DEE-6: Freshwater Wetlands Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 6
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 04 February 1992
Issuance Date: 04 February 1992
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:

1. 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.
   
2. Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
   
3. 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.
   
4. 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.

I. Enforcement Objectives

This document sets forth the policies and procedures the Department of Environmental Conservation should use to promote Compliance with statutes, regulations, permits and orders pertaining to freshwater wetlands. The guidance contained in this document applies the Department's overall enforcement policies, as enunciated by the Commissioner in various memoranda, to the preservation, protection, conservation and restoration of freshwater wetlands and their associated benefits.

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.

Freshwater wetlands subject to DEC jurisdiction exist in all nine regions of the DEC. Wetlands provide numerous and significant benefits to the environment and to the citizens of the State. In enacting the Freshwater Wetlands Act, the legislature identified the multiple values of freshwater wetlands, which include, inter alia, protection of subsurface water supplies, providing fish and wildlife habitat, flood and storm control, pollution treatment, and sedimentation control. ECL § 24-0105 .

The primary goal of the Department's enforcement policy in relation to freshwater wetlands is to enhance the preservation and protection of New York's freshwater wetlands by seeking restoration of wetland benefits and functions lost as the result of illegal activity. Through enforcement, the Department also seeks to punish violators, to remove economic gain violators may have obtained through noncompliance, and to deter future noncompliance.

II. Applicable Statutes

1. Freshwater Wetlands Act

   Freshwater wetlands have been specifically regulated under New York state law since 1975 when the Legislature enacted the Freshwater Wetlands Act, codified as Environmental Conservation Law (ECL) Article 24 . The Act defines freshwater wetlands, directs the Department to inventory and map freshwater wetlands throughout the State, and requires that parties obtain permits in order to conduct specified regulated activities on or near freshwater wetlands. ECL §§ 24-0107 , 24-0301 , 24-0701 .

   Enforcement of ECL Article 24 is governed by ECL Article 71, Title 23 . Title 23 authorizes both civil and criminal sanctions for Article 24 violations as well as equitable relief to restrain any violation or threatened violation. ECL § 71-2303, 71-2305 . Civil sanctions include a penalty of up to $3,000 per violation, to be assessed by the Commissioner or by a local government to which the Department has transferred Article 24 jurisdiction. Title 23 also authorizes, after a hearing, the Commissioner, or local government to which jurisdiction has been transferred, to order cessation of a violation and the restoration of affected freshwater wetlands areas.

   Criminal penalties for violations of Article 24 include a first offense punishable as a violation by a fine of between $500 and $1,000 and up to 15 days imprisonment; second and subsequent offenses constitute misdemeanors punishable by a fine of between $1,000 and $2,000 and/or imprisonment of 15 days to 6 months. The statute specifically authorizes each day of a continuing offense to be treated as a separate and distinct offense. ECL § 71-2303(2) . A court may, in lieu of criminal fines or conviction, order restoration of the wetland to its prior condition.

2. Stream Protection Act

   Activities adversely affecting wetlands may also constitute violations of ECL Article 15, Title 5 , known informally as the Stream Protection Act. Article 15 requires a permit for altering the course, channel or bed of a stream (§ 15-1501), constructing a dam or impoundment structure in the waters of the state (§ 15-0503), and dredging or filling in the navigable waters of the state or in marshes or wetlands that are adjacent to and contiguous at any point to any of the state's navigable waters and that are inundated at mean high water level or tide (§ 15-0505).

   Enforcement of the Stream Protection Act is governed by ECL Article 71, Title 11 . A violation of Title 5 is a misdemeanor, punishable By a fine of up to $10,000, or by imprisonment up to one year or by both. The statute also authorizes a civil penalty of up to $5,000 for each violation. ECL § 71-1107(1). Article 71 also specifically authorizes penalties against subcontractors and prime contractors who disregard specifications in a construction contract protecting against stream disturbance. Such action may be punished as a violation, with additional civil penalties of up to $5,000 for each violation. ECL § 71-1107(2) . Article 71 also authorizes the Department to seek injunctive relief from the Supreme Court to prevent unauthorized activities under section 15-0505 . ECL § 71-1113.

3. Water Pollution Control

   Activities conducted in or near a wetland which result in the discharge, drainage or runoff of matter into waters of the State which cause or contribute to contravention of State water quality standards may also violate ECL Article 17, which governs water pollution control. ECL § 17-0501. Sanctions for violations of Section 17-0501 include civil penalties of up to $25,000 per day for each violation and criminal penalties. ECL §§ 71-1929, 71-1933. The Commissioner may also seek injunctive relief. ECL § 71-1931.

