§ 3-0301. General functions, powers and duties of the department and the

commissioner.

1. It shall be the responsibility of the department, in accordance
with such existing provisions and limitations as may be elsewhere set
forth in law, by and through the commissioner to carry out the
environmental policy of the state set forth in section 1-0101 of this
chapter. In so doing, the commissioner shall have power to:

a. Coordinate and develop policies, planning and programs related to
the environment of the state and regions thereof;

b. Promote and coordinate management of water, land, fish, wildlife
and air resources to assure their protection, enchancement, provision,
allocation, and balanced utilization consistent with the environmental
policy of the state and take into account the cumulative impact upon all
of such resources in making any determination in connection with any
license, order, permit, certification or other similar action or
promulgating any rule or regulation, standard or criterion;

bb. Prescribe the qualifications for operators of public sewage
treatment plants.

c. Provide for the propagation, protection, and management of fish and
other aquatic life and wildlife and the preservation of endangered
species;

cc. Prescribe and certify the qualifications for operators of solid
waste management facilities as defined in section 27-0701 of this
chapter; provided, however, that the commissioner shall not require the
certification of operators until the commissioner shall have identified
or established programs of training within the state that satisfy such
qualifications;

d. Provide for the care, custody, and control of the forest preserve;

e. Provide for the protection and management of marine and coastal
resources and of wetlands, estuaries and shorelines;

f. Foster and promote sound practices for the use of agricultural
land, river valleys, open land, and other areas of unique value;

g. Encourage industrial, commercial, residential and community
development which provides the best usage of land areas, maximizes
environmental benefits and minimizes the effects of less desirable
environmental conditions;

gg. Develop a plan to maximize the use of telecommuting to conserve
energy otherwise used by the personnel of the department in commuting to
their assigned workplace. Within one year of the effective date of this
paragraph, the department shall submit a report to the governor and the
legislature on the impact of such plan to include, but not be limited
to, energy conservation, air quality, workforce acceptance, office costs
and potential cost savings.

h. Assure the preservation and enhancement of natural beauty and
man-made scenic qualities;

hh. Cooperate with the office of probation and correctional
alternatives by identifying appropriate worksites where persons
performing community service as part of a criminal disposition may be
assigned to provide cleanup and other maintenance services in order to
preserve and enhance the state's natural beauty and human-made scenic
qualities. Such sites may include but are not limited to the state's
shorelines, beaches, parks, roadways, historic sites and other natural
or human-made resources.

i. Provide for prevention and abatement of all water, land and air
pollution including, but not limited to, that related to hazardous
substances, particulates, gases, dust, vapors, noise, radiation, odor,
nutrients and heated liquids;

j. Promote control of pests and regulate the use, storage and disposal
of pesticides and other chemicals which may be harmful to man, animals,
plant life, or natural resources;

k. Promote control of weeds and aquatic growth, develop methods of
prevention and eradication, and regulate herbicides;

l. Provide and recommend methods for the recovery, recycling and
reuse; or, where recycling and reuse are not possible, the disposal of
solid wastes, including domestic and industrial refuse, junk cars,
litter and debris consistent with sound health, scenic, environmental
quality, and land use practices;

m. Prevent pollution through the regulation of the storage, handling
and transport of solids, liquids and gases which may cause or contribute
to pollution;

n. Promote restoration and reclamation of degraded or despoiled areas
and natural resources;

o. Encourage recycling and reuse of products to conserve resources and
reduce waste products;

p. Administer properties having unique natural beauty, wilderness
character, or geological, ecological or historical significance
dedicated by law to the state nature and historical preserve;

q. Formulate guides for measuring presently unquantified environmental
values and relationships so they may be given appropriate consideration
along with social, economic, and technical considerations in
decision-making;

r. Encourage and undertake scientific investigation and research on
the ecological process, pollution prevention and abatement, recycling
and reuse of resources, and other areas essential to understanding and
achievement of the environmental policy;

s. Assess new and changing technology and development patterns to
identify long-range implications for the environment and encourage
alternatives which minimize adverse impact;

