generally

S5116A - Summary

Relates to freshwater wetlands; defines specific classes of wetlands.

S5116A - Sponsor Memo

 
BILL NUMBER: S5116A

SPONSOR: HARCKHAM
 
TITLE OF BILL:

An act to amend the environmental conservation law, in relation to
freshwater wetlands; and to repeal certain provisions of such law relat-
ing thereto

 
PURPOSE:

Relates to freshwater wetlands; repealer SUMMARY OF PROVISIONS:

Section 1 amends § 24-0105 of the Environmental Conservation Law (ECL)
to revise and add to the list of benefits derived from Wetlands.

Section 2 amends § 24-0107 of the ECL to amend the definition of "fresh-
water wetlands" to include wetlands that have an area of at least twelve
and four-tenths acres or, if less than twelve and four-tenths acres in
size, are of unusual importance. The term "unusual importance" is
defined under subdivision two of § 24-0107 of the ECL. Additionally,
Subdivision two of § 24-0107 of the ECL states that DEC's "freshwater

wetlands map" shall not serve as the basis for regulation by the Depart-
ment and shall be only educational in Purposes only, and are not
controlling for purposes of determining if a wetlands permit is required
pursuant to section 24-0701 of section.

Section 3 subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the ECL
are repealed.

Section 4 amends subdivisions 6, 7 and 8 of section 24-0301 to specify
the procedural requirements for the freshwater wetlands map.  Provisions
include allowing the commissioner to update any digital image of the map
posted on the department's website at any time to more accurately depict
the approximate location of wetlands.

Section 5 amends subdivisions 1 and 4 of section 24-0701 of the ECL
specifying the permitting requirements for freshwater wetlands, includ-
ing the requirements for a wetlands permit for the subdivision of land.

Section 6 amends subdivision 5 of section 24-0703 to specify the
requirements for DEC to respond to requests for determination of wetland
status.

Section 7 amends subdivision 1 of section 24-0901 of the ECL to remove
reference to the wetlands map in relation to consultations with local
governments.n =

Section 8 amends section 24-0903 to remove reference to the wetlands map
in relation to the DEC determination of compatible land uses.

Section 9 amends section 70-0117 of the ECL to designate credit of the
fees collected to the marine resources account of the conservation fund.

Section 10 amends section 71-2303 of the ECL to specify violations,
determinants for said violations and their penalties.



Section 11 amends section 71-2305 of the ECL to permit that the attorney
general shall prosecute persons alleged to have violated article twen-
ty-four of chapter 614 of the laws of 1975.

Section 12 states the effective date.

 
JUSTIFICATION:

For the past two decades, New York has been entangled in the federal
legal debate over what constitutes a wetland and who has the authority
to protect them. New Yorkers rely on swamps, fens, bogs, and wet meadows
to filter pollutants from our waterways, recharge our aquifers, and
absorb catastrophic floods. Yet there often appears to be little public
awareness that we are filling, dredging and draining wetlands at an
alarming rate - at least until we find our neighborhoods underwater or
our public water supplies contaminated.

Currently, for a wetland to be subject to regulation under NY state law,
it must be delineated on existing freshwater wetlands maps prepared by
DEC after lengthy public comment. Most of these maps have not been
updated in over 20 years, making them woefully incomplete, and the
amendment process can be time consuming and overly burdensome in admin-
istrative costs. There are hundreds of thousands of acres of wetlands in
high development areas of New York that are not on official maps but
desperately require protection. This legislation will remove the juris-
dictional barriers that these maps have created, and allow DEC to imme-
diately protect and regulate wetlands if they meet the basic scientific
definition of these critical habitat areas - featuring hydrophilic
plants and hydric soils. Commissioner Seggos estimated that if this
reform was enshrined in law it will be the equivalent of adding 1
million acres of wetland under the state's protection. That number just
represents wetlands that are 12.4 acres and larger that were never offi-
cially mapped by the state. Existing state law will also allow DEC to
identify and protect smaller wetlands of unusual importance that were
once encumbered by the state's regressive mapping protocol and n ever
officially recognized. Currently, New York is the only state in the
Northeast not to assume regulatory authority over its own wetlands. The
new reforms would preserve DEC's authority over wetlands 12.4 acres and
larger but expand the Departments authority over smaller wetlands of
'unusual importance' that: are class 1 wetlands, or class II wetlands
that possess valuable characteristics like: effective for community
flood water control, within an urban area, possessing rare plant or
animal species, or important to maintaining clean drinking water.

 
LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
This act shall take effect immediately, provided, however that sections
two, three, four, five, six, and seven and eight of this act shall take
effect on January 1, 2022.

S5116A - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5116--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 24, 2021
                                ___________
 
 Introduced  by  Sens. HARCKHAM, HOYLMAN, KAVANAGH, LIU -- read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Environmental  Conservation  --  committee  discharged,  bill amended,
   ordered reprinted as amended and recommitted to said committee
 
 AN ACT to amend the  environmental  conservation  law,  in  relation  to
   freshwater  wetlands;  and  to  repeal  certain provisions 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. Subdivisions 2, 3 and 7 of section 24-0105 of the environ-
 mental conservation law, as added by chapter 614 of the  laws  of  1975,
 subdivision  7  as  renumbered  by  chapter 654 of the laws of 1977, are
 amended to read as follows:
   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
 RECENT CURTAILMENT OF FEDERAL WETLAND PROTECTIONS.
   3.  Recurrent  flooding aggravated or caused by the loss of freshwater
 wetlands has serious effects upon  natural  ecosystems.  THE  INCREASING
 SEVERITY  AND  DURATION OF STORM-RELATED FLOODING DUE TO CLIMATE CHANGE,
 WHICH HAS CAUSED BILLIONS OF DOLLARS OF PROPERTY DAMAGE  IN  THE  STATE,
 MAKES PROTECTION OF ALL FRESHWATER WETLANDS IN THE STATE OF VITAL IMPOR-
 TANCE.
   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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD09969-02-1

