New York Easement to Use State Lands Underwater (3-NY-f)
In New York, most navigable waters, and the beds of navigable waters, are owned by the State and are held in trust by the OGS. New York State Office of General Services: Lands Underwater. The OGS has the authority to regulate public and private use of the State’s underwater lands in a manner that is consistent with the public interest in navigation, commerce, public access, fishing, bathing, recreation, and environmental and aesthetic protection, and which ensures that waterfront owners can reasonably exercise their riparian rights and access underwater lands.
Easement to Use State Lands Underwater Process
3-NY-f.1 to 3-NY-f.2 – Initiate Pre-Application Consultation with the Office of General Services (OGS)
Before applying for an easement to use the State’s lands underwater, the developer should contact the New York State Office of General Services (OGS) Bureau of Land Management to request a pre-application conference. A pre-application conference provides the developer with an opportunity to explain the project to the OGS staff and to obtain preliminary answers to questions concerning the project and the easement requirements. New York State Office of General Services: Lands Underwater.
3-NY-f.3 – Notice of Easement to Use State Lands Underwater Application
At least 20 days before filing an easement application with the OGS, the developer must provide notice of its application to:
- The city, town or village in which the proposed hydropower project is located;
- The owners of any properties immediately adjoining the hydropower project area; and
- The owners of any properties immediately adjoining the shorefront where any project cable, conduit, or pipeline will enter or leave the water.
In addition to the notice requirements above, hydropower developments must also provide the following information at least 20 days before filing an easement application:
- The date on which the developer intends to file the application with the OGS;
- A description of the land underwater applied for;
- The use of the land underwater applied for; and
- Directions specifying that any objections to the easement shall be filed with the Division of Land Utilization on or before the application filing date.
3-NY-f.4 – Application for the Use of Land Underwater
To apply for an easement, the developer must submit a complete Application for Use of Land Underwater (Application) and applicable supplemental materials to the OGS. The Application must include, at minimum, the following:
- Joint Application Form, if applicable;
- Complete Application for Use of Land Underwater;
- Plan and profile showing the existing or proposed work or structure;
- Map made by a licensed land surveyor and/or professional engineer, showing the location of the proposed structure(s), the upland property of the applicant (developer) and those of adjoining properties along the waterfront;
- Metes and bounds description of the land applied for, including the desired width of the proposed easement;
- Certified copy of the deed(s) of the applicant’s (developer's) adjacent upland or the consent of the owner of such adjacent upland together with a certified copy of the deed(s) thereto;
- Copy of adjoining shorefront deed(s) and a copy of the applicable tax map section;
- Duplicate copy of any permit or letter issued by the U.S. Department of the Army Corps of Engineers;
- Completed environmental assessment form (if applicable);
- Other satisfactory evidence of compliance with the State Environmental Quality Review Act;
- The OGS may require additional submissions as may be necessary for review of the application, such as permits and/or letters from the NYS Office of Parks, Recreation and Historic Preservation, the Power Authority of the State of New York and county or local agencies; and
- Affidavits of service of notice to the city, town or village and affected land owners.
In addition to the requirements above, hydroelectric project easement applications must include:
- An abstract of a title or title search of the proposed easement area; and
- A copy of the Federal Energy Regulatory Commission (FERC) license.
3-NY-f.5 to 3-NY-f.6 – Review Application Materials for Completeness; Assess Applicable Fees
The OGS will notify the developer immediately when the OGS receives the developer’s application materials.
After an initial review, the OGS advises the developer of whether any additional information is required and informs the developer of the applicable easement fees. See N.Y. Comp. Codes R. & Regs. tit. 9 §271-1.7; Application for Use of Land Underwater (New York).
3-NY-f.7 – Review Project for Consistency with the Public Interest and the State Environmental Quality Review Act
The OGS may approve the developer’s easement if the project is consistent with the public’s interest in navigation, commerce, public access, fishing, bathing, recreation, and environmental and aesthetic protection; the project will not unreasonably interfere with waterfront owners’ ability to exercise their riparian rights and access underwater lands; and the project is complies with the requirements of the State Environmental Quality Review Act.
3-NY-f.8 to 3-NY-f.9 – Does the OGS Approve the Developer’s Easement Application?
If the OGS approves the developer’s application, the OGS will issue an easement allowing the developer to use the State’s lands underwater.
3-NY-f.10 - Pay Easement Fees
For cable, conduits, and pipelines and similar facility easements, the developer must pay the applicable fees on or before the date when the OGS issues the easement.
For a hydroelectric easement, the developer must pay the applicable fees at the close of the calendar year but, in no event, later than February 15th of the following year. N.Y. Comp. Codes R. & Regs. tit. 9 § 271-1.7.
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