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S1480..........................................by RESOURCES AND ENVIRONMENT
WATER RESOURCES DEPARTMENT - Amends, repeals and adds to existing law
relating to enforcement authorities of the Department of Water Resources;
to provide statutory references to provide that the director of the
department may commence administrative enforcement actions for violations
by issuing a written notice of violation; to delete existing language
regarding notice, compliance conferences, civil enforcement, penalties and
limitations; to repeal sections dealing with enforcement; and to provide
authority to commence enforcement actions, to provide for notice, to
provide for responses, to provide for compliance conferences, to provide
for consent orders, to provide for civil enforcement through the attorney
general, to provide that the authority of designated persons to issue
citations or orders is not diminished, to provide for injunctions, to
provide that allegations or proof of irreparable damage is not required,
to provide penalties, to provide that the ability to pursue civil actions
and obtain damages is not impaired and to provide that the Attorney General
shall institute and prosecute civil enforcement actions upon request of the
director.
02/16 Senate intro - 1st rdg - to printing
02/17 Rpt prt - to Res/Env
03/03 Rpt out - rec d/p - to 2nd rdg
03/04 2nd rdg - to 3rd rdg
03/06 3rd rdg - PASSED - 27-0-8
AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
Darrington, Deide, Frasure, Geddes, Hansen, Ingram, Keough, King,
Lee, McLaughlin, Noh, Parry, Richardson, Risch, Sandy, Schroeder,
Sorensen, Stennett, Sweeney, Twiggs, Whitworth
NAYS--None
Absent and excused--Branch, Danielson, Dunklin, Hawkins, Ipsen,
Riggs, Thorne, Wheeler
Floor Sponsor - Noh
Title apvd - to House
03/09 House intro - 1st rdg - to Res/Con
03/13 Rpt out - rec d/p - to 2nd rdg
03/16 2nd rdg - to 3rd rdg
03/17 3rd rdg - PASSED - 68-0-2
AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Bivens,
Black(15), Black(23), Boe, Bruneel, Callister, Campbell, Chase,
Clark, Crane, Cuddy, Deal, Denney, Ellsworth, Field(13), Field(20),
Gagner, Geddes, Gould, Hadley, Henbest, Hornbeck, Jaquet, Jones(9),
Jones(22), Jones(20), Judd, Kellogg, Kempton, Kendell, Kjellander,
Kunz, Lake, Linford, Loertscher, Mader, Marley, McKague, Meyer,
Miller, Mortensen, Newcomb, Pischner, Pomeroy, Reynolds, Richman,
Ridinger, Robison, Sali, Schaefer, Stevenson, Stoicheff, Stone,
Stubbs, Taylor, Tilman, Tippets, Trail, Watson, Wheeler, Wood,
Zimmermann, Mr Speaker
NAYS -- None
Absent and excused -- Crow, Hansen
Floor Sponsor - Bell
Title apvd - to Senate
03/18 To enrol
03/19 Rpt enrol - Pres signed - Sp signed
03/20 To Governor - Governor signed
Session Law Chapter 173
Effective: 07/01/98
S1480|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE SENATE SENATE BILL NO. 1480 BY RESOURCES AND ENVIRONMENT COMMITTEE 1 AN ACT 2 RELATING TO ENFORCEMENT AUTHORITIES OF THE DEPARTMENT OF WATER RESOURCES; 3 AMENDING SECTION 42-235, IDAHO CODE, TO PROVIDE A STATUTORY REFERENCE; 4 AMENDING SECTION 42-238, IDAHO CODE, TO PROVIDE THAT THE DIRECTOR OF THE 5 DEPARTMENT OF WATER RESOURCES MAY COMMENCE AN ADMINISTRATIVE ENFORCEMENT 6 ACTION FOR SUBSTANTIAL VIOLATIONS BY ISSUING A WRITTEN NOTICE OF VIOLA- 7 TION, TO DELETE A CIVIL PENALTY AND TO PROVIDE A STATUTORY REFERENCE, TO 8 PROVIDE THAT CERTAIN PEOPLE WILL BE SUBJECT TO ENFORCEMENT ACTIONS AND TO 9 MAKE TECHNICAL CORRECTIONS; REPEALING SECTION 42-238b, IDAHO CODE; AMEND- 10 ING SECTION 42-351, IDAHO CODE, TO PROVIDE THAT THE DIRECTOR MAY ISSUE A 11 WRITTEN NOTICE OF VIOLATION FOR ILLEGAL DIVERSION OR USE OF WATER AND TO 12 DELETE LANGUAGE REGARDING NOTICE, COMPLIANCE CONFERENCES, CIVIL ENFORCE- 13 MENT, PENALTIES, AND LIMITATIONS; REPEALING SECTION 42-352, IDAHO CODE; 14 AMENDING SECTION 42-701, IDAHO CODE, TO PROVIDE A STATUTORY REFERENCE AND 15 TO PROVIDE THAT THE DIRECTOR OF THE DEPARTMENT MAY COMMENCE AN ADMINISTRA- 16 TIVE ENFORCEMENT ACTION FOR SUBSTANTIAL VIOLATIONS BY ISSUING A WRITTEN 17 NOTICE OF VIOLATION; AMENDING SECTION 42-1605, IDAHO CODE, TO PROVIDE THAT 18 THE DIRECTOR OF THE DEPARTMENT MAY COMMENCE AN ADMINISTRATIVE ENFORCEMENT 19 ACTION FOR SUBSTANTIAL VIOLATIONS BY ISSUING A WRITTEN NOTICE OF VIOLATION 20 AND TO DELETE LANGUAGE REGARDING NOTICE, REPORTS OF CORRECTIVE ACTION, 21 CONTESTED VIOLATIONS, CIVIL PENALTIES AND JUDICIAL REVIEW; AMENDING CHAP- 22 TER 17, TITLE 42, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 42-1701B, 23 IDAHO CODE, TO PROVIDE AUTHORITY TO COMMENCE ENFORCEMENT ACTIONS, TO PRO- 24 VIDE FOR NOTICE, TO PROVIDE FOR RESPONSES, TO PROVIDE FOR COMPLIANCE CON- 25 FERENCES, TO PROVIDE FOR CONSENT ORDERS, TO PROVIDE FOR CIVIL ENFORCEMENT 26 THROUGH THE ATTORNEY GENERAL, TO PROVIDE THAT THE AUTHORITY OF DESIGNATED 27 PERSONS TO ISSUE CITATIONS OR ORDERS IS NOT DIMINISHED, TO PROVIDE FOR 28 INJUNCTIONS, TO PROVIDE THAT ALLEGATIONS OR PROOF OF IRREPARABLE DAMAGE IS 29 NOT REQUIRED, TO PROVIDE PENALTIES, TO PROVIDE THAT THE ABILITY TO PURSUE 30 CIVIL ACTIONS AND OBTAIN DAMAGES IS NOT IMPAIRED AND TO PROVIDE THAT THE 31 ATTORNEY GENERAL SHALL INSTITUTE AND PROSECUTE CIVIL ENFORCEMENT ACTIONS 32 UPON REQUEST OF THE DIRECTOR; AMENDING SECTION 42-1720, IDAHO CODE, TO 33 PROVIDE THAT THE DIRECTOR OF THE DEPARTMENT MAY COMMENCE AN ADMINISTRATIVE 34 ENFORCEMENT ACTION FOR SUBSTANTIAL VIOLATIONS BY ISSUING A WRITTEN NOTICE 35 OF VIOLATION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 42-3809, 36 IDAHO CODE, TO PROVIDE THAT THE DIRECTOR OF THE DEPARTMENT MAY COMMENCE AN 37 ADMINISTRATIVE ENFORCEMENT ACTION FOR SUBSTANTIAL VIOLATIONS BY ISSUING A 38 WRITTEN NOTICE OF VIOLATION; REPEALING SECTION 42-3813, IDAHO CODE; AMEND- 39 ING SECTION 42-3916, IDAHO CODE, TO PROVIDE THAT THE DIRECTOR OF THE 40 DEPARTMENT MAY COMMENCE AN ADMINISTRATIVE ENFORCEMENT ACTION FOR SUBSTAN- 41 TIAL VIOLATIONS BY ISSUING A WRITTEN NOTICE OF VIOLATION; AMENDING SECTION 42 42-4010, IDAHO CODE, TO PROVIDE THAT THE DIRECTOR OF THE DEPARTMENT MAY 43 COMMENCE AN ADMINISTRATIVE ENFORCEMENT ACTION FOR SUBSTANTIAL VIOLATIONS 44 BY ISSUING A WRITTEN NOTICE OF VIOLATION AND TO MAKE A TECHNICAL CORREC- 45 TION; AND AMENDING SECTION 42-5244, IDAHO CODE, TO PROVIDE A CORRECT CITA- 46 TION AND TO MAKE A TECHNICAL CORRECTION. 2 1 Be It Enacted by the Legislature of the State of Idaho: 2 SECTION 1. That Section 42-235, Idaho Code, be, and the same is hereby 3 amended to read as follows: 4 42-235. DRILLING PERMITS. Prior to beginning construction of any well, or 5 changing the construction of any well, the driller or well owner shall obtain 6 a permit from the director of the department of water resources to protect the 7 public health, safety and welfare and the environment, and to prevent the 8 waste of water or mixture of water from different aquifers. There shall be a 9 seventy-five dollar ($75.00) charge for the permit if the well is to be used 10 for domestic or monitoring purposes. If the well is to be used for other than 11 domestic or monitoring purposes, the charge for the permit shall be two hun- 12 dred dollars ($200). All moneys received pursuant to this section shall be 13 credited to the water administration account. The director may provide a blan- 14 ket drilling permit for site specific monitoring programs which will determine 15 the quality, quantity, temperature, pressure or other attributes of aquifers. 16 The application for a blanket permit shall include a design proposal prepared 17 by a licensed engineer or licensed geologist which shall describe the overall 18 drilling program and all relevant technical features of the wells to the sat- 19 isfaction of the director. Progress reports, completion and other data may be 20 required as provided by rule. The fee for the blanket permit shall be one hun- 21 dred dollars ($100) plus an additional fifty dollars ($50.00) per well. A 22 driller or well owner violating any provision of this section shall be guilty 23 of a misdemeanor and shall also be subject to the enforcement procedures of 24 section 42-238b1701B , Idaho Code. 25 SECTION 2. That Section 42-238, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 42-238. WELL DRILLERS' LICENSES AND OPERATOR PERMITS. (1) The director of 28 the department of water resources is hereby vested with the duties relating to 29 the licensing of well drillers and operators of well drilling equipment as 30 provided for in this act so as to protect the ground water resources against 31 waste and contamination. Qualifications for well drillers and operators of 32 well drilling equipment shall be adopted by rule of the water resource board. 