 S. 5116--A                          2
 
   (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;
   (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 THREAT-
 ENED, 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, 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 a new subdivision 9 is added to read as follows:
   "Freshwater wetlands" means lands and waters of the state [as shown on
 the  freshwater  wetlands  map] THAT HAVE AN AREA OF AT LEAST TWELVE AND
 FOUR-TENTHS ACRES OR, IF LESS THAN TWELVE AND FOUR-TENTHS ACRES IN SIZE,
 ARE OF UNUSUAL IMPORTANCE AND which 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) the waters overlying the areas set forth in PARAGRAPHS (a) and (b)
 OF  THIS  SUBDIVISION  and  the  lands  underlying PARAGRAPH (c) OF THIS
 SUBDIVISION.
   2.  "Freshwater wetlands map" shall mean  a  map  promulgated  by  the
 department  pursuant  to  section  24-0301  of this article on which are
 indicated the boundaries of any freshwater wetlands. FRESHWATER  WETLAND
 MAPS  WILL  SERVE THE PURPOSE OF EDUCATING THE PUBLIC ON THE APPROXIMATE
 LOCATION OF WETLANDS, ARE FOR EDUCATIONAL PURPOSES  ONLY,  AND  ARE  NOT
 CONTROLLING FOR PURPOSES OF DETERMINING IF A WETLANDS PERMIT IS REQUIRED
 PURSUANT  TO SECTION 24-0701 OF THIS ARTICLE.  NOTWITHSTANDING THE OTHER
 PROVISIONS OF THIS SUBDIVISION, ANY DELINEATION OF A FRESHWATER  WETLAND
 BOUNDARY  FILED  AFTER JANUARY FIRST, TWO THOUSAND TWENTY-THREE SHALL BE
 CONTROLLING FOR A PERIOD OF TEN YEARS AFTER THE DATE OF SUCH FILING.
   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.

 S. 5116--A                          3
 
   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:
   (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 THAT HAS EXPERIENCED SIGNIFICANT FLOODING IN THE PAST;
   (B)  IT IS LOCATED WITHIN A CITY HAVING A POPULATION OF ONE MILLION OR
 MORE;
   (C) IT CONTAINS OCCUPIED HABITAT OR HABITAT FOR AN ESSENTIAL  BEHAVIOR
 OF  AN  ENDANGERED OR THREATENED SPECIES OR A SPECIES OF SPECIAL CONCERN
 AS DEFINED UNDER SECTION 11-0535 OF THIS  CHAPTER  AND/OR  LISTED  AS  A
 SPECIES  OF  GREATEST  CONSERVATION  NEED  IN NEW YORK'S WILDLIFE ACTION
 PLAN;
   (D) IT IS CLASSIFIED BY THE DEPARTMENT AS A CLASS I WETLAND; OR
   (E) IT IS CLASSIFIED BY THE DEPARTMENT AS A CLASS II WETLAND  AND  THE
 DEPARTMENT  DETERMINES  BASED ON CRITERIA ESTABLISHED BY REGULATION THAT
 ITS WETLAND FUNCTIONS AND VALUES ARE OF LOCAL OR REGIONAL SIGNIFICANCE.
   § 3. Subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the  environ-
 mental conservation law are REPEALED.
   §  4.  Subdivisions 6, 7 and 8 of section 24-0301 of the environmental
 conservation law, subdivision 6 as amended by chapter 16 of the laws  of
 2010  and subdivision 7 as amended and subdivision 8 as added by chapter
 654 of the laws of 1977, are amended to read as follows:
   [6.] 1. Except as  provided  in  subdivision  [eight]  THREE  of  this
 section, the commissioner shall supervise the maintenance of [such boun-
 dary]  FRESHWATER  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]  ON  THE  DEPARTMENT'S  WEBSITE. The commissioner may, UPON
 NOTICE TO THE PROPERTY OWNER OR OWNERS AFFECTED, readjust the map [ther-
 eafter 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 of this section for the promulgation 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 readjustment] AT ANY TIME PRIOR TO THE FILING OF
 THE DELINEATION OF A FRESHWATER  WETLAND  BOUNDARY  TO  MORE  ACCURATELY
 DEPICT THE APPROXIMATE LOCATION OF WETLANDS.
   [7.]  2.  Except  as  provided  in  subdivision  [eight] THREE of this
 section, the commissioner may, upon his own initiative, and shall,  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 AND THE REGULATED FRESHWATER
 WETLAND ADJACENT AREA AS SET FORTH IN SUBDIVISION TWO OF SECTION 24-0701

 S. 5116--A                          4
 
 OF THIS ARTICLE. [Such more precise delineation of a freshwater  wetland
 boundary  line  or  lines  shall  be of appropriate scale and sufficient
 clarity to permit the ready identification 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 particular part of the boundary
 thereof only upon a showing by the applicant therefor of good cause  for
 such more precise delineation and the establishment of such more precise
 line] FILE ANY DELINEATION OF A WETLAND BOUNDARY MADE OR ACCEPTED BY THE
 DEPARTMENT  AND  SUCH  DELINEATION  SHALL BE EFFECTIVE AND BINDING FOR A
 PERIOD OF TEN YEARS FROM THE DATE SUCH DELINEATION IS FILED.
   [8.] 3. 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
 subdivisions  [six  and  seven]  ONE  AND  TWO  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] ON
 THE AGENCY'S WEBSITE.
   §  5.  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 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
 ON THE REGULATED FRESHWATER WETLAND ADJACENT AREA AS SET FORTH IN SUBDI-
 VISION TWO OF THIS SECTION 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 shall include any form of drain-
 ing, dredging, excavation, removal of soil, mud, sand, shells, gravel or
 other aggregate from any freshwater wetland, either  directly  or  indi-
 rectly;  and  any  form  of dumping, filling, or depositing of any soil,
 stones, sand, gravel, mud, rubbish or fill of any kind, either  directly
 or  indirectly;  erecting any structures, 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  bene-
 fits  derived  therefrom  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: (A) not more than one
 hundred feet from the boundary of [such] A wetland: (I) THAT HAS AN AREA
 OF AT LEAST TWELVE AND FOUR-TENTHS ACRES; (II)  THAT  IS  A  WETLAND  OF
 UNUSUAL  IMPORTANCE AND HAS AN AREA OF AT LEAST TEN ACRES; OR (III) THAT
 IS CLASSIFIED AS A CLASS I WETLAND BY THE DEPARTMENT AND HAS AN AREA  OF
 AT LEAST FIVE ACRES; (B) NOT MORE THAN FIFTY FEET FROM THE BOUNDARY OF A
 WETLAND  IF  IT IS A WETLAND OF UNUSUAL IMPORTANCE AND HAS AN AREA OF AT
 LEAST FIVE ACRES AND LESS THAN TEN ACRES; AND (C) NOT MORE THAN  TWENTY-
 FIVE  FEET  FROM THE BOUNDARY OF A WETLAND IF IT IS A WETLAND OF UNUSUAL
 IMPORTANCE AND HAS AN AREA OF LESS THAN FIVE ACRES.   Provided,  that  a

