California Code of Regulations
Title 23 - Waters
Division 2 - Department of Water Resources
Chapter 1 - Dams and Reservoirs
Article 7.1 - Method of Calculating Administrative Civil Penalties
Section 337.54 - Daily Initial Penalty for Each Violation

Universal Citation: 23 CA Code of Regs 337.54

Current through Register 2024 Notice Reg. No. 38, September 20, 2024

(a) The department shall determine a daily initial penalty for each violation, considering actual or potential harm and the extent of deviation from the requirements in Water Code, Division 3, Part 1 and implementing regulations, or any approval, order or requirement issued thereunder and shall use Table 1 set forth in this section to determine the daily initial penalty for each violation.

(b) Determination of Harm of the Violation.

(1) The department shall consider actual or potential harm to public safety, including life and property.

(2) When determining the degree of harm, the department shall consider the following:
(A) The dam's downstream hazard potential as determined under California Code of Regulations, Title 23, section 335.4.

(B) For determining the potential for harm, the department shall consider the likelihood that the violation could lead to the failure of the dam or its appurtenant structures, including violations that cause misoperation of the dam that could pose a safety risk.

(C) Whether the dam has, or does not have, an EAP approved by Cal OES.

(c) Extent of Deviation of the Violation.

(1) The department shall consider the extent of deviation from the requirements in Water Code, Division 3, Part 1, implementing regulations, or any approval or order issued thereunder, when determining the liability factor in Table 1 set forth in this section.

(2) The categories for extent of deviation from requirements are defined as follows:
(A) Major--The act or failure to act deviates from the requirement to such an extent that the requirement is completely ignored and none of its provisions are complied with, or the function of the requirement is rendered ineffective because some of its provisions are not complied with.

(B) Moderate--The act or failure to act deviates from the requirement, but it functions to some extent although not all of its provisions are complied with.

(C) Minimal--The act or failure to act deviates somewhat from the requirement. The requirement functions nearly as intended, but not as well as if all provisions had been met.

(3) For requirements with more than one part, the department shall consider the extent of deviation in terms of the requirement that the department determines is most significant for the protection of life and property.

(d) Calculation of the Daily Initial Penalty. The department shall calculate the daily initial penalty based on an assigned liability factor that considers the actual or potential harm and the category of the extent of deviation. For actual or potential harm, the department shall first identify the appropriate downstream hazard classification pursuant to subsection (b)(2)(A), and then make adjustments to the applicable range shown in Table 1 based on factors contained in subsections (b)(2)(B)-(C). The daily initial penalty assessment is the maximum penalty per day allowed by statute multiplied by the liability factor in Table 1.

Table 1: Determination of Liability Factor

Harm

Extent of Deviation

Major

Moderate

Minimal

Extremely High 0.8 to 1.0 0.6 to 0.8 0.3 to 0.6
High 0.6 to 0.8 0.3 to 0.6 0.2 to 0.3
Significant 0.3 to 0.6 0.2 to 0.3 0.1 to 0.2
Low 0.2 to 0.3 0.1 to 0.2 0.05 to 0.1

1. New section filed 9-19-2022; operative 9-19-2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 38).

Note: Authority cited: Section 6078, Water Code. Reference: Section 6432, Water Code.

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