What's happening
This bill strengthens enforcement of New York's freshwater wetlands law by increasing penalties and clarifying procedures for violations and restoration.
Why it matters
Significantly increases potential financial penalties. for violating New York’s freshwater wetlands laws, including making each day of a continuing violation count as a separate offense, which can lead to much higher cumulative fines.
Expands and clarifies restoration requirements. , enabling authorities not only to stop ongoing violations more quickly but also to order violators to restore damaged wetlands (and adjacent areas) to their prior condition, under supervision.
Accelerates enforcement actions. by allowing for “cease and desist” orders when damage is imminent or occurring, with violators entitled to a hearing within ten days—making it easier to halt harmful activities before more damage occurs.
Directs all collected fines into the Environmental Protection Fund,. ensuring that penalties paid by violators are reinvested into environmental protection and restoration efforts, potentially increasing resources for future conservation.
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Who cares
Headline styles
Strengthen Wetland Law Enforcement
Plain English, a few words. Used as the page title.
Sponsors
2 Co-sponsors
History
- Referred to environmental conservation
- Referred to environmental conservation
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Strengthen Wetland Enforcement Penalties
Assembly Floor Calendar · Sponsor Steven Englebright
Full text
2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
1398
2017-2018 Regular Sessions
IN SENATE
January 9, 2017
Introduced by Sens. AVELLA, HOYLMAN -- read twice and ordered printed, and when printed to be committed 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 Assembly, 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 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01254-01-7
S. 1398 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 freshwater 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 article 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 specify 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 ninetytwo-s of the state finance law.
§ 2. This act shall take effect on the first of December next succeeding the date on which it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the environmental conservation law, in relation to enforcement of the freshwater wetland law
Purpose or general idea of bill
To expand the protection of freshwater wetlands by conforming enforcement provisions to those applicable to tidal wetlands.
Summary of specific provisions
The bill would amend § 71-2303 of the Environmental Conservation Law to strengthen enforcement provisions for violations related to freshwater wetlands as follows:
*specify that each violation of the freshwater wetland law will be considered a separate and distinct violation, and in the case of a continuing violation each day will be considered a distinct violation;
*specify the conditions in which the Commissioner of Environmental Conservation may issue a cease-and-desist order, and provide the violator with the opportunity to be heard within ten days; and,
*authorize a violator to be required to restore the area adjacent to the freshwater wetland as well as the wetland itself.
Justification
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. The condition of areas adjacent to wetlands can have a profound effect on the health and viability of the wetland itself because they act as a buffer and protect the abutting wetland from deterioration. In limiting activities landowners may take without a permit in areas adjacent to saltwater wetlands, the Legislature has recognized the essential connection between the wetland and its adjacent area and the need to limit adjacent area activities.
In the 2005 Rockland County case of Bradley Corporate Park v. Crotty, the validity of DEC's order to restore adjacent areas of freshwater wetlands as well as the damaged wetland, was challenged because of the absence of the phrase "or area immediately adjacent thereto."
Although 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.
Prior legislative history
2016: S.77041 A.9765 (Englebright) 2011: A.5638 (Sweeney) - Passed the Assembly.
Fiscal implications for state and local governments
None
Effective date
This act shall take effect on the first of December next succeeding the date on which it shall have become a law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.