N.Y. Environmental Conservation Law § 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.