S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7850
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               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:
 
   Section  1. Subdivisions 2, 3 and 7 of section 24-0105 of the environ-
 mental conservation law, as added by chapter 614 of the  laws  of  1975,
 subdivision  7  as  renumbered  by  chapter 654 of the laws of 1977, are
 amended to read as follows:
   2. Considerable acreage of freshwater wetlands in  the  state  of  New
 York  has  been  lost,  despoiled  or  impaired by unregulated draining,
 dredging, filling,  excavating,  building,  pollution  or  other  [acts]
 ACTIVITIES  inconsistent  with  the  natural  uses of such areas. [Other
 freshwater] FRESHWATER wetlands are in jeopardy of being lost, despoiled
 or impaired by such [unrelated  acts]  ACTIVITIES  AND  BECAUSE  OF  THE
 RECENT CURTAILMENT OF FEDERAL WETLAND PROTECTIONS.
   3.  Recurrent  flooding aggravated or caused by the loss of freshwater
 wetlands has serious effects upon  natural  ecosystems.  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,
 MAKES PROTECTION OF ALL FRESHWATER WETLANDS IN THE STATE OF VITAL IMPOR-
 TANCE.
   7. Any loss of freshwater wetlands deprives the people of the state of
 some  or  all  of  the  many  and  multiple  benefits to be derived from
 wetlands, to wit:
   (a) flood and storm control by the hydrologic absorption  and  storage
 capacity of freshwater wetlands;
   (b)  wildlife  habitat  by  providing  breeding,  nesting  and feeding
 grounds and cover for many forms of wildlife, wildfowl  and  shorebirds,
 including  migratory wildfowl and rare, ENDANGERED OR THREATENED species
 [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

 A. 7850                             2
 
   (c) protection of subsurface water resources and provision  for  valu-
 able watersheds and recharging ground water supplies;
   (d)  recreation  by  providing  areas  for  hunting, fishing, boating,
 hiking, bird watching, photography, camping and other uses;
   (e) pollution treatment by serving as biological and  chemical  oxida-
 tion basins;
   (f)  erosion  control  by serving as sedimentation areas and filtering
 basins, absorbing silt and organic matter and  protecting  channels  and
 harbors;
   (g)  education and scientific research by providing readily accessible
 outdoor bio-physical laboratories, living classrooms and  vast  training
 and education resources; [and]
   (h)  open space and aesthetic appreciation by providing often the only
 remaining open areas along crowded river fronts and coastal Great  Lakes
 regions; [and]
   (i) sources of nutrients in freshwater food cycles and nursery grounds
 and sanctuaries for freshwater fish[.];
   (J) PRESERVATION OF PLANT SPECIES THAT ARE RARE, ENDANGERED OR THREAT-
 ENED,  OR  EXPLOITABLY  VULNERABLE  AS DEFINED IN SECTION 9-1503 OF THIS
 CHAPTER; AND
   (K) PRESERVATION OF COMMUNITIES OF PLANTS AND ANIMALS THAT ARE  DEEMED
 BY THE COMMISSIONER TO BE RARE IN THE STATE OR IN A REGION OF THE STATE.
   §  2.  The opening paragraph and paragraphs (c) and (d) of subdivision
 1, and subdivisions 2, 3 and 8 of section 24-0107 of  the  environmental
 conservation  law,  as  amended  by chapter 654 of the laws of 1977, are
 amended and two new subdivisions 9 and 10 are added to read as follows:
   "Freshwater wetlands" means lands and waters of the state [as shown on
 the freshwater wetlands map] 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 AND which contain any or all of the following:
   (c) lands and waters substantially enclosed by aquatic or semi-aquatic
 vegetation  as set forth in paragraph (a) OF THIS SUBDIVISION or by dead
 vegetation as set forth in paragraph (b) OF THIS SUBDIVISION, the  regu-
 lation  of  which  is  necessary to protect and preserve the aquatic and
 semi-aquatic vegetation; and
   (d) the waters overlying the areas set forth in PARAGRAPHS (a) and (b)
 OF THIS SUBDIVISION and the  lands  underlying  PARAGRAPH  (c)  OF  THIS
 SUBDIVISION.
   2.    "Freshwater  wetlands  map"  shall mean a map promulgated by the
 department pursuant to section 24-0301 of  this  article  on  which  are
 indicated  the boundaries of any freshwater wetlands. FRESHWATER WETLAND
 MAPS 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.
   3. "Boundaries of a freshwater wetland" shall mean the outer limit  of
 the vegetation specified in paragraphs (a) and (b) of subdivision one of
 THIS  section  [24-0107]  and of the lands and waters specified in para-
 graph (c) of such subdivision.
   8. "Pollution" shall mean the presence in the environment of  [man-in-
 duced] HUMAN-INDUCED conditions or contaminants in quantities or charac-
 teristics  which are or may be injurious to human, plant or wildlife, or
 other animal life or to property.
   9. "UNUSUAL IMPORTANCE" SHALL MEAN A FRESHWATER WETLAND, REGARDLESS OF
 SIZE, THAT POSSESSES ONE OR MORE OF  THE  FOLLOWING  CHARACTERISTICS  AS
 DETERMINED BY THE DEPARTMENT:

