15A NCAC 07J .0409       CIVIL PENALTIES

(a)  Purpose and Scope.  These Rules provide the procedures and standards governing the assessment, remission, settlement and appeal of civil penalties assessed by the Coastal Resources Commission and the Director pursuant to G.S. 113A‑126(d).

(b)  Definitions.  The terms used herein shall be as defined in G.S. 113A‑103 and as follows:

(1)           "Act" means the Coastal Area Management Act of 1974, G.S. 113A‑100 through 134, plus amendments.

(2)           "Delegate" means the Director or other employees of the Division of Coastal Management, or local permit officers to whom the Commission has delegated authority to act in its stead pursuant to this Rule.

(3)           "Director" means the Director, Division of Coastal Management.

(4)           "Respondent" means the person to whom a notice of violation has been issued or against whom a penalty has been assessed.

(5)           "Person" is defined in the Coastal Area Management Act, G.S. 113A-103(9).

(c)  Civil penalties may be assessed against any person who commits a violation as provided for in G.S. 113A‑126(d)(1) and (2).

(d)  Investigative costs.  Pursuant to G.S. 113A-126(d)(4a) the Commission or Director may also assess a respondent for the costs incurred by the Division for investigation, inspection, and monitoring associated with assessment the civil penalty.  Investigative costs shall be in addition to any civil penalty assessed.  For a minor development violation, investigative costs shall not exceed one-half of the amount of the civil penalty assessed or one thousand dollars ($1,000), whichever is less.  For a major development violation, investigative costs shall not exceed one-half of the amount of the civil penalty assessed or two thousand five hundred dollars ($2,500), whichever is less.  The Division shall determine the amount of investigative costs to assess based upon factors including the amount of staff time required for site visits, investigation, enforcement action, interagency coordination, and for monitoring restoration of the site.

(e)  Notice of Violation.  The Commission hereby authorizes employees of the Division of Coastal Management to issue in the name of the Commission notices of violation to any person engaged in an activity which constitutes a violation for which a civil penalty may be assessed.  Such notices shall set forth the nature of the alleged violation, shall order that the illegal activity be ceased and affected resources be restored in accordance with 15A NCAC 07J .0410.  The notice shall specify the time by which the restoration shall be completed as ordered by the Division.   The notice shall be delivered personally or by registered mail, return receipt requested.  

(f)  Civil Penalty Assessment.

(1)           The Commission hereby delegates to the Director the authority to assess civil penalties according to the procedures set forth in Paragraph (g) of this Rule. 

(2)           The Director shall issue a notice of assessment within 30 days after the Division determines that restoration of the adversely impacted resources is complete.

(3)           The notice of assessment shall specify the reason for assessment, how the assessment was calculated, when and where payment shall be made, and shall inform the respondent of the right to appeal the assessment by filing a petition for a contested case hearing with the Office of Administrative Hearings pursuant to G.S. 150B‑23.  The notice shall be delivered personally or by registered mail, return receipt requested.

(g)  Amount of Assessment.

(1)           Civil penalties shall not exceed the maximum amounts established by G.S. 113A‑126(d).

(2)           If any respondent willfully continues to violate by action or inaction any rule or order of the Commission after the date specified in a notice of violation, each day the violation continues or is repeated shall be considered a separate violation as provided in G.S. 113A‑126(d)(2).

(3)           In determining the amount of the penalty, the Commission or Director shall consider the factors contained in G.S. 113A-126(d)(4).

(4)           Pursuant to Subparagraph (g)(3) of this Rule, penalties for major development violations, including violations of permit conditions, shall be assessed in accordance with the following criteria. 

(A)          Major development which could have been permitted under the Commission's rules at the time the notice of violation is issued shall be assessed a penalty equal to two times the relevant CAMA permit application fee, plus investigative costs. 

(B)          Major development which could not have been permitted under the Commission's rules at the time the notice of violation is issued shall be assessed an amount equal to the relevant CAMA permit application fee, plus a penalty pursuant to Schedule A of this Rule, plus investigative costs.  If a violation affects more than one area of environmental concern (AEC) or coastal resource as listed within Schedule A of this Rule, the penalties for each affected AEC shall be combined. Any structure or part of a structure that is constructed in violation of existing Commission rules shall be removed or modified as necessary to bring the structure into compliance with the Commission's rules. 

