2011 Louisiana Laws
Revised Statutes
TITLE 49 — State administration
RS 49:214.36 — Enforcement; injunction; penalties and fines

§214.36. Enforcement; injunction; penalties and fines

A. The secretary and each local government with an approved program shall initiate a field surveillance program to ensure the proper enforcement of the management program. The secretary may enter into interagency agreements with appropriate agencies to assist in the surveillance, monitoring, and enforcement activities pursuant to this Subpart.

B. The secretary, and each local government with an approved program as to uses under its jurisdiction, shall have the authority to issue cease and desist orders against any person found to be in violation of this Subpart or the rules and regulations issued hereunder.

C. The secretary, and each local government with an approved program as to coastal use permits issued by it, shall have the authority to suspend, revoke, or modify coastal use permits if the user is found to have violated any of the conditions of the coastal use permit.

D. The secretary, the attorney general, an appropriate district attorney, or a local government with an approved program may bring such injunctive, declaratory, or other actions as are necessary to ensure that no uses are made of the coastal zone for which a coastal use permit has not been issued when required or which are not in accordance with the terms and conditions of a coastal use permit.

E. A court may impose civil liability and assess damages; order, where feasible and practical, the payment of the restoration costs; require, where feasible and practical, actual restoration of areas disturbed; or otherwise impose reasonable and proper sanctions for uses conducted within the coastal zone without a coastal use permit where a coastal use permit is required or which are not in accordance with the terms and conditions of a coastal use permit. The court in its discretion may award costs and reasonable attorney's fees to the prevailing party.

F. Any person found to have knowingly and intentionally violated the provisions of this Subpart, any of the rules and regulations issued hereunder, or the terms or conditions of any coastal use permit shall be subject to a fine of not less than one hundred dollars and not more than five hundred dollars, or imprisonment for not more than ninety days, or both. This penalty shall be in addition to any other costs or penalties assessed pursuant to this Section.

G. Any action pursuant to this Section, whether criminal or civil, must be brought in any parish in which the use or activity is situated. If the use or activity is situated in one or more parishes, then any action may be brought in either of the parishes in which the use or activity is situated.

H. In addition to the other enforcement actions authorized by this Section, whenever the secretary determines a violation of any provision of this Subpart, or any rules and regulations issued hereunder or the terms or conditions of any coastal use permit has occurred, the secretary may assess costs and penalties pursuant to Subsection I.

I. In addition to the other enforcement actions authorized by the provisions of this Section, the secretary may do any or all of the following:

(1) Assess the violator all or a portion of the costs of abatement or mitigation of damages to the coastal zone in accordance with R.S. 49:214.41.

(2) Assess the violator an administrative penalty in accordance with the following administrative penalty system:

(a) The amount of administrative penalty per violation shall be determined by a formula of $B(V + P + C + I) = Penalty, where B is base assessment, V is habitat value, P is prior knowledge value, C is cooperation value, and I is impact damage value. No penalty shall be less than fifty dollars and the maximum penalty for violations shall be twelve thousand dollars.

(b) Base assessment (B) is the amount of a permit application fee and processing fee if a permit had been applied for under this Subpart or fifty dollars where no fee would have been charged.

(c) The ecological value (V) shall be assessed as follows:

(i) A value of one-half shall be applied to areas the secretary determines to be of minor value, such as streams, rivers, canals, developed cheniers, bayous, trenasses, or lakes with insignificant public resource value or wetlands of low resource value as a result of historical disturbances or physical alterations that were not violations existing prior to the violation under consideration.

(ii) A value of one shall be applied to areas the secretary determines to be of average value such as sections of streams, rivers, cheniers, canals, bayous, or trenasses of marginal value for rearing or spawning habitat for fish and wildlife populations, marginal wetlands or beaches of marginal wildlife habitat value.

(iii) A value of one and one-half shall be applied to areas the secretary determines to be of major value, such as a significant fish and wildlife spawning area, eagle nesting areas, significant waterfowl rearing habitat, tidal salt, saline, brackish, or intermediate marshes, cheniers, tidal mudflats, freshwater wetlands with high diversity and high public resources value, beaches of significant wildlife habitat value and state scenic rivers and waterways designated under R.S. 56:1840 et seq. or administrative rules adopted thereunder.

(d) The prior knowledge value (P) shall be determined by the secretary as follows:

(i) A value of one-half shall be applied where the secretary determines the person was unaware of this Subpart, as demonstrated by the fact that the person had neither applied for any coastal use permit in the past, nor received correspondence from the Coastal Management Division concerning the commission of a possible violation.

(ii) A value of one shall be applied where the secretary determines the person had previously applied for a coastal use permit or received correspondence from the Coastal Management Division concerning the commission of a possible violation.

(iii) A value of one and one-half shall be applied where the person had previously violated this Subpart.

(e) The cooperation value (C) shall be determined as follows:

(i) A value of one-half shall be applied where the person restores resource damage as requested by the secretary without the need for an enforcement order or court action by the secretary.

(ii) A value of one and one-half shall be applied where the person is not cooperative in restoring resource damage as requested by the secretary and the secretary must issue an enforcement order or obtain a court order to restore the resource.

