Bill Text: NY A07932 | 2013-2014 | General Assembly | Introduced
Bill Title: Establishes a pilot program regarding regulation of freshwater wetlands that are delineated within sanitary sewer districts within district nine of the department of environmental conservation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-01-15 - enacting clause stricken [A07932 Detail]
Download: New_York-2013-A07932-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7932
2013-2014 Regular Sessions
I N A S S E M B L Y
June 11, 2013
___________
Introduced by M. of A. GABRYSZAK -- read once and referred to the
Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to
establishing a pilot program regarding regulation of freshwater
wetlands that are delineated within sanitary sewer districts within
district nine of the department of environmental conservation; and
providing for the repeal of such provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Article 24 of the environmental conservation law is amended
2 by adding a new title 12 to read as follows:
3 TITLE 12
4 WETLANDS PROTECTION PILOT PROJECT
5 SECTION 24-1201. DECLARATION OF POLICY.
6 24-1202. DEFINITIONS.
7 24-1203. DEVELOPMENT ACTIVITIES IN CERTAIN WETLANDS.
8 24-1204. WETLANDS PERMITS.
9 24-1205. PILOT PROGRAM TASKFORCE.
10 24-1206. REPORTS.
11 S 24-1201. DECLARATION OF POLICY.
12 THE GENERAL WELFARE OF THE CITIZENS OF THE STATE IS BEST SERVED BY
13 SUCCESSFULLY BALANCING ENVIRONMENTAL PROTECTION WITH SOCIAL, ECONOMIC,
14 AND AGRICULTURAL ECONOMIC NEEDS OF THE STATE, AND WITH RESPECT TO
15 WETLAND PROTECTION, THIS BALANCE IS BEST SERVED BY THE ESTABLISHMENT OF
16 A POLICY THAT DEFINES WHERE AND HOW TO BEST APPLY ENVIRONMENTAL
17 PROTECTIONS.
18 FURTHERMORE, THE LEGISLATURE RECOGNIZES THAT SIGNIFICANT PORTIONS OF
19 THE LANDSCAPE OF REGION NINE OF THE DEPARTMENT ARE TYPICALLY MARKED BY
20 POORLY DRAINED SOILS AND FLAT TOPOGRAPHY. ACCORDINGLY MUCH OF THE LAND
21 MASS IS SUSCEPTIBLE TO SUBJECTIVE DELINEATION AS REGULATED WETLAND. SUCH
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11361-01-3
A. 7932 2
1 DELINEATION OF WHAT IS TYPICAL RATHER THAN WHAT IS RARE UNDULY DISRUPTS
2 THE BALANCE OF ENVIRONMENTAL PROTECTION AND ECONOMIC NEED.
3 SIMILAR PUBLIC POLICY GUIDANCE EXISTS RELATIVE TO TAX POLICY INTENDED
4 TO INCENTIVIZE OTHER LAND USE ACTIVITIES. THE LEGISLATURE RECOGNIZES
5 THAT PUBLIC POLICY IS WELL ESTABLISHED TO INCENTIVIZE DESIRABLE OUTCOMES
6 WITH RESPECT TO LAND USE ACTIVITIES, IN APPROPRIATE LOCATIONS OF THE
7 STATE, AS DETERMINED BY LOCAL AUTHORITIES CONSISTENT WITH STATE LAW
8 (E.G., AGRICULTURE AND DEVELOPMENT). TO FACILITATE VARIOUS LAND USES,
9 PROVISIONS EXIST IN STATE LAW FOR THE CREATION OF SPECIAL TAX DISTRICTS,
10 SUCH AS AGRICULTURAL DISTRICTS AND SANITARY SEWER DISTRICTS.
11 PUBLIC POLICY GOVERNING THE FORMATION OF THESE DISTRICTS IS WELL
12 DESCRIBED. AGRICULTURAL DISTRICTS, WHERE AGRICULTURAL ACTIVITIES ARE
