Protections for state lands and coastal erosion hazard areas

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.