Relates to the public right of passage upon navigable waterways of the state

Summary of specific provisions

Adds a new Title 35 to Article 15 to the Environmental Conservation Law defining and regulating the right of the public to travel upon the navigable waterways of the state. Section 15-3301 of the new article recognizes the existing common law of the state that the public has a right to travel by vessel over navigable waters where they flow upon private lands.

This article states that the right of the public to use navigable waters does not permit crossing private land for access to, or egress from, such waters. However, the right of the public to continue along a navig- able waterway by portaging on, land if obstructed by a natural or manmade obstacle, as well as entry upon private land only to the extent necessary for exercising the right of navigation, is acknowledged. It requires the public to comply with all relevant statutes, rules and regulations dealing with travel via navigable waterways.

The bill also authorizes the Commissioner of Environmental Conservation to designate waterways which in furtherance of public safety and/ or protection of natural resources can only be used with special limita- tions, including under a self-registration user system. The bill refer- ences the General Obligations Law and makes it clear that landowners generally cannot be held liable for damages if any member of the public is injured while exercising their right of passage on navigable water- ways involving lands owned by such landowners. Definitions are provided for the following words or term; waterway; commerce; recreation; passage; lining; portaging; scouting; poling; and self registration system.

Justification

Navigable waterways have been primary arteries of trans- portation and commerce in New York since its inception. Over time a substantial body of case law has developed in New York which insures that these waterways will be accessible and useful to the public. Today much of the public's use of navigable waterways is for recreational purposes. Important in its own right for health and enjoyment, recre- ational use also is important for tourism and it provides economic bene- fits to many areas of the state. The 1998 Court of Appeals decision concerning the South Branch of the Moose River made dear that recre- ational use is a contemporary manifestation of traditional commercial use of navigable waterways and it can be an important factor in deter- mining navigability.

As a result of confusion and misunderstanding that developed over the years, public use of some navigable waterways has been obstructed ille- gally by riparian landowners. Obstruction of navigable waterways by riparian landowners or their lessees is a violation of public rights. Such illegal actions reduce the availability of the State's waterways for public enjoyment, with attendant economic loss. Some of these ille- gal obstructions have been removed as a result of recent land acquisi- tion by the State. However, at the same time, obstructions have been put in place elsewhere and more might be put in place in the future unless these rights are clarified, made more understandable in plain English and made more accessible by embodiment in a single statute. Such clar- ification and accessibility will benefit riparian landowners, river recreationists, law enforcement officers and other parties with a prima- ry or secondary direct interest

PRIOR LEGISLATIVE HISTORYof : 03/27/08 A7230A reported referred to codes 04/29/08 reported 05/01/08 advanced to third reading cal. 875 06/18/08 amended on third reading 7230a 06/18/09 Ordered to third reading rules cal. 458

Fiscal implications

None.

Effective date

This act shall take effect on the 180th day after it shall have become a law.