 A. 7850                             3
 
   (A) IT IS LOCATED IN AN AREA DESIGNATED AS A SPECIAL FLOOD HAZARD AREA
 ON  THE MOST CURRENT FEDERAL EMERGENCY MANAGEMENT AGENCY FLOOD INSURANCE
 RATE MAP THAT HAS EXPERIENCED SIGNIFICANT FLOODING IN THE PAST;
   (B) IT CONTAINS OCCUPIED HABITAT OR HABITAT FOR AN ESSENTIAL BEHAVIOR,
 AS  CONFIRMED  BY THE DEPARTMENT, OF AN ENDANGERED OR THREATENED SPECIES
 OR A SPECIES OF SPECIAL CONCERN AS DEFINED UNDER SECTION 11-0535 OF THIS
 CHAPTER AND/OR LISTED AS A SPECIES OF GREATEST CONSERVATION NEED IN  NEW
 YORK'S WILDLIFE ACTION PLAN;
   (C) IT IS CLASSIFIED BY THE DEPARTMENT AS A CLASS I WETLAND;
   (D)  IT  IS CLASSIFIED BY THE DEPARTMENT AS A CLASS II WETLAND AND THE
 DEPARTMENT DETERMINES BASED ON CRITERIA ESTABLISHED BY  REGULATION  THAT
 ITS  WETLAND FUNCTIONS AND VALUES ARE OF LOCAL OR REGIONAL SIGNIFICANCE;
 OR
   (E) IT WAS PREVIOUSLY CLASSIFIED AND MAPPED BY  THE  DEPARTMENT  AS  A
 WETLAND OF UNUSUAL LOCAL IMPORTANCE.
   10.  "DELINEATION"  SHALL  MEAN  A  PRECISE DESCRIPTION OF A REGULATED
 FRESHWATER WETLAND AS DEFINED IN SUBDIVISIONS  ONE  AND  THREE  OF  THIS
 SECTION, INCLUDING THE REGULATED ADJACENT AREA WITH SUFFICIENT SCALE AND
 CLARITY TO PERMIT READY IDENTIFICATION.
   §  3. Subdivisions 1, 2, 3, 4 and 5 of section 24-0301 of the environ-
 mental conservation law are REPEALED.
   § 4. Subdivisions 6, 7 and 8 of section 24-0301 of  the  environmental
 conservation  law, subdivision 6 as amended by chapter 16 of the laws of
 2010 and subdivision 7 as amended and subdivision 8 as added by  chapter
 654 of the laws of 1977, are amended to read as follows:
   [6.]  1.  Except  as  provided  in  subdivision  [eight] THREE of this
 section, the commissioner shall supervise the maintenance of [such boun-
 dary] FRESHWATER WETLANDS maps, which shall be available to  the  public
 [for inspection and examination at the regional office of the department
 in  which the wetlands are wholly or partly located and in the office of
 the clerk of each county in which each such wetland or a portion thereof
 is located] ON THE DEPARTMENT'S  WEBSITE.  The  commissioner  may,  UPON
 NOTICE  IN  A  FORM AND MANNER TO BE DETERMINED BY THE DEPARTMENT TO THE
 PROPERTY OWNER OR OWNERS AFFECTED, readjust the map [thereafter to clar-
 ify the boundaries of the wetlands, to correct any errors on the map, to
 effect any additions, deletions or technical changes on the map, and  to
 reflect  changes as have occurred as a result of the granting of permits
 pursuant to section 24-0703 of this article, or  natural  changes  which
 may  have  occurred  through erosion, accretion, or otherwise. Notice of
 such readjustment shall be given in the same  manner  as  set  forth  in
 subdivision  five of this section for the promulgation of final freshwa-
 ter wetlands maps. In addition, at the time notice is provided  pursuant
 to  subdivision  five of this section, the commissioner shall update any
 digital image of the map posted on the department's website  to  reflect
 such readjustment] AT ANY TIME PRIOR TO THE FILING OF THE DELINEATION OF
 A  FRESHWATER WETLAND BOUNDARY TO MORE ACCURATELY DEPICT THE APPROXIMATE
 LOCATION OF WETLANDS.
   [7.] 2. Except as  provided  in  subdivision  [eight]  THREE  of  this
 section,  the  commissioner  may,  upon  his  OR HER own initiative, and
 shall, upon a written request by a landowner whose  land  or  a  portion
 thereof may be included within a wetland, or upon the written request of
 another  person or persons or an official body whose interests are shown
 to be affected, cause to be delineated  [more  precisely]  the  boundary
 line or lines of a freshwater wetland or a portion thereof AND THE REGU-
 LATED  FRESHWATER  WETLAND ADJACENT AREA AS SET FORTH IN SUBDIVISION TWO
 OF SECTION 24-0701 OF THIS ARTICLE. [Such more precise delineation of  a

