N.Y. Environmental Conservation Law § 15-0701: Harmless alterations in watercourses and lakes; prescriptive rights or privileges; action for declaratory judgment; limitations of time

§ 15-0701. Harmless alterations in watercourses and lakes; prescriptive

rights or privileges; action for declaratory judgment;

limitations of time.

1. An alteration (whether or not it causes water to cover or permeate

land previously dry) in the natural flow, quantity, quality or condition

of a natural watercourse or lake situated in this state and either on or

below the surface of the earth, effected by the use either on or off

riparian land, withdrawal, impoundment, or obstruction of the water in

such watercourse or lake, or by the addition of water thereto, or by

changes in the banks, bed, course or other physical characteristics of

such watercourses or lake, is reasonable and lawful as against any

person, as defined in subdivision two of section 15-0107, having an

interest in such watercourse or lake, unless such alteration is causing

harm to him or it, or would cause him or it immediate harm if and when

begun. No action for nominal damages or for an injunction shall be

maintainable because of such an alteration against any person or

corporation, whether a riparian owner or not, on the ground that such

alteration is an infringement of the plaintiff's private rights and

privileges in the waters of, or with respect to, such watercourse or

lake unless such alteration is causing plaintiff harm, or would cause

him or it immediate harm if and when begun. This subdivision shall apply

to such an action regardless of whether the alteration sought to be made

the basis of it was caused before or after the effective date of this

section.

2. For the purpose of this section, "harm" shall mean:

a. Interference with a present use of the water by the complaining

party or an interference with the complaining party's present enjoyment

of riparian land occurring prior to suit, or which will immediately

occur when the alteration complained of is begun, regardless of whether

such interference has caused or will ever cause such party measurable

financial loss; or

b. A decrease in the market value of the complaining party's interest

in riparian land occurring prior to suit, or which will immediately

occur when the alteration complained of is begun, regardless of whether

his use of the water or enjoyment of riparian land was interfered with

prior to suit, or will be immediately interfered with when the

alteration complained of is begun.

3. Interference with the present enjoyment of riparian land may be

established by proof that the alteration complained of or sought to be

enjoined is rendering or will immediately render riparian land owned or

occupied by the complainant less suitable or useful for the purpose or

purposes to which he is presently devoting it. The evidence admissible

to establish a decrease in the suitability or utility of such land for

such purposes may include, but not be limited to, evidence tending to

show that the act complained of has diminished, or when begun, will

immediately diminish, the desirability for recreational purposes, or the

natural beauty of the body of water to which the land owned or occupied

by the complainant is riparian.

4. The cause of action essential to the initiation and creation of a

prescriptive right or privilege against a private riparian owner to

continue an alteration in the natural condition of such a watercourse or

lake shall not be supplied by such an alteration until it shall have

caused such riparian owner harm and then only if it is unreasonable.

5. Nothing contained in this section shall, however, be construed as

depriving any person or corporation having an interest in such

watercourse or lake of any remedy either at law or in equity which he

now has, or may hereafter acquire, under the law of this state for harm

caused him by an unreasonable alteration in the natural condition of

such a watercourse or lake, regardless of whether such alteration was

harmful and unreasonable from its initiation or subsequently became so.

6. Any person desirous of ascertaining the extent of the rights and

privileges of himself and others in the water of or with respect to the

natural condition of such a natural watercourse or lake may maintain an

action for a declaratory judgment defining the extent of such rights and

privileges. Neither proof of present harm nor of the likelihood of

future harm to the plaintiff from an alteration in the natural condition

of such watercourse or lake shall be prerequisite to the maintenance of

such an action, the judgment in which shall not affect the rights and

privileges of any person or corporation not a party thereto. Such an

action shall be maintainable by persons, corporations, governmental

units, owners of land riparian to such a natural watercourse or lake,

persons to whom such owners have granted their riparian rights in whole

or in part, and owners of prescriptive rights or privileges in the water

of or with respect to such watercourses or lakes.

7. No statute of limitations shall begin to run against a cause of

action for such a declaratory judgment until a plaintiff who is

empowered by this section to maintain it has been harmed by an

unreasonable alteration in the natural condition of such watercourse or

lake effected by the person or his predecessor in interest against whom

such an action may be maintained.

8. Notwithstanding any other provision of this section, if the harm

resulting from an unreasonable alteration of the natural condition of

such a natural watercourse or lake is one which would not ordinarily be

noticeable by an owner of land actually present thereon, no statute of

limitations shall begin to run against any cause of action referred to

in subdivisions four and five of this section until the party harmed is

fairly chargeable with knowledge that he has been harmed.

9. Nothing herein contained shall be construed to alter or affect the

right to exercise any power which the state of New York or any agency

thereof, or any county, city, town or village or any agency thereof, may

have to enjoin the initiation or continuance of an alteration in the

natural condition of a natural watercourse or lake.