4. Wild Scenic and Recreational Rivers System act

   Activities conducted in or around wetlands which are located in areas designated as part of the Wild, Scenic and Recreational Rivers System may also result in violations of Title 27 of ECL Article 15, which governs the administration of the system. the Department may seek injunctive or other equitable relief, as well as civil penalties of between $100 and $1,000 for each day of violation. Criminal violations of Article 15 are punishable as violations with a fine of not more than $500, ECL § 71-1131, for violations of Title 27. ECL § 15-2723 .

5. Solid Waste Management Facilities

   The Department's regulations pertaining to operation of solid waste management facilities, may be used to seek relief and penalties for the placement of solid waste in a freshwater wetland. If there are questions concerning the applicability of Part 360 to a particular situation, the Regional Attorney should be consulted.

   Civil penalties available for violations of Part 360 are up to $2,500 per violation and an additional $1,000 for each day during which the violation continues; there is an additional $5,000 maximum per day for each day of deposition where the violation concerns the disposal of construction and demolition debris. ECL § 71-2703(1) and (3). Criminal sanctions for Part 360 violations are punishable by a fine of not less than $1,000 nor more than $2,500 per day of violation.

6. Federal Clean Water Act

   Many wetlands are subject to the concurrent exercise of state And federal laws. The principal federal statute that protects wetlands is section 404 of the Clean Water Act. 33 U.S.C § 1344. Section 404 requires that a permit be obtained from the Army Corps of Engineers prior to discharging dredged or Fill material into the "navigable waters" of the United states, which are broadly defined to mean the waters of the United states. 33 U.S.C § 1362(7) . Waters of the United States have been further defined by the Army Corps regulations to include wetlands. 33 CFR 328.3 . The section 404 regulatory program is jointly administered by the Corps and EPA. See 33 U.S.C § 1344.

   Enforcement authority under the Clean Water Act is shared by the army Corps and EPA. The Secretary of the Army may issue administrative cease and desist orders requiring compliance (33 U.S.C § 1344(s)), seek administrative penalties of up to $25,000 per day for noncompliance with a permit or Secretary's Order (33 U.S.C § 1344(s)), and seek injunctive relief by commencing a civil action in Federal District Court (33 U.S.C § 1344(s)(3)). EPA may issue administrative orders requiring compliance (33 U.S.C. § 1319(a)(1)) and seek penalties of up to $25,000 per day for noncompliance with such orders (33 U.S.C. § 1319 (d). Willful or negligent violation of a permit issued by the Secretary may be punished criminally by a fine of between $2,500 and $25,000 per day of violation, or by imprisonment for up to a year, or by both. For second convictions, the fines and imprisonment term can be doubled. 33 U.S.C § 1344(s)(5)(A).

   Federal law provides potentially broader jurisdiction than ECL Article 24, since Federal wetlands protection laws apply to wetlands regardless of size. ECL Article 24 regulates wetlands of less than 12.4 acres only if they are deemed to be of unusual local importance. See ECL § 24-0301.1 and 6 NYCRR § 664.7.

7. Section 401 Water Quality Certification

   Section 401 of the Federal Clean Water Act requires that any applicant for a federal permit to conduct any activity which may result in a discharge to the navigable waters of the United States obtain a certification from the State that such activity will not result in a contravention of water quality standards. 33 U.S.C § 1341(1). Section 401 is implemented by 6 NYCRR § 608.7.

   Section 401 Water Quality Certifications typically contain limitations, standards or conditions authorized by Articles 17 and 15 of the ECL. Violation of a Water Quality Certification is treated as a permit violation. Penalties for noncompliance with conditions contained in the certification therefore depend upon the ECL provision the condition is derived from. For example, penalties for violation of conditions authorized by Article 15 are those set forth in Article 71, Title 11 relating to enforcement of Article 15.

III. Enforcement Procedures

1. Initiation of Enforcement

   Within the Department, wetlands enforcement actions are generally initiated by the Regional Attorney or by the Division of Law Enforcement, through its Environmental Conservation Officers (ECOs). The Office of General Counsel, primarily the Division of Environmental Enforcement, provides guidance and oversight of enforcement activities statewide to enhance consistent application of Department policies throughout the State.

   1. Informal Resolution of Violations

      It is within the Department's prosecutorial discretion to seek to correct minor violations identified by Fish and Wildlife field staff or ECOs without issuing a ticket or entering into an order. This type of "informal" resolution of violations is provided for in the Department's Order on Consent Enforcement Policy. Tickets or Orders are not required where the violation is minor and can be corrected within a short time following its detection, where the violation does not warrant more than a de minimis penalty, where remediation is not necessary, and where the violation does not compromise statutory objectives.