 

SCHEDULE A

Major Development Violations

 

Size of Violation (sq. ft.)

Area of Environmental Concern Affected

≤ 100

101- 500

501- 1,000

1001- 3000

3001-5000

5001-8000

8001-11,000

11,001-15,000

15,001-20,000

20,001-25,000

>25,000

Estuarine Waters or Public Trust Areas (1)

$250

$375

$500

$1,500

$2,000

$3,500

$5,000

$7,000

$9,000

$10,000

$10,000

 

Primary Nursery Areas

$100

$225

$350

$850

$1,350

$2,850

$4,350

$3,000

$1,000

n/a

n/a

 

Mudflats and Shell Bottom

$100

$225

$350

$850

$1,350

$2,850

$4,350

$3,000

$1,000

n/a

n/a

 

Submerged Aquatic Vegetation

$100

$225

$350

$850

$1,350

$2,850

$4,350

$3,000

$1,000

n/a

n/a

 

Coastal Wetlands

$250

$375

$500

$1,500

$2,000

$3,500

$5,000

$7,000

$9,000

$10,000

$10,000

 

Coastal Shorelines

$250

$350

$450

$850

$1,250

$2,450

$3,650

$5,250

$7,250

$9,250

$10,000

 

Wetlands (2)

$100

$200

$300

$700

$1,100

$2,300

$3,500

$4,750

$2,750

$750

n/a

 

ORW- Adjacent Areas

$100

$200

$300

$700

$1,100

$2,300

$3,500

$4,750

$2,750

$750

n/a

 

Ocean Hazard System (3)(4)

$250

$350

$450

$850

$1,250

$2,450

$3,650

$5,250

$7,250

$9,250

$10,000

Primary or Frontal Dune

$100

$200

$300

$700

$1,100

$2,300

$3,500

$4,750

$2,750

$750

n/a

 

Public Water Supplies (5)

$250

$350

$450

$850

$1,250

$2,450

$3,650

$5,250

$7,250

$9,250

$10,000

 

Natural and Cultural Resource Areas (6)

$250

$350

$450

$850

$1,250

$2,450

$3,650

$5,250

$7,250

$9,250

$10,000

(1)           Includes the Atlantic Ocean from the normal high water mark to three miles offshore.

(2)           Wetlands that are jurisdictional by the Federal Clean Water Act.

(3)           If the AEC physically overlaps another AEC, use the greater penalty schedule.

(4)           Includes the Ocean Erodible, High Hazard Flood Area, Inlet Hazard Area, and Unvegetated Beach Area.

(5)           Includes Small Surface Water Supply, Watershed and Public Water Supply Well Fields.

(6)           Includes Coastal Complex Natural Areas, Coastal Areas Sustaining Remnant Species, Unique Geological Formations, Significant Coastal Archaeological Resources, and Significant Coastal Historical Architectural Resources.

(C)          Assessments for violations by public agencies (i.e. towns, counties and state agencies) shall be determined in accordance with Parts (g)(4)(A) and (B) of this Rule.

(D)          Willful and intentional violations. The penalty assessed under  Parts (g)(4)(A) and (B) of this Rule shall be doubled for willful and intentional violations except that the doubled penalties assessed under this Subparagraph shall not exceed ten thousand dollars ($10,000) or be less than two thousand dollars ($2,000) for each separate violation.  A violation shall be considered to be willful and intentional when:

(i)            The person received written instructions from one of the Commission's delegates that a permit would be required for the development and subsequently undertook development without a permit; or

(ii)           The person received written instructions from one of the Commission's delegates that the proposed development was not permissible under the Commission's rules, or received denial of a permit application for the proposed activity, and subsequently undertook the development without a permit; or

(iii)          The person committed previous violations of the Commission's rules; or

(iv)          The person refused or failed to restore a damaged area as ordered by one of the Commission's delegates.  If necessary, the Commission or Division shall seek a court order to require restoration. 

