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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
S1423
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1423
BY RESOURCES AND ENVIRONMENT COMMITTEE
1 AN ACT
2 RELATING TO ENFORCEMENT ACTIONS BY THE DEPARTMENT OF WATER RESOURCES; AMENDING
3 SECTION 42-1701B, IDAHO CODE, TO INCREASE THE PENALTIES FOR NONIRRIGATION
4 USES FOR WATER ILLEGALLY USED OR DIVERTED.
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:
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-
2
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
3
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
RS09667C1
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
332-1351
STATEMENT OF PURPOSE/ FISCAL NOTE S 1423