   2. Direct Initiation by ECOs

      While as a general principle, the Regional Attorney, with the concurrence of the Regional Director, is responsible for initiating enforcement, certain kinds of cases are directly initiated by the ECOs, without prior case-by-case involvement by the Regional Attorney or Regional Director. Cases appropriate for ECO initiation are either those involving relatively small scale, clear-cut violations requiring little or no restoration, or those situations requiring an immediate response, such as where disturbance of a wetland is in progress at the time the violation is discovered. ECOs should consult with Fish and Wildlife staff if there is any question whether restoration is needed.

   3. Use of Short-Form Consent Orders

      ECOs may use short-form Consent Orders (also called Stipulation forms) to settle cases. A sample of the Short-Form Consent Order is attached as Appendix A. In accordance with the Department's Order on Consent Policy, Short-Form Orders may be used to resolve a limited class of violations where:

      • remedial action is not required or has been satisfactorily completed already in accordance with program directives, or where only minor compliance activity is required (e.g. obtaining a permit, removing a small and benign amount of illegally placed waste or fill) after approval of the Program Supervisor and Regional Attorney;

      • the Short-Form Order has been endorsed as to form by the Regional Attorney and as to content by the appropriate program supervisors; and

      • the penalty amount assessed is $10,000 or less.

      ECOs should consult with Fish and Wildlife staff to determine remedial action is required.

   4. Case Referred to Regional Attorney for action

      The majority of enforcement actions are initiated by the Regional Attorney, with the concurrence of the Regional Director. Cases are referred to the Regional Attorney by ECOs or by program staff who have become aware of a violation. All violations not directly handled by the Division of Law Enforcement must be referred to the Regional Attorney.

      The Regional Attorney has discretion to determine what enforcement avenues should be pursued, including:

      1. order on consent;

      2. notice of hearing and complaint seeking Commissioner's order;

      3. recommendation to General Counsel seeking

         1. issuance of summary abatement order,
            
         2. referral to Attorney General for criminal or civil prosecution,
            
         3. coordination with the District Attorney for criminal prosecution, or
            
         4. referral to EPA Regional Counsel or U.S. Attorney for prosecution under federal law;
            

      4. no action

   5. Cases Initiated by the District Attorney or Attorney General Without Referral

      Although infrequent, there may be cases that are initiated by the Attorney General or the District Attorney without prior contact with DEC personnel. In such cases, a DEC attorney will be designated as the contact attorney through whom communications concerning litigation strategy and settlement will be made with the prosecuting office.

   6. Local Government Implementation

      To date, only three local governments have assumed the transfer of State jurisdiction under ECL Article 24 - the Town of Hempstead (Nassau County), the Town of Union (Broome County), and the Village of Southhampton (Suffolk County). Transfer of jurisdiction under Article 24 carries with it the authority and responsibility for enforcement. 6 NYCRR § 665.10. Where jurisdiction has been transferred, the Department's role is to monitor, and, as necessary and appropriate, assist in local enforcement efforts.

      If a local government to which jurisdiction has been transferred fails to carry out its enforcement responsibilities, the Commissioner is authorized to supersede local jurisdiction to the extent necessary to carry out the goals of the Freshwater Wetlands act. ECL § 24-0503(2) ; 6 NYCRR §§ 665.4(k), 665.12.

      If Department staff become aware of a violation to which a jurisdictional local government has failed to respond, staff should immediately notify the Directors of the Divisions of Environmental Enforcement and Fish and Wildlife, through the Regional Attorney and Regional Director. A recommendation will then be made to the general Counsel and Executive Deputy Commissioner whether action will be taken to supersede local authority or to refer the matter to the Attorney General for judicial action.

2. Case Management

   The Regional Attorney is responsible for the lead role in organizing and presenting the Department's case in administrative enforcement proceedings. Occasionally, the central office Compliance or Program Counsel may assume the lead role for cases of multi-regional or statewide significance or which are otherwise suited to central office management. For cases that go to court, the assigned Assistant Attorney General or Assistant District Attorney assumes this responsibility.

   The Divisions of Fish and Wildlife and Law Enforcement play the primary support role in cases that proceed to administrative hearing or judicial action. Staff of these Divisions provide the documentary evidence, testimony, affidavits and other materials necessary to establish liability. Other Divisions may be called on to support enforcement to the extent that such expertise is needed to present a strong case. Each case referral to the Regional Attorney should designate the program contact for the case who will Coordinate program support. Since administrative enforcement orders are subject to judicial review pursuant to CPLR Article 78 [see ECL § 71-2303(1)] , a complete and proper record must be kept Concerning the violation.

