NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7850
SPONSOR: Englebright
 
TITLE OF BILL:
An act to amend the environmental conservation law, in relation to
freshwater wetlands; and to repeal certain provisions of such law relat-
ing thereto
 
PURPOSE:
Relates to freshwater wetlands; repealer
 
SUMMARY OF PROVISIONS:
Section 1 amends § 24-0105 of the Environmental Conservation Law (ECL)
to revise and add to the list of benefits derived from protecting
Wetlands. Most notably this section speaks on the increasing severity
and duration of storm-related flooding due to climate change, which has
caused billions of dollars of property damage in the state making
protection of all the state's freshwater wetlands of vital importance.
Section 2 amends § 24-0107 of the ECL to amend the definition of "fresh-
water wetlands" to include wetlands that have an area of at least twelve
and four-tenths acres or, if less than twelve and four-tenths acres in
size, are of unusual importance. The term "unusual importance" is
defined as a freshwater wetland, regardless of size, that possesses one
or more of the following characteristics as determined by the depart-
ment. Such characteristics are detailed in this section. Additionally,
Subdivision two of § 24-0107 of the ECL states that DEC's "freshwater
wetlands map" will serve the purpose of educating the public on the
approximate location of wetlands, are for educational purposes only, and
are not controlling for purposes of determining if a wetlands permit is
required pursuant to section 24-0701 of this article.
Section 3 subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the ECL
are repealed.
Section 4 amends subdivisions 6, 7 and 8 of section 24-0301 to specify
the procedural requirements for the freshwater wetlands map. Provisions
include allowing the commissioner to update any digital image of the map
posted.on the department's website at any time to more accurately depict
the approximate location of wetlands.
Section 5 amends subdivisions 1, 2 and 4 of section 24-0701 of the ECL
specifying the permitting requirements for freshwater wetlands, includ-
ing the requirements for a wetlands permit for the subdivision of land
and on lands in active agricultural or silvicultural use.
Section 6 amends subdivision 5 of section 24-0703 to specify the
requirements for DEC to respond to requests for permit determination.
Section 7 amends section 24-0901 of the ECL to, provided that the
commissioner shall confer with local government officials in each region
in which inventory has been conducted to establish a program for the
protection of the freshwater wetlands of the state
Section 8 amends section 24-0903 to provided that prior to the adoption
of any land use regulations governing freshwater wetlands, the commis-
sioner shall hold a public hearing in the area in which the affected
freshwater wetlands are located and give thirty days prior notice there-
of by posting on the department's website or by publication at least
once in a newspaper having general circulation in the area of the local
government involved.
Section 9 amends section 70-0117 of the ECL to designate credit of the
fees collected to the marine resources account of the conservation fund.
Section 10 amends section 71-2303 of the ECL to specify violations,
determinants for said violations and their penalties.
Section 11 amends section 71-2305 of the ECL to permit that the attorney
general shall prosecute persons alleged to have violated article twen-
ty-four of chapter 614 of the laws of 1975.
Section 12 states the effective date.
 
JUSTIFICATION:
For the past two decades, New York has been entangled in the federal
legal debate over what constitutes a wetland and who has the authority
to protect them. New Yorkers rely on swamps, fens, bogs, and wet meadows
to filter pollutants from our waterways, recharge our aquifers, and
absorb catastrophic floods. Yet there often appears to be little public
awareness that we are filling, dredging and draining wetlands at an
alarming rate - at least until we find our neighborhoods underwater or
our public water supplies contaminated.
Currently, for a wetland to be subject to regulation under NY state law,
it must be delineated on existing freshwater wetlands maps prepared by
DEC after lengthy public comment. Most of these maps have not been
updated in over 20 years, making them woefully incomplete, and the
amendment process can be time consuming and overly burdensome in admin-
istrative costs.
There are hundreds of thousands of acres of wetlands in high development
areas of New York that are not on official maps but desperately require
protection. This legislation will remove the jurisdictional barriers
that these maps have created, and allow DEC to immediately protect and
regulate wetlands if they meet the basic scientific definition of these
critical habitat areas featuring hydrophilic plants and hydric soils.
