Guidelines for In-Water Structures on a State-owned Waterbody

Per the Public Land Law and implementing regulations under 9 NYCRR Part 270, OGS manages the State's interest in its underwater lands, to regulate the projects and structures constructed in or over such underwater lands consistent with the public interest in navigation, commerce, public access, fishing, bathing, recreation, environmental and aesthetic protection, and to ensure waterfront owners reasonable exercise of riparian rights and access to those underwater lands. 

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The Public Lands Law §75(7)(b) states that no wharf, dock, pier, jetty, platform, breakwater, mooring or other structure shall be constructed, erected, anchored, suspended, placed or substantially replaced, altered, modified, enlarged, or expanded in, on or above state-owned lands underwater, nor shall any fill be placed on such lands underwater, unless a lease, easement, permit, or other interest is obtained from the Commissioner of General Services, which authorizes the use and occupancy of those state-owned lands underwater to be affected by such act or acts.

Definitions per 9 CRR-NY 270-2.1 and 9 CRR-NY 270-6.5:

Commercial Use - a use involving the sale, rental or distribution of facilities, goods, equipment, services or commodities, either retail or wholesale, or the provision of recreational facilities for a fee.

Keyhole Development - a residential development characterized by a number of dwelling units constructed on an upland tract or parcel associated with a relatively small shorefront area providing water access for all or a large portion of the residents of the upland tract or parcel.

Municipal corporation - use of dock or structures for public, noncommercial uses offering services to the public either free or for nominal fees.

Residential Use - any facility used for permanent or seasonal habitation, including but not limited to: realty subdivisions, apartments, mobile home parks, and campsites offering any utility hookups for recreational vehicles. It does not include such facilities as hotels, hospitals, nursing homes, dormitories or prisons.

Special Use - the use of State-owned lands underwater associated with condominiums and cooperative forms of ownership, residential multi-lot subdivisions and keyhole developments.

Water dependent - an activity which can only be conducted on, in, over or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water.

Threshold - Commercial Use:

All commercial uses require authorization from OGS.  

Threshold - Residential Use, Special Use, Public Marinas designated as Municipal Corporations:

All non-commercial structures require a license, unless such structures:

• Have a surface area less than 4,000 sq. ft., as measured at the outermost perimeter, including surface waters directly between or encompassed within the structure;
• Do not exceed fifteen (15) feet in height, as measured at the uppermost point, above the mean high-water line (MHW);
• Have a capacity of five (5) or fewer boats thirty (30) feet in length;
• With respect to mooring facilities, have a capacity of fewer than ten (10) boats thirty (30) feet in length; and
• Promote water dependent uses.

Existing Structures over State Lands Underwater:

For existing structures, applicants shall submit an OGS application under these conditions:

• License and easement renewal – Prior to expiration of an OGS-granted license or easement, submit an OGS application for renewal.
• Substantial replacement – Any exempted structure built prior to June 17, 1992 that exceeds current square footage or slip quantity requirements and whose materials have been substantially replaced require submission to OGS.
• Proposed expansion - Proposed expansion of previously approved structures require submission to OGS.
• Unlicensed structures – Unlicensed structures within state lands underwater that meet or exceed minimum thresholds for OGS licensing or easement require applicant submission to OGS.
• Existing shoreline stabilization structures - those that require repair and as a result extend into OGS jurisdictional waters more than one (1) foot distance.

Exceptions not requiring OGS application include:

• Relocation and reconfiguration of licensed structures - During the term of a license, it is permissible to relocate or reconfigure the dock, piles, ramps and like structures within the described perimeter authorized by lease, easement, permit or lesser interest provided such relocation or reconfiguration does not interfere with the riparian or littoral rights (e.g. offsets) of adjacent upland owners.

The Guidelines: Docks, Marinas, Moorings, Boathouses, Shoreline Stabilization Structures establishes standards for OGS review of in-water structures. Where such standards conflict with local controls of state lands underwater enabled by the Navigation Law §46-A, an approved Local Waterfront Revitalization Program, or Hudson Valley Greenway Compact township, such jurisdictions may enforce stricter standards.

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Per New York State Public Lands Law (Article 6 § 75(7)(f) and the implementing regulations (9 NYCRR § 270-3.2), the following review factors are considered by OGS before approving the use of state lands underwater: 

1. Environmental impact of the project 
   (e.g. critical environmental areas, significant natural communities, wetlands, dredging) 
    
2. Values for natural resource management, public recreation, and commerce
   (e.g. resource management areas, bathing areas, fishing locations, boating capacity, commercial enterprises positively and negatively impacted by the proposed action) 
    
3. Size, character and effects of the project in relation to neighboring uses
   (e.g. compliance with zoning, comprehensive plan, and coastal consistency, aesthetics, noise, historic cultural and archaeological resources)
    
4. Potential for interference with navigation, public uses of waterway and riparian/littoral rights
   (e.g. navigational channel, anchorage areas, littoral/riparian lines, waters exceeding 4’ depth)
    
5. Water dependent nature of use
   Water dependent activities include those which can only be conducted in, on, above or adjacent to a water body because such activity requires direct access to that water body and which involves, as an integral part of such activity, the use of the water.
    
6. Adverse economic impact on existing commercial enterprises
   (e.g. marinas, commercial fishing operations, water dependent/adjacent tourism
    
7. Effect of the project on the natural resource interests of the State in the lands; and 
   OGS will consult with other relevant State agencies during the application process to ensure natural resource interests are protected.
    
8. Consistency with the public interest for purposes of fishing, bathing and access to navigable waters and the need of the owners of private property to safeguard their property.
   Preserve the public interest in fishing, bathing, and access to navigable waters and the reasonable need to safeguard adjacent private property. 

Avoidance, Minimization, and Mitigation of Impacts for In-water Structures: 

Demonstrate how project avoids, minimizes, and mitigates impacts relating to the eight application factors. If the proposed project does not avoid or minimize impacts, OGS will recommend alternatives. If these recommended alternatives are rejected, the applicant will be required to submit a detailed alternatives analysis. In some cases, an alternatives analysis might still be inadequate which could result in OGS recommending a permit denial. 

Example measures include: 

• Aesthetics – Design structures that are architecturally-sensitive, sized appropriate to the surrounding uses, minimize lighting, and preserve views of listed scenic resources. 
• Noise – Avoid introducing major noise impacts near sensitive ecological / human receptors (e.g. schools, hospitals, or nursing homes). 
• Littoral Line Offsets – Expand littoral / riparian line offset where necessary. 
• Navigational – Limit structure extension into waterway; install buoys where necessary. 
• Public Interests – Avoid proximity to public bathing, fishing areas, and public navigation. 
• Carrying Capacity – Limit quantity of boat slips or launches in overcrowded waterbodies. 
• Water Circulation – Maintain and improve water circulation by having multiple marina entrances, avoid creating dead-end channels, limit dock segments and structure depth below water, and limit dredging depth to not exceed adjacent channel. 
• Other Agency Requirements – Comply with requirements of other reviewing agencies (e.g. NYSDEC, NYSOPRHP, NYSDOS, municipal bodies and authorities).