3. Monitoring Compliance After Conclusion of Action

   Compliance inspections by DFW staff should occur as a matter of Course following issuance of a permit, execution of an Order on consent, or issuance of a Commissioner's order or judicial decision requiring remedial work. Failure to comply with the terms of an Order is itself a violation which may be referred, through the Office of General Counsel, to the Attorney General for both (1) a court order compelling adherence to the original provisions and (2) additional sanctions. In the alternative, a second Order may be sought, but should include substantial penalties for the prior order violations(s). Depending on the nature of the noncompliance, a further ECL violation may be involved, thus invoking the full Range of responsive actions by DEC (i.e., administrative proceeding, or civil or criminal proceeding in court).

   The Division of Regulatory Affairs ⁽¹⁾ must be informed of non-compliance with permit conditions, as well as other significant violations by the permittee, in order to determine, in consultation with the Regional Attorney and the Division of Fish and Wildlife, the propriety of permit suspension, modification or revocation.

4. Inspection of Private Lands

   State law does not require that actual prior notice be provided before every act of entry onto private property to determine whether violations exist. However, staff should attempt in all cases to provide reasonable notice, where it is practicable, to the occupant or owner of private property prior to conducting an inspection of an alleged or suspected violation.

   Whether notice is reasonable in a given case varies with the circumstances. Written notice is not required. For example, if a department employee notices an apparent violation while making a routine patrol and there are people on the site, oral notice of the reason for further inspection and its scope, prior to commencement of the inspection, is sufficient. Where an apparent violation is discovered but no people are actually on the site, staff should attempt to identify the owner and provide verbal or written notice of the departments intent to inspect and the grounds for inspection. However, if the attempt to identify and provide notice to the owner would result in unreasonable delay, staff should conduct the inspection and follow up with verbal or written notice.

   If access to the property is specifically denied, field staff should immediately consult with a Department attorney to determine the feasibility of obtaining an inspection warrant.

   In most instances, Department inspection of private property for compliance with environmental laws and regulations is done pursuant to consent of the landowner or occupant or by administrative warrant. However, neither consent nor a warrant is legally required to inspect areas where there is no expectation of privacy, such as "open fields," or unoccupied or undeveloped areas. Similarly, where inspection is done pursuant to a permit, neither consent, a warrant nor prior notice is required.

   Department staff may enter private property without a warrant and regardless of whether access has been denied by the owner, under the following circumstances:

   1. The area to be inspected must be unoccupied and undeveloped; that is, the area to which access is sought may not be in or near a structure which is or may be occupied. Structures that are clearly abandoned or partly constructed may be inspected.

   2. Entry must not threaten a breach of the peace. If physical conflict with individuals at the inspection site is likely, the Regional Attorney should be contacted immediately to determine whether a warrant and police officers' assistance should be obtained.

   3. Entry must not involve the destruction of property; inspectors may not cut open or knock down a gate or fence to gain access to property.

   4. There must be a reasonable suspicion, which can be articulated by the inspector, that a violation has occurred or may be occurring or that there has been or may be regulated activity under way in the area to be inspected.

IV. Sanctions Under State Law

The specific range of sanctions available to the Department for violations of ECL provisions which apply to wetlands violations are set forth under Section II above. The consistent application of these sanctions is vital to attaining the Department's enforcement objectives and to the overall integrity of the Department's administration of the freshwater wetlands regulatory program.

1. Response to Ongoing Violations

   1. Issuance of Appearance Ticket or Notice of Violation

      Upon discovery of a violation, the ECO has the discretion to issue an appearance ticket, issue a Notice of Violation, or refer the case to the Regional Attorney. Arrest may occur only if the violation is a second offense and therefore constitutes a misdemeanor. The appropriate course of action depends on such factors as whether the violation is in progress, the attitude of the violator, the seriousness of the violation, etc. If the violator is recalcitrant, or if the wetland is seriously threatened, staff should evaluate other options such as securing A summary abatement order, or judicial injunctive relief.

   2. Summary Abatement

      The Commissioner's summary abatement power is not limited to conditions that present an imminent health danger. The Commissioner has the authority to order immediate cessation of an activity that "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." ECL § 71-0301 ⁽²⁾ . Noncompliance with a summary abatement order is in itself a violation punishable by injunction and a civil penalty of up to $2500 for each violation, and $500 for each day during which the violation continues. ECL § 71-0301.