Commissioner Seggos estimated that if this reform was enshrined in law
it will be the equivalent of adding 1 million acres of wetland under the
state's protection. That number just represents wetlands that are 12.4
acres and larger that were never officially mapped by the state. Exist-
ing state law will also allow DEC to identify and protect smaller
wetlands of unusual importance that were once encumbered by the state's
regressive mapping protocol and never officially recognized. Currently,
New York is the only state in the Northeast not to assume regulatory
authority over its own wetlands. The new reforms would preserve DEC's
authority over wetlands 12.4 acres and larger but expand the Departments
authority over smaller wetlands of 'unusual importance' that: are class
1 wetlands, or class II wetlands that posses s valuable characteristics
like: effective for community flood water control, within an urban area,
possessing rare plant or animal species, or important to maintaining
clean drinking water.
 
LEGISLATIVE HISTORY:
This is a new bill.
 
FISCAL IMPLICATIONS:
None to the State.
 
EFFECTIVE DATE:
This act shall take effect immediately, provided, however that sections
two, three, four, five, six, and seven and eight of this act shall take
effect on January 1, 2023.
STATE OF NEW YORK
________________________________________________________________________
7850
2021-2022 Regular Sessions
IN ASSEMBLY
May 27, 2021
___________
Introduced by M. of A. ENGLEBRIGHT -- read once and referred to the
Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to
freshwater wetlands; and to repeal certain provisions of such law
relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 2, 3 and 7 of section 24-0105 of the environ-
2 mental conservation law, as added by chapter 614 of the laws of 1975,
3 subdivision 7 as renumbered by chapter 654 of the laws of 1977, are
4 amended to read as follows:
5 2. Considerable acreage of freshwater wetlands in the state of New
6 York has been lost, despoiled or impaired by unregulated draining,
7 dredging, filling, excavating, building, pollution or other [acts]
8 activities inconsistent with the natural uses of such areas. [Other
9 freshwater] Freshwater wetlands are in jeopardy of being lost, despoiled
10 or impaired by such [unrelated acts] activities and because of the
11 recent curtailment of federal wetland protections.
12 3. Recurrent flooding aggravated or caused by the loss of freshwater
13 wetlands has serious effects upon natural ecosystems. The increasing
14 severity and duration of storm-related flooding due to climate change,
15 which has caused billions of dollars of property damage in the state,
16 makes protection of all freshwater wetlands in the state of vital impor-
17 tance.
18 7. Any loss of freshwater wetlands deprives the people of the state of
19 some or all of the many and multiple benefits to be derived from
20 wetlands, to wit:
21 (a) flood and storm control by the hydrologic absorption and storage
22 capacity of freshwater wetlands;
23 (b) wildlife habitat by providing breeding, nesting and feeding
24 grounds and cover for many forms of wildlife, wildfowl and shorebirds,
25 including migratory wildfowl and rare, endangered or threatened species
26 [such as the bald eagle and osprey];
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09969-05-1
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1 (c) protection of subsurface water resources and provision for valu-
2 able watersheds and recharging ground water supplies;
3 (d) recreation by providing areas for hunting, fishing, boating,
4 hiking, bird watching, photography, camping and other uses;
5 (e) pollution treatment by serving as biological and chemical oxida-
6 tion basins;
7 (f) erosion control by serving as sedimentation areas and filtering
8 basins, absorbing silt and organic matter and protecting channels and
9 harbors;
10 (g) education and scientific research by providing readily accessible
11 outdoor bio-physical laboratories, living classrooms and vast training
12 and education resources; [and]
13 (h) open space and aesthetic appreciation by providing often the only
14 remaining open areas along crowded river fronts and coastal Great Lakes
15 regions; [and]
16 (i) sources of nutrients in freshwater food cycles and nursery grounds
17 and sanctuaries for freshwater fish[.];
18 (j) preservation of plant species that are rare, endangered or threat-
19 ened, or exploitably vulnerable as defined in section 9-1503 of this
20 chapter; and
21 (k) preservation of communities of plants and animals that are deemed
22 by the commissioner to be rare in the state or in a region of the state.
23 § 2. The opening paragraph and paragraphs (c) and (d) of subdivision
24 1, and subdivisions 2, 3 and 8 of section 24-0107 of the environmental
25 conservation law, as amended by chapter 654 of the laws of 1977, are
26 amended and two new subdivisions 9 and 10 are added to read as follows:
27 "Freshwater wetlands" means lands and waters of the state [as shown on
28 the freshwater wetlands map] that have an area of at least twelve and
29 four-tenths acres or, if less than twelve and four-tenths acres in size,
30 are of unusual importance and which contain any or all of the following:
31 (c) lands and waters substantially enclosed by aquatic or semi-aquatic
32 vegetation as set forth in paragraph (a) of this subdivision or by dead
33 vegetation as set forth in paragraph (b) of this subdivision, the regu-
34 lation of which is necessary to protect and preserve the aquatic and
35 semi-aquatic vegetation; and
36 (d) the waters overlying the areas set forth in paragraphs (a) and (b)
37 of this subdivision and the lands underlying paragraph (c) of this
38 subdivision.
