§ 75. Grants of land under water. This section authorizes grants, leases, easements, and lesser interests, including permits, for the use of state-owned land underwater and the cession of jurisdiction thereof consistent with the public interest in the use of state-owned lands underwater for purposes of navigation, commerce, fishing, bathing, and recreation; environmental protection; and access to the navigable waters of the state; with due regard for the need of affected owners of private property to safeguard their property. 1. Of navigable rivers and lakes. 2. Of the Hudson river adjacent to the state of New Jersey. 3. Of the former bed of Onondaga creek in Onondaga county and of Tibbetts brook in Bronx county, whether or not now under water, and regardless of upland ownership. 4. Adjacent to and surrounding Great Barn island in the city and county of New York, and between high and low water mark on such island, but not so as to affect the navigation of the waters surrounding such island. 5. Adjacent to and surrounding Staten Island, but not so as to extend more than five hundred feet into the water from low water mark on said island, except where the legally established pier and bulkhead lines extend more than five hundred feet beyond low water mark, in which case grants may be made to such lines. 6. Adjacent to and surrounding Long Island, and all that part of the former or present county of Westchester lying on the East river or Long Island sound, but not beyond any permanent exterior water line established by law. 7. (a) The commissioner of general services may grant in perpetuity or otherwise, to the owners of the land adjacent to the land underwater specified in this section, to promote the commerce of this state or for the purpose of beneficial enjoyment thereof by such owners, or for agricultural purposes, or for public park, beach, street, highway, parkway, playground, recreation or conservation purposes, so much of said land underwater as the commissioner deems necessary for that purpose. No such grant shall be made to any person other than the proprietor of the adjacent land. Any such grant made to any other person shall be void, except that, subject to the other provisions of this section, the commissioner of general services may transfer jurisdiction over state-owned lands underwater to a state agency for the purpose of protecting environmentally sensitive lands underwater even if the state agency is not the proprietor of the adjacent upland. The commissioner may also lease such land underwater to such owner of the adjacent upland or, with the consent of such owner of the adjacent upland, to others, for terms up to forty years. No such grant or lease shall be made of any lands belonging to the city of New York, or so as to interfere with the rights of that city or of the Hudson River Railroad Company, or of its successor the New York Central and Hudson River Railroad Company. In making any grant, lease, permit or other conveyance, the commissioner of general services shall, upon administrative findings, and to the extent practicable, reserve such interests or attach such conditions to preserve the public interest in use of state-owned lands underwater and waterways for navigation, commerce, fishing, bathing, recreation, environmental protection and access to the navigable waters of the state, with due regard for the need of affected owners of private property to safeguard their property. The commissioner shall by official rules establish criteria and guidelines for determinations with respect to the leasing or selling of such lands underwater. Where the boundary line between land underwater and the adjacent land lies within a public road or street, and the name of the owner or owners of such adjacent land or the place of residence cannot be ascertained to the satisfaction of the commissioner, grants or leases may be made by the commissioner in his or her discretion to the owner or owners of the land adjoining the road or street inshore of such land underwater in the manner herein provided, but a grant or lease so made shall not be regarded as depriving any other person of the exercise of his or her riparian rights. Where the title to such public road or street is in a county, city, town or village, grants or leases may be made by the commissioner in the manner herein provided to the owner of the land adjoining the road or street inshore of such land underwater, but no such grant shall be made unless the consent thereto of such county, city, town or village shall first be filed with the commissioner, or unless, having been duly personally served with a notice of application of such grant, the county, city, town or village fails to file an objection with the commissioner or, having filed such objection, fails to present to the commissioner sufficient proof or other reasons satisfactory to the commissioner why the grant should not be made.(b) No wharf, dock, pier, jetty, platform, breakwater, mooring or other structure shall be constructed, erected, anchored, suspended, placed or substantially replaced, altered, modified, enlarged, or expanded in, on or above state-owned lands underwater, nor shall any fill be placed on such lands underwater, unless a lease, easement, permit, or other interest is obtained from the commissioner, which authorizes the use and occupancy of those state-owned lands underwater to be affected by such act or acts, provided however, that there shall be excepted in the uniform regulations issued pursuant to paragraph (f) of this subdivision any existing structure for non-commercial use constructed prior to June seventeenth, nineteen hundred ninety-two, by or on behalf of the owner of adjacent upland who owned prior to June seventeenth, nineteen hundred ninety-two, which has a surface area, as measured at the outermost perimeter, including surface waters between or encompassed within the structure of less than five thousand square feet in area, and with respect to docking facilities, has a capacity of no more than seven boats thirty feet in length. For the purposes of this subdivision, the term "structure" shall not include discharge or intake pipes, pipelines, cables, or conduits. Thereafter there shall be so excepted any structure constructed by or on behalf of the owner of adjacent uplands that:
(i) has a surface area, as measured at the outermost perimeter, including surface waters directly between or encompassed within the structure, of less than four thousand square feet in area and not exceeding fifteen feet in height, as measured at the uppermost point, above the mean high water line and, with respect to docking facilities, has a capacity of five or fewer boats thirty feet in length and, with respect to mooring facilities, has a capacity of fewer than ten boats thirty feet in length; provided that the commissioner may by rule promulgated pursuant to paragraph (f) of this subdivision determine, based on a different surface area or other criteria of size and use, that other types of structure in particular circumstances do not represent significant encroachments on state-owned lands underwater, and
(ii) is water dependent, which shall mean, for purposes of this section, an activity which can only be conducted on, in, over or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water.
