NY Env Conserv L § 3-0301 (2021)
2021 New York Laws ENV - Environmental Conservation Article 3 - Department of Environmental Conservation; General Functions, Powers, Duties and Jurisdiction Title 3 - General Functions, Powers, Duties and Jurisdiction 3-0301 - General Functions, Powers and Duties of the Department and the Commissioner.

§ 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, 2024   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.   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.