39 2. "Freshwater wetlands map" shall mean a map promulgated by the
40 department pursuant to section 24-0301 of this article on which are
41 indicated the boundaries of any freshwater wetlands. Freshwater wetland
42 maps will serve the purpose of educating the public on the approximate
43 location of wetlands, are for educational purposes only, and are not
44 controlling for purposes of determining if a wetlands permit is required
45 pursuant to section 24-0701 of this article.
46 3. "Boundaries of a freshwater wetland" shall mean the outer limit of
47 the vegetation specified in paragraphs (a) and (b) of subdivision one of
48 this section [24-0107] and of the lands and waters specified in para-
49 graph (c) of such subdivision.
50 8. "Pollution" shall mean the presence in the environment of [man-in-
51 duced] human-induced conditions or contaminants in quantities or charac-
52 teristics which are or may be injurious to human, plant or wildlife, or
53 other animal life or to property.
54 9. "Unusual importance" shall mean a freshwater wetland, regardless of
55 size, that possesses one or more of the following characteristics as
56 determined by the department:
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1 (a) it is located in an area designated as a special flood hazard area
2 on the most current federal emergency management agency flood insurance
3 rate map that has experienced significant flooding in the past;
4 (b) it contains occupied habitat or habitat for an essential behavior,
5 as confirmed by the department, of an endangered or threatened species
6 or a species of special concern as defined under section 11-0535 of this
7 chapter and/or listed as a species of greatest conservation need in New
8 York's wildlife action plan;
9 (c) it is classified by the department as a Class I wetland;
10 (d) it is classified by the department as a Class II wetland and the
11 department determines based on criteria established by regulation that
12 its wetland functions and values are of local or regional significance;
13 or
14 (e) it was previously classified and mapped by the department as a
15 wetland of unusual local importance.
16 10. "Delineation" shall mean a precise description of a regulated
17 freshwater wetland as defined in subdivisions one and three of this
18 section, including the regulated adjacent area with sufficient scale and
19 clarity to permit ready identification.
20 § 3. Subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the environ-
21 mental conservation law are REPEALED.
22 § 4. Subdivisions 6, 7 and 8 of section 24-0301 of the environmental
23 conservation law, subdivision 6 as amended by chapter 16 of the laws of
24 2010 and subdivision 7 as amended and subdivision 8 as added by chapter
25 654 of the laws of 1977, are amended to read as follows:
26 [6.] 1. Except as provided in subdivision [eight] three of this
27 section, the commissioner shall supervise the maintenance of [such boun-
28 dary] freshwater wetlands maps, which shall be available to the public
29 [for inspection and examination at the regional office of the department
30 in which the wetlands are wholly or partly located and in the office of
31 the clerk of each county in which each such wetland or a portion thereof
32 is located] on the department's website. The commissioner may, upon
33 notice in a form and manner to be determined by the department to the
34 property owner or owners affected, readjust the map [thereafter to clar-
35 ify the boundaries of the wetlands, to correct any errors on the map, to
36 effect any additions, deletions or technical changes on the map, and to
37 reflect changes as have occurred as a result of the granting of permits
38 pursuant to section 24-0703 of this article, or natural changes which
39 may have occurred through erosion, accretion, or otherwise. Notice of
40 such readjustment shall be given in the same manner as set forth in
41 subdivision five of this section for the promulgation of final freshwa-
42 ter wetlands maps. In addition, at the time notice is provided pursuant
43 to subdivision five of this section, the commissioner shall update any
44 digital image of the map posted on the department's website to reflect
45 such readjustment] at any time prior to the filing of the delineation of
46 a freshwater wetland boundary to more accurately depict the approximate
47 location of wetlands.
