Senate Bill S1724

                                 BILL NUMBER:  S1724

 TITLE OF BILL :

An act to amend the environmental conservation law, in relation to
protection of state lands and coastal erosion hazard areas


 PURPOSE :

This bill would amend the Environmental Conservation Law (ECL) to: (1)
clarify the authority of the Department of Environmental Conservation
(DEC) to remove structures, fixtures and improvements erected in, on
or above State lands, and property abandoned or stored on State lands,
without authorization; (2) increase civil penalties for violations of
ECL Article 9 relating to the State's lands and forests and Article 34
relating to coastal erosion hazard areas; and (3) enhance the
injunctive remedies available to DEC to address violations of ECL
Articles 9 and 34.

 SUMMARY OF PROVISIONS :

Section 1 of this bill amends ECL §9-0303(2) to clarify that no
structures, improvements or fixtures may be erected in, on or above
State lands except as authorized by DEC. This section also adds a new
subdivision 2-a to ECL §9-0303 to prohibit the abandonment and storage
              

of property on State lands except as DEC may authorize.

Section 2 of this bill amends ECL §71-0703 by adding new provisions
to: (1) establish a civil penalty of not more than $5,000 for each
violation of ECL § 9-0303(2) and not more than $1,000 for each day
such violation continues; (2) establish a civil penalty of not more
than $1,000 for each violation of ECL §90303(2-a) or, unless otherwise
provided, any other provision of Article 9, and not more than $250 for
each day such violation continues; and (3) to authorize injunctive
relief, including authority for DEC to remove structures,
improvements, fixtures and property found in, on, on, above on State
lands in violation of ECL §§9-0303 (2) and (2-a) and to undertake
remedial or mitigation measures.

Section 3 of this bill amends ECL Article 71 to add a new Title 30 to
establish a civil penalty for violations of Article 34 of not more
than $10,000, and not more than $2,500 for each day such violation
continues, and to authorize injunctive relief, including authority for
DEC to remove any non-conforming structures in coastal erosion hazard
areas and undertake remedial or mitigation measures.

Section 4 of this bill provides that the bill takes effect on the 90th
day after it becomes a law.

 EXISTING LAW :

ECL §9-0303(2) currently provides that no building shall be erected,
used or maintained upon State lands except under permit from DEC.  ECL
§71-0703 provides for a fine of not more than $250 and/or imprisonment
for not more than 15 days, and in addition thereto, a civil penalty of
not less than $10 nor more than $100. ECL § 71-0703 does not provide
injunctive relief. There currently are no specific penalties provided
for violations of ECL Article 34. For all violations for which there
is no specified civil penalty, ECL § 71-4003 provides a general civil
penalty of $500 for the initial violation, and an additional $500 for
each day the violation continues ECL §71-4003 does not provide
injunctive relief.

 JUSTIFICATION :

The bill's revisions to ECL §§ 9-0303 and 71-0703 would help protect
the State's natural resources by clarifying and confirming DEC's
authority to remove illegal structures, improvements, and fixtures, as
well as stored and abandoned property, from State lands.
Additionally, increasing the penalties applicable to violations of ECL
§9-0303 would provide a meaningful deterrent to would-be violators and
provide DEC with a means to resolve a number of existing trespass
issues.

DEC administers over 4 million acres of State land These lands include
more than 3 million acres of Forest Preserve lands, 763,000 acres of
State Forests, and other lands including Unique Areas, Wildlife
Management Areas and Tidal Wetlands. There are over 17,000 miles of
boundary lines on those properties which must be protected from
encroachments. The lands administered by DEC are managed to protect
and enhance significant habitats, wetlands, and threatened and
endangered species. These lands are managed to provide recreational
opportunities for the public, provide clean water and in some cases
wood products, and to protect New York's wild areas.

It is increasingly common for neighboring landowners to use adjoining
State lands for their own purposes. DEC estimates that there are
presently thousands of unresolved encroachments which range from
mowing of State lands and storage of personal property to construction
of buildings. There are numerous examples of sheds, swimming pools,
garages, septic systems, lawns, driveways, and homes constructed on
State lands.

Existing law and penalties are insufficient to prevent these
encroachments. Enhanced injunctive remedies and higher penalties would
help to deter future encroachments and provide additional tools to
rectify existing encroachments.

Typically, the relevant provisions of the ECL give the Commissioner of
Environmental Conservation specific authority to assess monetary civil
penalties and to direct injunctive relief in redress of violations of
such provisions. However, there are no specific enforcement provisions
for violations of ECL Article 34 relating to coastal erosion hazard
areas. DEC must therefore rely on the general civil penalty provisions
of ECL §71-4003, which allows a maximum fine of only $500, plus $500
per day of continuing violation, and which does not include injunctive
relief. DEC's experience has demonstrated the need to include
injunctive relief when enforcing violations of Article 34 because
penalties alone are not enough to deter development in these
environmentally sensitive areas, and DEC needs the authority to
mitigate environmental and public safety concerns which often result
from violations of Article 34.

New York's shorelines along Lakes Erie and Ontario and the Atlantic
Ocean and adjacent bays are extremely fragile. Subject to the
destructive forces of wind, waves, tides and currents, and some of
these areas can be severely damaged and even lost by altering the
natural landscape or without protective measures. In designated
Coastal Erosion Hazard Areas along Lakes Erie and Ontario and the
Atlantic Ocean, regulations designed to protect these shores limit the
placement of structures which may exacerbate the danger.
Unfortunately, some waterfront landowners ignore these regulations and
the science which underlies them. They remove trees and other
vegetation and build houses, garages, additions, sheds, swimming
pools, docks, decks, breakwaters or other structures which increase
erosion.  In prosecuting such offenses, it is not enough solely to
seek a fine; available remedies must be commensurate with the nature
of the violation. In some cases, a monetary penalty has not been a
sufficient deterrent to prevent continuing violations In many cases,
injunctive relief would be a more appropriate remedy than a penalty If
a violator has built a structure or removed protective vegetation
which is detrimental to a coastal erosion hazard area, it is critical
to the protection of the area, and often to safeguard property of
surrounding landowners, that the violator remove the structure or
mitigate damage, rather than merely pay a monetary penalty.
Injunctive relief would ensure that non-conforming structures would be
removed and any environmental damage would be mitigated.  Similarly,
increasing the maximum penalty from $500 to $10,000 should act as a
significant deterrent to potential violators.

This legislation is also vital to the State's efforts to preserve and
improve environmental benefits along the shores of Lake Ontario as
part of our international cooperative agreement being administered
through the International Joint Commission (IJC). The State must have
adequate remedies to deal with violations that threaten the natural
resources and ultimately reduce environmental benefits along the lake
as well as the Atlantic Ocean and its surrounding water bodies.
Currently, the agency is urging the IJC to adopt a plan that restores
environment benefits along Lake Ontario that have been compromised by
prior regulatory plans over the last 50 years.

In addition, revocation or suspension of a permit or certificate, or
denial of a renewal application may also be a suitable penalty. This
would be especially true where the subject offense involves a
violation of the conditions of such permit or certificate, such as
starting construction of a pier and marina when the permit was for
some other type of structure This bill would allow DEC to utilize the
remedy most appropriate to the nature of the violation.

 LEGISLATIVE HISTORY :

2008: S.8252

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This bill shall take effect on the 90th day after it becomes a law.