 A. 7850                             4

 freshwater  wetland boundary line or lines shall be of appropriate scale
 and sufficient clarity to permit the ready identification of  individual
 buildings  and  of  other  major  man-made  structures  or facilities or
 significant  geographical  features  with respect to the boundary of any
 freshwater wetland.] The commissioner shall [undertake to delineate  the
 boundary  of  a  particular wetland or wetlands, or a particular part of
 the boundary thereof only upon a showing by the  applicant  therefor  of
 good  cause  for  such more precise delineation and the establishment of
 such more precise line] FILE ANY DELINEATION OF A WETLAND BOUNDARY  MADE
 OR  ACCEPTED  BY  THE DEPARTMENT AND SUCH DELINEATION SHALL BE EFFECTIVE
 AND BINDING FOR A PERIOD OF FIVE YEARS FROM THE DATE SUCH DELINEATION IS
 FILED.  THE COMMISSIONER SHALL SUPERVISE THE FILING AND  MAINTENANCE  OF
 DELINEATIONS, WHICH SHALL BE MADE AVAILABLE TO THE PUBLIC ON THE DEPART-
 MENT'S WEBSITE.
   [8.]  3. The supervision of the maintenance of any freshwater wetlands
 map or portion thereof applicable  to  wetlands  within  the  Adirondack
 park, the readjustment and precise delineation of wetland boundary lines
 and  the  other  functions  and  duties  ascribed to the commissioner by
 subdivisions [six and seven] ONE  AND  TWO  of  this  section  shall  be
 performed  by the Adirondack park agency, which shall make such maps AND
 DELINEATIONS available [for public inspection  and  examination  at  its
 headquarters] ON THE AGENCY'S WEBSITE.
   §  5.  Subdivisions 1, 2 and 4 of section 24-0701 of the environmental
 conservation law, subdivisions 1 and 2 as amended by chapter 654 of  the
 laws  of 1977 and subdivision 4 as amended by chapter 697 of the laws of
 1979, are amended to read as follows:
   1. [After issuance of the official  freshwater  wetlands  map  of  the
 state,  or  of  any  selected section or region thereof, any] ANY person
 desiring to conduct on freshwater wetlands [as so designated thereon] OR
 ON THE REGULATED FRESHWATER WETLAND ADJACENT AREA AS SET FORTH IN SUBDI-
 VISION TWO OF THIS SECTION any of the regulated activities set forth  in
 subdivision two of this section must obtain a permit as provided in this
 title.
   2.  Activities  subject to regulation shall include any form of drain-
 ing, dredging, excavation, removal of soil, mud, sand, shells, gravel or
 other aggregate from any freshwater wetland, either  directly  or  indi-
 rectly;  and  any  form  of dumping, filling, or depositing of any soil,
 stones, sand, gravel, mud, rubbish or fill of any kind, either  directly
 or  indirectly;  erecting any structures, roads, the driving of pilings,
 or placing of any other obstructions whether or not changing the ebb and
 flow of the water; any form of pollution, including but not limited  to,
 installing  a  septic  tank, running a sewer outfall, discharging sewage
 treatment effluent or other liquid wastes into or so as to drain into  a
 freshwater  wetland;  and any other activity which substantially impairs
 any of the several functions served by freshwater wetlands or the  bene-
 fits  derived  therefrom  which are set forth in section 24-0105 of this
 article. These activities are subject to regulation whether or not  they
 occur  upon  the  wetland  itself,  if  they  impinge  upon or otherwise
 substantially affect the wetlands and are located: (A) not more than one
 hundred feet from the boundary of [such] A wetland: (I) THAT HAS AN AREA
 OF AT LEAST TWELVE AND FOUR-TENTHS ACRES; (II)  THAT  IS  A  WETLAND  OF
 UNUSUAL  IMPORTANCE AND HAS AN AREA OF AT LEAST TEN ACRES; (III) THAT IS
 CLASSIFIED AS A CLASS I WETLAND BY THE DEPARTMENT AND HAS AN AREA OF  AT
 LEAST  FIVE  ACRES; OR (IV) THAT WAS PREVIOUSLY CLASSIFIED AND MAPPED BY
 THE DEPARTMENT AS A WETLAND OF UNUSUAL LOCAL IMPORTANCE;  (B)  NOT  MORE
 THAN  FIFTY  FEET  FROM  THE BOUNDARY OF A WETLAND IF IT IS A WETLAND OF