48 [7.] 2. Except as provided in subdivision [eight] three of this
49 section, the commissioner may, upon his or her own initiative, and
50 shall, upon a written request by a landowner whose land or a portion
51 thereof may be included within a wetland, or upon the written request of
52 another person or persons or an official body whose interests are shown
53 to be affected, cause to be delineated [more precisely] the boundary
54 line or lines of a freshwater wetland or a portion thereof and the regu-
55 lated freshwater wetland adjacent area as set forth in subdivision two
56 of section 24-0701 of this article. [Such more precise delineation of a
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1 freshwater wetland boundary line or lines shall be of appropriate scale
2 and sufficient clarity to permit the ready identification of individual
3 buildings and of other major man-made structures or facilities or
4 significant geographical features with respect to the boundary of any
5 freshwater wetland.] The commissioner shall [undertake to delineate the
6 boundary of a particular wetland or wetlands, or a particular part of
7 the boundary thereof only upon a showing by the applicant therefor of
8 good cause for such more precise delineation and the establishment of
9 such more precise line] file any delineation of a wetland boundary made
10 or accepted by the department and such delineation shall be effective
11 and binding for a period of five years from the date such delineation is
12 filed. The commissioner shall supervise the filing and maintenance of
13 delineations, which shall be made available to the public on the depart-
14 ment's website.
15 [8.] 3. The supervision of the maintenance of any freshwater wetlands
16 map or portion thereof applicable to wetlands within the Adirondack
17 park, the readjustment and precise delineation of wetland boundary lines
18 and the other functions and duties ascribed to the commissioner by
19 subdivisions [six and seven] one and two of this section shall be
20 performed by the Adirondack park agency, which shall make such maps and
21 delineations available [for public inspection and examination at its
22 headquarters] on the agency's website.
23 § 5. Subdivisions 1, 2 and 4 of section 24-0701 of the environmental
24 conservation law, subdivisions 1 and 2 as amended by chapter 654 of the
25 laws of 1977 and subdivision 4 as amended by chapter 697 of the laws of
26 1979, are amended to read as follows:
27 1. [After issuance of the official freshwater wetlands map of the
28 state, or of any selected section or region thereof, any] Any person
29 desiring to conduct on freshwater wetlands [as so designated thereon] or
30 on the regulated freshwater wetland adjacent area as set forth in subdi-
31 vision two of this section any of the regulated activities set forth in
32 subdivision two of this section must obtain a permit as provided in this
33 title.
34 2. Activities subject to regulation shall include any form of drain-
35 ing, dredging, excavation, removal of soil, mud, sand, shells, gravel or
36 other aggregate from any freshwater wetland, either directly or indi-
37 rectly; and any form of dumping, filling, or depositing of any soil,
38 stones, sand, gravel, mud, rubbish or fill of any kind, either directly
39 or indirectly; erecting any structures, roads, the driving of pilings,
40 or placing of any other obstructions whether or not changing the ebb and
41 flow of the water; any form of pollution, including but not limited to,
42 installing a septic tank, running a sewer outfall, discharging sewage
43 treatment effluent or other liquid wastes into or so as to drain into a
44 freshwater wetland; and any other activity which substantially impairs
45 any of the several functions served by freshwater wetlands or the bene-
46 fits derived therefrom which are set forth in section 24-0105 of this
47 article. These activities are subject to regulation whether or not they
48 occur upon the wetland itself, if they impinge upon or otherwise
49 substantially affect the wetlands and are located: (a) not more than one
50 hundred feet from the boundary of [such] a wetland: (i) that has an area
51 of at least twelve and four-tenths acres; (ii) that is a wetland of
52 unusual importance and has an area of at least ten acres; (iii) that is
53 classified as a Class I wetland by the department and has an area of at
54 least five acres; or (iv) that was previously classified and mapped by
55 the department as a wetland of unusual local importance; (b) not more
56 than fifty feet from the boundary of a wetland if it is a wetland of
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1 unusual importance and has an area of at least five acres and less than
2 ten acres; and (c) not more than twenty-five feet from the boundary of a
3 wetland if it is a wetland of unusual importance and has an area of less
4 than five acres. Provided, that a greater distance from any such
5 wetland may be regulated pursuant to this article by the appropriate
6 local government or by the department, whichever has jurisdiction over
7 such wetland, where necessary to protect and preserve the wetland.