(c) The requirements of obtaining a lease, easement, permit or other interest from the commissioner pursuant to the rules set forth in paragraph (f) of this subdivision shall not apply to the person or entity who was the upland owner on June seventeenth, nineteen hundred ninety-two, of lands adjacent to filled state-owned lands underwater or formerly underwater, in respect of those filled lands, including accompanying seawalls; provided however, that any right, title and interest of the state in and to any such state-owned lands shall in no respect be diminished or impaired by the provisions of this section, nor by any exemption in the uniform regulations authorized by paragraph (f) of this subdivision. Upon any transfer of such lands, or at the request of the owner of the adjacent upland, the commissioner may convey such lesser interest as may be minimally required to allow a conveyance of marketable title by that owner of the adjacent land. Consideration charged in such instances shall reflect the interest so conveyed.
(d) (i) The commissioner of environmental conservation and the secretary of state shall review any proposed lease, easement, permit or other interest, except for facilities in existence on June seventeenth, nineteen hundred ninety-two, and which are not the subject of an action by the attorney general for unlawful occupation of state lands under water on the effective date of this paragraph. The commissioner of environmental conservation shall recommend conditions to protect the environment and natural resources. The commissioner of general services shall incorporate those conditions in any lease, easement, permit or other interest, giving due regard as well to the recommendations of the secretary of state with respect to coastal issues, or shall deny the proposal if the commissioner of environmental conservation, upon administrative findings, determines that the environment or natural resources cannot be adequately protected. Such lease, easement, permit, or other conveyance of an interest shall state the purpose for which it is made, and shall also be subject to all applicable federal, state and local laws, rules, regulations and codes.
(ii) The owner, occupier or any other person or entity (except those against whom there has been commenced on the effective date of this paragraph an action by the attorney general, for unlawful occupation of state lands under water) with a legal or beneficial interest in any structure not excepted by paragraph (b) of this subdivision and occupying state lands underwater on the effective date of the rules authorized by paragraph (f) of this subdivision, as adopted pursuant to subdivision five of section two hundred two of the state administrative procedure act, shall make application for such lease, easement, permit or other interest within one year from that effective date. Except where timely application for such an interest has been made within one year pursuant to this subdivision, the commissioner is authorized to require the term of such lease, easement, permit, or other interest to be retroactive to the effective date of the rules so adopted. Any instrument conveying an interest in real property which is made retroactive shall include provision for payment of consideration for the portion of the term which extends retroactively including, where appropriate, interest on such consideration at the same rate then currently in effect and applied to judgments rendered in the court of claims.
(iii) The commissioner shall make reasonable efforts to provide notice to persons affected by the requirements of this section.
(e)(i) The commissioner may impose a fee in connection with the issuance of any such lease, easement, permit, or other interest, which fee shall be established by rule pursuant to paragraph (f) of this subdivision, and which shall take into account other factors affecting value including but not limited to classes of structure, types of use (including whether the use is for public or private purposes), location and region, size, usefulness of the parcel standing alone and such other criteria as the commissioner may determine, but which shall exclude the value of improvements thereon constructed and maintained by the adjoining upland owner. The rules and regulations required by paragraph (f) of this subdivision shall prescribe that in the event an applicant for a lease, easement or other interest in real property shall dispute and request a reduction of the commissioner's determination of the value of the interest to be conveyed, the commissioner shall, upon the applicant's submission of an appraisal of the value of such property interest conducted in accord with standard and accepted appraisal methodology by an independent appraiser qualified as prescribed in this paragraph and which appraisal varies in its conclusion as to value by ten percent or more of the value previously established by the commissioner, and upon the applicant's agreement to be bound thereby, contract with a second independent appraiser, qualified as prescribed in this paragraph, to render an appraisal of the value of the interest proposed to be conveyed, the results of which appraisal shall be binding upon both the applicant and the commissioner of general services. Such appraiser shall be selected by the commissioner of general services from among a group of at least three appraisers identified by the applicant all of whom must be qualified as prescribed in this paragraph and each of whom must agree to employ standard appraisal methodology. For the purposes of this provision a qualified appraiser shall be certified by the secretary of state to transact business as a real estate general appraiser and shall conduct a regular business of the appraisal of real property interests. In the event that the appraisal contracted for in such manner shall conclude that the value of the property interest in question is equal to the value previously determined by the commissioner plus or minus ten percent, the entire cost of such appraisal shall be borne by the applicant, otherwise, the entire cost thereof shall be borne by the commissioner of general services.
