Enacts the "Peconic Bay estuary protection act" to implement a comprehensive conservation and management plan prepared pursuant to the national estuary program; establishes the Peconic Region Maritime Council.
STATE OF NEW YORK
________________________________________________________________________
S. 305 A. 370
2009-2010 Regular Sessions
SENATE - ASSEMBLY(Prefiled)
January 7, 2009
___________
IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Environmental
Conservation
IN ASSEMBLY -- Introduced by M. of A. ENGLEBRIGHT -- read once and
referred to the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to
enacting the "Peconic Bay estuary protection act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The environmental conservation law is amended by adding a
2 new article 58 to read as follows:
3 ARTICLE 58
4 PECONIC BAY ESTUARY PROTECTION ACT
5 Section 58-0101. Short title.
6 58-0103. Legislative declaration.
7 58-0105. Legislative findings and intent.
8 58-0107. Definitions.
9 58-0109. Peconic region maritime reserve council.
10 58-0111. Duties of the council.
11 58-0113. Peconic Bay regional conservation partnership program.
12 58-0115. Peconic Bay estuary implementation projects.
13 58-0117. State assistance payments for Peconic Bay estuary
14 implementation projects.
15 58-0119. State assistance application procedure and standards.
16 58-0121. Contracts for state assistance payments for Peconic Bay
17 estuary implementation projects.
18 58-0123. State projects.
19 58-0125. Severability.
20 § 58-0101. Short title.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02075-01-9
S. 305 2 A. 370
1 This article shall be known and may be cited as the "Peconic Bay estu-
2 ary protection act".
3 § 58-0103. Legislative declaration.
4 The legislature hereby declares it to be in the public interest to
5 protect and manage the Peconic Bay estuary, in the county of Suffolk, by
6 establishing a Peconic Bay estuary reserve. It is further in the public
7 interest to establish a council made up of representatives of state and
8 local governments and stakeholders to implement the comprehensive
9 conservation and management plan created for the Peconic Bay estuary
10 system pursuant to the national estuary program.
11 § 58-0105. Legislative findings and intent.
12 The Peconic Bay system is one of twenty-eight estuaries across the
13 country designated as part of the national estuary program pursuant to
14 the federal clean water act. The purpose of the national estuary program
15 is to develop watershed-based comprehensive management plans for estuar-
16 ies of national significance threatened by pollution, development, or
17 misuse.
18 In nineteen hundred ninety-one, the Peconic Bay estuary was nominated
19 as an estuary of national significance under the national estuary
20 program. The Peconic Bay estuary was formally accepted into the national
21 estuary program in nineteen hundred ninety-two. Since nineteen hundred
22 ninety-two, the state of New York, the county of Suffolk, the environ-
23 mental protection agency together with the local governments, citizens,
24 businesses, industry and environmental groups, and other stakeholders
25 within the Peconic Bay region, collectively known as the Peconic Bay
26 estuary program management conference, have worked together to create a
27 comprehensive conservation and management plan to protect the Peconic
28 Bay estuary.
29 The economic significance of the Peconic Bay estuary is well estab-
30 lished. More than eleven hundred establishments were identified in the
31 Peconic Bay estuary as "estuarine dependent" with gross revenues exceed-
32 ing four hundred fifty million dollars per year. These stakeholders,
33 establishments and industries are represented by the association of
34 marine industries, the east end marine farmers association, the baymen
35 association of the five east end towns, the Long Island farm bureau and
36 the New York sea food council, among others. The future of this econom-
37 ic base clearly depends on maintaining the quality of the estuary.
38 Before the completion of the comprehensive conservation and management
39 plan for the Peconic Bay estuary, an action plan was established to
40 provide for early implementation of initiatives to benefit the estuary.
