Requires restoration of areas adjacent to wetlands

2 Co-sponsors

• Thomas K. Duane
• José M. Serrano

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.