(ii) For leases, easements and conveyances of such interests for commercial use of structures on state-owned underwater lands, the annual fee imposed shall not exceed two percent of the user's net annual income for structures not in existence on the effective date of this paragraph. Nor, in connection with a structure in existence and in commercial use on the effective date of this paragraph, shall the fee charged in connection with such a conveyance made after the effective date of this subparagraph exceed annually the following schedule for five years following the effective date of the interest conveyed pursuant to subdivision (b) of this section provided timely application pursuant to that subdivision has been made: .2 (two-tenths) of one percent; second year: .4 (four-tenths) of one percent; third-year: .6 (six-tenths) of one percent; fourth year: .8 (eight-tenths) of one percent; fifth year, and thereafter: one percent; provided that all such percentages in this paragraph shall be that percentage of the net income derived from the structure or structures on state-owned lands, excluding transactions involving sales or repair of boats, and sale of gasoline; and the dollar valuation of the interest conveyed shall not be increased from year to year during that five year period. The fee charged shall be discounted ten percent for annual permits.
(iii) For leases, easements and conveyances of such interests for residential use of non-exempt structures in existence and residential use on the effective date of this paragraph, the annual fee shall not exceed the lesser of twenty dollars per slip or one hundred dollars.
(iv) Nothing in this paragraph shall preclude the commissioner of general services from agreeing, upon the request of and negotiation with the owner or user of adjacent upland, to such other conveyances or agreements consistent with this section providing for different periodic payments, or a more flexible payment structure, than the fee caps and fees, respectively, set forth for commercial and residential facilities herein. Moreover, notwithstanding the fee caps set in this section, the commissioner may exceed those caps if required to cover the yearly pro rata share, over the term of the conveyance or interest, of the administrative costs in connection with that conveyance or interest.
(f) The commissioner, in consultation with the commissioner of environmental conservation, the secretary of state, the office of parks, recreation and historic preservation and other interested state agencies administering state-owned lands underwater, shall promulgate pursuant to article two of the state administrative procedure act such rules with respect to grants, leases, easements and lesser interests for the use of state-owned land underwater, and the cession of jurisdiction thereof, as in his or her judgment are reasonable and necessary to protect the interests of the people in such lands underwater. Such regulations shall include without being limited to: the fees to be charged, consistent with the provisions of this section, including mitigation of such fees in the event of economic hardship on existing commercial enterprises; fee limitations to administrative expenses for municipal uses which are public, non-commercial and offer services free or for nominal fees, and for uses undertaken and operated for public and non-commercial purposes by not-for-profit corporations characterized as charitable corporations as defined in paragraph (a) of section one hundred two (Definitions) of the not-for-profit corporation law, and for uses undertaken and operated for public purposes by a corporation formed pursuant to the religious corporation law or by a corporation formed pursuant to a special act of this state and which has as its principal purpose a religious purpose; such further exemptions for projects as the commissioner determines do not represent significant encroachments; limitations on grants, including conversion grants, with respect to underwater lands consistent with the public purposes of this subdivision and limiting such grants to exceptional circumstances; and factors to be examined in considering an application for a lease, easement or other interest. Those factors shall include without limitation the following: (i) the environmental impact of the project; (ii) the values for natural resource management, recreational uses, and commercial uses of the pertinent underwater land; (iii) the size, character and effects of the project in relation to neighboring uses; (iv) the potential for interference with navigation, public uses of the waterway and rights of other riparian owners; (v) the effect of the project on the natural resource interests of the state in the lands; (vi) the water-dependent nature of the use; (vii) and any adverse economic impact on existing commercial enterprises. The final promulgation of rules establishing fees or fee structures shall be subject to the approval of the director of the budget.