(f) The impact damage value (I) shall be determined by the secretary as a measure of the extent or size of the ecologically impacted area as follows:

(i) Where the secretary determines the adversely affected area of the violation would naturally restore within one year, and the impact area is less than one acre in size or an impacted waterway, shoreline, or waterfront property is less than one hundred linear feet, a value of one-half shall be applied.

(ii) Where the secretary determines the adversely affected area of the violation would naturally restore within two years, and the impact area is less than one acre in size or the impacted waterway, shoreline, or waterfront property is less than one hundred linear feet, a value of one shall be applied.

(iii) Where the secretary determines that the adversely affected area would exceed the restoration time or the impacted area criteria required in Item (i) or (ii) of this Subparagraph, a value of one and one-half shall be applied.

J. The monies collected by the state under the provisions of this Section shall be deposited as follows:

(1) The monies collected by the secretary for violations relating to use of state concern shall be used for the following purposes only in the proportions stated:

(a) Fifty percent of the monies collected shall be used to reimburse the Department of Natural Resources for the cost of enforcing the provisions of this Subpart, and shall be deposited in the Coastal Resources Trust Fund, as provided in R.S. 49:214.40.

(b) Twenty-five percent of the monies collected shall be placed in local government mitigation banks established in accordance with R.S. 49:214.41 and the rules and regulations adopted thereunder.

(c) Twenty-five percent of the monies collected shall be placed in the Wetlands Conservation and Restoration Fund established in Article 7, Section 10.2 of the Louisiana Constitution.

(2) The monies collected by the secretary for violations relating to a use of local concern shall be placed in local government mitigation banks established in accordance with R.S. 49:214.41 and the rules and regulations adopted thereunder. Each local government's mitigation bank shall be credited one hundred percent of the monies collected for violations relating to a use of local concern occurring within its geographic borders, except that for violations occurring within the geographic borders of two or more local governments the monies shall be divided on a pro rata basis and deposited accordingly in the local government's mitigation banks. In the event there is no local government mitigation bank in the parish in which the adverse impact is located, the monies shall be deposited in the Wetlands Conservation and Restoration Fund established in Article 7, Section 10.2 of the Louisiana Constitution, and can only be used for mitigation projects within the geographic borders of that local government.

K. In determining whether to assess, pursuant to Subsection I of this Section, costs or penalties, and the amounts of such assessments, the secretary shall consider the following factors:

(1) The monetary benefits realized by the violator due to the noncompliance.

(2) The history of previous violations or repeated noncompliance for the last five years.

(3) The nature and gravity of the violation, including the adverse impact on the coastal zone.

(4) The degree of culpability, recalcitrance, defiance, or indifference of the violator to the laws, regulations, or orders of the secretary or regulations of the local government.

(5) The cost to the department or state of bringing and prosecuting an enforcement action against the violator.

(6) Whether the person charged has failed to mitigate or to make a reasonable attempt to mitigate the damages caused by his noncompliance or violation.

L. No penalties or costs shall be assessed without the person charged being given notice and an opportunity for an adjudicatory hearing, pursuant to the Administrative Procedure Act. The secretary shall appoint an independent hearings officer. The person charged may waive the adjudicatory hearing upon payment of the amount demanded by the secretary, and will be liable for all costs associated with the adjudicatory hearing.

M. Nothing in this Section, shall prohibit any local political subdivision, without a local coastal use permit program approved as provided for in R.S. 49:214.30 from enforcing any ordinance or regulation relating to wetlands protection or restoration.

N.(1) In addition to the other enforcement actions authorized by the provisions of this Section, for each incident resulting in an administrative penalty being assessed, the secretary shall issue an after-the-fact coastal use permit or permit modification specifying terms and conditions that must be adhered to for the unauthorized activity to remain in place. In determining the terms and conditions to be placed on the after-the-fact permit, the secretary shall consider the following factors:

(a) The degree to which the activity complies, or fails to comply, with the coastal use guidelines.

(b) The need for compensatory mitigation to be carried out when the activity altered wetlands of the coastal zone.

(c) The need for partial restoration of the site if the coastal use could be carried out with lesser impact to coastal waters or wetlands.

(d) The need for restoration of the site upon abandonment or completion of the coastal use.

(2) Prior to issuing a final after-the-fact permit, the secretary shall provide to the person conducting the activity and to the owner of the property on which the activity occurred, a draft after-the-fact coastal use permit. The secretary shall also cause the draft after-the-fact coastal use permit to be published one time in the official state journal and allow the public time to offer comments on the proposed after-the-fact coastal use permit to the secretary. All comments must be received by the secretary within fifteen calendar days following the date of publication in the state journal. The secretary shall fully consider all comments received and issue a final after-the-fact coastal use permit five days following the end of the public comment period.

Acts 1978, No. 361, §1, eff. Jan. 1, 1979. Acts 1983, No. 705, §4, eff. Sept. 1, 1983; Acts 1993, No. 194, §1.

{{NOTE: SEE ACTS 1989, 2D EX. SESS., NO. 6, §7.}}