 S. 5116--A                          5
 
 greater distance from any such wetland may be regulated pursuant to this
 article by the appropriate local government or by the department, which-
 ever  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.
   § 6. 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 THIS SECTION IS REQUIRED FOR A PROPOSED ACTIVITY. The
 department shall give a definite answer in writing 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  TEN  YEARS  FROM
 THE  DATE  THE  DEPARTMENT ISSUES THE NEGATIVE ANSWER. [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 arti-
 cle.]
   § 7.  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.
   §  8.  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:

 S. 5116--A                          6
 
   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  accord-
 ing  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
 wetlands. The commissioner shall determine what uses  of  such  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.
   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
 OR 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
 POST  SUCH  ORDER  ON THE DEPARTMENT'S WEBSITE OR publish such order [at
 least once] in a newspaper having general circulation in the area of the
 local government affected  and  make  such  plan  available  for  public
 inspection  and  review;  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.
   § 9. Paragraph (c) of subdivision 8 of section 70-0117 of the environ-
 mental conservation law, as added by section 1 of part AAA of chapter 59
 of the laws of 2009, is amended to read as follows:
   (c) [All fees] FEES collected pursuant to [this] PARAGRAPH (A) OF THIS
 subdivision shall be deposited into the  environmental  protection  fund
 pursuant  to  section  ninety-two-s  of  the  state  finance  law.  FEES
 COLLECTED PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION SHALL BE  DEPOS-
 ITED  TO  THE CREDIT OF THE MARINE RESOURCES ACCOUNT OF THE CONSERVATION
 FUND.
   (D) APPLICATION FEES REQUIRED PURSUANT TO THIS SUBDIVISION WILL NOT BE
 REQUIRED FOR ANY STATE DEPARTMENT.
   § 10. 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 AND FOR EACH DAY EVERY SUCH
 VIOLATION OCCURS, to be assessed, after a hearing or opportunity  to  be
 heard upon due notice and with the rights to specification of the charg-
 es and representation by counsel at such hearing, by the commissioner or
 local  government. Such penalty 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 general;
 and where such matter has been referred to  the  attorney  general,  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 government.  In  addition,

 S. 5116--A                          7
 
 the commissioner or local government shall have power, following a hear-
 ing 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 BENE-
 FITS 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  ARTICLE
 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  CONDITIONS,
 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 WITH 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 shall be guilty  of
 a  misdemeanor  punishable  by a fine of not less than four thousand nor
 more than [seven] TEN thousand dollars or a term of imprisonment of  not
 less  than  fifteen  days  nor  more than six months or both. Instead of
 these punishments, any offender may be punishable by  being  ordered  by
 the  court  to  restore the affected freshwater wetland 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.
   § 11. 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  OR  HER  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.
   §  12. This act shall take effect immediately, provided, however, that
 sections two, three, four, five, six, seven and eight of this  act shall
 take effect on January 1, 2023.

Co-Sponsors

S5116B - Details

See Assembly Version of this Bill:: A7850
Current Committee:: Senate Rules
Law Section:: Environmental Conservation Law
Laws Affected:: Rpld §24-0301 subs 1 - 5, amd En Con L, generally

S5116B - Summary

Relates to freshwater wetlands; defines specific classes of wetlands.

S5116B - Sponsor Memo

 
BILL NUMBER: S5116B

SPONSOR: HARCKHAM
 
TITLE OF BILL:

An act to amend the environmental conservation law, in relation to
freshwater wetlands; and to repeal certain provisions of such law relat-
ing thereto

 
PURPOSE:

Relates to freshwater wetlands; repealer

 
SUMMARY OF PROVISIONS:

Section 1 amends § 24-0105 of the Environmental Conservation Law (ECL)
to revise and add to the list of benefits derived from protecting
Wetlands. Most notably this section speaks on the increasing severity
and duration of storm-related flooding due to climate change, which has
caused billions of dollars of property damage in the state making
protection of all the state's freshwater wetlands of vital importance.

Section 2 amends § 24-0107 of the ECL to amend the definition of "fresh-
water wetlands" to include wetlands that have an area of at least twelve
and four-tenths acres or, if less than twelve and four-tenths acres in
size, are of unusual importance. The term "unusual importance" is
defined as a freshwater wetland, regardless of size, that possesses one
or more of the following characteristics as determined by the depart-
ment. Such characteristics are detailed in this section. Additionally,
Subdivision two of § 24-0107 of the ECL states that DEC's "freshwater
wetlands map" shall not serve as the basis for regulation by the Depart-
ment and shall be only educational in Purposes only, and are not
controlling for purposes of determining if a wetlands permit is required
pursuant to section 24-0701 of section.

Section 3 subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the ECL
are repealed.

Section 4 amends subdivisions 6, 7 and 8 of section 24-0301 to specify
the procedural requirements for the freshwater wetlands map.  Provisions
include allowing the commissioner to update any digital image of the map
posted on the department's website at any time to more accurately depict
the approximate location of wetlands.

Section 5 amends subdivisions 1, 2 and 4 of section 24-0701 of the ECL
specifying the permitting requirements for freshwater wetlands, includ-
ing the requirements for a wetlands permit for the subdivision of land.

Section 6 amends subdivision 5 of section 24-0703 to specify the
requirements for DEC to respond to requests for permit determination.

Section 7 amends section 24-0901 of the ECL to provided that the commis-
sioner shall confer with local government officials in each region in
which inventory has been conducted to establish a program for the
protection of the freshwater wetlands of the state

Section 8 amends section 24-0903 to provided that prior to the adoption
of any land use regulations governing freshwater wetlands, the commis-
sioner shall hold a public hearing in the area in which the affected
freshwater wetlands are located and give fifteen days prior notice ther-
eof by posting on the department's website or by publication at least
once in a newspaper having general circulation in the area of the local
government involved.

Section 9 amends section 70-0117 of the ECL to designate credit of the
fees collected to the marine resources account of the conservation fund.

Section 10 amends section 71-2303 of the ECL to specify violations,
determinants for said violations and their penalties.

Section 11 amends section 71-2305 of the ECL to permit that the attorney
general shall prosecute persons alleged to have violated article twen-
ty-four of chapter 614 of the laws of 1975.

Section 12 states the effective date.