33 (2) It shall be unlawful for any person to drill a well in Idaho, includ- 34 ing wells excepted under sections 42-227 and 42-228, Idaho Code, without first 35 complying with the provisions of this chapter. It shall be unlawful for any 36 person to abandon a well in Idaho without first obtaining a driller's license 37 or receiving a waiver of the license requirement from the director of the 38 department of water resources. Authorization is required from the director 39 prior to the abandonment and the person abandoning the well shall submit to 40 the director a report describing the abandonment. 41 (3) For the purpose of this act, a "person" shall be defined as any indi- 42 vidual who drills or abandons any well for himself or another in this state; 43 it shall also be defined as any firm, copartnership, corporation or associa- 44 tion which drills or abandons, or contracts to drill or abandon any well for 45 hire or otherwise in this state. 46 (4) A driller's license shall be obtained by filing with the director an 47 application in writing on a form provided by the director accompanied by a two 48 hundred dollar ($200) application fee. 49 (5) The director shall require that an applicant for a driller's license 50 successfully pass a written or oral examination, and be required to submit 51 references and other detailed information describing past drilling experience 3 1 to allow the director to determine if the applicant is qualified to drill 2 wells in the state. 3 (6) The water resource board shall adopt rules for licensing and renewal 4 of licenses of well drillers in compliance with chapter 52, title 67, Idaho 5 Code. The board is authorized toadoptedadopt rules 6 on professional responsibility and continuing education requirements, not to 7 exceed twenty (20) hours during each licensing period. Notwithstanding other 8 provisions of this chapter, the director may refuse to issue or renew a 9 driller's license permanently or for a designated period of time if the 10 driller has previously constructed wells improperly or constructed a well 11 without a valid driller's license. The rules may also allow for the director 12 to issue a license with limitations on the type, size or depth of wells the 13 applicant is authorized to construct. A copy of the proposed rules for licens- 14 ing of well drillers shall be furnished to each well driller holding a current 15 license at the time such proposed rules are promulgated or modified. The rules 16 shall provide for the consideration of such factors as the applicant's: 17 (a) Knowledge of Idaho water laws and the rules of the water resource 18 board in connection with the drilling of wells including proper well con- 19 struction standards and procedures; 20 (b) Knowledge of the various types of drilling tools and their use; 21 (c) General knowledge of underground geology and ground water hydrology 22 and their relation to well construction; 23 (d) Ownership or access to equipment capable of adequately constructing a 24 well; 25 (e) Knowledge of types of well casing and their use; 26 (f) Knowledge of special well drilling problems and their solution, 27 including additional requirements for licensing for drillers who construct 28 wells in areas of drilling concern or for the production of low tempera- 29 ture geothermal resources as defined in section 42-233, Idaho Code, and 30 for the production of geothermal resources as provided in chapter 40, 31 title 42, Idaho Code; 32 (g) Previous drilling experience; and 33 (h) History of compliance with well drilling laws and rules. 34 (7) If it is determined that the applicant for a driller's license is not 35 qualified, the director shall deny the application. If it is determined that 36 the applicant is qualified, a license shall be issued upon the filing with the 37 director of a surety bond or cash bond in the penal sum of not less than five 38 thousand dollars ($5,000), or more than twenty thousand dollars ($20,000) as 39 determined by the director based on the applicant's history of compliance with 40 well drilling laws and rules, the size and depth of the wells the applicant 41 proposes to drill, the complexity of the wells, the resource to be recovered, 42 the area of operation of the applicant, and other relevant factors the direc- 43 tor determines are in the public interest. The surety or cash bond shall be 44 conditioned upon the proper compliance with the provisions of this chapter, 45 chapter 40, title 42, Idaho Code, and rules promulgated pursuant thereto. Such 46 bond shall be made payable to the director. 47 (8) Employees of drilling firms, copartnerships, corporations or associa- 48 tions are authorized to operate drilling equipment for the driller after 49 obtaining an operator's permit from the director. Such employees shall be des- 50 ignated as operators. 51 (a) A driller is responsible for adequate supervision of the operators 52 during the construction of each well. A driller shall be responsible for 53 the work of the operators employed by the driller. 54 (b) An operator shall only operate drilling equipment for the driller 55 listed on the operator's permit. 4 1 (c) An operator's permit shall be obtained by filing with the director an 2 application in writing on a form provided by the director accompanied by a 3 twenty-five dollar ($25.00) application fee. 4 (d) The applicant for an operator's permit shall successfully complete a 5 written or oral examination. 6 (e) The water resource board shall adopt rules for the issuance, revoca- 7 tion and renewal of an operator's permit in accordance with chapter 52, 8 title 67, Idaho Code. The board is also authorized to adopt rules on pro- 9 fessional responsibility and continuing education requirements not to 10 exceed twenty (20) hours during each permitting period. The rules shall 11 consider such factors as: 12 (i) Knowledge of Idaho water laws and the rules of the water 13 resource board in connection with the drilling of wells; 14 (ii) Demonstrated previous compliance with well drilling laws and 15 rules including well construction standards; and 16 (iii) General understanding of well drilling equipment, well con- 17 struction techniques, basic geology and map reading. 18 (9) Driller's licenses and operator's permits issued under this section 19 shall expire on March 31 in the second year after issuance or upon revocation 20 of the license by the director as provided for in this act. The driller's 21 license can be renewed effective April 1 of every other year upon written 22 application on forms provided by the director and the filing of a one hundred 23 dollar ($100) renewal fee plus a fifteen dollar ($15.00) renewal fee for each 24 operator employed by the licensed driller. Drillers renewing licenses in 1997 25 shall be assessed a licensing fee prorated monthly based upon the annual fee 26 schedule. Thereafter, driller licenses and operator permits will be renewed 27 upon expiration for a two (2) year period. Documents demonstrating compliance 28 with the continuing education requirements of the rules shall be submitted to 29 the director along with other license and permit renewal documents. The 30 renewal request must be accompanied by a new bond or evidence that the previ- 31 ous bond is still in effect. The renewal may then be granted by the director 32 if he determines that the driller or operator has complied with the rules pro- 33 mulgated pursuant to this act. The fees collected for the licensing of well 34 drillers and permitting of operators are nonrefundable and shall be deposited 35 in the water administration fund with the state treasurer with other fees col- 36 lected by the director. 