t. Monitor the environment to afford more effective and efficient
control practices, to identify changes and conditions in ecological
systems and to warn of emergency conditions;

u. Encourage activities consistent with the purposes of this chapter
by advising and assisting local governments, institutions, industries,
and individuals;

v. Undertake an extensive public information and education program to
inform and involve other public and private organizations and groups and
the general public in the commitment to the principles and practices of
environmental conservation and develop programs for the teaching by
others of such principles and practices;

w. Cooperate with the executive, legislative and planning authorities
of the United States, neighboring states and their municipalities and
the Dominion of Canada in furtherance of the policy of this state as set
forth in section 1-0101;

x. Exercise and perform such other functions, powers and duties as
shall have been or may be from time to time conveyed or imposed by law,
including, but not limited to, all the functions, powers and duties
assigned and transferred to the department from the Department of
Health, Conservation Department, Department of Agriculture and Markets,
and Office for Local Government in the Executive Department by chapter
140 of the laws of 1970.

y. To prevent and control air pollution emergencies, as defined in
subdivision 1 of section 1-0303 hereof. In exercising such prevention
and control the department and the commissioner may limit the
consumption of fuels and use of vehicles, curtail or require the
cessation of industrial processes and limit or require the cessation of
incineration and open burning, and take any other action he may deem
necessary to prevent and/or control air pollution emergencies. The
department and commissioner shall adopt and implement by rule and
regulation a plan designed to prevent and control such air pollution
emergencies.

z. Within amounts appropriated to the department, to contract, outside
the city of New York, with federally-funded nonprofit organizations that
are organized for the purpose of beautification of highways, parks and
recreation areas and employ persons sixty years of age or older whose
net annual income does not exceed one thousand dollars to carry out such
activities. The contract shall name the organization, the amount and
manner of payment for the service to be rendered, nature of such
service, the rendering of a verified account of the disbursements and
verified or certified vouchers therefor attached, a refund of any unused
amount, and such other conditions upon the use thereof as may be deemed
proper.

2. To further assist in carrying out the policy of this state as
provided in section 1-0101 of the chapter the department, by and through
the commissioner, shall be authorized to:

a. Adopt, amend or repeal environmental standards, criteria and those
rules and regulations having the force and effect of standards and
criteria to carry out the purposes and provisions of this act. Any such
environmental standard, criterion, rule or regulation or change thereto
shall become effective thirty days after being filed with the Secretary
of State for publication in the "Official Compilation of Codes, Rules,
and Regulations of the State of New York" published pursuant to section
one hundred two of the Executive Law. This provision shall not in any
way restrict the commissioner in the exercise of any function, power or
duty transferred to him or her and heretofore authorized to be exercised
by any other department acting through its commissioner to promulgate,
adopt, amend or repeal any standards, rules and regulations. No such
environmental standards, criterion, rule or regulation or change thereto
shall be proposed for approval unless a public hearing relating to the
subject of such standard shall be held by the commissioner prior thereto
not less than sixty days after date of notice therefor, any provision of
law to the contrary notwithstanding. Notice shall be given by public
advertisement of the date, time, place and purpose of such hearing.

aa. (1) A "construction emergency" is damage to or an imminent danger
of failure, or the malfunction of buildings, structures or property
caused by a sudden and unexpected occurrence which involves a pressing
necessity for immediate repair, reconstruction or maintenance in order
to permit the safe continuation of necessary public use or function, or
to protect the property of the state of New York, or the life, health or
safety of any person.

(2) Whenever the commissioner determines and declares that a
construction emergency exists, the commissioner may have immediate work
performed to protect life, limb, property, public health or safety, or
essential services by utilizing the services of a contractor selected in
accordance with procedures developed by the department and approved by
the state comptroller.

(3) Such procedures shall provide for consideration of solicitation of
sufficient competition to the extent practicable, from responsible
contractors representative of the contracting community by inviting at
least five contractors who are capable of performing such work;
permitting said contractors to examine the site and submit bids for the
required emergency restoration work at a time and place to be determined
by the commissioner; and submission of a notice of emergency award for
publication in the procurement opportunities newsletter as soon as
practicable after the award.