      All requests for summary abatement orders must be made by the Regional Attorney through the Director, Division of Environmental Enforcement and the General Counsel to the Commissioner, in consultation with the appropriate Central Office Compliance Counsel. Requests for such orders must be accompanied by a complete And concise statement of the facts and, if time permits, supporting affidavits of staff who observed the violation.

   3. Referral to Attorney General for Equitable Relief

      Where the facts do not warrant issuance of a summary abatement order, but where the need exists to require cessation of an ongoing activity before the Department is able to proceed through the administrative process, a request to the Attorney General's office that it seek an injunction or temporary restraining order may be appropriate. Such requests are made by the General Counsel upon the recommendation of the Regional Attorney and the Director, Division of Environmental Enforcement. Referral to the Attorney general may also be considered as an alternative to issuance of a summary abatement order.

   4. Arrest

      While arrest itself does not constitute an order to cease violations, as a practical matter, it usually has the same result and should therefore be considered if the violation is knowing and ongoing. As noted above, arrest is only available if the violation is a second offense and therefore constitutes a misdemeanor. Arrest for wetlands violations is not common.

2. Guidelines for Determining Penalty Amounts

   The guidance contained in this EGM is intended to apply the Department's Civil Penalty Policy (CPP) to the specific program area of freshwater wetlands enforcement. The CPP establishes the Department's overall policy and guidance for developing monetary penalties for violation of the ECL and the Department's regulations and should be consulted in conjunction with this document in developing a penalty.

   1. Statutory Maximum

      The starting point of all penalty calculations is a computation of the potential statutory maximum for all provable violations. Program staff and ECOs preparing case reports should analyze all potential statutory bases for penalties to arrive at the maximum penalty available for every case ⁽³⁾ . In order to achieve the goals of deterrence and recovery of the economic benefit of the violation as set forth in the CPP, it will often be necessary and appropriate to assess the statutory maximum penalty.

      ECL § 71-2303 provides that any person who violates, disobeys or disregards any provision of Article 24 or any rule or regulation, local law or ordinance, permit or order issued pursuant thereto, shall be liable for a civil penalty of up to $3,000 for "every such violation." For purposes of penalty calculation and assessment, each distinct illegally conducted regulated activity that would independently require a permit constitutes a separate violation ⁽⁴⁾ . In addition, where Department staff documents the occurrence of illegal regulated activity on different days, each occurrence should be considered a separate violation subject to a separate maximum $3,000 penalty. Higher penalties per violation are available if the violation falls within the ECL prohibitions against stream disturbance, or excavation or placement of fill in navigable waters without a permit. ECL §§ 15-0503, 15-0505. ECL § 71-1107 authorizes a maximum civil penalty of $5,000 and a maximum criminal penalty of $10,000 for each violation of any of these sections.

   2. Economic Benefit

      It is Department policy to calculate and recover the economic benefit of noncompliance. In the area of freshwater wetlands violations, economic benefit of noncompliance is frequently realized where property has been filled and developed, and the violator has the potential to obtain a profit by leasing or selling Interests in real property.

      Factors that staff should evaluate to determine the economic benefit obtained by the violator include increased property value resulting from fill or other alteration to the wetland, costs avoided by noncompliance, such as costs which would have otherwise been incurred by transporting fill elsewhere, profit from use of the property where the profit would not have accrued if the violation had not occurred, and profit obtained by a violator who does not own the property but who benefited from the violation, such as a contractor who was paid to place fill in a wetland. because of the low statutory penalty amounts under Article 24, it is likely that in many cases, the monetary penalties will not begin to approach the economic benefit a violator obtains by disturbing or filling in a wetland and then developing or selling the property. In such cases, the maximum statutory penalty should be sought.

   3. Gravity of Harm

      The relative gravity of harm resulting to the environment or public health, safety or welfare as a consequence of a particular violation can be evaluated in reference to the regulations which Define compatibility and permit requirements for the freshwater wetlands program, 6 NYCRR 663.4(d). These categories are set forth in a hierarchy to illustrate the gradation of actual physical harm. However, it is important to remember that gravity of harm is but one aspect of evaluating the overall seriousness of the violation, which includes such other factors as violator culpability and cooperation.

      The relative seriousness of harm resulting from various activities described in 6 NYCRR Part 663 in order of gravity of harm, is as follows:

      1. Unauthorized activities that are "incompatible," or P(X).

      2. Unauthorized activities which fall under "usually incompatible," or P(N) and which would not have passed the Compatibility Test.

