S T A T E O F N E W Y O R K
________________________________________________________________________
4807
2009-2010 Regular Sessions
I N A S S E M B L Y
February 6, 2009
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Introduced by M. of A. SWEENEY, ALESSI, JAFFEE, PERRY, COOK, CAHILL,
PAULIN, WEPRIN, REILLY, LAVINE -- Multi-Sponsored by -- M. of A. BING,
BOYLAND, CHRISTENSEN, CLARK, COLTON, DINOWITZ, GALEF, GLICK, GOTT-
FRIED, JACOBS, KELLNER, KOON, V. LOPEZ, MAYERSOHN, McENENY, MILLMAN,
O'DONNELL, PHEFFER, STIRPE, WEISENBERG -- 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:
Section 1. Section 71-2303 of the environmental conservation law, as
amended by chapter 654 of the laws of 1977, is amended to read as
follows:
S 71-2303. Violation; penalties.
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] OF THIS CHAPTER 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 [three] TEN thousand dollars for every such violation, to be
assessed, after a hearing or opportunity to be heard upon due notice and
with the rights to specification of the charges and representation by
counsel at such hearing, by the commissioner or local government. EACH
VIOLATION SHALL BE A SEPARATE AND DISTINCT VIOLATION, AND, IN THE CASE
OF A CONTINUING VIOLATION, EACH DAY'S CONTINUANCE THEREOF SHALL BE
DEEMED A SEPARATE AND DISTINCT VIOLATION. 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
A LBD02952-01-9
A. 4807 2
attorney general, any 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,]
B. UPON DETERMINING THAT DAMAGE TO THE FUNCTIONS OR BENEFITS OF FRESH-
WATER WETLANDS 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[, following a hearing held in
conformance with the procedures set forth in section 71-1709 of this
chapter,] to direct the violator to cease [his violation of] AND DESIST
FROM VIOLATING the act [and]. IN SUCH CASES THE VIOLATOR SHALL BE
PROVIDED AN OPPORTUNITY TO BE HEARD WITHIN TEN DAYS OF RECEIPT OF THE
NOTICE TO CEASE AND DESIST.
C. FOLLOWING A HEARING PURSUANT TO SECTION 71-1709 OF THIS ARTICLE,
THE COMMISSIONER OF LOCAL GOVERNMENT SHALL HAVE THE POWER TO DIRECT THE
VIOLATOR TO CEASE AND DESIST FROM VIOLATING THE ACT AND to restore the
affected freshwater wetland OR AREA IMMEDIATELY ADJACENT THERETO 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.
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 five hundred nor more than [one] FIVE thousand
dollars; for a second and each subsequent offense [he] SUCH PERSON shall
be guilty of a misdemeanor punishable by a fine of not less than one
thousand nor more than [two] TEN thousand dollars or a term of imprison-
ment of not less than fifteen days nor more than six months or both.
[Instead] IN ADDITION TO OR INSTEAD of these punishments, any offender
may be punishable by being ordered by the court to restore the affected
freshwater wetland OR AREA IMMEDIATELY ADJACENT THERETO to its condition
prior to the offense, insofar as that is possible. The court shall spec-
ify 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.
S 2. This act shall take effect on the first of December next succeed-
ing the date on which it shall have become a law.