§ 71-2503 — Violation; penalties

§ 71-2503. Violation; penalties.\n 1. Administrative sanctions.\n a. Any person who violates, disobeys or disregards any provision of\narticle twenty-five shall be liable to the people of the state for a\ncivil penalty of not to exceed ten thousand dollars for every such\nviolation, to be assessed, after a hearing or opportunity to be heard,\nby the commissioner. Each violation shall be a separate and distinct\nviolation and, in the case of a continuing violation, each day's\ncontinuance thereof shall be deemed a separate and distinct violation.\nThe penalty may be recovered in an action brought by the commissioner in\nany court of competent jurisdiction. Such civil penalty may be released\nor compromised by the commissioner before the matter has been referred\nto the attorney general; and where such matter has been referred to the\nattorney general, any such penalty may be released or compromised and\nany action commenced to recover the same may be settled and discontinued\nby the attorney general with the consent of the commissioner.\n b. Upon determining that significant damage to the functions and\nbenefits of tidal wetlands is occurring or is imminent as a result of\nany violation of article twenty-five, including but not limited to (i)\nactivity taking place requiring a permit under article twenty-five but\nfor which no permit has been granted or (ii) failure on the part of a\npermittee to adhere to permit conditions, the commissioner shall have\npower to direct the violator to cease and desist from violating the act.\nIn such cases the violator shall be provided an opportunity to be heard\nwithin ten days of receipt of the notice to cease and desist.\n c. Following a hearing held pursuant to section 71-1709 of this\narticle, the commissioner shall have power to direct the violator to\ncease and desist from violating the act and to restore the affected\ntidal wetland or area immediately adjacent thereto to its condition\nprior to the violation, insofar as that is possible within a reasonable\ntime and under the supervision of the commissioner. Any order of the\ncommissioner shall be enforceable in an action brought by the\ncommissioner in any court of competent jurisdiction. Any civil penalty\nor order issued by the commissioner under this subdivision shall be\nreviewable in a proceeding under article seventy-eight of the civil\npractice law and rules.\n 2. Criminal sanctions. Any person who violates any provision of\narticle twenty-five shall, in addition, for the first offense, be guilty\nof a violation punishable by a fine of not less than five hundred nor\nmore than five thousand dollars; for a second and each subsequent\noffense such person shall be guilty of a misdemeanor punishable by a\nfine of not less than one thousand nor more than ten thousand dollars or\na term of imprisonment of not less than fifteen days nor more than six\nmonths or both. In addition to or instead of these punishments, any\noffender shall be punishable by being ordered by the court to restore\nthe affected tidal wetland or area immediately adjacent thereto to its\ncondition prior to the offense, insofar as that is possible. The court\nshall specify a reasonable time for the completion of the restoration,\nwhich shall be effected under the supervision of the commissioner. Each\noffense shall be a separate and distinct offense and, in the case of a\ncontinuing offense, each day's continuance thereof shall be deemed a\nseparate and distinct offense.\n 3. The proceeds of any penalty or fine assessed under this section\nshall be deposited to the credit of the marine resources account of the\nconservation fund.\n