      3. Unauthorized activities which fall under "usually compatible," or P(C) but which would not have passed the Compatibility Test.

      4. Unauthorized activities which fall under "usually incompatible," or P(N) but which would have passed the Compatibility Test.

      5. Unauthorized activities which fall under "usually compatible," or P(C), that would have passed the Compatibility Test.

      6. Unauthorized activities that would have required a letter of permission.

      Unauthorized activities can be activities conducted without having obtained a permit, or activities in violation of a permit, an Order on Consent or an Order issued after hearing. The type of unauthorized activity relates more to violator conduct and culpability than it does to gravity of harm. In other words, a violator who knowingly engages in activity which was specifically denied after applying for a permit, will generally have greater culpability than a violator who was not aware that the activity in question required a permit.

3. Restoration and Mitigation of Wetland Impacts

   The power to require removal of fill and structures and restoration of a damaged wetland to its prior condition is perhaps the Department's most powerful and important wetlands enforcement tool. In an administrative or civil action, restoration is a remedy to be imposed in addition to monetary penalties. In a criminal action, however, a court may require restoration only in lieu of fines and imprisonment. ECL § 71-2303(2). Therefore, it is important to assess whether both restoration and penalties are sought prior to initiating an enforcement action since frequently, in a criminal proceeding, a court may elect to impose a fine rather than require restoration.

   It is the policy of the Department to require complete restoration of the full functions and values of regulated wetland areas that have been illegally altered ⁽⁵⁾ . Though penalties are required to remove economic benefit, punish violators and deter others from violating the wetlands laws, penalties do not address the loss of the functions and values of wetlands areas, which are critical to maintaining the vitality of the State's ecosystem. Mitigation for altered systems can replace lost functions as well as remove economic benefits, for example, by reverting filled land back to wetland. It further serves to deter others from violating because of the costs frequently involved in removal of fill or structures or replacing pre-existing hydrological regimes. Therefore, it is the policy of the Department that, to the extent possible, the full functions and values of the illegally altered wetland areas must be restored.

   In all cases, restoration of the altered wetland is preferred. on a case by case basis, the Department may determine that a violator has persuasively shown that full restoration of the altered wetland area may not be technically feasible, or would result in greater damage to the wetland. In such cases the Department may consider alternatives to full on-site restoration, in this order of preference: restoration or enhancement of another part of the same wetland; restoration of an off-site wetland that has been degraded; off-site enhancement of another wetland; creation of on-site wetlands; and finally, creation of off-site wetlands. Actual mitigation requirements will depend on the nature of the wetland, its functions and benefits, and the nature of the violation.

   On-site activities are preferred to off-site. When off-site, the mitigation should occur as close as possible to the impacted wetland, at least within the immediate watershed. In kind mitigation is preferred to out-of-kind. If in-kind mitigation is not practicable, out-of-kind mitigation should be designed to ensure no loss of categories of function (e.g., flood protection). Enhancement must not be of short duration, and is only considered when restoration opportunities do not exist. Creation of wetland out of uplands, especially when isolated from other wetlands and Not subject to periodic management, is often less successful than other types of mitigation and should be considered a last resort. When creation is used, the newly created wetland should be contiguous with another existing wetlands, and not isolated in the landscape. In certain cases, it may be necessary to have the mitigation area be larger than the area altered in order to replace lost values, to enhance the ability of the mitigation to be successful and to persist in time.

   Mitigation wetlands should not require management or maintenance to ensure their viability unless such management or maintenance is guaranteed as part of the settlement. In all situations, stewardship of the mitigation wetland must be addressed and resolved. All mitigation wetlands must be monitored for a minimum of five years and contingencies provided in case the wetland fails. To assess success, all mitigation projects must have clearly defined goals and objectives with performance standards articulated.

4. Criminal Sanctions

   The specific criminal sanctions for wetlands violations are set forth in Section II above. If the violation is serious or the violator is a persistent offender, referral to the District Attorney or the Attorney General for a criminal prosecution should be considered. Concurrent administrative (civil) and criminal actions may be maintained in accordance with Department policies on parallel proceedings.

   The District Attorney and the Attorney General have concurrent jurisdiction to prosecute any crime under the ECL. ECL § 71-0403. Whether a case should be handled by the District attorney or the Attorney General depends on a variety of factors, such as the willingness of the District Attorney to prosecute environmental crimes. Coordination of matters handled by the District Attorney is the responsibility of the Regional Attorney or the criminal enforcement attorney in the Division of Environmental Enforcement.