41 Seven million dollars in federal and state funds have been dedicated to
42 fifty-one demonstration and implementation projects, including sewage
43 plant upgrades, agricultural environmental management, storm water miti-
44 gation, bay scallop seeding, wetland and eelgrass restoration, and
45 demonstrations of numerous best management practices, including no
46 discharge zones, inventorying of historic depths, water access points,
47 hardened structures critical natural resource areas and other inventory
48 related items. Further under the State Clean Air/Clean Water Bond Act,
49 a minimum of thirty million dollars has been allocated for the Peconic
50 Bay and South Shore estuaries. Finally, in nineteen hundred ninety-
51 eight, the legislature adopted chapter one hundred fourteen of the laws
52 of nineteen hundred ninety-eight establishing the Peconic Bay community
53 preservation fund which established a two percent real estate transfer
54 tax to fund land preservation efforts in the Peconic Bay region.
55 The draft comprehensive conservation and management plan has now been
56 completed. It is the purpose of this article to provide for the imple-
S. 305 3 A. 370
1 mentation of recommendations made in the comprehensive conservation and
2 management plan.
3 § 58-0107. Definitions.
4 As used in this article, the following terms shall mean and include:
5 1. "Cost" means the cost of acquiring a parcel of land identified in a
6 partnership agreement authorized pursuant to section 58-0113 of this
7 article, the cost of implementing a project pursuant to the comprehen-
8 sive conservation and management plan created for the Peconic Bay system
9 pursuant to the national estuary program as well as consultant and legal
10 services, and other direct expenses incident to such acquisition or
11 implementation less any federal assistance received or to be received
12 and any other assistance from other parties.
13 2. "Council" shall mean the Peconic region maritime reserve council
14 created pursuant to section 58-0109 of this article.
15 3. "Federal assistance" means funds available, other than by loan,
16 from the federal government, either directly or through allocation by
17 the state for construction or program purposes pursuant to any federal
18 law or program.
19 4. "Governing body" means:
20 a. in the case of Suffolk county, the Suffolk county legislature;
21 b. in the case of a village within Suffolk county, the local legisla-
22 tive body thereof, as such term is defined in the municipal home rule
23 law;
24 c. in the case of a town within Suffolk county, the town board;
25 d. in the case of a public benefit corporation, the board of direc-
26 tors, members or trustees thereof;
27 e. in the case of a public authority, the governing board of direc-
28 tors, members or trustees thereof;
29 f. in the case of a not-for-profit corporation, the board of directors
30 thereof or such other body designated in the certificate of incorpo-
31 ration to manage the corporation; and
32 g. in the case of an Indian tribe or nation, any governing body recog-
33 nized by the United States or the state of New York.
34 5. "Long Island Pine Barrens maritime reserve" shall mean the Long
35 Island Pine Barrens maritime reserve established pursuant to article
36 fifty-seven of this chapter.
37 6. "Municipality" means Suffolk county, a local public authority,
38 public benefit corporation, a town or village within Suffolk county or
39 any combination thereof, state agencies, state public authorities and
40 state public benefit corporations.
41 7. "Not-for-profit corporation" means a corporation formed pursuant to
42 the not-for-profit corporation law and qualified for tax-exempt status
43 under the federal internal revenue code.
44 8. "Peconic Bay estuary" or "Peconic Bay system" shall mean the series
45 of interconnected bodies or surface waters, including Flanders Bay,
46 Great Peconic Bay, Little Peconic Bay, Noyack Bay, Shelter Island Sound,
47 Southold Bay, Northwest Harbor, Orient Harbor, Gardiners Bay, Napeague
48 Bay, Fort Pond Bay, the western portion of Block Island Sound, other
49 semi-enclosed bays and harbors contiguous thereto, and all of the tidal
50 creeks and freshwater streams that discharge into these interconnected
51 basins.
52 9. "Plan" shall mean the comprehensive conservation and management
53 plan created for the Peconic Bay system pursuant to the national estuary
54 program.
S. 305 4 A. 370
1 10. "Traditional uses" means commercial fishing and shell fishing,
2 shellfish farming, recreational boating, recreational fishing and shell
3 fishing.
4 11. "Work plan" shall mean an advisory recommendation to a state agen-
5 cy or local municipality.
6 § 58-0109. Peconic region maritime reserve council.
