2000 Legislation
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SENATE BILL NO. 1423 – Water, illegally used, nonirrigatn


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Daily Data Tracking History

S1423..........................................by RESOURCES AND ENVIRONMENT
WATER - Amends existing law to increase the penalties for nonirrigation
uses for water illegally used or diverted.
02/15    Senate intro - 1st rdg - to printing
02/16    Rpt prt - to Res/Env
03/02    Rpt out - rec d/p - to 2nd rdg
03/03    2nd rdg - to 3rd rdg
03/09    3rd rdg - FAILED - 13-20-2
      AYES--Andreason, Danielson, Dunklin, King-Barrutia, Noh, Risch,
      Sandy, Schroeder, Sorensen, Stegner, Stennett, Wheeler, Whitworth
      NAYS--Boatright, Bunderson, Burtenshaw, Cameron, Crow, Darrington,
      Davis, Deide, Geddes, Hawkins, Ingram, Ipsen, Keough, Lee, Parry,
      Richardson, Riggs, Thorne, Walton/Branch, Williams
      Absent and excused--Frasure, McLaughlin
    Floor Sponsor - Stennett
    Filed with Secretary of Senate

Bill Text

  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                       IN THE SENATE
                                    SENATE BILL NO. 1423
  1                                        AN ACT
  5    Be It Enacted by the Legislature of the State of Idaho:
  6        SECTION  1.  That Section 42-1701B, Idaho Code, be, and the same is hereby
  7    amended to read as follows:
  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-
  1    alty.  The  consent  order shall be effective immediately upon signing by both
  2    parties and shall preclude a civil enforcement action  for  the  same  alleged
  3    violation. If a party does not comply with the terms of the consent order, the
  4    director  may seek and obtain in any appropriate district court, specific per-
  5    formance of the consent order and other relief as authorized by  law.  If  the
  6    parties  cannot  agree to a consent order within fifty-six (56) days after the
  7    receipt of the notice of violation, or  if the recipient does  not  request  a
  8    compliance  conference,  the  director  may  commence  and  prosecute  a civil
  9    enforcement action in the district court in accordance with this section.
 10        (5)  Civil enforcement actions.
 11        (a)  The director may initiate a  civil  enforcement  action  through  the
 12        attorney  general  as  provided in this section. Civil enforcement actions
 13        shall be commenced and prosecuted in the district court  in  and  for  the
 14        county in which the alleged violation occurred, and may be brought against
 15        any  person who is alleged to have substantially violated any provision of
 16        title 42, Idaho Code, or any rule promulgated pursuant to that title.  The
 17        action  may  be  brought to compel compliance with provisions of title 42,
 18        Idaho Code, or rules promulgated pursuant  to  that  title.  The  director
 19        shall  not  be  required to prosecute an administrative enforcement action
 20        before initiating a civil enforcement action.
 21        (b)  Nothing in this section shall preclude employees  of  the  department
 22        designated by the director from issuing Idaho uniform citations or written
 23        administrative  orders directing persons to cease and desist as authorized
 24        by law.
 25        (c)  If the person who is the subject of the notice of violation fails  to
 26        cease  and  desist  the  activity  or  activities constituting the alleged
 27        violation within the time limits set  in  the  notice  of  violation,  the
 28        director  may seek, by and through the attorney general, injunctive relief
 29        in the district court pending the outcome of the  administrative  enforce-
 30        ment action.
 31        (d)  In  an  action  brought  against a person for diverting water without
 32        having obtained a valid water right to do so, the director need not allege
 33        or prove that irreparable injury to the state or to other water users will
 34        occur should the preliminary injunction not be issued or that  the  remedy
 35        at  law is inadequate, and the preliminary injunction or permanent injunc-
 36        tion shall issue without those allegations and without that proof.
 37        (6) Penalties.
 38        (a)  Any person determined in a judicial civil enforcement action to  have
 39        substantially  violated any provision of title 42, Idaho Code, or any rule
 40        promulgated pursuant to that title, shall be liable for  a  civil  penalty
 41        not  to exceed ten thousand dollars ($10,000) per violation or one hundred
 42        fifty dollars ($150) per day for  a  continuing  violation,  whichever  is
 43        greater;  except  that  persons  determined  to be in violation of section
 44        42-351, Idaho Code, shall be liable for a civil penalty not to exceed:
 45             (i)   For nonirrigation uses, fifty five hundred dollars ($50.00) per
 46             one-tenth (0.1) cubic feet per second of water or part  thereof,  per
 47             calendar  day,  up  to  a  maximum  penalty of fifty thousand dollars
 48             ($50,000) per year for water illegally used or diverted;
 49             (ii)  For irrigation uses, three hundred dollars ($300) annually  for
 50             each  acre  irrigated,  in  whole  or  in part, by the illegal use or
 51             diversion.
 52        (b)  Civil penalties shall  not  be  assessed  for  violations  that  have
 53        occurred  more than twelve (12) months prior to the issuance of the notice
 54        of violation. The court shall determine the amount of  the  penalty  based
 55        upon  the willfulness of the violation, the economic value obtained by the
  1        violator and the damage to public resources and other water right holders.
  2        A method of recovery of the penalty shall be a civil enforcement action in
  3        and for the county where the violation occurred.
  4        (c)  All civil penalties collected under this section shall be  paid  into
  5        the  water  right  enforcement  account  established  pursuant  to section
  6        42-1778, Idaho Code.
  7        (d)  Parties to an administrative enforcement action may agree to a  civil
  8        penalty as provided in this subsection.
  9        (7)  No  action  taken  pursuant  to this section shall relieve any person
 10    from any civil action and damages that may exist for injury or damage  result-
 11    ing  to  others  from  any violation of this chapter, or the rules promulgated
 12    pursuant to this chapter.
 13        (8)  Upon request of the director, it shall be the duty  of  the  attorney
 14    general  to institute and prosecute civil enforcement actions pursuant to this
 15    chapter.

Statement of Purpose / Fiscal Impact

                STATEMENT OF PURPOSE 
     This measure would amend Idaho Code to increase the civil penalty for
     non-irrigation uses of water to five hundred dollars per one-tenth cubic feet per
     second of water. 
                     FISCAL NOTE
     There is no fiscal impact. 
     CONTACT:     Senator Clint Stennett
                                             STATEMENT OF PURPOSE/ FISCAL NOTE                     S 1423