§ 71-2303 — Violation; penalties

§ 71-2303. Violation; penalties.\n 1. Civil sanctions. a. Any person who violates, disobeys or disregards\nany provision of article twenty-four, including title five and section\n24-0507 thereof or any rule or regulation, local law or ordinance,\npermit or order issued pursuant thereto, shall be liable to the people\nof the state for a civil penalty of not to exceed eleven thousand\ndollars for every such violation, to be assessed, after a hearing or\nopportunity to be heard upon due notice and with the rights to\nspecification of the charges and representation by counsel at such\nhearing, by the commissioner or local government or in an action\ninitiated by the attorney general pursuant to section 71-2305 of this\ntitle or on the attorney general's own initiative. Each violation shall\nbe a separate and distinct violation and, in the case of a continuing\nviolation, each day's continuance thereof shall be deemed a separate and\ndistinct violation. Such penalty assessed by the commissioner or local\ngovernment may be recovered in an action brought by the attorney general\nat the request and in the name of the commissioner or local government\nin any court of competent jurisdiction. Such civil penalty may be\nreleased or compromised by the commissioner or local government before\nthe matter has been referred to the attorney general; and where such\nmatter has been referred to the attorney general, any such penalty may\nbe released or compromised and any action commenced to recover the same\nmay be settled and discontinued by the attorney general with the consent\nof the commissioner or local government. In addition, the commissioner\nor local government shall have power, following a hearing held in\nconformance with the procedures set forth in section 71-1709 of this\narticle, to direct the violator to cease violating the act and to\nrestore the affected freshwater wetland to its condition prior to the\nviolation, insofar as that is possible within a reasonable time and\nunder the supervision of the commissioner or local government. Any such\norder of the commissioner or local government shall be enforceable in an\naction brought by the attorney general at the request and in the name of\nthe commissioner or local government in any court of competent\njurisdiction. Any civil penalty or order issued by the commissioner or\nlocal government pursuant to this subdivision shall be reviewable in a\nproceeding pursuant to article seventy-eight of the civil practice law\nand rules.\n b. Upon determining that significant damage to the functions and\nbenefits of a freshwater wetland is occurring or is imminent as a result\nof any violation of article twenty-four of this chapter, including but\nnot limited to (i) activity taking place requiring a permit under\narticle twenty-four of this chapter but for which no permit has been\ngranted or (ii) failure on the part of a permittee to adhere to permit\nconditions, the commissioner or local government shall have power to\ndirect the violator to cease and desist from violating the act. In such\ncases the violator shall be provided an opportunity to be heard within\nten days of receipt of the notice to cease and desist.\n 2. Criminal sanctions. Any person who violates any provision of\narticle twenty-four of this chapter, including any rule or regulation,\nlocal law or ordinance, permit or order issued pursuant thereto, shall,\nin addition, for the first offense, be guilty of a violation punishable\nby a fine of not less than two thousand nor more than five thousand\ndollars; for a second and each subsequent offense he shall be guilty of\na misdemeanor punishable by a fine of not less than four thousand nor\nmore than ten thousand dollars or a term of imprisonment of not less\nthan fifteen days nor more than six months or both. In addition to these\npunishments, any offender may be punishable by being ordered by the\ncourt to restore the affected freshwater wetland or adjacent area to its\ncondition prior to the offense, insofar as that is possible. The court\nshall specify a reasonable time for the completion of such restoration,\nwhich shall be effected under the supervision of the commissioner or\nlocal government. Each offense shall be a separate and distinct offense\nand, in the case of a continuing offense, each day's continuance thereof\nshall be deemed a separate and distinct offense.\n 3. All fines collected pursuant to this section shall be paid into the\nenvironmental protection fund established pursuant to section\nninety-two-s of the state finance law.\n