7 1. There is hereby established a Peconic Region maritime council to
8 assist federal, state and local governments coordinate all efforts to
9 implement the plan.
10 2. a. The council shall be composed of the following members:
11 (i) three members appointed by the governor;
12 (ii) three members appointed by the temporary president of the senate;
13 (iii) three members appointed by the speaker of the assembly;
14 (iv) four members appointed by the county executive of the county of
15 Suffolk, with the advice and consent of the county legislature of such
16 county;
17 (v) the chief executive officers, or their designees, of the town of
18 East Hampton, the town of Riverhead, the town of Shelter Island, the
19 town of Southampton, the town of Southold, the village of Dering Harbor,
20 the village of East Hampton, the village of Greenport, the village of
21 North Haven, the village of Quogue, the village of Sag Harbor, the
22 village of Southampton, the village of Westhampton Beach and the village
23 of West Hampton Dunes;
24 (vi) a designee of the Empire State Marine Trades Association;
25 (vii) a designee of the Association of Marine Industries;
26 (viii) a designee of the Baymen Association of the Five East End
27 Towns;
28 (ix) a designee of the East End Marine Farmers Association;
29 (x) a designee of the New York Sea Food Council;
30 (xi) a designee of the Long Island farm bureau;
31 (xii) a designee of the New York state sea grant;
32 (xiii) a designee of the state university of New York at Stony Brook
33 marine science research center;
34 (xiv) a designee of the Long Island University-Southampton college
35 maritime sciences program; and
36 (xv) two designees of the Cornell cooperative extension, one of whom
37 shall be a marine program extension educator and the other who shall be
38 an agricultural extension educator.
39 b. The commissioner, or his or her designee, the secretary of state,
40 or his or her designee, for purposes of matters related to coastal
41 resources and a representative of the federal environmental protection
42 agency shall serve as ex officio members.
43 c. All members, except ex officio members, shall be residents of the
44 county of Suffolk and shall demonstrate expertise in the functional
45 areas to be addressed by the council. All initial appointments shall be
46 made within sixty days from the effective date of this article.
47 3. The members of the council shall serve for a term of two years or
48 thereafter until a successor is appointed. The council shall select a
49 chairperson, a vice-chairperson and such other officers as it may deter-
50 mine are necessary for the conduct of its duties.
51 4. The members of the council shall serve without compensation.
52 5. The council shall consist of the following committees: a policy
53 committee, a management committee, a technical advisory committee, a
54 citizen advisory committee and a local government committee. The compo-
55 sition of such committees shall be established by the council.
56 § 58-0111. Duties of the council.
S. 305 5 A. 370
1 1. The council shall have the following powers and duties:
2 a. to facilitate communication and coordination of the public and
3 private sectors working to implement the plan;
4 b. to monitor and evaluate progress in implementing the plan, includ-
5 ing an annual state of the bays report;
6 c. to assist in securing funds to implement the plan;
7 d. to reassess and update the plan every two years;
8 e. to develop an annual financial plan to ensure plan implementation;
9 f. to negotiate commitments between stakeholders to implement the
10 plan;
11 g. to encourage consistency in regulatory programs and standards
12 consistent with the plan;
13 h. to provide technical assistance to local government and the private
14 sector;
15 i. to make rules for the management and regulation of its affairs;
16 j. to hold public hearings;
17 k. to conduct scientific and environmental studies;
18 l. to contract within amounts appropriated for or otherwise available
19 for professional and technical assistance or advice; and
20 m. to encourage individuals, corporations, associations, and public
21 entities to protect, and preserve the unique resources of the reserve.
22 2. In addition to the duties set forth in subdivision one of this
23 section, the council shall also complete the following responsibilities
24 by December thirty-first, two thousand eleven:
25 a. identify additional revenue sources to fund the implementation of
26 the plan; and
27 b. establish a work plan to address the following estuary related
28 issues:
29 (i) agricultural management plans;
30 (ii) pesticide reduction;
31 (iii) priorities for additional scientific and applied research,
32 including the targeting of the restoration of bivalve shellfish popu-
33 lations;
34 (iv) environmental monitoring, including radiological monitoring;
35 (v) continued public education and outreach;
36 (vi) establishment of a nitrogen control program to implement nitrogen
37 reduction policies;
38 (vii) use of incentives to encourage the implementation of plan goals;
39 and
40 (viii) other matters as may be deemed necessary and appropriate by the
41 council.