37 (10) The licensed driller and permitted operators shall have a card on 38 hand, provided by the director to indicate that the driller or operator is 39 presently licensed or permitted at all times when he is operating the drilling 40 equipment. The director may also require other identification to be posted on 41 the drilling equipment as he deems helpful in the administration of this act. 42 (11) Well driller's report. In order to enable a comprehensive survey of 43 the extent and occurrence of the state's ground water resource, every well 44 driller is hereby required to keep available for inspection at the well site a 45 daily well log and pertinent data concerning each well, and its construction 46 or abandonment, that is constructed or abandoned under the driller's direction 47 in Idaho, including wells excepted under sections 42-227 and 42-228, Idaho 48 Code, and complete a report on forms furnished by the director. These reports 49 shall be properly prepared and signed by the driller and deposited with the 50 director within thirty (30) days following the completion of the well. When 51 the driller signs the report, the driller shall attest that all information on 52 the report is accurate to the best of the driller's knowledge and that the 53 driller has met all minimum well construction standards, low temperature geo- 54 thermal resource well construction standards, geothermal resource well con- 55 struction standards and area of drilling concern standards as adopted by the 5 1 water resource board. The reports shall become a permanent record in the 2 office of the director for hydrologic and geologic analysis and research, and 3 shall be available for public use. The report shall include such data as the 4 director deems necessary to provide the information that will be valuable for 5 future reference and study. 6 (12) Well construction standards. The water resource board shall adopt 7 minimum standards for new well construction, modification and abandonment of 8 existing wells, low temperature geothermal resource well construction and geo- 9 thermal well construction in this state under the provisions of chapter 52, 10 title 67, Idaho Code. Such standards shall require each well to be so con- 11 structed as to protect the ground water of the state from waste and contamina- 12 tion and may include additional requirements for wells drilled in "areas of 13 drilling concern" as designated in accordance with subsection (15) of this 14 section. Every licensed well driller will be furnished a copy of the adopted 15 standards by the director, and will be required to construct or abandon each 16 well in compliance with the adopted standards. 17 (13) Penalties for violation. Drilling of a well without first obtaining a 18 license as required in this section shall be a criminal misdemeanor, and the 19 employees of the department of water resources are hereby empowered to issue 20 Idaho uniform citations, as provided by the rules of the court for 21 magistrate ' s division of the district court, to any person who 22 drills a well without first obtaining the required license. When the 23 director of the department of water resources determines that any person is in 24 substantial violation of any provision of this section or any rule, permit, 25 condition of approval or order issued or promulgated pursuant to this section, 26 the director may commence an administrative enforcement action by issuing a 27 written notice of violation in accordance with the provisions of section 28 42-1701B, Idaho Code. Failure of the driller to comply with the provi- 29 sions of section 42-238(11), Idaho Code, will allow the director to proceed to 30 collect the necessary data on the well or wells in any manner available to 31 him, and the cost of this data collection may be charged against the driller's 32 bond in the amount of the expenses incurred up to the total amount of the 33 bond. 34 (a) Failure of the driller to comply with the provisions of section 35 42-238(11), Idaho Code, is also cause for the director to revoke an active 36 license, or refuse to renew a license, until such time as the well 37 driller's report or reports are properly completed and on file in the 38 office of the director. If it is found that a driller has intentionally 39 submitted inaccurate or false information in the signed well driller's 40 report as provided in subsection (11) of this section, or has failed to 41 file a report within the time frame required, the driller shall be liable 42 for a civil penaltynot in excess of ten thousand dollars ($10,000)43which shall be paid into the water administration accountas 44 provided in section 42-1701B, Idaho Code . In addition, this shall 45 be cause for the director to suspend an active license for a period not in 46 excess of one (1) year or to not renew a license. 47 (b) Failure of the driller to comply with the provisions of section 48 42-238(12), Idaho Code, will allow the director to proceed to repair, 49 reconstruct or abandon a well so that it complies with the adopted minimum 50 standards of well construction and abandonment, and the costs of this work 51 may be charged against the driller's bond in the amount of the expenses 52 incurred up to the total amount of the bond. 53 (c) Failure of the driller to comply with the provisions of section 54 42-238(12), Idaho Code, is also cause for the director to revoke an active 55 license or refuse to renew a license until such time as the well driller 6 1 has repaired or reconstructed the well or wells so that they meet the 2 adopted minimum standards. Any driller, well owner or well pump 3 installer causing a well to be altered or modified so as to not meet the 4 construction standards provided for under this section, shall be deemed to 5 have violated the provisions of this section and shall be subject to the 6 enforcement provisions of section 42-1701B, Idaho Code. The direc- 7 tor may also require that the well driller present evidence to show that 8 he and his equipment are now capable of constructing a well in a proper 9 manner, before the license is renewed. 10 (14) Appeals. Refusal to issue, refusal to renew, or revocation of a well 11 driller's license or operator's permit by the director shall be cause for the 12 well driller to seek a public hearing before the water resource board. No for- 13 mal petition shall be required from the affected driller or operator, but a 14 simple statement, in writing, requesting a hearing shall be sufficient. The 15 board shall notify the driller or operator, and the director, of the date set 16 for the hearing, which shall be at least fifteen (15) days after the notice is 17 sent by certified mail to the well driller or operator at his address of 18 record with the department. A certified transcript of the proceedings and the 19 evidence received at such hearing shall be maintained by the board. The board 20 shall affirm, modify or reject the director's decision, and make its decision 21 in the form of an order to the director. The hearing shall be conducted in 22 accordance with chapter 52, title 67, Idaho Code, and rules of practice and 23 procedure adopted by the water resource board. Any party to the hearing may 24 seek judicial review of any final order of the water resource board pursuant 25 to chapter 52, title 67, Idaho Code. 26 (15) Drilling in a designated "area of drilling concern . 27 ".The director of the department of water resources may 28 designate as he determines necessary, "areas of drilling concern" on an aqui- 29 fer by aquifer basis within which drillers must comply with the additional 30 requirements of this section. The director shall designate "areas of drilling 31 concern" to protect public health and to prevent waste or contamination of 32 ground or surface water because of factors such as aquifer pressure, vertical 33 depth of the aquifer, warm or hot ground water, or contaminated ground or sur- 34 face waters. It is unlawful for any person not meeting the requirements of 35 this subsection to drill a well for any purpose in a designated "area of 36 drilling concern . ".Any person drilling a new well 37 or deepening or modifying an existing well for any purpose in an "area of 38 drilling concern" as designated by the director as herein provided shall com- 39 ply with the following additional requirements: 40 (a) Additional bonding requirements, as determined by the director, to 41 insure that the well is constructed or abandoned in compliance with the 42 adopted standards for well construction. 