 
JUSTIFICATION:

For the past two decades, New York has been entangled in the federal
legal debate over what constitutes a wetland and who has the authority
to protect them. New Yorkers rely on swamps, fens, bogs, and wet meadows
to filter pollutants from our waterways, recharge our aquifers, and
absorb catastrophic floods. Yet there often appears to be little public
awareness that we are filling, dredging and draining wetlands at an
alarming rate - at least until we find our neighborhoods underwater or
our public water supplies contaminated.

Currently, for a wetland to be subject to regulation under NY state law,
it must be delineated on existing freshwater wetlands maps prepared by
DEC after lengthy public comment. Most of these maps have not been
updated in over 20 years, making them woefully incomplete, and the
amendment process can be time consuming and overly burdensome in admin-
istrative costs.

There are hundreds of thousands of acres of wetlands in high development
areas of New York that are not on official maps but desperately require
protection. This legislation will remove the jurisdictional barriers
that these maps have created, and allow DEC to immediately protect and
regulate wetlands if they meet the basic scientific definition of these
critical habitat areas featuring hydrophilic plants and hydric soils.
Commissioner Seggos estimated that if this reform was enshrined in law
it will be the equivalent of adding 1 million acres of wetland under the
state's protection. That number just represents wetlands that are 12.4
acres and larger that were never officially mapped by the state. Exist-
ing state law will also allow DEC to identify and protect smaller
wetlands of unusual importance that were once encumbered by the state's
regressive mapping protocol and never officially recognized. Currently,
New York is the only state in the Northeast not to assume regulatory
authority over its own wetlands. The new reforms would preserve DEC's
authority over wetlands 12.4 acres and larger but expand the Departments
authority over smaller wetlands of 'unusual importance' that: are class
1 wetlands, or class II wetlands that posses s valuable characteristics
like: effective for community flood water control, within an urban area,
possessing rare plant or animal species, or important to maintaining
clean drinking water.

 
LEGISLATIVE HISTORY:
This is a new bill.

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
This act shall take effect immediately, provided, however that sections
two, three, four, five, six, and seven and eight of this act shall take
effect on January 1, 2023.

S5116B - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5116--B
     Cal. No. 979
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 24, 2021
                                ___________
 
 Introduced by Sens. HARCKHAM, HOYLMAN, KAVANAGH, LIU, MAY, REICHLIN-MEL-
   NICK, RYAN, SERRANO -- read twice and ordered printed, and when print-
   ed  to  be committed to the Committee on Environmental Conservation --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted  to said committee -- reported favorably from said commit-
   tee, ordered to first report, amended on first report,  ordered  to  a
   second  report and ordered reprinted, retaining its place in the order
   of second report
 
 AN ACT to amend the  environmental  conservation  law,  in  relation  to
   freshwater  wetlands;  and  to  repeal  certain provisions 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. Subdivisions 2, 3 and 7 of section 24-0105 of the environ-
 mental conservation law, as added by chapter 614 of the  laws  of  1975,
 subdivision  7  as  renumbered  by  chapter 654 of the laws of 1977, are
 amended to read as follows:
   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
 RECENT CURTAILMENT OF FEDERAL WETLAND PROTECTIONS.
   3.  Recurrent  flooding aggravated or caused by the loss of freshwater
 wetlands has serious effects upon  natural  ecosystems.  THE  INCREASING
 SEVERITY  AND  DURATION OF STORM-RELATED FLOODING DUE TO CLIMATE CHANGE,
 WHICH HAS CAUSED BILLIONS OF DOLLARS OF PROPERTY DAMAGE  IN  THE  STATE,
 MAKES PROTECTION OF ALL FRESHWATER WETLANDS IN THE STATE OF VITAL IMPOR-
 TANCE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD09969-03-1

 S. 5116--B                          2
 
   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;
   (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 THREAT-
 ENED, 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 a new subdivision 9 is added to read as follows:
   "Freshwater wetlands" means lands and waters of the state [as shown on
 the  freshwater  wetlands  map] THAT HAVE AN AREA OF AT LEAST TWELVE AND
 FOUR-TENTHS ACRES OR, IF LESS THAN TWELVE AND FOUR-TENTHS ACRES IN SIZE,
 ARE OF UNUSUAL IMPORTANCE AND which 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) the waters overlying the areas set forth in PARAGRAPHS (a) and (b)
 OF  THIS  SUBDIVISION  and  the  lands  underlying PARAGRAPH (c) OF THIS
 SUBDIVISION.
   2.  "Freshwater wetlands map" shall mean  a  map  promulgated  by  the
 department  pursuant  to  section  24-0301  of this article on which are
 indicated the boundaries of any freshwater wetlands. FRESHWATER  WETLAND
 MAPS  WILL  SERVE THE PURPOSE OF EDUCATING THE PUBLIC ON THE APPROXIMATE
 LOCATION OF WETLANDS, ARE FOR EDUCATIONAL PURPOSES  ONLY,  AND  ARE  NOT
 CONTROLLING FOR PURPOSES OF DETERMINING IF A WETLANDS PERMIT IS REQUIRED
 PURSUANT TO SECTION 24-0701 OF THIS ARTICLE.
   3.  "Boundaries of a freshwater wetland" shall mean the outer limit of
 the vegetation specified in paragraphs (a) and (b) of subdivision one of

 S. 5116--B                          3
 
 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:
   (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 THAT HAS EXPERIENCED SIGNIFICANT FLOODING IN THE PAST;
   (B)  IT IS LOCATED WITHIN A CITY HAVING A POPULATION OF ONE MILLION OR
 MORE;
   (C) IT CONTAINS OCCUPIED HABITAT OR HABITAT FOR AN ESSENTIAL  BEHAVIOR
 OF  AN  ENDANGERED OR THREATENED SPECIES OR A SPECIES OF SPECIAL CONCERN
 AS DEFINED UNDER SECTION 11-0535 OF THIS  CHAPTER  AND/OR  LISTED  AS  A
 SPECIES  OF  GREATEST  CONSERVATION  NEED  IN NEW YORK'S WILDLIFE ACTION
 PLAN;
   (D) IT IS CLASSIFIED BY THE DEPARTMENT AS A CLASS I WETLAND;
   (E) IT IS CLASSIFIED BY THE DEPARTMENT AS A CLASS II WETLAND  AND  THE
 DEPARTMENT  DETERMINES  BASED ON CRITERIA ESTABLISHED BY REGULATION THAT
 ITS WETLAND FUNCTIONS AND VALUES ARE OF LOCAL OR REGIONAL  SIGNIFICANCE;
 OR
   (F)  IT  WAS  PREVIOUSLY  CLASSIFIED AND MAPPED BY THE DEPARTMENT AS A
 WETLAND OF UNUSUAL LOCAL IMPORTANCE.
   § 3. Subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the  environ-
 mental conservation law are REPEALED.
   §  4.  Subdivisions 6, 7 and 8 of section 24-0301 of the environmental
 conservation law, subdivision 6 as amended by chapter 16 of the laws  of
 2010  and subdivision 7 as amended and subdivision 8 as added by chapter
 654 of the laws of 1977, are amended to read as follows:
   [6.] 1. Except as  provided  in  subdivision  [eight]  THREE  of  this
 section, the commissioner shall supervise the maintenance of [such boun-
 dary]  FRESHWATER  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]  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. Notice of such readjustment shall be  given  in
 the same manner as set forth in subdivision five of this section for the
 promulgation 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 readjustment] AT ANY TIME PRIOR TO
 THE FILING OF THE DELINEATION OF A FRESHWATER WETLAND BOUNDARY  TO  MORE
 ACCURATELY DEPICT THE APPROXIMATE LOCATION OF WETLANDS.
   [7.]  2.  Except  as  provided  in  subdivision  [eight] THREE of this
 section, the commissioner may, upon his own initiative, and shall,  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