V. Enforcement Under Federal Law

As set forth above, EPA and the Army Corps of Engineers share administrative authority for the regulatory programs under section 404 of the Clean Water Act. Both agencies are empowered to seek administrative sanctions and judicial enforcement under the act.

There are no formal policies in place that govern which matters are referred by the Department to the EPA or the Army Corps for Federal enforcement. However, referral for federal enforcement should be considered where relief consistent with State policies would be difficult to obtain because of the particular facts or applicable law. Formal referrals of matters to the federal agencies for enforcement under federal law shall be made only by the General Counsel and will be evaluated on a case by case basis.

VI. Agricultural Exclusion

Certain agricultural activities are expressly excluded from regulation under the Freshwater Wetlands Act. ECL § 24-0701(4). The statute excludes the activities of farmers and other landowners in

• grazing and watering livestock;

• making reasonable use of water resources;

• harvesting natural products of wetlands;

• selective timber cutting;

• draining for growing agricultural products; and

• otherwise engaging in the use of wetlands or other land for growing agricultural products.

The regulation provides further clarification and specificity of this list by defining "agricultural activity" in 6 NYCRR 663.2(c).

By statute and regulation, the agricultural exclusion does not extend to

1. structures not required for enhancement or maintenance of the agricultural productivity of the land;

2. any filling activities;

3. clear cutting of trees;

4. certain road construction; and

5. mining.

The primary enforcement concern with respect to the agricultural exclusion is to ensure that sham agricultural uses are not undertaken as a means of circumventing the law. Determining whether a use is in fact agricultural may depend in part on the motive of the violator. While the legislative intent to exclude bona fide agricultural uses should be respected and followed, the landowner's mere assertion of the exclusion should not be accepted.

VII. Activities in Unmapped Wetlands

In counties where final inventory maps have been filed, upon discovery of a regulated activity occurring without a permit in an unmapped jurisdictional wetland, Department staff should immediately notify the landowner by certified mail and then commence the map amendment process under 6 NYCRR § 664.7. A sample notification letter is attached as Appendix B. The regulations governing the map amendment process prohibit further regulated activity once the announcement of a map amendment takes place. 6 NYCRR § 664.7(a)(2)(ii). The announcement is deemed to have occurred when the landowner receives the written notice; thus, personal service may be necessary to halt an ongoing activity and should always occur where possible, in addition to mailing by certified mail. Staff should document the extent of the activity that has occurred at the time of the map announcement in the event that the activity is not halted and subsequent enforcement action is taken. This manner of providing notice and commencing the map amendment process should also be followed where there is a mapped wetland, the activity falls outside the mapped boundary, but the area is within the definition of a wetland and Needs to be added to the mapped inventory.

The notice of map amendment must be provided to all affected landowners. The map amendment procedure also calls for notice to local government officials, and publication of the proposed amendment in the Environmental Notice Bulletin and two local newspapers. These steps should occur as expeditiously as possible. A comment period must be established, during which a public hearing may be requested.

The regulations governing the map amendment process provide that once the announcement of a proposed amendment has been made, no activity subject to regulation pursuant to the act shall be initiated . . . "However, no activity which has already been initiated at the time of the announcement . . . shall be subject to such regulation." 6 NYCRR 664.7(a)(2)(I).

Whether an activity has been "initiated" prior to the announcement requires a case by case analysis. However, the following two examples are intended to provide guidance:

1. If the landowner has constructed a foundation for a house at the time of the announcement, completion of the structure would not require an Article 24 permit; however, a permit would be required for construction of ancillary structures proposed to be built within the wetland or adjacent area, such as driveways, decks, pools, detached garages or tennis courts, or any filling, draining or excavation.

2. If only preliminary site preparation activity such as construction of an access road or clearing and grading had occurred, actual construction of buildings or structures would be prohibited as of the time of the announcement.

While activities conducted prior to notice will not result in penalties, any illegal activities conducted subsequent to notice will subject the violator to fines and will be considered intentional violations.

New York State Department of Environmental Conservation

Thomas C. Jorling
Commissioner

DATED: Albany, New York

February 4, 1992

1. The Division of Regulatory Affairs was subsequently renamed the Division of Environmental Permits.

2. The only other circumstance where the Department may order that an activity cease and be desisted from without first holding a hearing and have violations of the cease and desist order be separately punishable, is where a prior consent order or permit provides such authorization. This is distinguishable from the Department's authority with respect to violations of the Tidal Wetlands Act, ECL Article 25. Chapter 666 of the Laws of 1989 amended ECL Article 71 to provide the Commissioner with cease and desist authority with respect to violations of Article 25, with the requirement that a hearing be held within 10 days.