43 (b) Additional experience and knowledge in drilling wells encountering 44 warm water or pressurized aquifers as required by rules adopted by the 45 water resource board. 46 (c) Document that specialized equipment needed to drill wells in "areas 47 of drilling concern," as determined by the director, is or will be avail- 48 able to the driller. 49 (d) Provide a notice of intent to drill, deepen or modify a well, submit 50 plans and specifications for the well and a description of the drilling 51 methods that will be used, as required by the director, and receive the 52 written approval of the director before commencing to drill, deepen, or 53 modify any well in a designated "area of drilling concern . 54 ".55 Prior to designating an "area of drilling concern," the director shall 7 1 conduct a public hearing in or near the area to determine the public interest 2 concerning the designation. Notice of the hearing shall be published in two 3 (2) consecutive weekly issues of a newspaper of general circulation in the 4 area prior to the date set for hearing. 5 In the event an area has been designated as an "area of drilling concern" 6 and the director of the department of water resources desires to remove such 7 designation or modify the boundaries thereof, he shall likewise conduct a pub- 8 lic hearing following similar publication of notice prior to taking such 9 action. 10 SECTION 3. That Section 42-238b, Idaho Code, be, and the same is hereby 11 repealed. 12 SECTION 4. That Section 42-351, Idaho Code, be, and the same is hereby 13 amended to read as follows: 14 42-351. ILLEGAL DIVERSION OR USE OF WATER -- ENFORCEMENT PROCEDURE 15 -- INJUNCTIVE RELIEF .-- ADMINISTRATIVE ENFORCEMENT16ACTION.(1) If the director of the department of water resources finds, 17 on the basis of available information, that a person is diverting water or has 18 diverted water from a natural watercourse or from a ground water source with- 19 out having obtained a valid water right to do so or is applying water or has 20 applied water not in conformance with a valid water right, then the director 21 of the department of water resources shall have the discretion totake22action against such personissue a written notice of violation to 23 the person in accordance with the provisions of section 42-1701B, Idaho Code, 24 for the illegal diversion or use of water . Notwithstanding the 25 issuance of a notice of violation, tThe director may 26 also file an action seeking injunctive reliefor may commence an27administrative enforcement action by issuing the person a written notice of28violationdirecting the person to cease and desist the activity or 29 activities alleged to be in violation of applicable law or any existing water 30 right.The notice of violation shall be served upon the alleged violator31in person or by certified mail. The notice of violation shall identify the32alleged violation and specify whether that person is diverting water or has33diverted water without a water right or is applying water or has applied water34not in conformance with a valid water right. The notice of violation shall35state the remedy, including any restoration and mitigation measures, and the36civil penalty the director seeks for redress of the violation and contain a37statement of findings of fact and conclusions of law that provide a factual38and legal basis for the initiation of the administrative enforcement action.39(2) The notice of violation shall inform the person to whom it is40directed of an opportunity to confer with the director or the director's des-41ignee in a compliance conference concerning the alleged violation. A written42response may be required within fifteen (15) days of a receipt of the notice43of violation by the person to whom it is directed. If a recipient of a notice44of violation contacts the department within fifteen (15) days of the receipt45of the notice, the recipient shall be entitled to a compliance conference. The46conference shall be held within twenty (20) days of the receipt of the notice47unless a later date is agreed upon between the parties. If a compliance con-48ference is not requested, the director may proceed with a civil enforcement49action as provided in subsection (4) of this section.50(3) The compliance conference shall provide an opportunity for the recip-51ient of a notice of violation to explain the circumstances of the alleged52violation and, where appropriate, to present a proposal for remedying the dam-8 1age caused by the violation and assuring future compliance. If the recipient2and the director agree on a plan to remedy damage caused by the alleged viola-3tion and to assure future compliance, they may enter into a consent order for-4malizing their agreement. The consent order may include a provision providing5for payment of any agreed civil penalty. The consent order shall be effective6immediately upon signing by both parties and shall preclude any civil enforce-7ment action for the same alleged violation. If a party does not comply with8the terms of the consent order, the director may seek and obtain in any appro-9priate district court, specific performance of the consent order and such10other relief as authorized by law. If the parties cannot reach agreement of a11consent order within sixty (60) days after the receipt of the notice of viola-12tion, or if the recipient does not request a compliance conference, the13director may commence and prosecute a civil enforcement action in district14court in accordance with subsection (4) of this section.15(4) The director may initiate a civil enforcement action through the16attorney general as provided in subsection (6) of this section. Civil enforce-17ment actions shall be commenced and prosecuted in the district court in and18for the county in which the alleged violation occurred, and may be brought19against any person who is alleged to be diverting water or has diverted water20without a water right or applying water or has applied water not in confor-21mance with the conditions of a valid water right. The director shall not be22required to bring an administrative enforcement action before initiating a23civil enforcement action. If the person who is the subject of the notice of24violation fails to cease and desist the activity or activities constituting25the alleged violation within the time limits set in the notice of violation,26the director may seek, by and through the attorney general, injunctive relief27in the district court pending the outcome of the administrative enforcement28action. In such action, brought against a person for diverting water without29having obtained a valid water right to do so, the director need not allege or30prove that irreparable injury to the state or to other water users will occur31should the preliminary injunction not be issued, or that the remedy at law is32inadequate, and the preliminary injunction, or permanent injunction shall33issue without such allegations and without such proof.34(5) Any person determined in a civil enforcement action to have willfully35and knowingly or after notice diverted water without a water right or applied36water not in conformance with a valid water right shall be liable for a civil37penalty as provided in section 42-352, Idaho Code. No action taken pursuant to38this section shall relieve any person from any civil action and damages that39may exist for injury or damages resulting from diverting water without a water40right or applying water not in conformance with the conditions of a valid41water right.42 SECTION 5. That Section 42-352, Idaho Code, be, and the same is hereby 43 repealed. 44 SECTION 6. That Section 42-701, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 42-701. INSTALLATION AND MAINTENANCE OF CONTROLLING WORKS AND MEASURING 47 DEVICES BY WATER APPROPRIATORS -- PROCEDURE UPON FAILURE TO INSTALL AND MAIN- 48 TAIN -- MEASURING AND REPORTING OF DIVERSIONS -- PENALTY FOR FAILURE TO COMPLY 49 -- ENFORCEMENT PROCEDURE -- REPORT FILING FEE. (1) The 50 appropriators or users of any public waters of the state of Idaho shall main- 51 tain to the satisfaction of the director of the department of water resources 52 suitable headgates and controlling works at the point where the water is 9 1 diverted. Each device shall be of such construction that it can be locked and 2 kept closed by the watermaster or other officer in charge, and shall also be 3 of such construction as to regulate the flow of water at the diversion point. 