(E)           Assessments against contractors.  Any contractor or subcontractor or person or group functioning as a contractor shall be subject to a notice of violation and assessment of a civil penalty in accordance with Paragraph (f) of this Rule.  Such penalty shall be in addition to that assessed against the landowner.  When a penalty is being doubled pursuant to Part (g)(4)(D) and the element of willfulness is present only on the part of the contractor, the landowner shall be assessed the standard penalty and the contractor shall be assessed the doubled penalty.

(F)           Continuing violations.

(i)            Pursuant to G.S. 113A-126(d)(2), each day that the violation continues after the date specified in the notice of violation for the unauthorized activity to cease or restoration to be completed shall be considered a separate violation and shall be assessed an additional penalty.

(ii)           Refusal or failure to restore a damaged area as ordered shall be considered a continuing violation and shall be assessed an additional penalty. When resources continue to be affected by the violation, the amount of the penalty shall be determined according to Part (g)(4)(B) of this Rule.  The continuing penalty period shall be calculated from the date specified in the notice of violation for the unauthorized activity to cease or restoration to be completed and run until:

(I)            the Division's order is satisfied, or

(II)          the respondent enters into good faith negotiations with the Division, or

(III)        the respondent contests the Division's order in a judicial proceeding by raising a justiciable issue of law or fact therein.

The continuing penalty period shall resume if the respondent terminates negotiations without reaching an agreement with the Division, fails to comply with court ordered restoration, or fails to meet a deadline for restoration that was negotiated with the Division.

(5)           Pursuant to Subparagraph (g)(3) of this Rule, civil penalties for minor development violations, including violations of permit conditions, shall be assessed in accordance with the following criteria:

(A)          Minor development which could have been permitted under the Commission's rules at the time the notice of violation is issued shall be assessed a penalty equal to two times the relevant CAMA permit application fee, plus investigative costs. 

(B)          Minor development which could not have been permitted under the Commission's rules at the time the notice of violation is issued shall be assessed an amount equal to the relevant CAMA permit application fee, plus a penalty pursuant to Schedule B of this Rule, plus investigative costs. If a violation affects more than one area of environmental concern (AEC) or coastal resource as listed within Schedule B of this Rule, the penalties for each affected AEC shall be combined.   Any structure or part of a structure that is constructed in violation of existing Commission rules shall be removed or modified as necessary to bring the structure into compliance with the Commission's rules.

 

SCHEDULE B

Minor Development Violations

 

Size of Violation (sq. ft.)

Area of Environmental Concern Affected

≤ 100

101- 500

501- 1,000

1001- 3000

3001-5000

5001-8000

8001-11,000

11,001-15,000

15,001-20,000

20,001-25,000

>25,000

Coastal Shorelines

$225

$250

$275

$325

$375

$450

$525

$625

$750

$875

$1,000

 

ORW- Adjacent Areas

$125

$150

$175

$225

$275

$350

$425

$375

$250

$125

n/a

 

Ocean Hazard System (1)(2)

$225

$250

$275

$325

$375

$450

$525

$625

$750

$875

$1,000

Primary or Frontal Dune

$125

$150

$175

$225

$275

$350

$425

$375

$250

$125

n/a

 

Public Water Supplies (3)

$225

$250

$275

$325

$375

$450

$525

$625

$750

$875

$1,000

 

Natural and Cultural Resource Areas (4)

$225

$250

$275

$325

$375

$450

$525

$625

$750

$875

$1,000

(1)           Includes the Ocean Erodible, High Hazard Flood Area, Inlet Hazard Area, and Unvegetated Beach Area.

(2)           If the AEC physically overlaps another AEC, use the greater penalty schedule.

(3)           Includes Small Surface Water Supply, Watershed and Public Water Supply Well Fields.

(4)           Includes Coastal Complex Natural Areas, Coastal Areas Sustaining Remnant Species, Unique Geological Formations, Significant Coastal Archaeological Resources, and Significant Coastal Historical Architectural Resources.

(C)          Violations by public agencies (e.g. towns, counties and state agencies) shall be handled by the local permit officer or one of the Commission's delegates within their respective jurisdictions except that in no case shall a local permit officer handle a violation committed by the local government they represent.  Penalties shall be assessed in accordance with Parts (g)(5)(A) and (B) of this Rule.