(g) (i) From one year after the effective date of the rules authorized by paragraph (f) of this subdivision and adopted pursuant to subdivision five of section two hundred two of the state administrative procedure act, and thereafter, any person who violates any of the provisions of this subdivision; or who fails to perform any duty imposed by this subdivision; or who violates or fails to comply with any rule, regulation, determination or order of the commissioner promulgated pursuant to this subdivision may be enjoined from continuing such violation, and in any event shall be liable for a civil penalty of not more than five hundred dollars for each such violation and an additional civil penalty of not more than one hundred dollars for each day during which such violation continues; provided, however, that such penalties shall be imposed by the commissioner only after written notice and an opportunity to be heard are given to the owner, occupier or other person or entity having a legal or beneficial interest in a prohibited structure or area of fill which notice shall be transmitted by certified mail, return receipt requested and which shall set forth the provisions of this section, a description of the prohibited structure or area of fill, the amount of the penalty, that the person must comply with the provisions of this section within thirty days, and the specific date thirty days thereafter following which the person shall be subject to such penalty and after which further penalties shall accrue on a daily basis.
(ii) If the commissioner of environmental conservation notifies the commissioner of any failure to comply with conditions of a lease, easement or other interest, the commissioner shall investigate such suspected violation. The commissioner, on his or her own initiative or at the request of the commissioner of environmental conservation, shall thereafter take enforcement action as described herein or request the attorney general to institute an action to enjoin such violation and to recover any damages therefor. 8. The commissioner may authorize the use and occupation by the United States of lands of the state under water, for the purpose of improvement of navigation, including sites for lighthouses, beacons and lighthouse keepers' dwellings and navy yards and naval stations, and may cede jurisdiction over any such land but such jurisdiction so ceded shall be upon the express condition that the state of New York shall retain a concurrent jurisdiction with the United States in and over the property and premises so conveyed, so far as that all civil and criminal process, which may issue under the laws or authority of the state of New York, may be executed thereon in the same way and manner as if such jurisdiction had not been ceded, except so far as such process may affect the real or personal property of the United States. The provisions of section seventy-seven shall not apply to any authorization of use and occupation under the provisions of this subdivision. 9. Private rights or rights of property of individuals, if any, of any nature or description, shall not be taken away nor impaired nor impeded without due process of law. 10. No grant for public park, beach, street, highway, parkway, playground, recreation or conservation purposes shall be made under this section to other than a county, city, town or village. A grant so made may be made with or without consideration and shall be upon such terms and conditions as may be imposed by the commissioner. A grant so made shall be upon the condition that if at any time the land so granted shall not be used for the purpose set forth therein or shall be used for any other purpose, the title so granted shall thereupon revert to and be in the people of the state of New York. Where a grant has heretofore been made by the commissioner for one or more of the purposes enumerated herein, the commissioner, in his discretion and upon such terms and conditions as he may impose and with or without consideration, upon application by the county board of supervisors, board of estimate, common council, town board or village board, as the case may be, is authorized to alter or amend such grant, in respect to the purposes thereof and with respect to the whole or part of the land under water therein granted and described, so that the grant may thenceforth nevertheless be for one or more of the purposes enumerated herein. The provisions of section seventy-seven of this article shall not apply upon an application to alter or amend a grant so heretofore made. 11. Where a grant of land under water has previously been made by the state under the provisions of this article, for the purposes of commerce, commerce or beneficial enjoyment, restricted beneficial enjoyment, or otherwise, where the purpose of the grant is less than that of beneficial enjoyment, and by reason of the nature of which previous grant there remains in the state a right, title or interest, the commissioner may, in his discretion, grant such right, title or interest in or to the whole of the land under water so granted or part thereof, to the grantee or to one who has succeeded to the title or interest so previously granted, and a grant so made may be made regardless of upland ownership and without publication or posting of notice of application as provided by section seventy-seven of this article, but no such grant shall be made for less than the appraised value of the right, title or interest of the state in the land under water or part thereof, as the case may be, and shall be upon such terms and conditions as shall be imposed by the commissioner to protect the interests of the state. 12. The commissioner, in his discretion, upon such terms and conditions and for such consideration as the commissioner may determine may grant and convey to the owner or owners of the adjacent land the right, title and interest of the people of the state of New York in and to the lands now or formerly under the waters of the arms, branches or tributaries of any navigable waters of the state which arms, branches or tributaries have become non-navigable, and a grant so made may be made without publication or posting of notice of application as provided by section seventy-seven of this chapter. 13. The powers granted to the commissioner by this section may, notwithstanding any other law to the contrary, continue to be exercised by it in respect to lands under the waters of the Niagara and St. Lawrence rivers except as to those areas thereof that are natural resources of the state of New York for the creation and development of hydroelectric power, but the commissioner shall not make any grant of lands under the water of either of said rivers unless the power authority of the state of New York shall, prior to the issuance of any such grant, advise the commissioner, in writing, that such grant, if made, will not interfere with its St. Lawrence or Niagara project. 14. Proceeds from the sales, leases, grants of easements and lesser interests, including permits for the use of lands under water pursuant to this section shall be deposited in the environmental protection fund established pursuant to section ninety-two-s of the state finance law.