8 4. [The] On lands in active agricultural or silvicultural use, the
9 activities of farmers and other landowners in grazing and watering live-
10 stock, making reasonable use of water resources, harvesting natural
11 products of the wetlands, selectively cutting timber, draining land or
12 wetlands for growing agricultural products and otherwise engaging in the
13 use of wetlands or other land for growing agricultural products shall be
14 excluded from regulated activities and shall not require a permit under
15 subdivision one [hereof] of this section, except that structures not
16 required for enhancement or maintenance of the agricultural productivity
17 of the land and any filling activities shall not be excluded hereunder,
18 and provided that the use of land [designated as a freshwater wetland
19 upon the freshwater wetlands map at the effective date thereof] that
20 meets the definition of a freshwater wetland in section 24-0107 of this
21 article for uses other than those referred to in this subdivision shall
22 be subject to the provisions of this article.
23 § 6. Subdivision 5 of section 24-0703 of the environmental conserva-
24 tion law, as amended by section 38 of part D of chapter 60 of the laws
25 of 2012, is amended to read as follows:
26 5. [Prior to the promulgation of the final freshwater wetlands map in
27 a particular area and the implementation of a freshwater wetlands
28 protection law or ordinance, no person shall conduct, or cause to be
29 conducted, any activity for which a permit is required under section
30 24-0701 of this title on any freshwater wetland unless he has obtained a
31 permit from the commissioner under this section.] Any person may inquire
32 of the department as to whether or not a given parcel of land [will be
33 designated] includes a freshwater wetland subject to regulation or a
34 regulated freshwater wetland adjacent area and whether a permit under
35 subdivision one of this section is required for a proposed activity. The
36 department shall give a definite answer in writing within [thirty] sixty
37 days of such request as to [whether] the status of such parcel [will or
38 will not be so designated] and whether a permit is required for the
39 proposed activity. Provided that, in the event that weather or ground
40 conditions prevent the department from making a determination within
41 [thirty] sixty days, it may extend such period until a determination can
42 be made. Such answer in the affirmative shall be reviewable; such an
43 answer in the negative shall be a complete defense to the enforcement of
44 this article as to such parcel of land for a period of five years from
45 the date the department issues the negative answer. [The commissioner
46 may by regulation adopted after public hearing exempt categories or
47 classes of wetlands or individual wetlands which he determines not to be
48 critical to the furtherance of the policies and purposes of this arti-
49 cle.]
50 § 7. Subdivision 1 of section 24-0901 of the environmental conserva-
51 tion law, as added by chapter 614 of the laws of 1975, is amended to
52 read as follows:
53 1. [Upon completion of the freshwater wetlands map, the] The commis-
54 sioner shall confer with local government officials in each region in
55 which the inventory has been conducted to establish a program for the
56 protection of the freshwater wetlands of the state.
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1 § 8. Subdivisions 1 and 5 of section 24-0903 of the environmental
2 conservation law, as added by chapter 614 of the laws of 1975, are
3 amended to read as follows:
4 1. [Upon completion of the freshwater wetlands map of the state, or of
5 any selected section or region thereof, the] The commissioner shall
6 [proceed to] classify freshwater wetlands so designated thereon accord-
7 ing to their most appropriate uses, in light of the values set forth in
8 section 24-0105 of this article and the present conditions of such
9 wetlands. The commissioner shall determine what uses of such wetlands
10 are most compatible with the foregoing and shall prepare minimum land
11 use regulations to permit only such compatible uses. The classifications
12 may cover freshwater wetlands in more than one governmental subdivision.
13 Permits pursuant to section 24-0701 of this article are required whether
14 or not a classification has been promulgated.
15 5. Prior to the adoption of any land use regulations governing fresh-
16 water wetlands, the commissioner shall hold a public hearing thereon in
17 the area in which the affected freshwater wetlands are located, and give
18 fifteen days prior notice thereof by posting on the department's website
19 or by publication at least once in a newspaper having general circu-
20 lation in the area of the local government involved. The commissioner
21 shall promulgate the regulations within thirty days of such hearing and
22 post such order on the department's website or publish such order [at
23 least once] in a newspaper having general circulation in the area of the
24 local government affected and make such plan available for public
25 inspection and review; such order shall not take effect until thirty
26 days after the filing thereof with the clerk of the county in which such
27 wetland is located.
28 § 9. Paragraph (c) of subdivision 8 of section 70-0117 of the environ-
29 mental conservation law, as added by section 1 of part AAA of chapter 59
30 of the laws of 2009, is amended to read as follows:
31 (c) [All fees] Fees collected pursuant to [this] paragraph (a) of this
32 subdivision shall be deposited [into] to the credit of the [environ-
33 mental protection] conservation fund pursuant to section [ninety-two-s]
34 eighty-three of the state finance law. Fees collected pursuant to para-
35 graph (b) of this subdivision shall be deposited to the credit of the
36 marine resources account of the conservation fund.