4 Each such appropriator shall construct and maintain, when required by the 5 director of the department of water resources, a rating flume or other measur- 6 ing device at such point as is most practical in such canal, ditch, wellhead 7 or pipeline for the purpose of assisting the watermaster or department in 8 determining the amount of water that may be diverted into said canal, ditch, 9 wellhead or pipeline from the stream, well or other source of public water. 10 Plans for such headgates, rating flumes or other measuring devices shall be 11 approved by the department of water resources. 12 (2) If an appropriator determines that installation and maintenance of a 13 measuring device required by the director would be burdensome for his diver- 14 sion, the appropriator may, upon approval of the director, execute an agree- 15 ment with the director and submit to the director such information and techni- 16 cal data concerning the diversion and pumping facilities as the director 17 determines necessary to establish the relationship of power usage to water 18 withdrawal by any pump used to divert public water. 19 (3) Any appropriator or user of the public waters of the state of Idaho 20 that neglects or refuses to construct or maintain such headgates, controlling 21 works, or measuring devices, or has not executed an agreement in lieu of a 22 measuring device as provided in subsection (2) of this section, upon receiving 23 ten (10) days' notice from the director of the department of water resources 24 within which to begin and diligently pursue to completion the construction or 25 installation of the required device or devices or to begin and diligently pur- 26 sue to completion a remedy to such defects as exist in accordance with said 27 notice, then the director of the department of water resources may order the 28 duly qualified and acting watermaster of the water district to shut off and 29 refuse to deliver at the point of diversion, the water owned by such appropri- 30 ator or user until the user does construct and maintain such headgates, con- 31 trolling works or measuring devices or remedy the defects which exist or the 32 director may take action pursuant to sections 42-311, 42-350 and 42-3513342-1701B , Idaho Code, to enforce the requirement to con- 34 struct, install or maintain such devices. 35 (4) The appropriators or users of the public waters of the state of Idaho 36 shall be given a reasonable time within which to complete construction of such 37 headgates, controlling works or measuring devices, depending upon the size and 38 extent thereof, when due diligence has been used in the prosecution of such 39 work. 40 (5) All appropriators of the public waters of the state of Idaho who are 41 given thirty (30) days' written notice by the director prior to the beginning 42 of the irrigation season but no later than March 15 of any year, shall measure 43 their water diversions and report said diversions annually thereafter on a 44 form approved by the director of the department of water resources. Such 45 report shall include: a legal description of the point of diversion, the num- 46 ber assigned to each water right diverting from the public waters of the 47 state, the maximum authorized rate of diversion, the maximum rate at which 48 diversions have been made during the reporting period, the total volume 49 diverted during the reporting period, and a description of the physical 50 changes to the diversion works that have been made during the reporting 51 period. The appropriator shall furnish each year the depth to water in any 52 well prior to commencement of pumping, the depth to water during the pumping 53 period, and the pressure in the pipe distribution system during diversion if 54 the well is not free flowing.Failure to comply with such measurement55and reporting requirements or the willful submittal of false or inaccurate10 1data is a violation of the law controlling use of water under the right and is2subject to the enforcement and penalty provisions of sections 42-311, 42-3503and 42-351, Idaho CodeWhen the director of the department of 4 water resources determines that any person is in substantial violation of any 5 provision of this section or any rule, permit, condition of approval or order 6 issued or promulgated pursuant to this section, the director may commence an 7 administrative enforcement action by issuing a written notice of violation in 8 accordance with the provisions of section 42-1701B, Idaho Code . Subsec- 9 tions (5) and (6) of this section shall not apply to: 10 (a) any appropriator or water user with respect to a water right included 11 in an active water district created pursuant to chapter 6, title 42, Idaho 12 Code, the annual report of which meets the reporting requirements of sec- 13 tion 42-708, Idaho Code; 14 (b) any irrigation district or ground water district having shown to the 15 satisfaction of the director that they are currently making and recording 16 sufficient measurements of their diversions with measuring methods accept- 17 able to the director and upon their agreement to provide an annual report 18 of their diversions to the director in substantially the same form as 19 required in section 42-708, Idaho Code; and 20 (c) any water right included in an active water measurement district cre- 21 ated pursuant to this chapter. 22 (6) The director of the department of water resources shall collect a 23 report processing fee of twenty-five dollars ($25.00) per diversion required 24 to be reported, including those diversions covered by an agreement in lieu of 25 a measuring device as provided in subsection (2) of this section. Such fee 26 shall be submitted with the annual report of diversions and well data. All 27 such fees received by the department shall be deposited in the water adminis- 28 tration account created pursuant to section 42-238a, Idaho Code, for use by 29 the department to collect, analyze and report water use information and to 30 regulate water withdrawal and use. 31 (7) All domestic uses, as defined in section 42-111, Idaho Code, and all 32 stock watering uses, as defined in section 42-1401A, Idaho Code, shall be 33 exempt from the measuring device installation and maintenance, measuring and 34 reporting requirements of this section. 35 SECTION 7. That Section 42-1605, Idaho Code, be, and the same is hereby 36 amended to read as follows: 37 42-1605. ENFORCEMENT PROCEDURE --PENALTIES -- JUDI-38CIAL REVIEWINJUNCTIVE RELIEF -- CRIMINAL PENALTIES . (1) 39 When the director of the department of water resources determines that 40 any person is in substantial violation of any provision of this chapter or any 41 rule, condition of approval or order issued or promulgated pursuant to this 42 chapter, the director may commence an administrative enforcement action by 43 issuing a written notice of violation in accordance with the provisions of 44 section 42-1701B, Idaho Code. The director may petition the district court 45 for injunctive relief in order to prevent damage pending the outcome of 46 enforcement proceedings before the director.Enforcement proce-47dure.48(a) If the director believes a person has violated any provision of sec-49tion 42-1601, Idaho Code, or any regulation promulgated by the board or50any order issued by the director pursuant thereto, the director shall51notify the person in writing by certified mail or personal service of the52alleged violation. This notice of violation shall specify the following:531. The statutory provisions, regulation or order alleged to have11 1been violated;22. The facts or conduct forming the basis of the alleged violation;33. A proposed order for any corrective action necessary for compli-4ance with this section and a reasonable time period for completing5any such corrective action, a civil penalty to be imposed pursuant to6subsection (2) of this section; and74. That the person has thirty (30) days from the receipt of the8notice of violation or such longer time period as may be stated in9the notice of violation in which to correct the violation and to file10a report of corrective action taken, or the person must notify