NY Env Conserv L § 15-2119 (2021)
2021 New York Laws ENV - Environmental Conservation Article 15 - Water Resources Title 21 - River Regulation by Storage Reservoirs 15-2119 - Procedure for Construction of Reservoirs.

§ 15-2119. Procedure for construction of reservoirs.1.  Preliminary  plans, specifications, maps, statements and estimates   are required as follows:a. If the board shall determine as a part  of  the  official  plan  or   before  the  official plan has been prepared that the public interest or   welfare  requires  that  a  reservoir  should  be  constructed  for  the   regulation  of  the  flow of a river or rivers, stream or streams of the   district,  it  shall  cause  to  be  prepared  preliminary   plans   and   specifications  of  such  reservoir  with  estimates  of  the total cost   thereof together with a survey of the lands upon which the same is to be   constructed, giving the location thereof, and of all lands to be  taken,   flowed  or  damaged,  with a description by survey or otherwise, showing   the amount of lands belonging to the state  and  to  persons  or  public   corporations and the amount of lands of the state in the forest preserve   affected thereby.b.  The  board  shall  also  cause  a map to be made, showing all such   lands, the number of acres in each separate  tract,  the  names  of  the   owners  and  occupants  thereof,  so  far as the board can ascertain the   same. Such maps shall also show the high  flow  lines  of  the  proposed   reservoir.c.  The  board  shall  also prepare a statement of the amount of water   power, if any, which consistent with the proper regulation of  the  flow   of  the  river  or  stream  may  be  developed  at  or by reason of such   reservoir by  the  withdrawal  of  water  for  power  purposes  directly   therefrom  with  an  estimate of the value thereof. The board shall also   prepare a  statement  showing  generally  the  public  corporations  and   locality of lands to be benefited by the improvement and how and whether   the  state  will  be  benefited thereby and the public necessity for the   improvement.d. In the event  that  any  of  the  real  estate  required  for  such   reservoir  shall  belong  to  the  state,  the  value  thereof  shall be   determined in the estimates, as hereinbefore provided, and in the  event   that  such  land  is  outside  the  forest  preserve  and  the  state is   chargeable with any proportion of the  expenses,  such  value  shall  be   deducted  from the amount to be paid by it, and shall be chargeable as a   part of the expenses of the improvement.e. When the board shall have completed such preliminary  plans,  maps,   specifications, estimates and statements, it shall certify the same with   its  approval  thereof  to  the department, which shall have power after   hearing the board, to modify such maps, plans, specifications, estimates   and statements, or any of them, and within forty days after the  receipt   thereof  shall  approve  the same as certified to or modified by it, and   shall certify the same as approved by it to the board. The  board  shall   thereupon  cause  the preliminary plans, maps, specifications, estimates   and statements so approved to be filed in the office of the county clerk   of each county having lands within such district, and in the  office  of   the department.2.  Upon  the  completion  and filing of such preliminary plans, maps,   specifications, estimates and statements, as aforesaid, the board  shall   forthwith  give  notice  of  such filing as provided in subdivision 1 of   section 15-0903, and shall hold a hearing  thereon  in  the  manner  set   forth in section 15-0903.3.  Upon  the  completion  of  such  hearing the board shall determine   whether the public  welfare  requires  that  such  proposed  improvement   should  be proceeded with, and what, if any, modification should be made   in such plans, maps, specifications, estimates and statements.   If  the   board   shall  determine  that  such  maps  and  plans,  specifications,   estimates and statements should be modified in  any  respect,  it  shall    certify  its  proposed  modifications  to  the  department,  which after   hearing, the board shall determine what, if any, modifications should be   made therein, and as modified by them shall approve the same and certify   the  same  with their approval to the board, which modified plans, maps,   specifications, statements  and  estimates  shall  be  filed  by  it  as   hereinbefore  provided  for  the  filing of the original thereof. If the   board shall finally determine that the proposed reservoir shall be made,   it shall thereupon make a final order directing the same to be made, and   shall cause such final order or certified copies thereof to be filed and   recorded in the office of the county clerk of each county in  which  any   lands  within  such  district  are  located,  and  in  the office of the   department, and forthwith give notice by publication of the  making  and   filing of such final order.4.  Any  person or public corporation affected by the determination of   the board may review such final determination in the manner provided  by   article  seventy-eight  of  the  civil  practice law and rules.   Unless   application shall be made for such review within sixty  days  after  the   filing  of  the  final  order,  as  herein  provided,  the  plans, maps,   specifications, statements and estimates shall be  the  established  and   final  plans,  maps,  specifications,  statements  and estimates of such   reservoir. In the event  that  upon  such  review  there  shall  be  any   modification   by   the   court   of   the  final  order,  maps,  plans,   specifications, statements and estimates, the  court  shall  direct  the   modification  thereof  by order, and the board shall cause such order to   be filed and recorded in each place where the final order was filed  and   recorded. No review of the final determination of the board shall be had   unless  at  the  time of the application for review the person or public   corporation seeking the review shall give an undertaking approved by the   supreme court or a justice thereof, as to form, amount, and  sufficiency   or   sureties  that  in  the  event  of  failure  to  modify  the  final   determination, he or it will  pay  to  the  board  all  such  costs  and   expenses  as are incurred by it on account of the review proceedings, as   shall be determined by the court.5. The board shall have power to make such changes in the final  maps,   plans and order as the nature of the work may require, provided that the   board shall give notice by publication pursuant to subdivision 1 section   15-0903,  and  shall give a hearing thereon as in the first instance and   the same proceedings shall be had as provided by subdivisions 3 and 4 of   this section.6. In the event that in any such plans, estimates  and  statements,  a   charge  is  made  against the state for any share of the expenses of the   proposed reservoir, not including therein such preliminary  expenses  as   may  have  been  necessary  or  expenses  consisting only of assessments   against the state on account of benefits from the improvement,  no  such   reservoir  shall  be made under title 21 of this article pursuant to any   such final order until the Legislature shall make appropriation  to  pay   the  state's  share  of  such expenses. The sum so appropriated shall be   paid into the general fund of the river regulating district for which it   is appropriated.7. When any such final order shall have been made, and the Legislature   shall have made appropriation for any share of the  expense  payable  by   the  state,  if  any,  the board shall proceed as herein provided to the   acquisition  of  such  real  estate  as  may  be   necessary   for   the   construction,   maintenance   and  operation  of  such  reservoir.  