(4) Such emergency work shall reasonably be expected to be completed
within a period of thirty days and emergency contracts shall be let only
for work necessary to remedy or alleviate a construction emergency.

(5) If the selected contractor is already under contract to the
department such work may be undertaken as additional work on the
existing contract, notwithstanding the existing scope of work.

(6) The commissioner shall promptly notify the office of the state
comptroller, the office of the attorney general, and the office of the
division of the budget, and shall provide an estimate of the cost and
duration of the emergency work.

b. Enter into contracts with any person to do all things necessary or
convenient to carry out the functions, powers and duties of the
department.

bb. Develop and implement an "I Love New York Fishing" passbook
program to encourage additional fishing in this state. The program shall
be administered according to the provisions of subdivision five of
section 11-1307 of this chapter.

c. Review and appraise programs and activities of state departments
and agencies in light of the policy set forth in section 1-0101 of this
chapter for the purpose of determining the extent to which such programs
and activities are contributing to the achievement of such policy and to
make recommendations to such departments and agencies with respect
thereto, including but not limited to, environmental guidelines for
their use.

cc. Cooperate with the department of agriculture and markets, the
environmental facilities corporation, and other state agencies and
public authorities to establish methods to facilitate loans to eligible
borrowers to prevent and control non-point source water pollution and to
develop educational materials for potential borrowers, including,
without limitation, members of the agricultural community, about the
low-interest loans available through the water pollution control linked
deposit program and to develop an application form to be provided to
lenders for the linked deposit loan requests. The department may
promulgate rules and regulations necessary and reasonable for the
operation of the program.

d. Consult with and co-operate with:

(1) Officials of departments and agencies of the state having duties
and responsibilities concerning the environment;

(2) Officials and representatives of any public benefit corporation in
the state;

(3) Officials and representatives of the federal government, of other
states and of interstate agencies on problems affecting the environment
of this state;

(4) Persons, organizations and groups, public and private, utilizing,
served by, interested in or concerned with the environment in the state;

(5) The appropriate committee or committees of the Legislature.

e. Appear and participate in proceedings before any federal regulatory
agency involving or affecting the purposes of this department.

f. Undertake any studies, inquiries, surveys or analyses it may deem
relevant through the personnel of the department or in co-operation with
any public or private agencies, including educational, civic and
research organizations, colleges, universities, institutes or
foundations, for the accomplishment of the purposes of the department.

g. Enter and inspect any property or premises for the purpose of
investigating either actual or suspected sources of pollution or
contamination or for the purpose of ascertaining compliance or
noncompliance with any law, rule or regulation which may be promulgated
pursuant to this chapter. Any information relating to secret processes
or methods of manufacture shall be kept confidential.

h. Conduct investigations and hold hearings and compel the attendance
of witnesses and the production of accounts, books, documents, and
nondocumentary evidence by the issuance of a subpoena.

i. Advise and cooperate with municipal, county, regional and other
local agencies and officials within the state, to carry out the purposes
of chapter 140 of the laws of 1970.

j. Act as the official agency of the state in all matters affecting
the purposes of the department under any federal laws now or hereafter
to be enacted, and as the official agency of a county, town, city,
village or authority in connection with the grant or advance of any
federal or other funds or credits to the state or through the state to
its local governing bodies for the purposes of chapter 140 of the laws
of 1970.

k. Report from time to time to the Governor and make an annual report
to the Governor and the Legislature.

l. Formulate and execute contracts, keep accounts, record personnel
data, acquire real or personal property, including acquisition by
condemnation, appropriation, gift grant, devise or bequest, adjust
claims, compile statistics and engage in research opportunities; all
according to the statutes or department orders and regulations in such
cases made and provided.

m. Adopt such rules, regulations and procedures as may be necessary,
convenient or desirable to effectuate the purposes of this chapter.