13 PROMOTED, ARE NOT TO BE EXTENDED INTO SANITARY SEWER DISTRICTS WHERE
14 LAND DEVELOPMENT ACTIVITIES ARE ANTICIPATED AND ENCOURAGED. CONVERSELY,
15 SANITARY SEWER DISTRICTS ARE NOT BE EXTENDED INTO AGRICULTURAL
16 DISTRICTS.
17 THERE IS GOOD REASON FOR THIS POLICY, AND ITS UNDERSTANDING IS IMPOR-
18 TANT WITH RESPECT TO WETLAND PROTECTION POLICY.
19 THE LEGISLATURE RECOGNIZES THAT TO PROTECT THE FARM INDUSTRY AND
20 ASSIST PROPERTY OWNERS IN THE PRESERVATION OF AGRICULTURAL ACTIVITIES,
21 TAX RELIEF IS ACCORDED TO THOSE PROPERTY OWNERS WITHIN SPECIFIED
22 DISTRICTS WHO AGREE TO KEEP THEIR PROPERTIES IN AGRICULTURE.
23 THE LEGISLATURE ALSO RECOGNIZES THE SIGNIFICANT PUBLIC INVESTMENT IN
24 INFRASTRUCTURE THAT HAS BEEN MADE IN THE STATE TO PROTECT THE PUBLIC
25 HEALTH AND THE QUALITY OF THE WATERS OF THE STATE, SPECIFICALLY WITH
26 RESPECT TO THE DESIGN AND CONSTRUCTION OF SANITARY SEWERAGE COLLECTION
27 AND TREATMENT SYSTEMS. THE LEGISLATURE ALSO RECOGNIZES THAT PUBLIC SAFE-
28 TY IS WELL ESTABLISHED REGARDING SANITARY SEWERAGE SYSTEMS IN THAT:
29 1. SANITARY SEWERAGE SYSTEMS THROUGHOUT THE STATE HAVE BEEN, AND WILL
30 BE, DESIGNED AND CONSTRUCTED IN ANTICIPATION OF EXISTING AND FUTURE
31 DEVELOPMENT AS DICTATED BY THE LAND USE PATTERNS ORDAINED BY LOCAL MUNI-
32 CIPALITIES CONSISTENT WITH STATE LAW.
33 2. THE LAW PROVIDES FOR THE FORMATION OF SANITARY SEWER DISTRICTS TO
34 PROVIDE A MECHANISM FOR THE FAIR TAXATION OF PROPERTIES AND EXPECTED
35 IMPROVED PROPERTIES WITHIN SANITARY SEWER DISTRICTS, IN ORDER THAT THE
36 PUBLIC MAY BE REPAID FOR ITS INVESTMENT IN THE DESIGN AND CONSTRUCTION
37 OF SUCH SANITARY SEWERAGE SYSTEMS, AND TO PROVIDE CONTINUING OPERATION
38 AND MAINTENANCE OF SUCH SYSTEMS.
39 3. ACCORDINGLY, INTENSE DEVELOPMENT ACTIVITIES ARE INCENTIVIZED WITHIN
40 THE SANITARY SEWER DISTRICTS OF THE STATE.
41 CONSISTENT WITH THIS CLEAR DIRECTION IN PUBLIC POLICY AND THE AFORE-
42 MENTIONED POLICY OF THE STATE THAT ENVIRONMENTAL LAWS BE CONSISTENT WITH
43 THE GENERAL WELFARE AND BENEFICIAL ECONOMIC, SOCIAL AND AGRICULTURAL
44 DEVELOPMENT OF THE STATE, LAND DEVELOPMENT IMPROVEMENTS THAT INCREASE
45 THE ASSESSED VALUE OF PROPERTIES WITHIN THE SANITARY SEWER DISTRICTS OF
46 REGION NINE OF THE DEPARTMENT AND THAT PROMOTE THE ECONOMIC WELFARE OF
47 THE STATE, SHALL TAKE PRECEDENCE OVER FRESHWATER WETLAND PROTECTION,
48 EXCEPT IN SUCH LOCATIONS WHERE WETLAND HABITATS ARE CLEARLY AND OBJEC-
49 TIVELY IDENTIFIED AS THOSE LANDS COMMONLY UNDERSTOOD TO BE SWAMPS,
50 MARSHES, BOGS, SLOUGHS, FENS, WITH SURFACE WATER ON SITE AT LEAST ONE
51 HUNDRED EIGHTY DAYS IN A CALENDAR YEAR.
52 IN ORDER FOR WETLAND PROTECTION GOALS TO TAKE PRECEDENCE OVER LAND
53 DEVELOPMENT ACTIVITIES AND THE CONSTITUTIONALLY PROTECTED PROPERTY
54 RIGHTS OF INDIVIDUALS WITHIN THE SANITARY SEWER DISTRICTS OF REGION NINE
55 OF THE DEPARTMENT, THE WETLAND HABITAT MUST BE UNIVERSALLY IDENTIFIABLE