the11director, in writing, within fifteen (15) days from receipt of the12notice of violation that he wishes to contest the alleged violation,13proposed order, or proposed civil penalty.14(b) If a person notifies the director in writing within fifteen (15) days15from receipt of the notice of violation that he intends to contest the16alleged violation and proposed order, the director shall afford the person17an opportunity for a hearing before the water resource board or its18appointee and such hearing shall be conducted in accordance with the rules19of practice and procedure promulgated by the board.20(2) Civil penalties.21(a) Any person owning or controlling an artesian well, who has been22determined by the director to have violated any provisions of this chap-23ter, regulation promulgated by the water resource board pertaining to well24construction standards, or order of the director issued pursuant to this25chapter, shall be liable for a civil penalty or penalties, not to exceed26three hundred dollars ($300) and for a civil penalty or penalties, not to27exceed one hundred dollars ($100) per day for each day that the violation28continues after notice of the violation has been given as provided in sub-29section (1)(a) of this section.30(b) All civil penalties owed under this section shall be paid to the31director within thirty (30) days from the issuance of the final order32imposing such penalty. The director may impose an additional civil penalty33of twenty-five dollars ($25.00) for each day that payment of the civil34penalty is late. The director shall deposit all civil penalties collected35into the water administration account. Civil penalties may be recovered in36a civil action brought in the district court in accordance with subsection37(3)(c) of this section.38(3) Judicial review.39(a) Any person aggrieved by a final order of the director entered pursu-40ant to this section may appeal to the district court within twenty-eight41(28) days of the issuance of the order. Such appeal shall be heard and42determined in accordance with chapter 52, title 67, Idaho Code.43(b) The director may petition the district court for injunctive relief or44a temporary restraining order in order to prevent irreparable damage pend-45ing the outcome of enforcement proceedings pending before the director46pursuant to this section.47(c) The director may commence a civil action in the district court to48enforce the provisions of any final order of the director issued pursuant49to this section. If no appeal is taken pursuant to subsection (1)(a) of50this section, the director's findings of fact and order, including an51order deemed final pursuant to subsection (1)(b)2. of this section, shall52be conclusive in connection with any action commenced by the director to53enforce such order.54 (42 ) Criminal penalties. Any person who will- 55 fully or negligently violates any of the provisions of this chapter shall, for 12 1 each offense, be guilty of a misdemeanor and upon conviction thereof shall be 2 punished by a fine of not less than three hundred dollars ($300) and not more 3 than one thousand dollars ($1,000). Each day upon which such violation occurs 4 shall constitute a separate violation. 5 SECTION 8. That Chapter 17, Title 42, Idaho Code, be, and the same is 6 hereby amended by the addition thereto of a NEW SECTION , to be 7 known and designated as Section 42-1701B, Idaho Code, and to read as follows: 8 42-1701B. ENFORCEMENT PROCEDURE -- NOTICE -- CONSENT ORDER -- CIVIL 9 ACTION. (1) Authority to commence actions. The director of the department of 10 water resources is authorized and may commence and pursue enforcement actions 11 to remedy the designated violations set out in title 42, Idaho Code. 12 (2) Notice. When the director commences an administrative enforcement 13 action the notice of violation shall be served upon the alleged violator in 14 person or by certified mail. The notice of violation shall identify the 15 alleged violation and shall specify each provision of the designated chapter, 16 rule, permit, condition of approval or order which has been violated. The 17 notice of violation shall state the remedy, including all restoration and mit- 18 igation measures, and the amount of any civil penalty the director seeks for 19 redress of the violation. Factors the director may consider in seeking the 20 appropriate remedy include the impact of the violation and whether the viola- 21 tion was willful, a repeat violation for which the violator had been given a 22 prior written warning, or the violator has otherwise refused to comply with 23 the department's lawful directives. The notice of violation shall inform the 24 person to whom it is directed of an opportunity to confer with the director or 25 the director's designee in a compliance conference concerning the alleged 26 violation. 27 (3) Response. A written response may be required within fourteen (14) 28 days of the receipt of the notice of violation by the person to whom it is 29 directed. If a recipient of a notice of violation contacts the department 30 within fourteen (14) days of the receipt of the notice, the recipient shall be 31 entitled to a compliance conference. The conference shall be held within 32 twenty-one (21) days of the receipt of the notice unless a later date is 33 agreed upon between the parties. If a compliance conference is not requested, 34 the director may proceed with a civil enforcement action as provided in this 35 section. 36 (4) Compliance conference and consent order. The compliance conference 37 shall provide an opportunity for the recipient of a notice of violation to 38 explain the circumstance of the alleged violation and, where appropriate, to 39 present a proposal for remedying the damage caused by the violation and assur- 40 ing future compliance. If the recipient and the director agree on a plan to 41 remedy damage caused by the alleged violation and to assure future compliance, 42 they may enter into a consent order formalizing their agreement. The consent 43 order may include a provision providing for payment of any agreed civil pen- 44 alty. The consent order shall be effective immediately upon signing by both 45 parties and shall preclude a civil enforcement action for the same alleged 46 violation. If a party does not comply with the terms of the consent order, the 47 director may seek and obtain in any appropriate district court, specific per- 48 formance of the consent order and other relief as authorized by law. If the 49 parties cannot agree to a consent order within fifty-six (56) days after the 50 receipt of the notice of violation, or if the recipient does not request a 51 compliance conference, the director may commence and prosecute a civil 52 enforcement action in the district court in accordance with this section. 53 (5) Civil enforcement actions. 13 1 (a) The director may initiate a civil enforcement action through the 2 attorney general as provided in this section. Civil enforcement actions 3 shall be commenced and prosecuted in the district court in and for the 4 county in which the alleged violation occurred, and may be brought against 5 any person who is alleged to have substantially violated any provision of 6 title 42, Idaho Code, or any rule promulgated pursuant to that title. The 7 action may be brought to compel compliance with provisions of title 42, 8 Idaho Code, or rules promulgated pursuant to that title. The director 9 shall not be required to prosecute an administrative enforcement action 10 before initiating a civil enforcement action. 11 (b) Nothing in this section shall preclude employees of the department 12 designated by the director from issuing Idaho uniform citations or written 13 administrative orders directing persons to cease and desist as authorized 14 by law. 15 (c) If the person who is the subject of the notice of violation fails to 16 cease and desist the activity or activities constituting the alleged 17 violation within the time limits set in the notice of violation, the 18 director may seek, by and through the attorney general, injunctive relief 19 in the district court pending the outcome of the administrative enforce- 20 ment action. 