 A. 7850                             5
 
 UNUSUAL IMPORTANCE AND HAS AN AREA OF AT LEAST FIVE ACRES AND LESS  THAN
 TEN ACRES; AND (C) NOT MORE THAN TWENTY-FIVE FEET FROM THE BOUNDARY OF A
 WETLAND IF IT IS A WETLAND OF UNUSUAL IMPORTANCE AND HAS AN AREA OF LESS
 THAN  FIVE  ACRES.    Provided,  that  a  greater distance from any such
 wetland may be regulated pursuant to this  article  by  the  appropriate
 local  government  or by the department, whichever has jurisdiction over
 such wetland, where necessary to protect and preserve the wetland.
   4. [The] ON LANDS IN ACTIVE AGRICULTURAL  OR  SILVICULTURAL  USE,  THE
 activities of farmers and other landowners in grazing and watering live-
 stock,  making  reasonable  use  of  water resources, harvesting natural
 products of the wetlands, selectively cutting timber, draining  land  or
 wetlands for growing agricultural products and otherwise engaging in the
 use of wetlands or other land for growing agricultural products shall be
 excluded  from regulated activities and shall not require a permit under
 subdivision one [hereof] OF THIS SECTION,  except  that  structures  not
 required for enhancement or maintenance of the agricultural productivity
 of  the land and any filling activities shall not be excluded hereunder,
 and provided that the use of land [designated as  a  freshwater  wetland
 upon  the  freshwater  wetlands  map at the effective date thereof] THAT
 MEETS THE DEFINITION OF A FRESHWATER WETLAND IN SECTION 24-0107 OF  THIS
 ARTICLE  for uses other than those referred to in this subdivision shall
 be subject to the provisions of this article.
   § 6. Subdivision 5 of section 24-0703 of the  environmental  conserva-
 tion  law,  as amended by section 38 of part D of chapter 60 of the laws
 of 2012, is amended to read as follows:
   5. [Prior to the promulgation of the final freshwater wetlands map  in
 a  particular  area  and  the  implementation  of  a freshwater wetlands
 protection law or ordinance, no person shall conduct,  or  cause  to  be
 conducted,  any  activity  for  which a permit is required under section
 24-0701 of this title on any freshwater wetland unless he has obtained a
 permit from the commissioner under this section.] Any person may inquire
 of the department as to whether or not a given parcel of land  [will  be
 designated]  INCLUDES  a  freshwater  wetland subject to regulation OR A
 REGULATED FRESHWATER WETLAND ADJACENT AREA AND WHETHER  A  PERMIT  UNDER
 SUBDIVISION ONE OF THIS SECTION IS REQUIRED FOR A PROPOSED ACTIVITY. The
 department shall give a definite answer in writing within [thirty] SIXTY
 days  of such request as to [whether] THE STATUS OF such parcel [will or
 will not be so designated] AND WHETHER A  PERMIT  IS  REQUIRED  FOR  THE
 PROPOSED  ACTIVITY.  Provided  that, in the event that weather or ground
 conditions prevent the department from  making  a  determination  within
 [thirty] SIXTY days, it may extend such period until a determination can
 be  made.  Such  answer  in the affirmative shall be reviewable; such an
 answer in the negative shall be a complete defense to the enforcement of
 this article as to such parcel of land FOR A PERIOD OF FIVE  YEARS  FROM
 THE  DATE  THE  DEPARTMENT ISSUES THE NEGATIVE ANSWER. [The commissioner
 may by regulation adopted after  public  hearing  exempt  categories  or
 classes of wetlands or individual wetlands which he determines not to be
 critical  to  the furtherance of the policies and purposes of this arti-
 cle.]
   § 7.  Subdivision 1 of section 24-0901 of the environmental  conserva-
 tion  law,  as  added  by chapter 614 of the laws of 1975, is amended to
 read as follows:
   1. [Upon completion of the freshwater wetlands map, the]  THE  commis-
 sioner  shall  confer  with local government officials in each region in
 which the inventory has been conducted to establish a  program  for  the
 protection of the freshwater wetlands of the state.

