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Regular Session, 2014
SENATE BILL NO. 469
BY SENATOR ADLEY
COASTAL RESOURCES. Provides relative to the enforcement of the coastal management
program. (gov sig)
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
ยง214.36. 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 approved14
program may bring such injunctive, declaratory, or other actions as are necessary to15
ensure that no uses are made of the coastal zone for which a coastal use permit has16
not been issued when required or which are not in accordance with the terms and17 SB NO. 469
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conditions of a coastal use permit.1
* * *2
J. Prior to a local governmental subdivision initiating or continuing any3
previously initiated judicial action to enforce any provisions of this Subpart, or4
rules, regulations, or permits issued pursuant thereto, including any judicial5
actions to impose civil liability, assess damages, order the payment of6
restoration damages, require actual restoration or impose sanctions, a notice of7
violation describing with specificity any alleged violation and the actions8
required to achieve compliance, shall be served upon the secretary and the9
person alleged to be in violation of this Subpart, or rules, regulations or permits10
issued pursuant thereto. Upon receipt of the notice of violation, the person11
alleged to be in violation of this Subpart, or regulations or permits issued12
pursuant thereto, shall have sixty days to submit a response to the secretary and13
the local governmental subdivision. A judicial action by the local governmental14
subdivision to enforce any provisions of this Subpart, or rules, regulations or15
permits issued pursuant thereto, shall not be initiated nor allowed to continue16
until the secretary conducts an investigation, and upon the conclusion of such17
investigation, but not later than one hundred twenty days after issuance of the18
notice of violation, the secretary determines in writing that all of the following19
are true:20
(1) A violation of this Subpart, or rules, regulations or permits, as set21
forth in the notice of violation, has occurred.22
(2) The violation is under the territorial jurisdiction of the local23
governmental subdivision initiating the enforcement action as provided by its24
approved local program.25
(3) The proposed enforcement action by the local governmental26
subdivision is consistent with this Subpart, including the coastal management27
program authorized herein.28
(4) The proposed enforcement action is consistent with the state's master29 SB NO. 469
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plan for integrated coastal protection.1
(5) The proposed enforcement action is reasonable and appropriate2
under the circumstances.3
J. K. The monies collected by the state and local governmental4
subdivisions under the provisions of this Section shall be deposited as follows:5
(1) The monies collected by the secretary for violations relating to use of6
state concern shall be used for the following purposes only in the proportions stated:7
(a) Fifty percent of the monies collected shall be used to reimburse the8
Department of Natural Resources for the cost of enforcing the provisions of this9
Subpart, and shall be deposited in the Coastal Resources Trust Fund, as provided in10
R.S. 49:214.40.11
(b) Twenty-five percent of the monies collected shall be placed in local12
government mitigation banks established in accordance with R.S. 49:214.41 and the13
rules and regulations adopted thereunder.14
(c) Twenty-five percent of the monies collected shall be placed in the15
Wetlands Conservation and Restoration Fund established in Article 7, Section 10.216
of the Louisiana Constitution.17
(2) The monies collected by the secretary or a local governmental18
subdivision for violations relating to a use of local concern shall be placed in local19
government mitigation banks established in accordance with R.S. 49:214.41 and the20
rules and regulations adopted thereunder. Each local government's mitigation bank21
shall be credited one hundred percent of the monies collected for violations relating22
to a use of local concern occurring within its geographic borders, except that for23
violations occurring within the geographic borders of two or more local governments24
the monies shall be divided on a pro rata basis and deposited accordingly in the local25
government's mitigation banks. In the event there is no local government mitigation26
bank in the parish in which the adverse impact is located, the monies shall be27
deposited in the Wetlands Conservation and Restoration Fund established in Article28
7, Section 10.2 of the Louisiana Constitution, the Coastal Resources Trust Fund,29 SB NO. 469
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as provided in R.S. 49:214.41, and can only be used for mitigation projects within1
the geographic borders of that local government governmental subdivision.2
K. L. In determining whether to assess, pursuant to Subsection I of this3
Section, costs or penalties, and the amounts of such assessments, the secretary shall4
consider the following factors:5
(1) The monetary benefits realized by the violator due to the noncompliance.6
(2) The history of previous violations or repeated noncompliance for the last7
five years.8
(3) The nature and gravity of the violation, including the adverse impact on9
the coastal zone.10
(4) The degree of culpability, recalcitrance, defiance, or indifference of the11
violator to the laws, regulations, or orders of the secretary or regulations of the local12
government.13
(5) The cost to the department or state of bringing and prosecuting an14
enforcement action against the violator.15
(6) Whether the person charged has failed to mitigate or to make a16
reasonable attempt to mitigate the damages caused by his noncompliance or17
violation.18
L. M. No penalties or costs shall be assessed without the person charged19
being given notice and an opportunity for an adjudicatory hearing, pursuant to the20
Administrative Procedure Act. The secretary shall appoint an independent hearings21
officer. The person charged may waive the adjudicatory hearing upon payment of22
the amount demanded by the secretary, and will be liable for all costs associated with23
the adjudicatory hearing.24
M. N. Nothing in this Section, shall prohibit any local political subdivision,25
without a local coastal use permit program approved as provided for in R.S.26
49:214.30 from enforcing any ordinance or regulation relating to wetlands protection27
or restoration.28
N. O.(1) In addition to the other enforcement actions authorized by the29 SB NO. 469
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provisions of this Section, for each incident resulting in an administrative penalty1
being assessed, the secretary shall issue an after-the-fact coastal use permit or permit2
modification specifying terms and conditions that must be adhered to for the3
unauthorized activity to remain in place. In determining the terms and conditions to4
be placed on the after-the-fact permit, the secretary shall consider the following5
factors:6
(a) The degree to which the activity complies, or fails to comply, with the7
coastal use guidelines.8
(b) The need for compensatory mitigation to be carried out when the activity9
altered wetlands of the coastal zone.10
(c) The need for partial restoration of the site if the coastal use could be11
carried out with lesser impact to coastal waters or wetlands.12
(d) The need for restoration of the site upon abandonment or completion of13
the coastal use.14
(2) Prior to issuing a final after-the-fact permit, the secretary shall provide15
to the person conducting the activity and to the owner of the property on which the16
activity occurred, a draft after-the-fact coastal use permit. The secretary shall also17
cause the draft after-the-fact coastal use permit to be published one time in the18
official state journal and allow the public time to offer comments on the proposed19
after-the-fact coastal use permit to the secretary. All comments must be received by20
the secretary within fifteen calendar days following the date of publication in the21
state journal. The secretary shall fully consider all comments received and issue a22
final after-the-fact coastal use permit five days following the end of the public23
comment period.24
Section 2. This Act shall become effective upon signature by the governor or, if not25
signed by the governor, upon expiration of the time for bills to become law without signature26
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If27
vetoed by the governor and subsequently approved by the legislature, this Act shall become28
effective on the day following such approval.29 SB NO. 469
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The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Jerry J. Guillot.
DIGEST
Adley (SB 469)
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 DNR 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 bring 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 DNR secretary
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 within 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 upon signature by governor or lapse of time for gubernatorial action.
(R.S. 49:214.36(D), (J), (K), (L), (M), and (N); adds R.S. 49:214.36(O))