 S. 5116--B                          4
 
 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 AND THE REGULATED FRESHWATER
 WETLAND ADJACENT AREA AS SET FORTH IN SUBDIVISION TWO OF SECTION 24-0701
 OF  THIS ARTICLE. [Such more precise delineation of a freshwater wetland
 boundary line or lines shall be  of  appropriate  scale  and  sufficient
 clarity  to  permit the ready identification 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 particular part of  the  boundary
 thereof  only upon a showing by the applicant therefor of good cause for
 such more precise delineation and the establishment of such more precise
 line] FILE ANY DELINEATION OF A WETLAND BOUNDARY MADE OR ACCEPTED BY THE
 DEPARTMENT AND SUCH DELINEATION SHALL BE EFFECTIVE  AND  BINDING  FOR  A
 PERIOD OF FIVE YEARS FROM THE DATE SUCH DELINEATION IS FILED.
   [8.]  3. 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
 subdivisions [six and seven] ONE  AND  TWO  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] ON
 THE AGENCY'S WEBSITE.
   § 5. 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 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
 ON THE REGULATED FRESHWATER WETLAND ADJACENT AREA AS SET FORTH IN SUBDI-
 VISION  TWO OF THIS SECTION 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 shall include any form  of  drain-
 ing, dredging, excavation, removal of soil, mud, sand, shells, gravel or
 other  aggregate  from  any freshwater wetland, either directly or indi-
 rectly; and any form of dumping, filling, or  depositing  of  any  soil,
 stones,  sand, gravel, mud, rubbish or fill of any kind, either directly
 or indirectly; erecting any structures, 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 bene-
 fits derived therefrom 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: (A) not more than one
 hundred feet from the boundary of [such] A wetland: (I) THAT HAS AN AREA
 OF  AT  LEAST  TWELVE  AND  FOUR-TENTHS ACRES; (II) THAT IS A WETLAND OF
 UNUSUAL IMPORTANCE AND HAS AN AREA OF AT LEAST TEN ACRES; (III) THAT  IS
 CLASSIFIED  AS A CLASS I WETLAND BY THE DEPARTMENT AND HAS AN AREA OF AT
 LEAST FIVE ACRES; OR (IV) THAT WAS PREVIOUSLY CLASSIFIED AND  MAPPED  BY

 S. 5116--B                          5
 
 THE  DEPARTMENT  AS  A WETLAND OF UNUSUAL LOCAL IMPORTANCE; (B) NOT MORE
 THAN FIFTY FEET FROM THE BOUNDARY OF A WETLAND IF IT  IS  A  WETLAND  OF
 UNUSUAL  IMPORTANCE AND HAS AN AREA OF AT LEAST FIVE ACRES AND LESS THAN
 TEN ACRES; AND (C) NOT MORE THAN TWENTY-FIVE FEET FROM THE BOUNDARY OF A
 WETLAND IF IT IS A WETLAND OF UNUSUAL IMPORTANCE AND HAS AN AREA OF LESS
 THAN  FIVE  ACRES.    Provided,  that  a  greater distance from any such
 wetland may be regulated pursuant to this  article  by  the  appropriate
 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 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.
   § 6. 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 THIS SECTION IS REQUIRED FOR A PROPOSED ACTIVITY. The
 department shall give a definite answer in writing 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  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 arti-
 cle.]
   § 7.  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

 S. 5116--B                          6
 
 which the inventory has been conducted to establish a  program  for  the
 protection of the freshwater wetlands of the state.
   §  8.  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  accord-
 ing  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
 wetlands. The commissioner shall determine what uses  of  such  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.
   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
 OR 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
 POST  SUCH  ORDER  ON THE DEPARTMENT'S WEBSITE OR publish such order [at
 least once] in a newspaper having general circulation in the area of the
 local government affected  and  make  such  plan  available  for  public
 inspection  and  review;  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.
   § 9. Paragraph (c) of subdivision 8 of section 70-0117 of the environ-
 mental conservation law, as added by section 1 of part AAA of chapter 59
 of the laws of 2009, is amended to read as follows:
   (c) [All fees] FEES collected pursuant to [this] PARAGRAPH (A) OF THIS
 subdivision shall be deposited into the  environmental  protection  fund
 pursuant  to  section  ninety-two-s  of  the  state  finance  law.  FEES
 COLLECTED PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION SHALL BE  DEPOS-
 ITED  TO  THE CREDIT OF THE MARINE RESOURCES ACCOUNT OF THE CONSERVATION
 FUND.
   (D) APPLICATION FEES REQUIRED PURSUANT TO THIS SUBDIVISION WILL NOT BE
 REQUIRED FOR ANY STATE DEPARTMENT.
   § 10. 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 AND FOR EACH DAY EVERY SUCH
 VIOLATION OCCURS, to be assessed, after a hearing or opportunity  to  be
 heard upon due notice and with the rights to specification of the charg-
 es and representation by counsel at such hearing, by the commissioner or
 local  government. Such penalty 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

 S. 5116--B                          7
 
 government  before the matter has been referred to the attorney general;
 and where such matter has been referred to  the  attorney  general,  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 government. In addition,
 the commissioner or local government shall have power, following a hear-
 ing 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 BENE-
 FITS 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  ARTICLE
 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  CONDITIONS,
 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 WITH 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 shall be guilty  of
 a  misdemeanor  punishable  by a fine of not less than four thousand nor
 more than [seven] TEN thousand dollars or a term of imprisonment of  not
 less  than  fifteen  days  nor  more than six months or both. Instead of
 these punishments, any offender may be punishable by  being  ordered  by
 the  court  to  restore the affected freshwater wetland 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.
   § 11. 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  OR  HER  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.
   §  12. This act shall take effect immediately, provided, however, that
 sections two, three, four, five, six, seven and eight of this  act shall
 take effect on January 1, 2023.