56 BY REASONABLE, ECONOMICAL AND COMMONLY AVAILABLE METHODS SUCH AS AERIAL
A. 7932 3
1 PHOTOGRAPHY. TYPICALLY THESE AREAS HAVE ALREADY BEEN IDENTIFIED AND
2 PROMULGATED AS REGULATED WETLANDS. IN MANY INSTANCES, ADDITIONAL
3 PROTECTIONS HAVE BEEN AFFORDED TO THESE HABITATS AS PROPERTIES SO ENCUM-
4 BERED WERE REMOVED FROM THE SERVICE AREAS OF THE SANITARY SEWER SYSTEMS.
5 ACCORDINGLY, NO SANITARY SEWER CAPACITY WAS DESIGNATED FOR THE DEVELOP-
6 MENT OF PROPERTIES CONSTRAINED WITH WETLANDS AND FLOODPLAINS WITHIN
7 SANITARY SEWER DISTRICTS.
8 FURTHERMORE, THE LEGISLATURE RECOGNIZES THAT REGULATIONS GOVERNING
9 CONSTRUCTION AND DEVELOPMENT ACTIVITIES MANDATE THAT TWO PRIMARY BENE-
10 FITS OF WETLANDS BE PROVIDED BY THE PROJECT DESIGN. THE STATE ALREADY
11 HAS REQUIRED THAT DEVELOPMENTS PROVIDE FOR THE STORAGE OF STORM WATER
12 RUNOFF, AND THAT WATER QUALITY/GROUND WATER RECHARGE FEATURES BE
13 INCLUDED IN THE DESIGN OF ANY CONSTRUCTION SITE GREATER THAN ONE ACRE IN
14 SIZE. ACCORDINGLY, TO ENABLE A WETLAND HABITAT TO DISPLACE A LAND USE
15 ACTIVITY WITHIN A SANITARY SEWER DISTRICT IN REGION NINE OF THE DEPART-
16 MENT, THE HABITAT MUST NOT BE TYPICAL OF THE LOCAL OR REGIONAL LAND-
17 SCAPE; IT MUST BE A HIGHLY PRODUCTIVE AND DIVERSE ECOSYSTEM; AND PHYS-
18 ICALLY IT MUST CLEARLY AND OBJECTIVELY BE IDENTIFIABLE AS A LAND THAT IS
19 COMMONLY UNDERSTOOD TO BE SWAMP, MARSH, BOG, SLOUGH, FEN, ETC., AS
20 PREVIOUSLY DIRECTED BY THE LEGISLATURE AND PROSCRIBED IN STATE LAW. TO
21 PROPERLY ACHIEVE THESE ENDS THE LEGISLATURE HEREBY CREATES THIS PILOT
22 PROGRAM IN DISTRICT NINE OF THE STATE DEPARTMENT OF ENVIRONMENTAL
23 CONSERVATION.
24 S 24-1202. DEFINITIONS.
25 FOR PURPOSES OF THIS TITLE, "SANITARY SEWER DISTRICT" SHALL MEAN A
26 SANITARY SEWER DISTRICT CREATED BY A COUNTY PURSUANT TO ARTICLE FIVE-A
27 OF THE COUNTY LAW; BY A TOWN PURSUANT TO ARTICLE TWELVE OR ARTICLE
28 TWELVE-A OF THE TOWN LAW; OR A SANITARY SEWER SYSTEM CREATED BY A
29 VILLAGE PURSUANT TO ARTICLE FOURTEEN OF THE VILLAGE LAW.
30 S 24-1203. DEVELOPMENT ACTIVITIES IN CERTAIN WETLANDS.
31 ON ANY LAND WITHIN THE JURISDICTION OF REGION NINE OF THE DEPARTMENT
32 THAT IS IN A DULY ESTABLISHED SANITARY SEWER DISTRICT, DEVELOPMENT
33 ACTIVITIES SHALL BE ALLOWED AND SHALL TAKE PRECEDENCE OVER FRESHWATER
34 WETLANDS REGULATIONS, EXCEPT IN SUCH LOCATIONS WHERE WETLANDS HABITATS
35 ARE CLEARLY AND OBJECTIVELY IDENTIFIED AS THOSE LANDS COMMONLY UNDER-
36 STOOD TO BE SWAMPS, MARSHES, SLOUGHS, BOGS, AND FLATS SUPPORTING AQUATIC
37 OR SEMI-AQUATIC VEGETATION WITH A WATER DURATION OF AT LEAST ONE HUNDRED
38 EIGHTY DAYS IN A CALENDAR YEAR. THE DEPARTMENT MUST PROVE THAT A PARCEL
39 QUALIFIES AS A SWAMP, MARSH, SLOUGH, BOG OR FLAT SUPPORTING AQUATIC OR
40 SEMI-AQUATIC VEGETATION THROUGH GENERALLY ACCEPTED METHODS SUCH AS AERI-
41 AL PHOTOGRAPHY OR OTHER GENERALLY ACCEPTED METHODS FOR IDENTIFYING
