DEE-7: Tidal Wetlands Enforcement Policy
The DEC Policy System
Department ID: DEE - 7
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 08 February 1990
Phone: (518) 457-4348
Issuance Date: 08 February 1990
Latest Review Date (Office Use):
Consistent with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:
- The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
- Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
- Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
- The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.
This document is intended to serve as the tidal wetlands program-specific component of the overall enforcement policy enunciated and supplemented in various memoranda from the Commissioner. As such, it will seek to relate that policy to the Department's enforcement of statutory provisions, regulations, and permit conditions, and orders pertaining to tidal wetlands. Nothing in this document shall be construed to establish rules of general applicability; rather this guidance should be applied on a case specific basis with due regard for the circumstances involved in each matter. This guidance should not be construed as a rule against which Department staff performance may be reviewed in an adjudicatory proceeding.
The Tidal Wetlands Act (Article 25 of the Environmental Conservation Law) was enacted as Chapter 790 of the Laws of 1973. It declares the public policy of the State to be the preservation and protection of tidal wetlands, and the prevention of their despoliation and destruction, giving due consideration to the socioeconomic development of the State. ECL §25-0102. The Act requires the Department to inventory and map tidal wetlands, as defined therein, and requires a permit in order to conduct specified regulated activities. ECL §§25-0103, 25-0201, 25-0401, 25-0402. It imposed a moratorium on the alteration of tidal wetlands pending promulgation of land use regulations by the Commissioner. ECL §25-0202. In 1977, regulatory maps were filed and the Tidal Wetlands Land Use Regulations (6 NYCRR Part 661) were adopted.
ECL Article 71, Title 25 governs enforcement of ECL Article 25. The provisions of Title 25 were amended by Chapter 666 of the Laws of 1989. These provisions are discussed below.
Tidal wetlands subject to DEC jurisdiction exist in Regions 1, 2, and 3, covering the Long Island/New York Harbor area and northward along the Hudson River as far as the Tappan Zee Bridge.
Responsibility for implementation of the regulatory program lies primarily with the Divisions of Marine Resources (Bureau of Marine Habitat Protection, BMHP), Regulatory Affairs (DRA)(1), and Regional Counsel. Recent internal reorganization has removed DRA from the enforcement/compliance process entirely; BMHP has assumed the role of project manager in this area. DRA continues to act as project manager relative to permit applications. Other Divisions involved in enforcement/compliance are Law Enforcement (DLE), Environmental Enforcement (DEE), and Legal Affairs (DLA). Also, as indicated, the Attorney General's (AG) Office and, on occasion, District attorneys'(DA) offices and the U.S. Department of Justice may become involved in criminal prosecutions.
The fundamental goal of this policy is to enhance the preservation and protection of New York's tidal wetlands through firm but fair enforcement against violators of the tidal wetlands laws. Numerous and significant benefits accrue to the environment and to the residents of areas of the State in which the resource exists. Section 1 of Chapter 790 of the laws of 1973 contains legislative findings identifying the multiple values of tidal wetlands, which include marine food production, wildlife habitat, flood and storm control, pollution treatment, and sedimentation control.
This goal contemplates Departmental action in response to enforcement situations which will accomplish the following:
- restore tidal wetland values and benefits lost as a result of illegal activity;
- punish those who commit ECL Article 25 violations;
- deter future violations; and
- assure that no economic gain is derived from failure to comply with the law.
IV. Enforcement / Compliance Procedures
Initiation of Enforcement
As a general principle (and with exceptions noted below), the Regional Attorney, with the Regional Director, Regional DLE Captain and Regional Supervisor of Natural Resources, is primarily responsible for determining whether, when, and how to initiate enforcement. The Regional Attorney is responsible for making the threshold legal determination, based on the evidence supplied by program staff, as to whether or not a documented, prosecutable violation exists.