n. Study, monitor, control and regulate pollution from motor vehicle
exhaust emissions.

o. When requested to do so by another state with which New York has
reciprocally agreed to provide personnel and equipment, provide such
personnel and equipment for use in suppression of forest fires upon
lands within such other state.

p. Notwithstanding any other provision of this chapter, delegate to
municipal health or environmental departments or agencies or other
appropriate governmental entities including the state soil and water
conservation committee and the soil and water conservation districts,
any of which shall meet such qualifications relating to adequate
authority, expertise, staff, funding and other matters as may be
prescribed, such functions of review, approval of plans, issuance of
permits, licenses, certificates or approvals required or authorized by
this chapter as the commissioner may deem appropriate in order to
expedite the review of matters within the jurisdiction of the
department, to provide for better coordination among different levels of
government or to enhance environmental protection, subject to such
conditions as he may establish. The powers delegated pursuant to this
part may be withdrawn by the commissioner, at any time, upon thirty days
written notice to the department, agency or other governmental entity
including the state soil and water conservation committee and the soil
and water conservation districts holding such powers by virtue of this
paragraph.

q. Require that a written instrument submitted pursuant to this
chapter or a rule or regulation adopted pursuant hereto contain a form
notice to the effect that false statements made therein are punishable
pursuant to section 210.45 of the penal law.

r. Notwithstanding the provisions of article six of the public
officers law, deny access to inspection of records which identify
locations of habitats of species designated endangered pursuant to
section 11-0535 of this chapter, protected pursuant to section 9-1503 of
this chapter or any other species or unique combination of species of
flora or fauna where the destruction of such habitat or the removal of
such species therefrom would impair their ability to survive provided,
however, that the commissioner may, in his discretion permit access to
such inspection to persons engaged in legitimate scientific and academic
research.

s. Coordinate and conduct Arbor day ceremonies on the last Friday of
April in cooperation with the department of education and the department
of agriculture and markets.

t. Establish a program, in consultation with the conservation fund
advisory council for the sale of limited edition prints of fish and
wildlife paintings with the proceeds to be credited to the conservation
fund established pursuant to section eighty-three of the state finance
law.

u. Notwithstanding any other provisions of this chapter, establish a
program to offer for sale to the public of items symbolic of
contributions made to support department activities performed as steward
of lands under its jurisdiction. The terms upon which such items will be
available and the relevant donations for such items shall be set forth
in regulations to be promulgated by the commissioner provided, however,
that no such item shall be offered unless the amount of such donation
exceeds the value of the item. All receipts of the department from such
contributions shall be deposited in and separately accounted for in an
account in the miscellaneous state special revenue fund, expenditures
from which shall be limited to the activities of the department pursuant
to this paragraph and activities performed as steward of lands under its
jurisdiction.

v. Except for the forest preserve which is under the care, custody and
control of the department pursuant to paragraph d of subdivision one of
this section and subdivision one of section 9-0105 of this chapter,
administer and manage the real property under the jurisdiction of the
department for the purpose of preserving, protecting and enhancing the
natural resource value for which the property was acquired or to which
it is dedicated, employing all appropriate management activities.

w. Shall prepare and submit to the federally appointed "Aquatic
Nuisance Species Task Force" two comprehensive management plans, after
notice and opportunity for public comment, for funding of New York state
activities under the Federal Non-indigenous Aquatic Nuisance Prevention
and Control Act of 1990, Public Law 101-646, by January 1, 1992. One
such plan shall identify those areas or activities within the state,
other than those related to public facilities, where technical and
financial assistance is needed within the state to eliminate or reduce
environmental, public health and safety risks and to mitigate the
financial impact upon the state associated with non-indigenous aquatic
species, particularly zebra mussels. The other plan shall be a "public
facility management plan" which is limited solely to identifying those
public facilities within the state for which technical and financial
assistance is needed to reduce infestations of zebra mussels. Each plan
shall identify the management practices and measures that will be
undertaken to reduce infestations of aquatic nuisance species,
especially zebra mussels, and include the following: (1) a description
of the state and local programs for environmentally sound prevention and
control of the target species; (2) a description of federal activities
that may be needed for environmentally sound prevention and control of
aquatic nuisance species and a description of the manner in which those
activities should be coordinated with state and local government
activities; and (3) a schedule for implementing the plan, including a
schedule of annual objectives. In developing and implementing these
management plans, the department shall, to the maximum extent
practicable, involve local governments, regional entities and public and
private organizations that have expertise in the control of aquatic
nuisance species. Copies of these plans shall also be submitted to the
temporary president of the senate and the speaker of the assembly, and
the department shall annually, on or before January first, submit to the
temporary president of the senate and speaker of the assembly a report
on the activities of the department under these plans.

