N.Y. Environmental Conservation Law § 71-2303: Violation; penalties

§ 71-2303. Violation; penalties.

1. Civil sanctions. a. Any person who violates, disobeys or disregards

any provision of article twenty-four, including title five and section

24-0507 thereof 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 or in an action

initiated by the attorney general pursuant to section 71-2305 of this

title or on the attorney general's own initiative. 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 assessed by the commissioner or local

government 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 the attorney general with the consent

of the commissioner or local government. In addition, 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 violating the act and to

restore the affected freshwater wetland 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.

b. Upon determining that significant damage to the functions and

benefits of a freshwater wetland 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 to

direct the violator to cease and desist from violating the act. 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.

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 five thousand

dollars; for a second and each subsequent offense he shall be guilty of

a misdemeanor punishable by a fine of not less than four thousand nor

more than ten thousand dollars or a term of imprisonment of not less

than fifteen days nor more than six months or both. In addition to these

punishments, any offender may be punishable by being ordered by the

court to restore the affected freshwater wetland or adjacent area 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

ninety-two-s of the state finance law.