S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2422
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 22, 2019
                                ___________
 
 Introduced  by  M.  of  A.  ENGLEBRIGHT,  OTIS, JAFFEE, ABINANTI, GALEF,
   L. ROSENTHAL, GOTTFRIED -- Multi-Sponsored by -- M. of  A.  THIELE  --
   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 99 of the  laws  of  2010,  is  amended  to  read  as
 follows:
 § 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 eleven 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 jurisdic-
 tion.  Such  civil penalty may be released or compromised by the commis-
 sioner or local government before the matter has been  referred  to  the
 attorney  general; and where such matter has been referred to the attor-
 ney general, any such penalty may be released  or  compromised  and  any
 action  commenced to recover the same may be settled and discontinued by
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06913-01-9
              

 A. 2422                             2
 
 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
 article,]  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  two  thousand  nor  more  than  four  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 four
 thousand nor more than seven thousand dollars or a term of  imprisonment
 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.
   3. All fines collected pursuant to this section shall be paid into the
 environmental protection fund established pursuant  to  section  ninety-
 two-s of the state finance law.
   § 2. This act shall take effect on the first of December next succeed-
 ing the date on which it shall have become a law.