Co-Sponsors

view additional co-sponsors

S5116C (ACTIVE) - Details

See Assembly Version of this Bill:: A7850
Current Committee:: Senate Rules
Law Section:: Environmental Conservation Law
Laws Affected:: Rpld §24-0301 subs 1 - 5, amd En Con L, generally

S5116C (ACTIVE) - Summary

Relates to freshwater wetlands; defines specific classes of wetlands.

S5116C (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S5116C

SPONSOR: HARCKHAM
 
TITLE OF BILL:

An act to amend the environmental conservation law, in relation to
freshwater wetlands; and to repeal certain provisions of such law relat-
ing thereto

 
PURPOSE:

Relates to freshwater wetlands; repealer

 
SUMMARY OF PROVISIONS:

Section 1 amends § 24-0105 of the Environmental Conservation Law (ECL)
to revise and add to the list of benefits derived from protecting
Wetlands. Most notably this section speaks on the increasing severity
and duration of storm-related flooding due to climate change, which has
caused billions of dollars of property damage in the state making
protection of all the state's freshwater wetlands of vital importance.

Section 2 amends § 24-0107 of the ECL to amend the definition of "fresh-
water wetlands" to include wetlands that have an area of at least twelve
and four-tenths acres or, if less than twelve and four-tenths acres in
size, are of unusual importance. The term "unusual importance" is
defined as a freshwater wetland, regardless of size, that possesses one
or more of the following characteristics as determined by the depart-
ment. Such characteristics are detailed in this section. Additionally,
Subdivision two of § 24-0107 of the ECL states that DEC's "freshwater
wetlands map" will serve the purpose of educating the public on the
approximate location of wetlands, are for educational purposes only, and
are not controlling for purposes of determining if a wetlands permit is
required pursuant to section 24-0701 of this article.

Section 3 subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the ECL
are repealed.

Section 4 amends subdivisions 6, 7 and 8 of section 24-0301 to specify
the procedural requirements for the freshwater wetlands map.  Provisions
include allowing the commissioner to update any digital image of the map
posted on the department's website at any time to more accurately depict
the approximate location of wetlands.

Section 5 amends subdivisions 1, 2 and 4 of section 24-0701 of the ECL
specifying the permitting requirements for freshwater wetlands, includ-
ing the requirements for a wetlands permit for the subdivision of land
and on lands in active agricultural or silvicultural use.

Section 6 amends subdivision 5 of section 24-0703 to specify the
requirements for DEC to respond to requests for permit determination.

Section 7 amends section 24-0901 of the ECL to provided that the commis-
sioner shall confer with local government officials in each region in
which inventory has been conducted to establish a program for the
protection of the freshwater wetlands of the state

Section 8 amends section 24-0903 to provided that prior to the adoption
of any land use regulations governing freshwater wetlands, the commis-
sioner shall hold a public hearing in the area in which the affected
freshwater wetlands are located and give thirty days prior notice there-
of by posting on the department's website or by publication at least
once in a newspaper having general circulation in the area of the local
government involved.

Section 9 amends section 70-0117 of the ECL to designate credit of the
fees collected to the marine resources account of the conservation fund.

Section 10 amends section 71-2303 of the ECL to specify violations,
determinants for said violations and their penalties.

Section 11 amends section 71-2305 of the ECL to permit that the attorney
general shall prosecute persons alleged to have violated article twen-
ty-four of chapter 614 of the laws of 1975.

Section 12 states the effective date.

 
JUSTIFICATION:

For the past two decades, New York has been entangled in the federal
legal debate over what constitutes a wetland and who has the authority
to protect them. New Yorkers rely on swamps, fens, bogs, and wet meadows
to filter pollutants from our waterways, recharge our aquifers, and
absorb catastrophic floods. Yet there often appears to be little public
awareness that we are filling, dredging and draining wetlands at an
alarming rate - at least until we find our neighborhoods underwater or
our public water supplies contaminated.

Currently, for a wetland to be subject to regulation under NY state law,
it must be delineated on existing freshwater wetlands maps prepared by
DEC after lengthy public comment. Most of these maps have not been
updated in over 20 years, making them woefully incomplete, and the
amendment process can be time consuming and overly burdensome in admin-
istrative costs.

There are hundreds of thousands of acres of wetlands in high development
areas of New York that are not on official maps but desperately require
protection. This legislation will remove the jurisdictional barriers
that these maps have created, and allow DEC to immediately protect and
regulate wetlands if they meet the basic scientific definition of these
critical habitat areas featuring hydrophilic plants and hydric soils.
Commissioner Seggos estimated that if this reform was enshrined in law
it will be the equivalent of adding 1 million acres of wetland under the
state's protection. That number just represents wetlands that are 12.4
acres and larger that were never officially mapped by the state. Exist-
ing state law will also allow DEC to identify and protect smaller
wetlands of unusual importance that were once encumbered by the state's
regressive mapping protocol and never officially recognized. Currently,
New York is the only state in the Northeast not to assume regulatory
authority over its own wetlands. The new reforms would preserve DEC's
authority over wetlands 12.4 acres and larger but expand the Departments
authority over smaller wetlands of 'unusual importance' that: are class
1 wetlands, or class II wetlands that posses s valuable characteristics
like: effective for community flood water control, within an urban area,
possessing rare plant or animal species, or important to maintaining
clean drinking water.

 
LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
This act shall take effect immediately, provided, however that sections
two, three, four, five, six, and seven and eight of this act shall take
effect on January 1, 2023.