 A. 7850                             6
 
   §  8.  Subdivisions  1  and  5 of section 24-0903 of the environmental
 conservation law, as added by chapter 614  of  the  laws  of  1975,  are
 amended to read as follows:
   1. [Upon completion of the freshwater wetlands map of the state, or of
 any  selected  section  or  region  thereof, the] THE commissioner shall
 [proceed to] classify freshwater wetlands so designated thereon  accord-
 ing  to their most appropriate uses, in light of the values set forth in
 section  24-0105  of  this  article  and  the present conditions of such
 wetlands. The commissioner shall determine what uses  of  such  wetlands
 are  most  compatible  with the foregoing and shall prepare minimum land
 use regulations to permit only such compatible uses. The classifications
 may cover freshwater wetlands in more than one governmental subdivision.
 Permits pursuant to section 24-0701 of this article are required whether
 or not a classification has been promulgated.
   5. Prior to the adoption of any land use regulations governing  fresh-
 water  wetlands, the commissioner shall hold a public hearing thereon in
 the area in which the affected freshwater wetlands are located, and give
 fifteen days prior notice thereof by POSTING ON THE DEPARTMENT'S WEBSITE
 OR BY publication at least once in a  newspaper  having  general  circu-
 lation  in  the  area of the local government involved. The commissioner
 shall promulgate the regulations within thirty days of such hearing  and
 POST  SUCH  ORDER  ON THE DEPARTMENT'S WEBSITE OR publish such order [at
 least once] in a newspaper having general circulation in the area of the
 local government affected  and  make  such  plan  available  for  public
 inspection  and  review;  such  order shall not take effect until thirty
 days after the filing thereof with the clerk of the county in which such
 wetland is located.
   § 9. Paragraph (c) of subdivision 8 of section 70-0117 of the environ-
 mental conservation law, as added by section 1 of part AAA of chapter 59
 of the laws of 2009, is amended to read as follows:
   (c) [All fees] FEES collected pursuant to [this] PARAGRAPH (A) OF THIS
 subdivision shall be deposited [into] TO THE  CREDIT  OF  the  [environ-
 mental  protection] CONSERVATION fund pursuant to section [ninety-two-s]
 EIGHTY-THREE of the state finance law. FEES COLLECTED PURSUANT TO  PARA-
 GRAPH  (B)  OF  THIS SUBDIVISION SHALL BE DEPOSITED TO THE CREDIT OF THE
 MARINE RESOURCES ACCOUNT OF THE CONSERVATION FUND.
   (D) APPLICATION FEES REQUIRED PURSUANT TO THIS SUBDIVISION WILL NOT BE
 REQUIRED FOR ANY STATE DEPARTMENT.
   § 10. Subdivisions 1 and 2 of section  71-2303  of  the  environmental
 conservation  law,  as  amended  by  chapter 99 of the laws of 2010, are
 amended to read as follows:
   1. Administrative sanctions. A. Any person who violates,  disobeys  or
 disregards  any  provision  of article twenty-four, including title five
 and section 24-0507 thereof or any rule  or  regulation,  local  law  or
 ordinance,  permit  or order issued pursuant thereto, shall be liable to
 the people of the state for a civil penalty  of  not  to  exceed  eleven
 thousand  dollars  for  every such violation AND FOR EACH DAY EVERY SUCH
 VIOLATION OCCURS, to be assessed, after a hearing or opportunity  to  be
 heard upon due notice and with the rights to specification of the charg-
 es and representation by counsel at such hearing, by the commissioner or
 local  government. Such penalty may be recovered in an action brought by
 the attorney general at the request and in the name of the  commissioner
 or  local  government in any court of competent jurisdiction. Such civil
 penalty may be released or compromised  by  the  commissioner  or  local
 government  before the matter has been referred to the attorney general;
 and where such matter has been referred to  the  attorney  general,  any