However, certain kinds of cases fall within the realm of responsibility of Environmental Conservation Officers (ECOs) such that direct initiation and prosecution of those cases can occur through ECO-staff efforts exclusively. Such cases include relatively small-scale, clear-cut violations which require minor or no restoration, involving activities
- categorized as NPN, GCn, or GCP in the tidal wetlands activity chart in 6 NYCRR §661.5 and
- for which a variance from the development restrictions in §661.6 would not have been necessary.
Violations of this nature shall be referred to BMHP by DLE and may be resolved through the use of generic short-form Consent Orders in accordance with policy established for the use of these orders.
Of course, direct intervention by an ECO or by BMHP staff is warranted in any situation requiring an immediate response, such as where disturbance of a tidal wetland is in progress at the time the violation is discovered or when materially permit conditions or conditions attached to an order are significantly violated.
If the case is not clearly in line with these guidelines, consultation with the Regional Attorney is necessary. However, none of the foregoing signifies any limitation on the ECOs' authority to fulfill their responsibilities as police officers in respect to the laws of this State.
In the foregoing cases, the ECO has discretion to proceed via appearance ticket or refer the case to the Regional Attorney upon consultation with BMHP staff and the Regional DLE Captain, or to settle the matter administratively through the Regional Law Enforcement Office consistent with applicable procedures including the Commissioner's Order on Consent Policy.
Violations involving activities categorized as PIP, I, or P under §661.5, any activity for which a variance would have been required, and any activity necessitating substantial restoration shall be referred to the Regional Attorney with the recommendation of the DLE Captain and Regional Supervisor of Natural Resources. Also, any violation of a permit condition or term of an Order on Consent which results in the need for substantial restoration should be referred to the Regional Attorney.
The Regional Attorney in consultation with program staff, DLE, and the Regional Director, has discretion to determine which enforcement avenue should be employed:
- order on consent;
- "short form" notice of violation;
- notice of hearing and complaint seeking Commissioner's order; or
- recommendation to General Counsel for
- issuance of Summary Abatement Order;
- referral to Attorney General for criminal or civil prosecution,
- referral to District Attorney for criminal prosecution; or
- referral to the U.S. Department of Justice for criminal prosecution.
Although it is infrequent, there may be cases which are initiated by the AG or DA without prior contact to DEC personnel; in such cases, it becomes the designated contact attorney's responsibility to assure communications appropriate to achieve program objectives.
The RA has principal responsibility for fulfilling the lead role in organizing and presenting the Department's case in administrative enforcement proceedings. This role becomes the responsibility of the involved Assistant AG or Assistant DA for cases which go to court. BMHP, DEE, and DLE will play key support roles in such instances, in terms of providing the documentary evidence, testimony, affidavits, and other materials necessary to establish liability. Also, the program attorney may be able to assist the RA on questions of statutory interpretation and in providing relevant case law.
To the extent possible within staffing and workload constraints, compliance inspections by Division of Marine Resources (BMHP) staff should occur as a matter of course following issuance of a permit, execution of a settlement document, or issuance of a commissioner's order or judicial decision requiring remedial work. Failure to comply with the terms of an enforcement order (i.e., an Order on Consent or Commissioner's Order following an adjudicatory hearing) is itself a violation which may be referred to the Attorney General for both
- a court order compelling adherence to the original provisions and
- additional sanctions.
Depending on the nature of noncompliance, a further ECl violation may be involved, thus invoking the full range of responsive action by DEC (i.e., administrative proceeding, civil proceeding in court, criminal proceeding in court).
It is imperative that DRA be immediately informed of noncompliance with permit conditions, in order to determine, in consultation with the RA (and, if necessary, the central office program attorney), what action to take relative to the permit pursuant to the Uniform Procedures Act and its implementing regulations (6 NYCRR Part 621). If the violation is isolated, de minimis in nature such that no remedial work is necessary, and/or is unrelated to site disturbance (e.g., failure to give notice of commencement or completion of work), suspension or revocation of the permit may be unwarranted. On the other hand, suspension or revocation may be appropriate, depending upon case-specific circumstances and consistent with the provisions of 6 NYCRR §621.14, where permit conditions have been disregarded or exceeded in a manner adverse to tidal wetland functions. Each case must be reviewed in light of the specific circumstances involved.