37 (d) Application fees required pursuant to this subdivision will not be
38 required for any state department.
39 § 10. Subdivisions 1 and 2 of section 71-2303 of the environmental
40 conservation law, as amended by chapter 99 of the laws of 2010, are
41 amended to read as follows:
42 1. Administrative sanctions. a. Any person who violates, disobeys or
43 disregards any provision of article twenty-four, including title five
44 and section 24-0507 thereof or any rule or regulation, local law or
45 ordinance, permit or order issued pursuant thereto, shall be liable to
46 the people of the state for a civil penalty of not to exceed eleven
47 thousand dollars for every such violation and for each day every such
48 violation occurs, to be assessed, after a hearing or opportunity to be
49 heard upon due notice and with the rights to specification of the charg-
50 es and representation by counsel at such hearing, by the commissioner or
51 local government. Such penalty may be recovered in an action brought by
52 the attorney general at the request and in the name of the commissioner
53 or local government in any court of competent jurisdiction. Such civil
54 penalty may be released or compromised by the commissioner or local
55 government before the matter has been referred to the attorney general;
56 and where such matter has been referred to the attorney general, any
A. 7850 7
1 such penalty may be released or compromised and any action commenced to
2 recover the same may be settled and discontinued by the attorney general
3 with the consent of the commissioner or local government. In addition,
4 the commissioner or local government shall have power, following a hear-
5 ing held in conformance with the procedures set forth in section 71-1709
6 of this article, to direct the violator to cease [his violation of]
7 violating the act and to restore the affected freshwater wetland to its
8 condition prior to the violation, insofar as that is possible within a
9 reasonable time and under the supervision of the commissioner or local
10 government. Any such order of the commissioner or local government shall
11 be enforceable in an action brought by the attorney general at the
12 request and in the name of the commissioner or local government in any
13 court of competent jurisdiction. Any civil penalty or order issued by
14 the commissioner or local government pursuant to this subdivision shall
15 be reviewable in a proceeding pursuant to article seventy-eight of the
16 civil practice law and rules.
17 b. Upon determining that significant damage to the functions and bene-
18 fits of a freshwater wetland is occurring or is imminent as a result of
19 any violation of article twenty-four of this chapter, including but not
20 limited to (i) activity taking place requiring a permit under article
21 twenty-four of this chapter but for which no permit has been granted or
22 (ii) failure on the part of a permittee to adhere to permit conditions,
23 the commissioner or local government shall have power to direct the
24 violator to cease and desist from violating the act. In such cases the
25 violator shall be provided an opportunity to be heard with ten days of
26 receipt of the notice to cease and desist.
27 2. Criminal sanctions. Any person who violates any provision of arti-
28 cle twenty-four of this chapter, including any rule or regulation, local
29 law or ordinance, permit or order issued pursuant thereto, shall, in
30 addition, for the first offense, be guilty of a violation punishable by
31 a fine of not less than two thousand nor more than [four] five thousand
32 dollars; for a second and each subsequent offense he or she shall be
33 guilty of a misdemeanor punishable by a fine of not less than four thou-
34 sand nor more than [seven] ten thousand dollars or a term of imprison-
35 ment of not less than fifteen days nor more than six months or both.
36 Instead of these punishments, any offender may be punishable by being
37 ordered by the court to restore the affected freshwater wetland to its
38 condition prior to the offense, insofar as that is possible. The court
39 shall specify a reasonable time for the completion of such restoration,
40 which shall be effected under the supervision of the commissioner or
41 local government. Each offense shall be a separate and distinct offense
42 and, in the case of a continuing offense, each day's continuance thereof
43 shall be deemed a separate and distinct offense.
44 § 11. Subdivision 1 of section 71-2305 of the environmental conserva-
45 tion law, as added by chapter 614 of the laws of 1975, is amended to
46 read as follows:
47 1. The attorney general, upon his or her own initiative or upon
48 complaint of the commissioner or local government, shall prosecute
49 persons alleged to have violated [any such order of the commissioner or
50 local government pursuant to] article twenty-four of this chapter.
51 § 12. This act shall take effect immediately, provided, however, that
52 sections two, three, four, five, six, seven and eight of this act shall
53 take effect on January 1, 2023.