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.

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A5638-2011 Actions

• Jan 4, 2012: ordered to third reading cal.187
• Jan 4, 2012: RETURNED TO ASSEMBLY
• Jan 4, 2012: DIED IN SENATE
• May 2, 2011: REFERRED TO ENVIRONMENTAL CONSERVATION
• May 2, 2011: delivered to senate
• May 2, 2011: passed assembly
• Mar 31, 2011: advanced to third reading cal.171
• Mar 30, 2011: reported
• Mar 15, 2011: reported referred to codes
• Feb 28, 2011: reference changed to environmental conservation
• Feb 24, 2011: referred to codes

A5638-2011 Text

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

                                    5638

                         2011-2012 Regular Sessions

                            I N  ASSEMBLY

                              February 24, 2011
                                 ___________

  Introduced  by  M.  of  A. SWEENEY, JAFFEE, PERRY, COOK, CAHILL, PAULIN,
    LAVINE, ROSENTHAL, TITUS, REILLY -- Multi-Sponsored by  --  M.  of  A.
    BING,  BOYLAND, CASTELLI, CLARK, COLTON, DINOWITZ, GALEF, GLICK, GOTT-
    FRIED, JACOBS, KELLNER, LATIMER, V. LOPEZ, MAYERSOHN,  McENENY,  MILL-
    MAN,  O'DONNELL,  PHEFFER, WEISENBERG -- read once and referred to the
    Committee on Codes

  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:

  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 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-

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD02979-02-1

 A. 5638                             2

  ney  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,]
    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.
    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.