HLS 14RS-1293 ORIGINAL
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are additions.
Regular Session, 2014
HOUSE BILL NO. 855
BY REPRESENTATIVE HENRY
COASTAL RESOURCES: Provides relative to the enforcement of the coastal management
program
AN ACT1
To amend and reenact R.S. 49:214.36(D), (J), (K), (L), (M), and (N) and to enact R.S.2
49:214.36(O), relative to the coastal zone management program; to provide relative3
to the initiation or continuation of enforcement actions under the coastal zone4
management program by local governmental subdivision; to provide for a process5
for initiation or continuation of such actions; to provide for the disposition of funds6
collected by such actions; and to provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. R.S. 49:214.36(D), (J), (K), (L), (M), and (N) are hereby amended and9
reenacted and R.S. 49:214.36(O) is hereby enacted to read as follows:10
§214.36. Enforcement; injunction; penalties and fines11
* * *12
D. The secretary, through the attorney general, an appropriate district13
attorney, or a local government governmental subdivision with an approved program,14
may bring such injunctive, declaratory, or other actions as are necessary to ensure15
that no uses are made of the coastal zone for which a coastal use permit has not been16
issued when required or which are not in accordance with the terms and conditions17
of a coastal use permit.18
* * * 19 HLS 14RS-1293 ORIGINAL
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J. Prior to a local governmental subdivision initiating or continuing any1
previously initiated judicial action to enforce any provisions of this Subpart, or rules,2
regulations, or permits issued pursuant thereto, including any judicial actions to3
impose civil liability, assess damages, order the payment of restoration damages,4
require actual restoration, or impose sanctions, a notice of violation describing with5
specificity any alleged violation and the actions required to achieve compliance shall6
be served upon the secretary and the person alleged to be in violation of this Subpart,7
or rules, regulations or permits issued pursuant thereto. Upon receipt of the notice8
of violation, the person alleged to be in violation of this Subpart, or regulations or9
permits issued pursuant thereto, shall have sixty days to submit a response to the10
secretary and the local governmental subdivision. A judicial action by the local11
governmental subdivision to enforce any provisions of this Subpart, or rules,12
regulations or permits issued pursuant thereto, shall not be initiated nor allowed to13
continue until the secretary conducts an investigation, and upon the conclusion of14
such investigation, but not later than one hundred twenty days after issuance of the15
notice of violation, the secretary determines in writing that all of the following are16
true:17
(1) A violation of this Subpart, or rules, regulations or permits, as set forth18
in the notice of violation, has occurred.19
(2) The violation is under the territorial jurisdiction of the local20
governmental subdivision initiating the enforcement action as provided by its21
approved local program.22
(3) The proposed enforcement action by the local governmental subdivision23
is consistent with this Subpart, including the coastal management program24
authorized herein.25
(4) The proposed enforcement action is consistent with the state’s master26
plan for integrated coastal protection.27
(5) The proposed enforcement action is reasonable and appropriate under the28
circumstances.29 HLS 14RS-1293 ORIGINAL
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J. K. The monies collected by the state and local governmental subdivisions1
under the provisions of this Section shall be deposited as follows:2
(1) The monies collected by the secretary for violations relating to use of3
state concern shall be used for the following purposes only in the proportions stated:4
(a) Fifty percent of the monies collected shall be used to reimburse the5
Department of Natural Resources for the cost of enforcing the provisions of this6
Subpart, and shall be deposited in the Coastal Resources Trust Fund, as provided in7
R.S. 49:214.40.8
(b) Twenty-five percent of the monies collected shall be placed in local9
government mitigation banks established in accordance with R.S. 49:214.41 and the10
rules and regulations adopted thereunder. 11
(c) Twenty-five percent of the monies collected shall be placed in the12
Wetlands Conservation and Restoration Fund established in Article 7, Section 10.213
of the Louisiana Constitution.14
(2) The monies collected by the secretary or a local governmental15
subdivision for violations relating to a use of local concern shall be placed in local16
government mitigation banks established in accordance with R.S. 49:214.41 and the17
rules and regulations adopted thereunder. Each local government's mitigation bank18
shall be credited one hundred percent of the monies collected for violations relating19
to a use of local concern occurring within its geographic borders, except that for20
violations occurring within the geographic borders of two or more local governments21
the monies shall be divided on a pro rata basis and deposited accordingly in the local22
government's mitigation banks. In the event there is no local government mitigation23
bank in the parish in which the adverse impact is located, the monies shall be24
deposited in the Wetlands Conservation and Restoration Fund established in Article25
7, Section 10.2 of the Louisiana Constitution, the Coastal Resources Trust Fund, as26
provided in R.S. 49:214.40, and can only be used for mitigation projects within the27
geographic borders of that local government governmental subdivision.28 HLS 14RS-1293 ORIGINAL
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K. L. In determining whether to assess, pursuant to Subsection I of this1
Section, costs or penalties, and the amounts of such assessments, the secretary shall2
consider the following factors:3
(1) The monetary benefits realized by the violator due to the noncompliance.4
(2) The history of previous violations or repeated noncompliance for the last5
five years.6
(3) The nature and gravity of the violation, including the adverse impact on7
the coastal zone.8
(4) The degree of culpability, recalcitrance, defiance, or indifference of the9
violator to the laws, regulations, or orders of the secretary or regulations of the local10