DRA should also receive immediate notice of any violation relative to which an enforcement action is commenced (e.g., issuance of administrative complaint and notice of hearing), so that it may determine, in consultation with the Regional Attorney, whether to suspend processing of pending related permits pursuant to 6 NYCRR §621-3(f). Generally, once an enforcement proceeding is initiated, permit processing should stop until the violation is resolved. However, it is incumbent upon the Department, to the extent practicable, to expeditiously resolve the enforcement matter so that all parties understand their respective positions regarding the permit and enforcement proceedings.
The range of sanctions available to the Department for violations of ECL Article 25 is described below and in Appendix A . The judicious application of these sanctions is vital to the attainment of stated enforcement objectives and to the overall integrity of the Department's administration of the Act.
- Tidal Wetlands Enforcement Authority
Monetary penalties include a maximum civil penalty of $10,000 per violation a maximum criminal fine of $5,000 per violation for the first offense; and a maximum criminal fine of $10,000 for subsequent offenses. Criminal sanctions also include incarceration for multiple offenders. Administrative and criminal sanctions are fully listed in Appendix A.
Penalties may be assessed on a daily basis for ongoing violations. The ECOs' physical arrest and equipment impoundment authority provide an effective and efficient means of bringing ongoing illegal work to a halt.
The clear authority in ECL §71-2503 for the Commissioner to require restoration of damaged wetlands provides an additional opportunity to impose meaningful sanctions. Costs associated with remedial work can be substantial. The recapture of lost resource values is an initial part of the enforcement case. Restoration should be sought in substantially every case, unless BMHP determines that it is not necessary, in furtherance of and consistent with both resource and policy interests. Restoration may entail enlargement of the wetland area to achieve the goal of the "no net loss" policy adopted by both the state and the federal government.
A single activity may involve numerous distinct tidal wetland violations; for example, building a house might entail drainage, removal of vegetation, excavation, fill, construction of a septic system, or violation of the development restrictions in §661.6. Aside from multiple tidal wetlands violations, multiple ECL violations may result from a single event. For example, certain tidal wetlands violations also result in violations of provisions of ECL Article 15 applicable to excavation or placement of fill in navigable waters or adjacent wetlands (ECL §15-0505). Under ECL §71-1107, violation of ECL §15-0505 is a misdemeanor subject to a fine of up to $10,000 and/or a civil penalty of up to $5,000.
Multiple violations also frequently occur in the sense of federal, state and local laws being breached simultaneously. For example, placement of dredged or fill material into navigable waters (which are broadly defined to include wetlands) requires a permit from the U.S. Army-Corps of Engineers under Section 404 of the Clean Water Act. Also, many local governments on Long Island have enacted ordinances protecting the shoreline. The Department will continue to cooperate with and support the enforcement efforts of other governmental entities.
In connection with criminal prosecutions, the provisions of §§80.05 and 80.10 of the Penal Law provide an opportunity to collect double the amount of economic gain derived from the violation in certain cases. Copies of these provisions are annexed as Appendix B (NOTE: These items were never annexed to the original document - apk)
DEC's enforcement authority also includes the issuance of "stop works" or "cease and desist" orders. ECL §71-2503(1) states in pertinent part that "...(u)pon determining that significant damage to the functions and benefits of tidal wetlands is occurring or is imminent as a result of any violation of article twenty-five...the commissioner 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" (emphasis added). This memorandum confers authority on Regional Directors to issue Cease and Desist orders. Such orders must be reviewed by the Regional Attorney and reported to the General Counsel prior to issuance.
Where a violator disregards the order and proceeds to disturb a tidal wetland, it may be appropriate to seek assistance from the attorney General's Office through referral by the General Counsel in obtaining a judicial injunction against further work. Also, the Commissioner's summary abatement authority under ECL §71-0301 is available in situations where an activity "results in or is likely to result in irreversible or irreparable damage to natural resources and in which it appears to be prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided.."
