Bill Text: NY A02468 | 2017-2018 | General Assembly | Introduced

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Bill Title: Relates to enforcement of the freshwater wetlands law; requires restoration of areas adjacent to wetlands by those persons who, following procedures set forth in law, have been directed to cease violation and to restore the affected wetlands.

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Introduced - Dead) 2018-04-26 - advanced to third reading cal.778 [A02468 Detail]

Download: New_York-2017-A02468-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          2468
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    January 20, 2017
                                       ___________
        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
          enforcement of the freshwater wetland law
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 71-2303 of the environmental conservation  law,  as
     2  amended  by  chapter  99  of  the  laws  of  2010, is amended to read as
     3  follows:
     4  § 71-2303. Violation; penalties.
     5    1. Administrative sanctions. a. Any person who violates,  disobeys  or
     6  disregards  any  provision  of article twenty-four, including title five
     7  and section 24-0507 [thereof] of this chapter or any rule or regulation,
     8  local law or ordinance, permit or order issued pursuant  thereto,  shall
     9  be  liable  to  the  people of the state for a civil penalty [of] not to
    10  exceed eleven thousand dollars for every such violation, to be assessed,
    11  after a hearing or opportunity to be heard upon due notice and with  the
    12  rights  to specification of the charges and representation by counsel at
    13  such hearing, by the commissioner or local government.   Each  violation
    14  shall  be  a  separate  and  distinct  violation,  and, in the case of a
    15  continuing violation, each day's continuance thereof shall be  deemed  a
    16  separate  and  distinct  violation.  Such penalty may be recovered in an
    17  action brought by the attorney general at the request and in the name of
    18  the commissioner or local government in any court of competent jurisdic-
    19  tion. Such civil penalty may be released or compromised by  the  commis-
    20  sioner  or  local  government before the matter has been referred to the
    21  attorney general; and where such matter has been referred to the  attor-
    22  ney  general,  any  such  penalty may be released or compromised and any
    23  action commenced to recover the same may be settled and discontinued  by
    24  the  attorney  general  with  the  consent  of the commissioner or local
    25  government. [In addition,]
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01254-01-7
        A. 2468                             2
     1    b. Upon determining that damage to the functions or benefits of fresh-
     2  water wetlands is occurring or is imminent as a result of any  violation
     3  of article twenty-four of this chapter, including but not limited to (i)
     4  activity  taking  place  requiring a permit under article twenty-four of
     5  this chapter but for which no permit has been granted or (ii) failure on
     6  the part of a permittee to adhere to permit conditions, the commissioner
     7  or  local  government  shall  have  power[,  following a hearing held in
     8  conformance with the procedures set forth in  section  71-1709  of  this
     9  article,]  to direct the violator to cease [his violation of] and desist
    10  from violating the act [and].  In  such  cases  the  violator  shall  be
    11  provided  an  opportunity  to be heard within ten days of receipt of the
    12  notice to cease and desist.
    13    c. Following a hearing pursuant to section 71-1709  of  this  article,
    14  the  commissioner of local government shall have the power to direct the
    15  violator to cease and desist from violating the act and to  restore  the
    16  affected  freshwater wetland or area immediately adjacent thereto to its
    17  condition prior to the violation, insofar as that is possible  within  a
    18  reasonable  time  and under the supervision of the commissioner or local
    19  government. Any such order of the commissioner or local government shall
    20  be enforceable in an action brought  by  the  attorney  general  at  the
    21  request  and  in the name of the commissioner or local government in any
    22  court of competent jurisdiction.  Any civil penalty or order  issued  by
    23  the  commissioner or local government pursuant to this subdivision shall
    24  be reviewable in a proceeding pursuant to article seventy-eight  of  the
    25  civil practice law and rules.
    26    2.  Criminal sanctions. Any person who violates any provision of arti-
    27  cle twenty-four of this chapter, including any rule or regulation, local
    28  law or ordinance, permit or order issued  pursuant  thereto,  shall,  in
    29  addition,  for the first offense, be guilty of a violation punishable by
    30  a fine of not less  than  two  thousand  nor  more  than  four  thousand
    31  dollars; for a second and each subsequent offense [he] such person shall
    32  be  guilty  of  a misdemeanor punishable by a fine of not less than four
    33  thousand nor more than seven thousand dollars or a term of  imprisonment
    34  of  not  less  than  fifteen  days  nor  more  than  six months or both.
    35  [Instead] In addition to or instead of these punishments,  any  offender
    36  may  be punishable by being ordered by the court to restore the affected
    37  freshwater wetland or area immediately adjacent thereto to its condition
    38  prior to the offense, insofar as that is possible. The court shall spec-
    39  ify a reasonable time for the  completion  of  such  restoration,  which
    40  shall  be  effected  under  the supervision of the commissioner or local
    41  government.  Each offense shall be a separate and distinct offense  and,
    42  in  the  case  of  a  continuing offense, each day's continuance thereof
    43  shall be deemed a separate and distinct offense.
    44    3. All fines collected pursuant to this section shall be paid into the
    45  environmental protection fund established pursuant  to  section  ninety-
    46  two-s of the state finance law.
    47    § 2. This act shall take effect on the first of December next succeed-
    48  ing the date on which it shall have become a law.