government.11
(5) The cost to the department or state of bringing and prosecuting an12
enforcement action against the violator.13
(6) Whether the person charged has failed to mitigate or to make a14
reasonable attempt to mitigate the damages caused by his noncompliance or15
violation.16
L. M. No penalties or costs shall be assessed without the person charged17
being given notice and an opportunity for an adjudicatory hearing, pursuant to the18
Administrative Procedure Act. The secretary shall appoint an independent hearings19
officer. The person charged may waive the adjudicatory hearing upon payment of20
the amount demanded by the secretary, and will be liable for all costs associated with21
the adjudicatory hearing.22
M. N. Nothing in this Section, shall prohibit any local political subdivision,23
without a local coastal use permit program approved as provided for in R.S.24
49:214.30 from enforcing any ordinance or regulation relating to wetlands protection25
or restoration.26
N. O.(1) In addition to the other enforcement actions authorized by the27
provisions of this Section, for each incident resulting in an administrative penalty28
being assessed, the secretary shall issue an after-the-fact coastal use permit or permit29 HLS 14RS-1293 ORIGINAL
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modification specifying terms and conditions that must be adhered to for the1
unauthorized activity to remain in place. In determining the terms and conditions to2
be placed on the after-the-fact permit, the secretary shall consider the following3
factors:4
(a) The degree to which the activity complies, or fails to comply, with the5
coastal use guidelines.6
(b) The need for compensatory mitigation to be carried out when the activity7
altered wetlands of the coastal zone.8
(c) The need for partial restoration of the site if the coastal use could be9
carried out with lesser impact to coastal waters or wetlands.10
(d) The need for restoration of the site upon abandonment or completion of11
the coastal use.12
(2) Prior to issuing a final after-the-fact permit, the secretary shall provide13
to the person conducting the activity and to the owner of the property on which the14
activity occurred, a draft after-the-fact coastal use permit. The secretary shall also15
cause the draft after-the-fact coastal use permit to be published one time in the16
official state journal and allow the public time to offer comments on the proposed17
after-the-fact coastal use permit to the secretary. All comments must be received by18
the secretary within fifteen calendar days following the date of publication in the19
state journal. The secretary shall fully consider all comments received and issue a20
final after-the-fact coastal use permit five days following the end of the public21
comment period.22
Section 2. This Act shall become effective upon signature by the governor or, if not23
signed by the governor, upon expiration of the time for bills to become law without signature24
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If25
vetoed by the governor and subsequently approved by the legislature, this Act shall become26
effective on the day following such approval.27 HLS 14RS-1293 ORIGINAL
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Henry HB No. 855
Abstract: Provides for a for a process for initiation or continuation of actions by local
governmental subdivisions to initiate or continue actions to enforce the coastal
management program.
Present law creates a coastal zone management program in the Dept. of Natural Resources.
Provides generally for the development of a state program aimed at protecting, developing,
and managing the coastal zone of the state. The program defines the coastal zone and
delineates the types of uses approved for the coastal zone. Further provides for the
development of state and local coastal management plans.
Coastal use permits issued by the Dept. of Natural Resources are used to control the
development and activities in the coastal zone. Present law provides for enforcement of the
coastal use permits (CUP) and the activities permitted under the CUPs.
Present law specifies that the secretary, the attorney general, an appropriate district attorney,
or a local government may bring injunctive, declaratory, or other actions to ensure that only
permitted activities may be conducted in the coastal zone. Proposed law specifies that the
secretary, through the attorney general and a local governmental subdivision, may brig such
actions.
Proposed law also requires that prior to initiating or continuing an action to enforce the
coastal management laws or rules, a local governmental subdivision must serve notice of a
violation, including specific information about the alleged violation, to the secretary of the
Dept. of Natural Resources and the person alleged to be in violation. The person alleged to
be in violation must respond to the secretary and the local governmental subdivision within
60 days. No action may be initiated or continued by the local governmental subdivision until
the secretary conducts an investigation into the allegations, which investigation must be
concluded with in 120 days after the issuance of the notice of violation, and finds that a
violation has occurred, the violator is under the territorial jurisdiction of the local
governmental subdivision desiring to bring action, the enforcement action is consistent with
the coastal management program and the state's master plan for integrated coastal protection,
and the enforcement action is reasonable and appropriate.
Present law provides for monies collected pursuant to enforcement actions taken by the
department to be placed in local government mitigation banks of the parish where the
violation took place or the Wetlands Conservation and Restoration Fund if there is no local
governmental mitigation bank and used only for mitigation projects within the geographic
boundaries of the local government where the violation took place.
Proposed law provides for the funds to be deposited to the Coastal Resources Trust Fund to
by used only for mitigation projects within the geographic boundaries of the local
governmental subdivision where the violation took place.
Effective on signature by governor or lapse of time for gubernatorial action.
(Amends R.S. 49:214.36(D), (J), (K), (L), (M), and (N); Adds R.S. 49:214.36(O))