- A Word on Penalty Amounts
The Civil Penalty Policy (CPP)(2)is intended to provide the Department's overall approach to the question of the appropriate level of sanctions in a given case. The program-specific penalty policy to augment the Departmental CPP is that, given the penalty amounts available under ECL Article 71 for tidal wetlands violations, calculation of the recommended penalty should begin at the maximum penalty amount.
Exceptions to this general rule may be based on case-specific circumstances relating to the following factors:
- Economic benefit reaped by the landowner/violator as a result of the violation; if such benefit is minor or non-existent, the maximum penalty may be diminished in the discretion of staff.
- Environmental threat posed by the violation; if insignificant or non-existent, maximum penalty may be lowered.
- Violator conduct relevant here are considerations including willfulness, repetitiousness, willingness or unwillingness to settle in lieu of litigation, and awareness of regulatory,..restrictions.
- Deterrent effect; if in staff's judgment an amount less than the maximum will serve as a deterrent against future violations, a smaller penalty may be assessed.
- Other factors; if staff determine, based on circumstances peculiar to the case, that a smaller penalty may be appropriate, one may be assessed.
VI. Enforcement / Compliance Issues
- Removal of Illegal Structures.
Placement of structures in regulated areas without a permit involves two situations:
- projects which meet all development restrictions in NYCRR §661.6, and
- projects which, if reviewed before being built, would have had to have been modified or to have been granted a variance in order For a permit to be issued.
The former category, though more environmentally benign, still represents an affront to the regulatory process. In fairness to those who comply with the permit requirement, severe sanctions are warranted. The latter category obviously represents a more serious concern from the standpoint of procedural noncompliance being compounded by the greater likelihood of adverse environmental impacts, and warrants imposition of maximum sanctions and restoration of affected wetland values.
The Commissioner's authority under ECL §71-2305(1) to "...direct the violator...to restore the affected tidal wetland or area immediately adjacent thereto to its condition prior to the violation..." provides explicit authority for the Department to require removal of the illegal structure. In some limited situations in which it is unclear as to whether a permit would have been issued, removal should be sought but held in abeyance (insured by appropriate financial security) pursuant to an Order on Consent in which the violator makes a timely application; then, if the permit is denied, removal must occur within a specified time. A penalty should nonetheless be sought.
- Map Boundary Accuracy
Where tidal wetlands are disturbed which are not included on the Department's filed inventory maps, restoration may be more Appropriate. The procedure to be followed upon discovery of a violation in an unmapped area is to immediately notify the landowner by certified mail and follow up with commencement of the map amendment process under 6 NYCRR §661.27. Continuation of the violation after notice is given will be subject to maximum penalties. Therefore, it is important that the extent of pre-notice work be noted and documented in detail. Jurisdictional and due process issues may be raised by the violator when the Department initiates enforcement action, without having provided either direct (via statutorily required written notice or by prior verbal communication with DEC staff) or constructive (via the regulatory map) notice that the property is regulated under the Act.
The courts have broadly interpreted DEC's authority to amend tidal wetlands maps (e.g., Thomas Thompson v. DEC (3), Jack Coletta v. DEC (4), Merrick Jewish Centre v. DEC (5), Joseph Gazza v. DEC (6)). These cases arose in a permitting rather than enforcement context. However, a freshwater wetlands case decided by the Court of Appeals on March 22, 1988 (Wedinger v. Goldberger (7)) involved a landowner's challenge to DEC's assertion of jurisdiction and issuance of a notice of violation relative to wetlands not depicted on the filed tentative map. The Court held that jurisdiction exists during the entire period between the enactment of ECL Article 24 through the promulgation of final maps.
- Settlement by Order on Consent
As indicated, referrals to the RA may be resolved through execution of orders on consent. The general policies and procedures relevant to such orders were most recently expressed in the Commissioner's February 8, 1989, Order on Consent Policy. The content of consent orders relative to admission by the respondent that the underlying violation occurred is of particular concern in situations of noncompliance with the order. Where the Department seeks to enforce the order and assess penalties both for the original violation as well as the failure to carry out the terms of the order, it may be necessary to establish the violation if the order explicitly disclaims liability. Orders should be worded as necessary to avoid this burden, and should contain where possible admissions as to the violation.