x. Consistent with paragraph v of subdivision 1 of this section, offer
for sale advertising or corporate sponsorship space in various
departmental publications, including but not limited to "The
Conservationist", the annual compilation and syllabus of laws, rules and
regulations governing fish and wildlife as required by section 11-0323
of this chapter, and offer for sale informational and promotional
material related to lands, facilities and resources under the
jurisdiction of the department. Any proceeds realized from the sale of
advertising or corporate sponsorships shall be deposited in a special
revenue account to be selected by the department and the division of the
budget except that proceeds from advertising or corporate sponsorship in
"The Conservationist" shall be deposited in the environmental
conservation special revenue fund, "The Conservationist" magazine
account, and proceeds from advertising or corporate sponsorship in the
annual compilation and syllabus of laws, rules and regulations governing
fish and wildlife as required by section 11-0323 of this chapter shall
be deposited in the conservation fund.

* y. The department, by contract or otherwise, is hereby authorized to
engage in games, contests or other promotions or advertising schemes or
plans, hereinafter referred to as "an event or events," which are
intended to increase, improve, stabilize or otherwise assist in
development of the subscriber base of "The Conservationist" in
accordance with the following:

(1) An event may include sweepstakes and other similar marketing
techniques intended to heighten public awareness, interest and
participation in department programs including but not limited to
purchasing of subscriptions, licenses, or camping permits.

(2) The department is authorized to offer the opportunity to receive
gifts, prizes or gratuities, as determined by chance, without any
consideration therefor.

(3) The department shall develop a statement, which shall be included
in any and all promotions of an event, which shall contain the following
information:

(i) the minimum number of entry forms to be made available;

(ii) the minimum number of prizes that shall be included in the event;

(iii) the proportionate opportunity of winning prizes;

(iv) the minimum value of prizes to be made available;

(v) the rules pertaining to the event, which shall include the period
of time and the geographic area to be covered by the event and which
shall not be subject to the rulemaking procedures of the state
administrative procedure act; and

(vi) such additional information as may be deemed in the best
interests of the state as determined by the commissioner.

(4) The department is authorized to accept donations for the purposes
of providing publicity, prizes, incentives or other inducements for
participation in the event. Donations may be of goods and services,
shall not exceed five thousand dollars in value, per donor per contest,
and must be of a nature consistent with the purposes of the department,
and in the best interests of the state as determined by the
commissioner.

* NB Repealed August 1, 2027

z. Issue and amend guidance memoranda and similar documents of general
applicability which are to be relied upon by department personnel for
implementation of this chapter, and rules and regulations promulgated
pursuant thereto, and for guidance to the general public in complying
with the requirements of this chapter; provided, however, that (1) in no
event shall any such document be issued by the department in violation
of the state administrative procedure act where and to the extent that a
duly promulgated rule or regulation would be required, and (2) no such
document shall be implemented until thirty days after the full text, or
a summary thereof, along with information on how the full text may be
obtained, has been published in the environmental notice bulletin, as
defined in section 70-0105 of this chapter. At a minimum, the full text
of each such document shall be made available by the department on and
after the date of such publication to the public upon request, and, in
addition, at least one copy shall be made available in the department's
main office and in each regional office for public inspection. The
department shall publish and invite public comment on a draft version of
any such document, unless it determines that to do so would delay or
otherwise impede compliance with the underlying statute or regulation,
provided that, when a document is issued without making provisions for
public comment, the department shall also publish its reason or reasons
for deeming such provisions inappropriate. This paragraph shall not
apply to (i) declaratory rulings issued pursuant to section two hundred
four of the state administrative procedure act or (ii) documents which
only concern the internal management of the agency and which do not have
any effect on the rights of or procedures or practices available to the
public. Each January, the department shall publish in the environmental
notice bulletin an index of its existing guidance documents, and
indicate how the full text thereof may be obtained; provided, however,
that the secretary of state may exempt the department from compliance
with this publication requirement upon a determination that the
department has published on its website the full text of all guidance
documents on which it currently relies. The secretary of state shall
publish a notice of such determination identifying the website in the
state register.