S5116C (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5116--C
     Cal. No. 979
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 24, 2021
                                ___________
 
 Introduced by Sens. HARCKHAM, HOYLMAN, KAVANAGH, LIU, MAY, REICHLIN-MEL-
   NICK, RYAN, SERRANO -- read twice and ordered printed, and when print-
   ed  to  be committed to the Committee on Environmental Conservation --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted  to said committee -- reported favorably from said commit-
   tee, ordered to first report, amended on first report,  ordered  to  a
   second  report and ordered reprinted, retaining its place in the order
   of second report -- reported favorably  from  said  committee,  second
   report,  ordered  to  a  third reading, amended and ordered reprinted,
   retaining its place in the order of third reading
 
 AN ACT to amend the  environmental  conservation  law,  in  relation  to
   freshwater  wetlands;  and  to  repeal  certain provisions 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. Subdivisions 2, 3 and 7 of section 24-0105 of the environ-
 mental conservation law, as added by chapter 614 of the  laws  of  1975,
 subdivision  7  as  renumbered  by  chapter 654 of the laws of 1977, are
 amended to read as follows:
   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
 RECENT CURTAILMENT OF FEDERAL WETLAND PROTECTIONS.
   3.  Recurrent  flooding aggravated or caused by the loss of freshwater
 wetlands has serious effects upon  natural  ecosystems.  THE  INCREASING
 SEVERITY  AND  DURATION OF STORM-RELATED FLOODING DUE TO CLIMATE CHANGE,
 WHICH HAS CAUSED BILLIONS OF DOLLARS OF PROPERTY DAMAGE  IN  THE  STATE,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD09969-04-1

 S. 5116--C                          2
 
 MAKES PROTECTION OF ALL FRESHWATER WETLANDS IN THE STATE OF VITAL IMPOR-
 TANCE.
   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;
   (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 THREAT-
 ENED,  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 two new subdivisions 9 and 10 are added to read as follows:
   "Freshwater wetlands" means lands and waters of the state [as shown on
 the freshwater wetlands map] THAT HAVE AN AREA OF AT  LEAST  TWELVE  AND
 FOUR-TENTHS ACRES OR, IF LESS THAN TWELVE AND FOUR-TENTHS ACRES IN SIZE,
 ARE OF UNUSUAL IMPORTANCE AND which 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) the waters overlying the areas set forth in PARAGRAPHS (a) and (b)
 OF THIS SUBDIVISION and the  lands  underlying  PARAGRAPH  (c)  OF  THIS
 SUBDIVISION.
   2.    "Freshwater  wetlands  map"  shall mean a map promulgated by the
 department pursuant to section 24-0301 of  this  article  on  which  are
 indicated  the boundaries of any freshwater wetlands. FRESHWATER WETLAND
 MAPS WILL SERVE THE PURPOSE OF EDUCATING THE PUBLIC ON  THE  APPROXIMATE
 LOCATION  OF  WETLANDS,  ARE  FOR EDUCATIONAL PURPOSES ONLY, AND ARE NOT
 CONTROLLING FOR PURPOSES OF DETERMINING IF A WETLANDS PERMIT IS REQUIRED
 PURSUANT TO SECTION 24-0701 OF THIS ARTICLE.

 S. 5116--C                          3

   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:
   (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 THAT HAS EXPERIENCED SIGNIFICANT FLOODING IN THE PAST;
   (B) IT CONTAINS OCCUPIED HABITAT OR HABITAT FOR AN ESSENTIAL BEHAVIOR,
 AS  CONFIRMED  BY THE DEPARTMENT, OF AN ENDANGERED OR THREATENED SPECIES
 OR A SPECIES OF SPECIAL CONCERN AS DEFINED UNDER SECTION 11-0535 OF THIS
 CHAPTER AND/OR LISTED AS A SPECIES OF GREATEST CONSERVATION NEED IN  NEW
 YORK'S WILDLIFE ACTION PLAN;
   (C) IT IS CLASSIFIED BY THE DEPARTMENT AS A CLASS I WETLAND;
   (D)  IT  IS CLASSIFIED BY THE DEPARTMENT AS A CLASS II WETLAND AND THE
 DEPARTMENT DETERMINES BASED ON CRITERIA ESTABLISHED BY  REGULATION  THAT
 ITS  WETLAND FUNCTIONS AND VALUES ARE OF LOCAL OR REGIONAL SIGNIFICANCE;
 OR
   (E) IT WAS PREVIOUSLY CLASSIFIED AND MAPPED BY  THE  DEPARTMENT  AS  A
 WETLAND OF UNUSUAL LOCAL IMPORTANCE.
   10.  "DELINEATION"  SHALL  MEAN  A  PRECISE DESCRIPTION OF A REGULATED
 FRESHWATER WETLAND AS DEFINED IN SUBDIVISIONS  ONE  AND  THREE  OF  THIS
 SECTION, INCLUDING THE REGULATED ADJACENT AREA WITH SUFFICIENT SCALE AND
 CLARITY TO PERMIT READY IDENTIFICATION.
   §  3. Subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the environ-
 mental conservation law are REPEALED.
   § 4. Subdivisions 6, 7 and 8 of section 24-0301 of  the  environmental
 conservation  law, subdivision 6 as amended by chapter 16 of the laws of
 2010 and subdivision 7 as amended and subdivision 8 as added by  chapter
 654 of the laws of 1977, are amended to read as follows:
   [6.]  1.  Except  as  provided  in  subdivision  [eight] THREE of this
 section, the commissioner shall supervise the maintenance of [such boun-
 dary] FRESHWATER 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] ON THE DEPARTMENT'S  WEBSITE.  The  commissioner  may,  UPON
 NOTICE  IN  A  FORM AND MANNER TO BE DETERMINED BY THE DEPARTMENT TO THE
 PROPERTY OWNER OR OWNERS AFFECTED, readjust the map [thereafter to clar-
 ify 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 of this section for the promulgation of final freshwa-
 ter 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 readjustment] AT ANY TIME PRIOR TO THE FILING OF THE DELINEATION OF