42 WETLANDS.
43 S 24-1204. WETLANDS PERMITS.
44 ANY WETLANDS PERMIT ISSUED BY THE DEPARTMENT IN THE PILOT STUDY AREA
45 DURING THE COURSE OF THIS PILOT PROJECT SHALL BE VALID FOR ALL PURPOSES
46 NOTWITHSTANDING ANY CHANGES IN LAW, REGULATION OR POLICY THAT RESULT
47 FROM THE PILOT STUDY. ANY PERMIT APPLIED FOR DURING THE PENDENCY OF THE
48 PILOT PROGRAM SHALL BE EVALUATED UNDER THE REGULATIONS APPLICABLE DURING
49 THE PENDENCY OF THE PILOT PROGRAM.
50 S 24-1205. PILOT PROGRAM TASKFORCE.
51 THERE IS HEREBY CREATED A LEGISLATIVE TASKFORCE TO MONITOR THE RESULTS
52 OF THIS PILOT PROGRAM. THE TASK FORCE SHALL BE MADE UP OF THE CHAIR OF
53 THE SENATE ENVIRONMENTAL CONSERVATION COMMITTEE, THE RANKING MINORITY
54 MEMBER OF THE SENATE ENVIRONMENTAL CONSERVATION COMMITTEE, THE CHAIR OF
55 THE SENATE ECONOMIC DEVELOPMENT COMMITTEE, THE RANKING MINORITY MEMBER
56 OF THE SENATE ECONOMIC DEVELOPMENT COMMITTEE, THE CHAIR OF THE ASSEMBLY
A. 7932 4
1 ENVIRONMENTAL CONSERVATION COMMITTEE, THE RANKING MINORITY MEMBER OF THE
2 ASSEMBLY ENVIRONMENTAL CONSERVATION COMMITTEE, THE CHAIR OF THE ASSEMBLY
3 ECONOMIC DEVELOPMENT COMMITTEE AND THE RANKING MINORITY MEMBER OF THE
4 ASSEMBLY ECONOMIC DEVELOPMENT COMMITTEE.
5 S 24-1206. REPORTS.
6 THE DEPARTMENT SHALL MONITOR THE IMPACT OF THE DEVELOPMENT AUTHORIZED
7 BY SECTION 24-1203 OF THIS TITLE ON THOSE WETLANDS AS DEFINED IN SUCH
8 SECTION THAT EXIST WITHIN THE BORDERS OF SANITARY SEWER DISTRICTS IN
9 DISTRICT NINE. THE DEPARTMENT SHALL FILE AN ANNUAL REPORT OUTLINING ITS
10 FINDINGS ON JUNE FIRST OF EACH YEAR WITH THE GOVERNOR AND WITH THE
11 LEGISLATIVE TASK FORCE ESTABLISHED HEREIN. THE REPORT SHALL INCLUDE THE
12 FOLLOWING FOR EACH SITE DEVELOPED DURING THE PILOT PROJECT:
13 1. SPECIFIC BENCHMARK MEASUREMENTS FOR EACH WETLAND AS DEFINED IN
14 SECTION 24-1203 OF THIS TITLE.
15 2. ANNUAL MEASURES OF THE IMPACT OF DEVELOPMENT ON THE CHANGES IN
16 SPECIES AND/OR HABITAT IN THE WETLANDS AREAS SO IDENTIFIED AND A DETER-
17 MINATION WHETHER THE HARM IS SUBSTANTIAL TOGETHER WITH IDENTIFICATION OF
18 THE CRITERIA USED TO MEASURE THE HARM.
19 3. WHETHER, WITH RESPECT TO EACH DEVELOPMENT STUDIED, THE POLICY
20 IMPLEMENTED IN THE PILOT PROGRAM HAS ENCOURAGED DEVELOPMENT IN AREAS IN
21 EXISTING SANITARY SEWER DISTRICTS THEREBY DISCOURAGING THE PROLIFERATION
22 OF INFRASTRUCTURE AND/OR THE CONSEQUENT DISRUPTION OF OTHER WETLANDS
23 OUTSIDE EXISTING SANITARY SEWER DISTRICTS.
24 4. A COST/BENEFIT ANALYSIS SHOWING THE SAVINGS AND/OR COSTS TO MUNICI-
25 PALITIES OF THE ABILITY TO USE SANITARY SEWER SYSTEMS THAT HAVE BEEN
26 INSTALLED BUT THE USE OF WHICH MIGHT BE LOST BECAUSE THE SANITARY SEWER
27 SYSTEM IS IN AN AREA WHERE A WETLAND DETERMINATION WOULD PREVENT DEVEL-
28 OPMENT BUT FOR THE EXISTENCE OF THIS PILOT PROGRAM.
29 S 2. This act shall take effect immediately and shall expire and be
30 deemed repealed on December 31, 2016.