2-a. a. To further assist in carrying out the policy of this state as
provided in section 1-0101 of this chapter, the department, by and
through the commissioner shall:

(1) authorize and encourage the use of nature-based solutions as the
preferred alternative, where appropriate, for stabilizing tidal
shorelines in the state when promulgating and implementing rules and
regulations relating thereto, specifically including, but not limited
to, those promulgated and implemented for articles fifteen, twenty-five
and thirty-four of this chapter. The department shall consult with the
United States army corps of engineers to ensure the minimization of
conflicts with federal law and regulation.

(2) continue developing integrated guidance for the management of
tidal shoreline systems to provide a technical basis for the
coordination of permit decisions required by any regulatory entity
exercising authority over a shoreline management project. Such guidance
shall:

(i) communicate to stakeholders and regulatory authorities that it is
the policy of the state that some shorelines shall remain natural unless
stabilization is necessary, and when stabilization is deemed necessary,
it shall support nature-based solutions as the preferred alternative for
stabilizing tidal shorelines;

(ii) identify preferred shoreline management approaches for the
shoreline and community types found in the state;

(iii) explain the risks and benefits of protection provided by various
shoreline system elements associated with each management option; and

(iv) recommend procedures to achieve efficiency and effectiveness by
the various regulatory entities exercising authority over a shoreline
management project.

(3) give preference to a permit application for a shoreline management
project based on nature-based solution design unless an alternative
analysis containing a review of nature-based solutions that have been
evaluated using the best available information shows that such
approaches are not suitable. If this analysis shows that a nature-based
solution approach is unsuitable or inconsistent with land-use
regulations, the department shall require the applicant to incorporate,
to the maximum extent possible, elements of a nature-based solution that
are suitable for the project where appropriate.

b. (1) For the purposes of this subdivision, "nature-based solution"
shall have the same meaning as defined in subdivision twenty-six of
section 1-0303 of this chapter and shall specifically mean techniques
applied within the tidal zone that incorporate natural, native living
features.

(2) When considering a nature-based solution the department should
prioritize techniques, including but not limited to those that:

(i) control or reduce shoreline erosion while maintaining benefits
comparable to the natural shoreline including, but not limited to,
allowing for natural sediment movement;

(ii) improve, restore, or maintain the connection between the upland
and water habitats; and

(iii) incorporate habitat enhancement and natural elements, including
but not limited to native re-vegetation or establishment of new
vegetation consistent with a natural shoreline typical of the current
site location either:

(A) under current conditions, or

(B) as adjusted for science-based state sea-level rise projections,
utilizing the appropriate projection scenario at a time interval
appropriate for the anticipated lifespan of the project but not less
than twenty years after the anticipated project completion, pursuant to
section 3-0319 of this title for such location.

3. The department shall not alter the boundaries of any of the nine
administrative regions from the boundaries existing on January first,
nineteen hundred seventy-seven without first holding public hearings in
each region affected.

4. The commissioner shall cooperate with the commissioner of the state
department of health, district attorneys and the department of law in
providing assistance in the investigation and prosecution of violations
of article twenty-seven of this chapter.

5. To facilitate the practice of forestry by electing to comment upon
proposed local laws or ordinances that may restrict the practice of
forestry.