3. Before 1989, identical sanctions existed for violations of both the Freshwater Wetlands Act and the Tidal Wetlands Act. Chapter 666 of the Laws of 1989 increased both civil and criminal penalties for tidal wetlands violations, but left intact the lower freshwater wetlands penalties.

4. This position was established in In the Matter of Linda Wilton and Costello Marine. Inc., decision of the Commissioner of Environmental Conservation, February 1, 1991.

5. See the Glossary in Appendix C for definitions of terms used in this section.

Appendix A

New York State Department of Environmental Conservation

Short Form Order on Consent

New York Environmental Conservation Law no.________

I, (Respondent) of (Address), hereby pay to the Department of Environmental Conservation of the State of New York the sum of _____________ dollars and agree to strictly comply with the conditions on Schedule A (if applicable) which is attached hereto and made a part hereof, by reason of my act(s) consisting of:

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

the same being a violation of Section(s) _________________ of the Environmental Conservation Law of the State of New York and/or the Department of Environmental Conservation Regulation, 6 NYCRR Part __________, said act(s) committed in the Town(s) of ________________, County of ______________. In so stipulating, I waive my right to a hearing in this matter. I understand that nothing contained herein shall prevent the Department from taking action against violations other than those cited in this Order.

______________________________ ______________________________
respondent's signature title of Individual Authorized to Sign (if Corporation)

Dated at __________________ ________, 20_____

State of )

County of )

On this _____________ day of ____________, 20______, before me personally came _________________________ to me known, being duly sworn, deposed and stated that he resides at _________________________________, and he is the individual described in and who executed the foregoing.
_________________________________
Notary Public

WHEREAS:

(Respondent), having violated Section __________ of the environmental Conservation Law and/or 6 NYCRR Section __________________ of the State of New York at the time and in the manner stated above, and having waived the right to a hearing on the violation(s) and having offered to pay the sum of $ _________________ dollars by reason of said violation, and after due consideration having been had thereon it appearing that this order will be advantageous to the State, now therefore,

IT IS HEREBY ORDERED, pursuant to the provisions of the Environmental Conservation Law, that the offered sum shall be paid to the Department of Environmental Conservation as a penalty for the violation described above, and Respondent shall comply with the terms of the attached schedule A (if provided) by reason of such violation.

________________________________________
commissioner by __________________________

Dated: ________________, NY, ____________________, 20____

New York State Department of Environmental Conservation

Respondent's Name ______________________________________

Schedule A of Short Form Order on Consent to Settle Violation of the New York Environmental Conservation Law

The above-referenced Respondent(s) shall:

Appendix B

Sample Notice to Landowner Concerning Disturbance
of Wetland Not Depicted on Final Map

Dear Landowner:

In 1975, the Legislature passed the Freshwater Wetlands Act to preserve and protect wetlands and the functions they perform, such as flood protection and fish and wildlife habitat. The Department of Environmental Conservation is required to map all those wetlands that are protected by this law, and to make those maps available for inspection in all local government clerks' offices. Activities that may have a negative impact on the wetlands and their functions, such as filling, draining, clearcutting vegetation, or polluting, are regulated. landowners must first obtain permits in order to ensure that no problems result from their proposed actions in the wetland or in the protected buffer surrounding the wetland.

On (date), the Department visited the area shown on the attached map. The site is located in the Town of _______________, in the vicinity of (location). The Department found that the area contains wetlands as defined in the Wetlands Law, but this area is not currently shown on the final map for ______________ county. This letter is to inform you that we will be revising the map to include this area as a protected wetland. consequently, no further regulated activities (e.g., excavation, fill, or other disturbances) may occur within the wetland or its 100-foot adjacent area without first obtaining a permit from the Department, pending the outcome of the map amendment process.

We will be publishing notice of the proposed amendment in the Department's Environmental Notice Bulletin on (date) and in two local newspapers on or before (date). An opportunity to comment on the proposed changes will start on (date). During that time, all affected landowners, local governmental officials, and other interested parties may request a hearing or provide comments directly on the proposed changes.

If you would like, Department staff can arrange a site visit to delineate the wetland boundary in the field for you. Scheduling will depend, in part on weather and ground conditions. In addition, if you have plans to undertake a project in this area, you may submit a permit application while the amendment process is still ongoing.

Because certain activities already initiated at the time of the map amendment announcement can proceed, I encourage you to contact me at (location and phone number) to arrange a meeting to discuss any work that you conducted in the area of the wetland prior to this notice.

Sincerely,

______________________________

Appendix C

Glossary of Mitigation Terminology

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