(D)          Willful and intentional violations.  The penalty assessed under Parts (g)(5)(A) and (B) of this Rule shall be doubled for willful and intentional violations except that the doubled penalties assessed under this Subparagraph shall not exceed one thousand dollars ($1,000.00) for each separate violation.  A violation shall be considered to be willful and intentional when:

(i)            The person received written instructions from the local permit officer or one of the Commission's delegates that a permit would be required for the development and subsequently undertook development without a permit; or

(ii)           The person received written instructions from the local permit officer or one of the Commission's delegates that the proposed development was not permissible under the Commission's rules, or received denial of a permit application for the proposed activity, and subsequently undertook the development without a permit; or

(iii)          The person committed previous violations of the Commission's rules; or

(iv)          The person refused or failed to restore a damaged area as ordered by the local permit officer or one of the Commission's delegates.  If necessary, a court order shall be sought to require restoration.

(E)           Assessments against contractors.  Any contractor or subcontractor or person or group functioning as a contractor shall be subject to a notice of violation and assessment of a civil penalty in accordance with Paragraph (f) of this Rule.  Such penalty shall be in addition to that assessed against the landowner.  When a penalty is being doubled pursuant to Part (g)(5)(D) and the element of willfulness is present only on the part of the contractor, the landowner shall be assessed the standard penalty and the contractor shall be assessed the doubled penalty.

(F)           Continuing violations.

(i)            Pursuant to G.S. 113A-126(d)(2), each day that the violation continues after the date specified in the notice of violation for the unauthorized activity to cease and restoration to be completed shall be considered a separate violation and shall be assessed an additional penalty.

(ii)           Refusal or failure to restore a damaged area as ordered shall be considered a continuing violation and shall be assessed an additional penalty.  The amount of the penalty shall be determined according to Part (g)(5)(B) of this Rule.  The continuing penalty period shall be calculated from the date specified in the notice of violation for the unauthorized activity to cease and restoration to be completed and run until:

(I)            the Commission delegate's order is satisfied, or

(II)          the respondent enters into good faith negotiations with the local permit officer or the Division, or

(III)        the respondent contests the local permit officer's or the Division's order in a judicial proceeding by raising a justiciable issue of law or fact therein.

The continuing penalty period shall resume if the respondent terminates negotiations without reaching an agreement with the local permit officer or the Division, fails to comply with court ordered restoration, or fails to meet a deadline for restoration that was negotiated with the local permit officer or the Division.

(h)  Hearings and Final Assessment.  Final decisions in contested case hearings concerning assessments shall be made by the Commission.  The final decision shall be based on evidence in the official record of the contested case hearing, the administrative law judge's recommended decision, any exceptions filed by the parties and oral arguments.  Oral arguments shall be limited to the facts in the official record.

(i)  Referral.  If any civil penalty as finally assessed is not paid, the Director on behalf of the Commission shall request the Attorney General to commence an action to recover the amount of the assessment.

(j)  Reports to the Commission.  Action taken by the Director shall be reported to the Commission at the next meeting.  Such reports shall include information on the following:

(1)           respondent(s) against whom penalties have been assessed;

(2)           respondent(s) who have paid a penalty, requested remission, or requested an administrative hearing;

(3)           respondent(s) who have failed to pay; and

(4)           cases referred to the Attorney General for collection.

(k)  Settlements.  The Commission hereby delegates to the Director the authority to enter into a settlement of a civil penalty appeal at any time prior to decision in an administrative contested case hearing.  Such settlements shall not require the approval of the Commission and shall not be considered a final Commission decision for purposes of G.S. 113A‑123. 

(l)  Any settlement agreement proposed subsequent to a final Commission decision in the contested case shall be submitted to the Commission for approval.

 

History Note:        Authority G.S. 113A‑124; 113A‑126(d);

Eff. January 24, 1980;

ARRC Objection August 18, 1988;

Amended Eff. January 1, 1989; November 1, 1986; November 1, 1984;

ARRC Objection Lodged Eff. January 18, 1991;

Amended Eff. February 1, 2008; July 1, 1991; June 1, 1991.