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PETITIONERS VIOLATED THE ENVIRONMENTAL CONSERVATION LAW BY FILLING BELOW THE HIGH WATER MARK OF A POND; THE POND MET THE DEFINITION OF ‘NAVIGABLE WATERS’ AND WAS THEREFORE SUBJECT TO THE STATUTORY PROHIBITION (THIRD DEPT).

The Third Department determined the petitioners had violated the Environmental Conservation Law by filling below the high water mark of a pond and were properly fined $10,000. With respect to whether the pond constituted “navigable waters” (to which the relevant statute applies) the court explained:

… “[N]o person . . . shall excavate or place fill below the mean high water level in any of the navigable waters of the state . . . without a permit” (ECL 15-0505 [1]). Petitioners argue that the evidence failed to show that South Long Pond was a navigable water. We disagree. Under the common law, a water is navigable in fact if it provides “practical utility to the public as a means for transportation” … . Furthermore, “while the purpose or type of use remains important, of paramount concern is the capacity of the [water] for transport, whether for trade or travel” … . Petitioners’ neighbor testified at the hearing that she observed other individuals use boats or canoes on South Long Pond and that she had personally accessed South Long Pond by boat from Dyken Pond. A biologist with respondent’s Bureau of Fisheries likewise testified that he was able to navigate between South Long Pond and Dyken Pond by boat and that there was a boat launch on Dyken Pond. He further testified that navigable waters do not include those waters that are “surrounded by land [and] held in a single private ownership at every point in their total area.” Accordingly, we conclude that substantial evidence supports the Commissioner’s determination that South Long Pond was a navigable water To that end, petitioners’ related claim that respondent lacked subject matter jurisdiction because South Long Pond was not a navigable water is without merit. Matter of Stasack v New York State Dept. of Envtl. Conservation, 2019 NY Slip Op 07669, Third Dept 10-23-19

 

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