 A. 7850                             7
 
 such  penalty may be released or compromised and any action commenced to
 recover the same may be settled and discontinued by the attorney general
 with the consent of the commissioner or local government.  In  addition,
 the commissioner or local government shall have power, following a hear-
 ing held in conformance with the procedures set forth in section 71-1709
 of  this  article,  to  direct  the violator to cease [his violation of]
 VIOLATING the act and to restore the affected freshwater wetland to  its
 condition  prior  to the violation, insofar as that is possible within a
 reasonable time and under the supervision of the commissioner  or  local
 government. Any such order of the commissioner or local government shall
 be  enforceable  in  an  action  brought  by the attorney general at the
 request and in the name of the commissioner or local government  in  any
 court  of  competent jurisdiction.  Any civil penalty or order issued by
 the commissioner or local government pursuant to this subdivision  shall
 be  reviewable  in a proceeding pursuant to article seventy-eight of the
 civil practice law and rules.
   B. UPON DETERMINING THAT SIGNIFICANT DAMAGE TO THE FUNCTIONS AND BENE-
 FITS OF A FRESHWATER  WETLAND IS OCCURRING OR IS IMMINENT AS A RESULT OF
 ANY VIOLATION OF ARTICLE TWENTY-FOUR OF THIS CHAPTER, INCLUDING BUT  NOT
 LIMITED  TO  (I)  ACTIVITY TAKING PLACE REQUIRING A PERMIT UNDER ARTICLE
 TWENTY-FOUR OF THIS CHAPTER BUT FOR WHICH NO PERMIT HAS BEEN GRANTED  OR
 (II)  FAILURE ON THE PART OF A PERMITTEE TO ADHERE TO PERMIT CONDITIONS,
 THE COMMISSIONER OR LOCAL GOVERNMENT SHALL  HAVE  POWER  TO  DIRECT  THE
 VIOLATOR  TO CEASE AND DESIST FROM VIOLATING THE ACT.  IN SUCH CASES THE
 VIOLATOR SHALL BE PROVIDED AN OPPORTUNITY TO BE HEARD WITH TEN  DAYS  OF
 RECEIPT OF THE NOTICE TO CEASE AND DESIST.
   2.  Criminal sanctions. Any person who violates any provision of arti-
 cle twenty-four of this chapter, including any rule or regulation, local
 law or ordinance, permit or order issued  pursuant  thereto,  shall,  in
 addition,  for the first offense, be guilty of a violation punishable by
 a fine of not less than two thousand nor more than [four] FIVE  thousand
 dollars;  for  a  second  and each subsequent offense he OR SHE shall be
 guilty of a misdemeanor punishable by a fine of not less than four thou-
 sand nor more than [seven] TEN thousand dollars or a term  of  imprison-
 ment  of  not  less  than fifteen days nor more than six months or both.
 Instead of these punishments, any offender may be  punishable  by  being
 ordered  by  the court to restore the affected freshwater wetland to its
 condition prior to the offense, insofar as that is possible.  The  court
 shall  specify a reasonable time for the completion of such restoration,
 which shall be effected under the supervision  of  the  commissioner  or
 local government.  Each offense shall be a separate and distinct offense
 and, in the case of a continuing offense, each day's continuance thereof
 shall be deemed a separate and distinct offense.
   §  11. Subdivision 1 of section 71-2305 of the environmental conserva-
 tion law, as added by chapter 614 of the laws of  1975,  is  amended  to
 read as follows:
   1.  The  attorney  general,  upon  his  OR  HER own initiative or upon
 complaint of the  commissioner  or  local  government,  shall  prosecute
 persons  alleged to have violated [any such order of the commissioner or
 local government pursuant to] article twenty-four OF THIS CHAPTER.
   § 12. This act shall take effect immediately, provided, however,  that
 sections two, three, four, five, six, seven and eight of this  act shall
 take effect on January 1, 2023.