21 (d) In an action brought against a person for diverting water without 22 having obtained a valid water right to do so, the director need not allege 23 or prove that irreparable injury to the state or to other water users will 24 occur should the preliminary injunction not be issued or that the remedy 25 at law is inadequate, and the preliminary injunction or permanent injunc- 26 tion shall issue without those allegations and without that proof. 27 (6) Penalties. 28 (a) Any person determined in a judicial civil enforcement action to have 29 substantially violated any provision of title 42, Idaho Code, or any rule 30 promulgated pursuant to that title, shall be liable for a civil penalty 31 not to exceed ten thousand dollars ($10,000) per violation or one hundred 32 fifty dollars ($150) per day for a continuing violation, whichever is 33 greater; except that persons determined to be in violation of section 34 42-351, Idaho Code, shall be liable for a civil penalty not to exceed: 35 (i) For nonirrigation uses, fifty dollars ($50.00) per one-tenth 36 (0.1) cubic feet per second of water or part thereof, per calendar 37 day, up to a maximum penalty of fifty thousand dollars ($50,000) per 38 year for water illegally used or diverted; 39 (ii) For irrigation uses, three hundred dollars ($300) annually for 40 each acre irrigated, in whole or in part, by the illegal use or 41 diversion. 42 (b) Civil penalties shall not be assessed for violations that have 43 occurred more than twelve (12) months prior to the issuance of the notice 44 of violation. The court shall determine the amount of the penalty based 45 upon the willfulness of the violation, the economic value obtained by the 46 violator and the damage to public resources and other water right holders. 47 A method of recovery of the penalty shall be a civil enforcement action in 48 and for the county where the violation occurred. 49 (c) All civil penalties collected under this section shall be paid into 50 the water right enforcement account established pursuant to section 51 42-1778, Idaho Code. 52 (d) Parties to an administrative enforcement action may agree to a civil 53 penalty as provided in this subsection. 54 (7) No action taken pursuant to this section shall relieve any person 55 from any civil action and damages that may exist for injury or damage result- 14 1 ing to others from any violation of this chapter, or the rules promulgated 2 pursuant to this chapter. 3 (8) Upon request of the director, it shall be the duty of the attorney 4 general to institute and prosecute civil enforcement actions pursuant to this 5 chapter. 6 SECTION 9. That Section 42-1720, Idaho Code, be, and the same is hereby 7 amended to read as follows: 8 42-1720. VIOLATIONS OFACTCHAPTER -- PENAL- 9 TIES. (1) Every person who violates any of the provisions of this 10actchapter , or of any order of the director or of 11 any ruleor regulationof the water resource board where a copy 12 of the order,or ruleor regulationhas 13 been served upon said person by certified mail as herein provided, and said 14 person fails to comply therewith within the time herein provided, or within 15 ten (10) days of such service if not otherwise provided, shall be guilty of a 16 misdemeanor. In the event of a continuing violation, each day that the viola- 17 tion continues constitutes a separate and distinct offense. 18 (2) Any person whowilfullywillfully 19 obstructs, hinders, or prevents the director, the department or its 20 agents or employees from performing the duties imposed by thisact21chapter or whowilfullywillfully 22 resists the exercise of the control and supervision conferred by this 23actchapter upon the director, the department or its 24 agents or employees is guilty of a misdemeanor. 25 (3) Any owner or any person acting as a director, officer, 26 agent or employee of an owner, or any contractor or agent or employee of a 27 contractor who engages in the construction, enlargement, repair, alteration, 28 maintenance or removal of any dam, reservoir or mine tailings impoundment 29 structure, who knowingly does work or permits work to be executed on the dam, 30 reservoir or mine tailings impoundment structure without an approval or in 31 violation of or contrary to any approval as provided for in thisact32chapter , or any inspector, agent or employee of the 33 department who has knowledge of such work being done and who fails to immedi- 34 ately notify the director thereof, is guilty of a misdemeanor. 35 (4) Whenever any party or parties feel themselves aggrieved 36 by the determination of the director in refusing to approve any plan or speci- 37 fication as mentioned in thisactchapter , or by any 38 order of the director, such party or parties may seek a hearing before the 39 director in accordance with section 42-1701A(3), Idaho Code, if a hearing has 40 not already been held, and may seek judicial review in accordance with section 41 42-1701A(4), Idaho Code, of any final order of the director issued following a 42 hearing. 43 (5) When the director of the department of water resources deter- 44 mines that any person is in substantial violation of any provision of this 45 chapter or any rule, certificate, condition of approval or order issued or 46 promulgated pursuant to this chapter, the director may commence an administra- 47 tive enforcement action by issuing a written notice of violation in accordance 48 with the provisions of section 42-1701B, Idaho Code. 49 SECTION 10. That Section 42-3809, Idaho Code, be, and the same is hereby 50 amended to read as follows: 51 42-3809. PENALTY FOR VIOLATION -- ENFORCEMENT PROCEDURE -- 15 1 INJUNCTIVE RELIEF. (1) Any person who violates any of the provi- 2 sions of thisactchapter , any regulation, rule, 3 order or standard of the board promulgated pursuant to section 42-3803, Idaho 4 Code, or of any order or condition of approval of the director issued pursuant 5 thereto, where a copy of the order has been served upon said person in person 6 or by certified mail and said person fails to comply therewith within the time 7 therein provided, or within ten (10) days of such service if not otherwise 8 provided, shall be guilty of a misdemeanor and upon conviction shall be pun- 9 ished by a fine of not less than one hundred fifty dollars ($150) nor more 10 than five hundred dollars ($500); provided further, that each day such viola- 11 tion of an order or condition of approval has taken place shall constitute a 12 separate offense punishable by a fine of not less than one hundred fifty dol- 13 lars ($150) for each day until such activity is abated or voluntarily ceased. 14 Any stream channel alteration engaged in by any person without approval having 15 been obtained therefor as prescribed in this act is hereby declared to be a 16 public nuisance and shall be subject to proceedings for immediate abatement. 17 (2) When the director of the department of water resources deter- 18 mines that any person is in substantial violation of any provision of this 19 chapter or any rule, permit, certificate, condition of approval or order 20 issued or promulgated pursuant to this chapter, the director may commence an 21 administrative enforcement action by issuing a written notice of violation in 22 accordance with the provisions of section 42-1701B, Idaho Code. The 23 director shall have authority and it shall be his duty to seek a temporary 24 injunction from the appropriate district court to restrain a person from 25 altering a stream channel until approval therefor has been obtained by the 26 person as provided in this act. 27 SECTION 11. That Section 42-3813, Idaho Code, be, and the same is hereby 28 repealed. 29 SECTION 12. That Section 42-3916, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 42-3916. ENFORCEMENT PROCEDURE -- INJUNCTIVE RELIEF. 32 When the director of the department of water resources determines that any 33 person is in substantial violation of any provision of this chapter or any 34 rule, permit, certificate, condition of approval or order issued or promul- 35 gated pursuant to this chapter, the director may commence an administrative 36 enforcement action by issuing a written notice of violation in accordance with 37 the provisions of section 42-1701B, Idaho Code. The director shall have 38 the further authority to seek a preliminary or permanent injunction, or both, 39 or a temporary restraining order restraining any person from violating or 40 attempting to violate the provisions of this chapter, of theregulations41rules adopted thereunder, or of the permits issued by the 42 director and mandating any person to take action appropriate under the circum- 43 stances to correct any violation. In any such action the director need not 44 show irreparable injury for the issuance of a preliminary or permanent injunc- 45 tion, or both, or a temporary restraining order. 