- Court Litigation versus Administrative Process
ECL §71-2503 authorizes DEC to refer cases to the Attorney general for civil or criminal proceedings in lieu of or in addition to DEC's direct administrative action. An ECL Article 25 violation is a strict liability offense since there is no requirement that the activity constituting the violation be engaged in intentionally or knowingly (under ECL §71-2503(2), "(a)ny person who violates any provisions of article twenty-five shall, in addition,...be guilty of a violation...").
While the majority of cases are litigated or settled administratively, the option of concurrent or alternative civil or criminal referrals should be considered in appropriate cases. Consultation with the Regional Attorney and DEE concerning appropriate cases is crucial; referrals should occur through the General Counsel. This decision is informed by the factors discussed above and in the CPP. Appropriate candidates for referral generally include cases involving flagrant, repeated, or willful violations. The direct benefits of proceeding criminally in selected cases include an enhanced deterrence factor and a better educated judiciary as to the law and policy behind the Department's efforts to protect tidal wetlands.
- Enforcement Against State Agencies / Municipalities
Violations by governmental bodies or their agents should not be differentiated from those by members of the general public. It is important to convey the perception and reality of even-handed enforcement of the Act. Presumably, cases of this nature warranting criminal or civil referrals will be rare. Through periodic docketing meetings or otherwise, the Regional Director should be made aware of all pending actions against other State agencies and municipalities.
- Violations by Prior Landowners
Concerns have been expressed in the past as to whether DEC may issue a notice of violation to the present landowner in cases in which the violation is discovered after the fact, having been perpetrated by a prior landowner. A landowner is generally under a legal obligation to be aware of conditions on the property and to maintain it in a lawful manner. Although he or she may be able to assert defenses to an enforcement action under these circumstances (such as lack of knowledge of the violation as a result of nondisclosure or affirmative misrepresentation on the part of the seller), there is no reason for the Department not to initiate the action against the landowner. If it is established that another party caused the violation, the action could be recommenced accordingly.
When an active violation is discovered, the person(s) on the site (e.g. contractor and workers) as well the landowner should be cited.
ECL §25-0403(3) states that "The commissioner may require a bond in an amount and with surety and conditions satisfactory to him securing to the state compliance with the conditions and limitations set forth in the permit." It is equally important that bonds or letters of credit covering the cost of penalties and restoration be routinely required in the enforcement context; e.g. if an enforcement case involving unpermitted activity is resolved by order on consent, provision should be made for bonds or letters of credit sufficient to ensure performance according to the schedule of compliance.
New York State Department of Environmental Conservation
Thomas C. Jorling
Dated: Albany, New York
February 8, 1990
1. Now known as the Division of Environmental Permits.
2. The Civil Penalty Policy will be issued in the first quarter of 1990.
3. 130 Misc.2d 133, aff'd 132 A.D.2d 665 (2d Dept.), app. Dism. 71 N.Y. 2d 803.
4. 128 A.D.2d 755 (2d Dept. 1987), app,. dism. 70 N.Y.2d 602
5. 128 A.D.2d 877 (2d Dept. 1987).
6. 139 A.D. 2d 647 (2d Dept. 1988).
7. 71 N.Y.2d 428.
Sanctions Available Under ECL Article 71, Title 25*
Administrative Sanctions (ECL §71-2503(1))
- Maximum civil penalty: $10,000.
- Restoration of disturbed tidal wetlands / adjacent area.
Criminal Sanctions (ECL §71-2503(2))
- Fine (first offense): $500.00 minimum; $5,000.00 maximum.
- Fine (second and subsequent offense): $1,000.00 minimum; $10,000 maximum.
- Prison term (second and subsequent offense): 15 days minimum; 6 months maximum.
*As amended by Chapter 666 of the Laws of 1989.