When   proceedings are taken under the eminent domain procedure law, the  board   shall  file  in  the  Comptroller's office a certified copy of the final   order provided for in the eminent domain procedure law, and a  certified   copy  of  the  judgment  therein rendered pursuant to the eminent domain    procedure law, together with the certificate  of  the  Attorney  General   that no appeal from such final order and judgment has been made, or will   be  taken by the state, or if an appeal has been taken, a certified copy   of the final judgment of the appellate court. Payments of the amount due   upon  such  final  order and judgment with interest from the date of the   judgment until thirty days after the  entry  of  such  final  order  and   judgment, and payments for real estate taken by agreement, shall be made   out of the general fund of the district.8.  Construction  work  shall  be  undertaken  in  accordance with the   following provisions:a. After any such final order  shall  have  been  made  and  filed  as   hereinbefore  provided,  the  board  may  proceed  to construct the work   according to the  plans  and  specifications,  by  publishing  a  notice   stating the time when and the place where such bids or proposals will be   received,  once a week for three weeks in one newspaper published in the   city of New York and in one newspaper in each county  wholly  or  partly   within  the  district,  if  such  papers  there  be,  and  in such other   newspapers as the board shall deem advisable.b. The advertisement shall be limited to a brief  description  of  the   work  proposed  to  be  let with an announcement stating where the maps,   plans and specifications are on exhibition and the terms and  conditions   on  which  bids  will  be  received  and  such  other  matters as may be   necessary to carry out the provisions of title 21 of  this  article.  In   such  notice the board shall reserve the right to reject any or all bids   and again advertise for further bids.c. The proposals received pursuant to  such  advertisements  shall  be   publicly  opened  and  read  at  the  time  and  place designated. Every   proposal must be accompanied by a deposit in the  form  of  a  certified   check upon some national or state bank or trust company within the state   in  good credit and payable to the board for five per cent of the amount   of the proposal. In case the proposer to whom  such  contract  shall  be   awarded shall fail or refuse to enter into such contract within the time   fixed  by  the  board,  such deposit shall be forfeited to the board and   paid by it into and become a part of  its  general  fund.  In  case  the   contract be made such deposit shall be returned to the contractor.d.  Before  entering  into  any  such  contract a bond with sufficient   sureties to be approved by the board shall be required, conditioned that   the contractor will perform all work within the time prescribed  in  and   in  accordance  with  the  plans and specifications, and will pay to the   state, the regulating district and the  board  all  damages,  costs  and   expenses  suffered  or  incurred  by any or all of them by reason of the   neglect  or  default  of  such  contractor  or  his  employees  or   any   subcontractor or his employees in the performance of such contract or in   doing such work thereunder.e. Such contract may provide for partial payments to be made from time   to time upon the certificate of the engineer in charge of the work after   due  inspection  thereof  for an amount not exceeding ninety per cent of   the  contract  price  for  the  work  actually  done  as  shown  by  the   certificate.  Such  certificate  must  state  the  amount  of  the  work   performed and its total value, at the price fixed by such contract,  but   in  all  cases not less than ten per cent of the estimate thus certified   must be retained until the contract is completed  and  approved  by  the   engineer in charge of the work and by the department.f.  The  board may divide the work into several parts and let separate   contracts therefor. If the estimated cost of any part of such work  does   not  exceed ten thousand dollars, the board may by resolution proceed to   do such part of such work by its  own  forces  or  otherwise.  All  such   contracts before being entered into shall be approved by the department. g.   Subject  to  the  authority  of  the  department  to  dispose  of   merchantable timber and salable wood on state land, no  reservoir  shall   be constructed until provision shall have been made by the board for the   clearing  from the reservoir site of all timber and all timber growth on   lands  to  be flowed, such timber and timber growth to be removed by the   board by contract or otherwise, with the approval of the department. The   board shall not permit to remain upon a reservoir  site  above  the  low   flow line of the reservoir any stump higher than twelve inches above the   bed of the reservoir adjacent thereto.h. All merchantable timber and salable wood on state land to be flowed   shall be sold by the department in such manner as it shall deem best for   the interests of the state, but in no event for a sum less than its fair   market  value,  provided,  however,  that  the  department  may  in  its   discretion sell any such merchantable timber or salable wood  at  public   auction after due advertisement. The proceeds of any sale or disposition   less  the  expenses  thereof  and  the  reasonable  cost  of inspecting,   scaling,  lumbering,  cutting  and  piling,  if  any,  incurred  by  the   department,  shall  be  paid  into  the  general  fund of the state. The   department may designate the trees or kinds of trees  to  be  considered   merchantable timber or salable wood.i.  In  preparation of the reservoir site the board shall do such work   as may be necessary to prevent stagnant pools above the  low  flow  line   thereof.