42 § 58-0113. Peconic Bay regional conservation partnership program.
43 1. There is hereby established a Peconic Bay regional conservation
44 partnership program within the department to administer partnership
45 agreements, by and between the department and (i) Suffolk county and/or
46 (ii) local governments within the Long Island Pine Barrens maritime
47 reserve. Such partnership agreements shall include, but not be limited
48 to, the following:
49 a. a list of parcels and areas that need to be protected;
50 b. such list of parcels and areas shall be subject to a public hearing
51 by the county or local government seeking to include said parcels and
52 areas within the partnership;
53 c. a list of priorities based on environmental sensitivity and extent
54 of development pressure;
55 d. a description of the proposed use and management plan for the
56 parcels and areas to be protected; and
S. 305 6 A. 370
1 e. a list of other sources of funding to implement the partnership
2 agreement.
3 2. Approval of such partnership agreement by the commissioner shall
4 authorize the applicant to receive from the state the state's share of
5 funding as stated in such partnership agreement for the protection of
6 the parcels identified in said partnership agreement.
7 3. Each state agency designated by the governor, including but not
8 limited to the department, the office of parks, recreation and historic
9 preservation, the department of state, the department of transportation,
10 and the environmental facilities corporation, within one hundred eighty
11 days of the effective date of this article, shall prepare a two year
12 action plan for the implementation of the Peconic Bay estuary comprehen-
13 sive conservation and management plan. A copy of the action plans shall
14 be submitted to the governor and the legislature. Such action plan shall
15 be updated annually.
16 § 58-0115. Peconic Bay estuary implementation projects.
17 As used in this article, "Peconic Bay estuary implementation projects"
18 shall mean those projects recommended as part of the comprehensive
19 conservation and management plan or action plan for the Peconic Bay
20 estuary, which enhance the productivity of the estuary pursuant to
21 historic, current commercial and traditional uses, including but not
22 limited to research related to the restoration of shellfish populations
23 in the estuary and which serve a public purpose designated to improve or
24 maintain surface water quality, undertaken by the state, a municipality
25 or a not-for-profit corporation which demonstrates to the commissioner's
26 satisfaction that it is financially and otherwise capable of completing
27 such project.
28 § 58-0117. State assistance payments for Peconic Bay estuary implementa-
29 tion projects.
30 1. The commissioner is authorized to provide on a competitive basis,
31 within amounts appropriated, state assistance payments to a municipality
32 or a not-for-profit corporation toward the cost of any Peconic Bay estu-
33 ary implementation project approved by the commissioner.
34 2. The commissioner and a municipality or not-for-profit corporation
35 may enter into a contract for the undertaking of a Peconic Bay estuary
36 implementation project. Such project shall be recommended to the
37 commissioner by the governing body of the municipality or not-for-profit
38 corporation, and when approved by the commissioner, undertaken by the
39 municipality or not-for-profit corporation pursuant to this article and
40 any other applicable provisions of law.
41 3. State assistance payments shall not exceed fifty percent of the
42 project cost or two million dollars, whichever is less. Such costs are
43 subject to final computation and determination by the commissioner upon
44 completion of the project, and shall not exceed the maximum eligible
45 cost set forth in the contract.
46 4. Prior to processing applications for state assistance payments
47 toward the cost of Peconic Bay estuary implementation projects, the
48 commissioner shall promulgate rules and regulations which shall include
49 criteria for determining eligible expenditures and procedures for
50 governing the commitment and disbursement of funds appropriated in
51 accordance with this article. The commissioner shall also promulgate
52 rules and regulations which shall include application procedures, review
53 processes, and project approval guidelines and criteria consistent with
54 section 58-0123 of this article.
