NY State Senate Bill 2009-S6145

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 23, 2010	reported and committed to codes
Jan 06, 2010	referred to environmental conservation
Aug 31, 2009	referred to rules

Votes

- Mar 23, 2010 - Environmental Conservation Committee Vote
  S6145
  
  Aye
  
  12
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Environmental Conservation Committee Vote: Mar 23, 2010
      
      aye (12)
      
      Foley
      
      Johnson
      
      Leibell
      
      Marcellino
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Perkins
      
      Schneiderman
      
      Serrano
      
      Stewart-Cousins
      
      Thompson
      
      nay (2)
      
      Little
      
      Young

co-Sponsors

2009-S6145 (ACTIVE) - Details

See Assembly Version of this Bill:: A4807
Current Committee:: Senate Codes
Law Section:: Environmental Conservation Law
Laws Affected:: Amd §71-2303, En Con L
Versions Introduced in 2011-2012 Legislative Session:: A5638

2009-S6145 (ACTIVE) - Summary

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.

2009-S6145 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6145

 TITLE OF BILL :
An act to amend the environmental conservation law, in relation to
enforcement of the freshwater wetland law

 PURPOSE :
To expand the protection of freshwater wetlands by conforming enforce-
ment provisions to those applicable to tidal wetlands.

 SUMMARY OF PROVISIONS :
The bill would amend section 71-2303 of the Environmental Conservation
law to strengthen enforcement provisions for violations related to
freshwater wetlands as follows:

* Increase to $10,000 the civil penalty for violation of provisions
for the protection of freshwater wetlands, and make each day's
continuation of the violation a separate violation;

* Specify the conditions under which the Commissioner of Environmental
Conservation may issue a cease-and-desist order, and provide for
immediate administrative review of such an order;

* Require that a violator may be directed to restore the area adjacent
to the freshwater wetland as well as the wetland itself;

* Increase the fine for a criminal violation to $5,000 for the first
offense and $10,000 for each subsequent offense.

 JUSTIFICATION :
The condition of areas adjacent to wetlands can have a profound effect
on the health and viability of the wetland itself, and restoration of
Those areas can be essential to the restoration of the damaged wetland
itself because the adjacent area acts as a buffer protecting the
abutting wetland from deterioration. In limiting activities landowners
may take without a permit in adjacent areas, the legislature already
has recognized in ECL Article 25 the essential connections between the
wetland and its adjacent area and the need to limit adjacent area
activities when necessary to protect.  the wetland. It is essential
for DEC to have authority to direct violators of wetland protections
to restore adjacent areas as well as the affected wetland itself,
whether it is freshwater or tidal. In the 2005 Rockland County case of
Bradley Corporate Park v. Crotty, the violator challenged DEC's order
requiring him to restore adjacent areas as well as the damaged
wetland, primarily on the basis that in contrast to ECL §71-2503(c),
which addresses tidal wetland, §71-2303 does not expressly contain the
phrase "or area immediately adjacent thereto." While the appellate
division rejected the argument in that case, the current law should be
clarified to remove any doubt about the extent of the Commissioner's
power to obtain restoration of the wetlands damaged by illegal acts.

Similarly, the other differences between the Environmental
Conservation law articles concerning freshwater and tidal wetlands
should be eliminated since the two articles serve similar purposes and
the differing procedures and fines only pose a potential for
confusion. Both freshwater and tidal wetlands are invaluable resources
that lessen the impact of flooding, often are habitat for wildlife,
fish and shellfish, including commercially-harvested species, and
provide natural mechanisms for protecting and restoring water quality.
Lesser penalties for violation of the provisions governing freshwater
wetlands suggest that such wetlands are less valuable than tidal
wetlands, which is not the case. Since the area of freshwater wetlands
historically has been diminishing despite the intent of the
legislature, the penalties for violation of freshwater wetland
provisions needs to be raised to the same levels as those addressing

tidal wetlands to insure that they remain protected and to better
resist the pressure to develop them inappropriately.

 LEGISLATIVE HISTORY :
A.293 of 2005-06 passed the Assembly on January 30, 2006.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
The first day of December next succeeding enactment.

2009-S6145 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6145

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             August 31, 2009
                               ___________

Introduced  by  Sen. SCHNEIDERMAN -- read twice and ordered printed, and
  when printed to be committed to the Committee on Rules

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
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,]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02952-01-9

S. 6145                             2

  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.

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Senate Bill S6145

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

Votes

Mar 23, 2010 - Environmental Conservation Committee Vote

Environmental Conservation Committee Vote: Mar 23, 2010

co-Sponsors

2009-S6145 (ACTIVE) - Details

2009-S6145 (ACTIVE) - Summary

2009-S6145 (ACTIVE) - Sponsor Memo

2009-S6145 (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Eric T. Schneiderman

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

Votes

co-Sponsors

Thomas K. Duane

Jose M. Serrano

2009-S6145 (ACTIVE) - Details

2009-S6145 (ACTIVE) - Summary

2009-S6145 (ACTIVE) - Sponsor Memo

2009-S6145 (ACTIVE) - Bill Text download pdf

Comments