New York Water Access and Water Rights Overview (19-NY-a)
It is the policy of the State of New York that the waters of the state be conserved and developed for all public beneficial uses, including domestic, municipal, agricultural, commercial, industrial, power, and recreational uses. N.Y. Env. Cons. L. § 15-0105(2)-(3). Relative importance of use is taken into account. N.Y. Env. Cons. L. § 15-0105(4). The Department of Environmental Conservation (DEC) is responsible for planning for the protection, conservation, and development of state water resources. N.Y. Env. Cons. L. § 15-0103. No alteration of a watercourse or wetland is allowed without a permit from the DEC, unless specifically excepted by statute. N.Y. Env. Cons. L. § 15-0503.
New York water law is governed by a system of riparian rights. Riparian rights are created from the ownership of land bordering a watercourse. Littoral landowners are similarly entitled to rights in a confined water body, such as a pond or lake, if the property touches the water. Bromberg v. Ellish, Inc., 64 A.D.2d 684, 685 (N.Y. App. Div. 1978). Both riparian and littoral owners are subject to the rule of reasonable use. A riparian owner’s use must be reasonable and must not unreasonably interfere with other riparian owners’ uses. Barkley v. Wilcox, 86 N.Y. 140, 146-47 (N.Y. 1881). Excessively large and permanent diversions are considered to be unreasonable. Strobel v. Kerr Salt Co., 58 N.E. 142 (N.Y. 1900). Alterations to the watercourse are permitted, except when the alteration causes harm to another riparian landowner. N.Y. Env. Cons. L. § 15-0701(1). “Harm” is defined as “[i]nterference with a present use of the water,” interference with a person’s “present enjoyment of riparian land,” or “[a] decrease in the market value” of a person’s interest in the riparian land. N.Y. Env. Cons. L. § 15-0701(2)(a)-(b).
The surface waters of New York State are held in the public trust, allowing the right of navigation and incidental rights of fishing, boating, swimming, and other recreational purposes on public waters. The public trust doctrine has been extended to tidal waters, rivers, and lakes. Fulton Light, Heat, & Power Co. v. New York, 200 N.Y. 400 (N.Y. 1911), Granger v. City of Canandaigua, 257 N.Y. 126 (N.Y. 1931). Private riparian rights are subordinate to the public trust doctrine. Adirondack League Club Inc. v. Sierra Club, 684 N.Y.S.2d 168, 172 (N.Y. 1998).
New York follows the “source of title” rule. Purchases of land parcels adjacent to the riparian land do not enlarge the effective riparian tract and sale of a portion of the riparian parcel not directly touching the water removes its riparian character. Riparian parcels may therefore decrease in size, but may not increase in size, except if those rights are expressly reserved in the property transfer deed. See Durham v. Ingrassia, 105 Misc.2d 191 (N.Y. Misc. 1980).
HydropowerWater withdrawal systems by hydropower facilities operating under a valid Federal Energy Regulatory Commission (FERC) license are excluded from New York State Water Withdrawal Permit requirements under 6 CRR-NY 601.9. Although this exclusion does not encompass FERC exempted or qualifying conduit facilities, it is unlikely that developers of these smaller facilities will need to obtain a Water Withdrawal Permit because their use of the water will already be covered by a Water Withdrawal Permit for an existing use.
Water Access and Water Rights Overview Process
19-NY-a.1 – Calculate Project Need
The developer will need to contact a water engineer/consultant to calculate the amount of water the project (e.g., power generation, reservoir fill, pumped storage, construction, dust suppression, etc.) requires.
19-NY-a.2 – Locate Source of Water Supply
The developer, with the assistance of a water engineer/consultant, must locate an appropriate source of water supply based on the project’s water requirement.
19-NY-a.3 – Obtain Water Rights
The developer must obtain the appropriate water rights needed to construct and operate the project under New York’s riparian system.
19-NY-a.4 to 19-NY-a.5 – Does Ancillary Use of Groundwater Require a Well to Be Drilled?
If the project requires the construction of a well for ancillary use of groundwater, the developer should hire a registered water well driller. The developer may search for registered water well contractors using the New York Department of Environmental Conservation Water Well Contractor Search Wizard Website.
19-NY-a.6 to 19-NY-a.8 – Will the Project Alter, Change, or Deposit Materials Into a Streambed or Lakebed?
The developer may need to obtain a Protection of Waters Permit from the Department of Environmental Conservation (DEC) if the project will modify or disturb the course, channel or bed of any stream or remove any sand, gravel or other material from the bed or banks of a stream. “Stream” generally means any fresh surface watercourse classified by the DEC for best usage as a source of drinking water, for swimming and other contact recreation, or to support fisheries. N.Y. Env. Cons. L. § 15-0501(1)-(2); New York – Protection of Waters Program. For more information, see:
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- Bromberg v. Ellish, Inc., 64 A.D.2d 684, 685 (N.Y. App. Div. 1978)
- Barkley v. Wilcox, 86 N.Y. 140, 146-47 (N.Y. 1881)
- Strobel v. Kerr Salt Co., 58 N.E. 142 (N.Y. 1900)
- Fulton Light, Heat, & Power Co. v. New York, 200 N.Y. 400 (N.Y. 1911)
- Granger v. City of Canandaigua, 257 N.Y. 126 (N.Y. 1931)
- Adirondack League Club Inc. v. Sierra Club, 684 N.Y.S.2d 168, 172 (N.Y. 1998)
- Durham v. Ingrassia, 105 Misc.2d 191 (N.Y. Misc. 1980)
- New York Department of Environmental Conservation Water Well Contractor Search Wizard Website
- New York – Protection of Waters Program