55 § 58-0119. State assistance application procedure and standards.
S. 305 7 A. 370
1 In the case of Peconic Bay estuary implementation projects, a munici-
2 pality or not-for-profit corporation, upon the approval of its governing
3 body, may submit an application to the commissioner, in such form and
4 containing such information as the commissioner may require, for state
5 assistance payments toward the cost of a project which is within the
6 state and which is eligible for state assistance pursuant to this arti-
7 cle. The commissioner shall review such project application and may
8 approve, disapprove or recommend modifications thereto consistent with
9 applicable law, criteria, standards or rules and regulations relative to
10 such projects. Such criteria and standards shall include, but not be
11 limited to inclusion on an action plan or comprehensive conservation and
12 management plan prepared under the Peconic Bay estuary program.
13 Upon approval of a project application, a municipality or not-for-pro-
14 fit corporation shall enter into a contract, as further provided within
15 this article, with the commissioner for state assistance payments toward
16 the cost of such project to be received pursuant to this article.
17 § 58-0121. Contracts for state assistance payments for Peconic Bay estu-
18 ary implementation projects.
19 1. The commissioner may, in the name of the state, enter into
20 contracts with municipalities or not-for-profit corporations, to provide
21 state assistance payments toward the cost of Peconic Bay estuary imple-
22 mentation projects which shall include the following provisions:
23 a. an estimate of the costs of the project as determined by the
24 commissioner;
25 b. an agreement by the commissioner to make state assistance payments
26 toward the cost of the project by periodically reimbursing the munici-
27 pality or not-for-profit corporation during the progress of project
28 development or following completion of the project as may be agreed upon
29 by the parties, in an amount not to exceed the amounts established else-
30 where in this article; and
31 c. an agreement by the municipality or not-for-profit corporation:
32 (i) to proceed expeditiously with and complete the project as approved
33 by the commissioner;
34 (ii) to undertake and maintain the Peconic Bay estuary implementation
35 project in accordance with applicable law and rules and regulations;
36 (iii) to provide for the payment of the municipality's or not-for-pro-
37 fit corporation's share of the cost of the project;
38 (iv) to assume the full cost of any additional elements or continued
39 operation of the project;
40 (v) to repay within one year of notification by the commissioner, any
41 state assistance payments made toward the cost of the project or an
42 equitable portion of such monies declared appropriate by the commission-
43 er, if the municipality or not-for-profit corporation fails to complete
44 the project as approved. No repayment, however, shall be required where
45 the commissioner determines that such failure, disposition or change of
46 use was immediately necessary to protect public health and safety;
47 (vi) to apply for and make reasonable efforts to secure federal
48 assistance for the project; and
49 (vii) to not sell, lease, or otherwise dispose of or use lands reha-
50 bilitated under this article for any purpose inconsistent with the
51 project for a period of seven years from the commissioner's approval of
52 the project.
53 2. In connection with each contract, the commissioner shall keep
54 adequate records of the amount of the payment by the state and of the
55 amount of federal assistance, if any, received by the municipality or
56 not-for-profit corporation. Such records shall be retained by the
S. 305 8 A. 370
1 commissioner and shall establish the basis for recalculation of the
2 state payment as required by this section.
3 § 58-0123. State projects.
4 The commissioner is authorized, within amounts appropriated, to
5 directly undertake a Peconic Bay estuary implementation project pursuant
6 to this article where such project is recommended in an action plan or
7 comprehensive conservation and management plan, and is on state lands or
8 state lands underwater or is otherwise under the control of the state.
9 § 58-0125. Severability.
10 If any clause, sentence, paragraph, section or part of this article
11 shall be adjudged by any court of competent jurisdiction to be invalid,
12 such judgment shall not affect, impair or invalidate the remainder ther-
13 eof, but shall be confined in its operation to the clause, sentence,
14 paragraph, section or part thereof directly involved in the controversy
15 in which such judgment shall have been rendered.
16 § 2. This act shall take effect on the one hundred eightieth day after
17 it shall have become a law.