 S. 5116--C                          4
 
 A  FRESHWATER WETLAND BOUNDARY TO MORE ACCURATELY DEPICT THE APPROXIMATE
 LOCATION OF WETLANDS.
   [7.]  2.  Except  as  provided  in  subdivision  [eight] THREE of this
 section, the commissioner may, upon  his  OR  HER  own  initiative,  and
 shall,  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 AND THE REGU-
 LATED FRESHWATER WETLAND ADJACENT AREA AS SET FORTH IN  SUBDIVISION  TWO
 OF  SECTION 24-0701 OF THIS ARTICLE. [Such more precise delineation of a
 freshwater wetland boundary line or lines shall be of appropriate  scale
 and  sufficient clarity to permit the ready identification 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 particular part of
 the boundary thereof only upon a showing by the  applicant  therefor  of
 good  cause  for  such more precise delineation and the establishment of
 such more precise line] FILE ANY DELINEATION OF A WETLAND BOUNDARY  MADE
 OR  ACCEPTED  BY  THE DEPARTMENT AND SUCH DELINEATION SHALL BE EFFECTIVE
 AND BINDING FOR A PERIOD OF FIVE YEARS FROM THE DATE SUCH DELINEATION IS
 FILED.  THE COMMISSIONER SHALL SUPERVISE THE FILING AND  MAINTENANCE  OF
 DELINEATIONS, WHICH SHALL BE MADE AVAILABLE TO THE PUBLIC ON THE DEPART-
 MENT'S WEBSITE.
   [8.]  3. 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
 subdivisions [six and seven] ONE  AND  TWO  of  this  section  shall  be
 performed  by the Adirondack park agency, which shall make such maps AND
 DELINEATIONS available [for public inspection  and  examination  at  its
 headquarters] ON THE AGENCY'S WEBSITE.
   §  5.  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 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
 ON THE REGULATED FRESHWATER WETLAND ADJACENT AREA AS SET FORTH IN SUBDI-
 VISION TWO OF THIS SECTION 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 shall include any form of drain-
 ing, dredging, excavation, removal of soil, mud, sand, shells, gravel or
 other aggregate from any freshwater wetland, either  directly  or  indi-
 rectly;  and  any  form  of dumping, filling, or depositing of any soil,
 stones, sand, gravel, mud, rubbish or fill of any kind, either  directly
 or  indirectly;  erecting any structures, 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  bene-

 S. 5116--C                          5
 
 fits  derived  therefrom  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: (A) not more than one
 hundred feet from the boundary of [such] A wetland: (I) THAT HAS AN AREA
 OF  AT  LEAST  TWELVE  AND  FOUR-TENTHS ACRES; (II) THAT IS A WETLAND OF
 UNUSUAL IMPORTANCE AND HAS AN AREA OF AT LEAST TEN ACRES; (III) THAT  IS
 CLASSIFIED  AS A CLASS I WETLAND BY THE DEPARTMENT AND HAS AN AREA OF AT
 LEAST FIVE ACRES; OR (IV) THAT WAS PREVIOUSLY CLASSIFIED AND  MAPPED  BY
 THE  DEPARTMENT  AS  A WETLAND OF UNUSUAL LOCAL IMPORTANCE; (B) NOT MORE
 THAN FIFTY FEET FROM THE BOUNDARY OF A WETLAND IF IT  IS  A  WETLAND  OF
 UNUSUAL  IMPORTANCE AND HAS AN AREA OF AT LEAST FIVE ACRES AND LESS THAN
 TEN ACRES; AND (C) NOT MORE THAN TWENTY-FIVE FEET FROM THE BOUNDARY OF A
 WETLAND IF IT IS A WETLAND OF UNUSUAL IMPORTANCE AND HAS AN AREA OF LESS
 THAN FIVE ACRES.   Provided, that  a  greater  distance  from  any  such
 wetland  may  be  regulated  pursuant to this article by the appropriate
 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 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.
   §  6.  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 THIS SECTION IS REQUIRED FOR A PROPOSED ACTIVITY. The
 department shall give a definite answer in writing 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

 S. 5116--C                          6

 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  arti-
 cle.]
   §  7.  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.
   § 8. 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 accord-
 ing  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
 wetlands.  The  commissioner  shall determine what uses of such 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.
   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
 OR  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
 POST SUCH ORDER ON THE DEPARTMENT'S WEBSITE OR publish  such  order  [at
 least once] in a newspaper having general circulation in the area of the
 local  government  affected  and  make  such  plan  available for public
 inspection and review; 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.
   § 9. Paragraph (c) of subdivision 8 of section 70-0117 of the environ-
 mental conservation law, as added by section 1 of part AAA of chapter 59
 of the laws of 2009, is amended to read as follows:
   (c) [All fees] FEES collected pursuant to [this] PARAGRAPH (A) OF THIS
 subdivision  shall  be  deposited  [into] TO THE CREDIT OF the [environ-
 mental protection] CONSERVATION fund pursuant to section  [ninety-two-s]
 EIGHTY-THREE  of the state finance law. FEES COLLECTED PURSUANT TO PARA-
 GRAPH (B) OF THIS SUBDIVISION SHALL BE DEPOSITED TO THE  CREDIT  OF  THE
 MARINE RESOURCES ACCOUNT OF THE CONSERVATION FUND.
   (D) APPLICATION FEES REQUIRED PURSUANT TO THIS SUBDIVISION WILL NOT BE
 REQUIRED FOR ANY STATE DEPARTMENT.
   §  10.  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

 S. 5116--C                          7
 
 the  people  of  the  state  for a civil penalty of not to exceed eleven
 thousand dollars for every such violation AND FOR EACH  DAY  EVERY  SUCH
 VIOLATION  OCCURS,  to be assessed, after a hearing or opportunity to be
 heard upon due notice and with the rights to specification of the charg-
 es and representation by counsel at such hearing, by the commissioner or
 local  government. Such penalty 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 general;
 and where such matter has been referred to  the  attorney  general,  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 government.  In  addition,
 the commissioner or local government shall have power, following a hear-
 ing 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 BENE-
 FITS 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 ARTICLE
 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 CONDITIONS,
 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 WITH 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 OR SHE 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 these punishments, any offender may be  punishable  by  being
 ordered  by  the court to restore the affected freshwater wetland to its
 condition prior to the offense, insofar as that is possible.  The  court
 shall  specify 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.

 S. 5116--C                          8
 
   §  11. 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  OR  HER 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.
   § 12. This act shall take effect immediately, provided, however,  that
 sections two, three, four, five, six, seven and eight of this  act shall
 take effect on January 1, 2023.

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The New York State Senate

senate Bill S5116C

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Jan 10, 2022 - Environmental Conservation committee Vote

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May 10, 2021 - Environmental Conservation committee Vote

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senate Bill S5116C

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Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Your Voice

Actions

Votes

Jan 10, 2022 - Environmental Conservation committee Vote

Environmental Conservation Committee Vote: Jan 10, 2022

Jun 8, 2021 - floor Vote

Floor Vote: Jun 8, 2021

May 10, 2021 - Environmental Conservation committee Vote

Committee Vote: May 10, 2021

Bill Amendments

Co-Sponsors

S5116 - Details

S5116 - Summary

S5116 - Sponsor Memo

S5116 - Bill Text download pdf

Co-Sponsors

S5116A - Details

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S5116C (ACTIVE) - Details

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