46 SECTION 13. That Section 42-4010, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 42-4010. POWERS AND DUTIES -- PENALTIES -- ENFORCEMENT PROCEDURE 49 . (a) The water resource board may adopt, amend, or rescind reasonable 50 rules, regulations, and construction standards necessary to the administration 16 1 of this chapter in accordance with chapter 52, title 67, Idaho Code. 2 (b) The board may require that owners or operators of wells or injection 3 wells keep or cause to be kept well logs, core records, and drilling histories 4 of such wells or injection wells. It may require that copies of such logs, 5 records, and/or histories be filed with the director within a reasonable time 6 after well completion. It may further require such other geologic, geochemi- 7 cal, or engineering plans, reports, or records as necessary for the adminis- 8 tration of thisactchapter . Any reports, logs, 9 records, or histories filed with the director shall be available for public 10 inspection subject to disclosure according to chapter 3, title 9, Idaho Code, 11 and shall be kept as confidential by the director for a period of one (1) year 12 from well completion, provided however, that the director may use any such 13 reports, logs, records, or histories in any action in any court to enforce the 14 provisions of thisactchapter or any order or regu- 15 lation adopted hereunder. 16 (c) The director may enter onto private land at any time to inspect any 17 well or geothermal resource development project to determine if such well or 18 project is being constructed, operated, or maintained according to any appli- 19 cable permits or to determine if the construction, operation, or maintenance 20 of such well or project may involve a threat to life or property or an unrea- 21 sonable risk to subsurface, surface, or atmospheric resources. 22 (d) If the director finds that any person is constructing, operating or 23 maintaining any well or injection well not in accordance with any applicable 24 permit or in a fashion so as to involve an unreasonable risk of, or so as to 25 cause, damage to life or property or subsurface, surface, or atmospheric 26 resources, the director may issue an order to such person to correct or to 27 stop such practices as are found to be improper and to mitigate any injury of 28 any sort caused by such practices. 29 (e) The director may enforce any provision of this chapter or any order 30 or regulation issued or adopted pursuant hereto by an appropriate action in 31 the district court. The director may bring an action in the district court to 32 have enjoined any threatened noncompliance with any provision of this chapter, 33 regulations, or orders of the director, or any threatened harm to life, prop- 34 erty, or surface, subsurface, or atmospheric resources which would be caused 35 by such noncompliance. It shall be the duty of the attorney general to insti- 36 tute and prosecute civil enforcement actions or injunctive actions as provided 37 in this chapter, and to prosecute actions or proceedings for the enforcement 38 of any criminal provisions of this chapter. The attorney general may delegate 39 the authority and duty under this section to prosecute criminal actions to the 40 prosecuting attorney of the county in which such a criminal action may arise. 41 (f) Any willful violation of or failure to comply with any provision of 42 this chapter, or regulation adopted or order issued pursuant to the chapter, 43 shall be a misdemeanor punishable by a fine of up to ten thousand dollars 44 ($10,000) for each offense or a sentence of up to six (6) months in a county 45 jail or both; each day of a continuing violation shall be a separate offense 46 under this subdivision. When the director of the department of water 47 resources determines that any person is in substantial violation of any provi- 48 sion of this chapter or any rule, permit, certificate, condition of approval 49 or order issued or promulgated pursuant to this chapter, the director may com- 50 mence an administrative enforcement action by issuing a written notice of 51 violation in accordance with the provisions of section 42-1701B, Idaho Code. 52 A responsible or principal executive officer of any corporate person 53 may be liable under this subdivision if such corporate person is not in com- 54 pliance with any provision of this chapter or with any valid order or regula- 55 tion adopted pursuant hereto. 17 1 (g) The director shall undertake such studies, investigations, or 2 research programs as necessary for the proper administration of this chapter 3 and in order to develop experience in and understanding of the entire field of 4 geothermal resource exploration and development in both its technical and reg- 5 ulatory aspects. The director and board shall cooperate with other Idaho state 6 agencies, the state institutions of higher learning, agencies of other states, 7 and agencies of the federal government in the preparation of such investiga- 8 tions, studies, or research projects. The director and board may cooperate 9 with the scientists at the Idaho national engineering laboratory in their 10 research, development, engineering and demonstration of geothermal projects. 11 (h) The director may enter into cooperative agreements and memoranda of 12 understanding with agencies of other states for the purpose of the administra- 13 tion of geothermal areas which are partially in Idaho and partially in one 14 (1) or more other states. 15 SECTION 14. That Section 42-5244, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 42-5244. PROHIBITION AGAINST PARTICIPATION IN MITIGATION PLAN WHEN SUB- 18 JECT TO DELINQUENT ASSESSMENT. A ground water user who is delinquent in the 19 payment of any assessment against his water use under this chapter is prohib- 20 ited from being a participant in any mitigation plan until such delinquent 21 assessment is paid in full. The district shall provide the director a report 22 of such delinquent assessments at the first of each month for purposes of 23 enforcement. The district shall inform the director immediately upon the pay- 24 ment of any such delinquent assessment. This section shall be enforced by the 25water masterwatermaster within water districts 26 established under chapter 6 of this title, and by the director pursuant to 27 sections 42-351 and 42-3521701B , Idaho Code, in 28 areas outside of such water district.
STATEMENT OF PURPOSE
RS07768C2
Several programs for which IDWR has responsibility have
statutory enforcement provisions. These programs include
control of water diversion and use, supervision of well
construction and use, waste disposal well use, safety of dams
and stream channel protection.
The statutes for each of these programs provide specific
enforcement procedures that differ from those for other
programs. Because of the differences in procedures, IDWR
employees, the attorney general's staff, and private attorneys
must put in additional effort in pursuing these matters, and
the possibility of error is increased. The procedures provided
for some of the programs need to be amended to correct problems
with the existing statutes. For example, Section 42-351(4),
Idaho Code, includes a
citation to a non-existent Code section and is in other ways
inconsistent with companion sections of the Code. Replacement of
the diverse enforcement provisions with a reference to a single
enforcement section to be added to the Code will resolve these
problems.
The size of the civil penalty that can be assessed for
unauthorized diversion of water needs to be increased to
provide an adequate deterrent to unauthorized water use.
FISCAL IMPACT
This change will not increase costs to government agencies or
the private sector.
CONTACT
Name: Karl Dreher/Norm Young
Agency: Department of Water Resources
Phone: 327-7910
Statement of Purpose/Fiscal Impact
S 1480