Current through Register Vol. 24-06, March 15, 2024
(1)
Ecology is authorized to take action under this rule to examine, certify,
investigate, and enforce this rule against certified water right examiners and
CWRE applicants. However:
(a) Certified water
right examiners are hired and paid by water right permit or change
authorization holders, and are not ecology employees.
(b) Ecology is not responsible for the direct
supervision of a certified water right examiner.
(c) Ecology is not responsible for the
contractual relationship between certified water right examiners and their
clients.
(2) Nothing in
this chapter is intended to prevent ecology from taking immediate action if it
is critical to the safety of the public, agency staff, and others; or is
critical to the protection of the water resource as otherwise authorized by
law.
(3) Client complaints, issues
of poor performance, and any indications of malfeasance should be referred to
the CWRE coordinator. The CWRE coordinator may work with regional permitting
staff and program management to determine what further action, if any, is
appropriate, such as:
(a) Meeting with the
certified water right examiner to discuss concerns and possible options for
dealing with the problem.
(b)
Providing technical assistance.
(c)
Issuing a verbal or written warning.
(d) Consulting with an assistant attorney
general.
(e) Presenting issues to
agency senior management.
(f)
Filing a police report.
(g)
Performing a preliminary or full compliance investigation (see subsection (4)
of this section).
(h) Convening the
CWRE investigative committee as defined in WAC
173-165-020.
(i) Taking other steps as appropriate for the
complaint.
(4) Ecology
or the CWRE investigative committee may perform a general, preliminary, or full
compliance investigation to ensure that the public is being competently served,
or in response to client complaints, indications of poor performance, or when
ecology suspects malfeasance.
(a) Ecology may
use general compliance investigations to assess elements of the CWRE program,
or the program as a whole.
(b)
Ecology may use preliminary investigations to determine whether a situation
warrants any action or a full investigation.
(c) Ecology will use full investigations
primarily when circumstances are uncertain but indicate a potential need for
suspending or revoking a certified water right examiner's
certification.
(5) When
ecology or the CWRE investigative committee does a full compliance
investigation of a certified water right examiner, except when doing so could
compromise the investigation or potential prosecution, they will notify the
certified water right examiner in writing:
(a) That the investigation is taking place,
when the investigation is begun; and
(b) Of the results of the investigation, when
the investigation is complete.
Informal actions.
(6) Ecology will use informal methods, which
are not appealable, to pursue compliance with
RCW
90.03.665 and this chapter, and to ensure the
public is competently served. Informal methods include, but are not limited to:
(a) Spot-checking the work of certified water
right examiners.
(b) Surveying or
interviewing current and past clients.
(c) Providing technical assistance or
training.
(d) Issuing verbal or
written warnings, such as to advise on poor performance, give notice of one or
more customer complaints, or to request actions to prevent violations before
they occur (RCW
90.03.605(1)(b) ).
Formal actions.
(7)RCW
90.03.665(4) authorizes
ecology to suspend or revoke the certification of a certified water right
examiner based on poor performance, excessive complaints from their clients, or
malfeasance. For the purposes of this chapter:
(a)
"Poor performance" means
work products or work behaviors that fail to meet accepted standards of
professional behavior and performance, such as:
(i) Repeated submittal of incomplete,
inaccurate, insufficiently detailed, or otherwise unacceptable proof reports of
examination.
(ii) Failure to abide
by the CWRE rules of professional performance (WAC
173-165-080(1)(c)
) or to meet statutory
requirements.
(b)
"Excessive complaints" means complaints that go beyond what is
normal and reasonable. If ecology receives two or more complaints for an
individual certified water right examiner in any twelve-month period, in
determining whether complaints are excessive, ecology may consider the nature
of the complaints, as well as the number of complaints relative to the number
of proof examinations the certified water right examiner has completed in the
same period.
(c)
"Malfeasance" means wrongdoing or misconduct, such as an act that
gives rise to civil liability for damages arising out of professional conduct;
or that is harmful or contrary to law; or that is a violation of professional
standards or ethical rules; or an act in violation of the public
trust.
(8) Ecology will
determine whether to suspend or revoke a CWRE certification.
(a) The CWRE coordinator or designee will
discuss the recommendation, including the results of any investigation made,
with program management.
(b) To
suspend or revoke a CWRE certification, ecology will issue an administrative
order. An order is a formal requirement to correct or prevent a documented
violation and is an appealable action.
(i)
Orders are issued by certified mail to the certified water right examiner's
address on record or delivered in person.
(ii) The suspension or revocation is
effective as of the date of formal notification to the certified water right
examiner.
(c) Ecology is
ultimately responsible for the content of the order to suspend or revoke a CWRE
certification.
(9)
Suspension is intended for the certified water right examiner to improve poor
performance, resolve client complaints, or to acquire additional training; or
ecology may suspend a certified water right examiner as a temporary measure
during a compliance investigation.
(a)
Suspension is for a period not to exceed one year.
(b) The suspension order shall state the
terms for reinstatement of the certification, including the length of time to
fulfill the requirements of the suspension before ecology will revoke the CWRE
certification for failure to meet the terms of the suspension.
(c) Ecology may enter into a probation
agreement with a suspended certified water right examiner that would allow
him/her to continue to perform some or all CWRE services during her/his period
of suspension.
(i) A probation agreement will
be the equivalent of a conditional certification.
(ii) The probation agreement will identify
the following:
(A) The conditions for and
limitations of CWRE services that the certified water right examiner may
perform.
(B) Any requirements for
the certified water right examiner to fulfill the agreement, such as additional
continuing education of a specific subject.
(C) Any requirements for retesting.
(D) Any other elements specific to the
case.
(iii) Any
probation agreement will be signed by the certified water right examiner and
ecology program manager or designee.
(d) Certified water right examiners may renew
their CWRE certification during the period of suspension, if they are in
compliance with the suspension order and the conditions of any probation
agreement, and meet the conditions of renewal under WAC
173-165-080(4).
If the certified water right examiner under suspension does not maintain
his/her certification according to the renewal deadlines identified in WAC
173-165-080(4),
ecology may revoke the certification as described in subsection (10) of this
section.
(e) The certified water
right examiner under suspension must abide by the terms of the suspension order
and any probation agreement, and satisfy all remedial requirements, in addition
to any statutory requirements, or ecology may revoke the certification as
described in subsection (10) of this section.
(10) A revoked CWRE certification cannot be
renewed.
(a) When a CWRE certification is
revoked, to become recertified, the person:
(i) Must wait at least five years before
ecology may accept her/his reapplication.
(ii) Must reapply, retest, and be
recertified, as well as pay all associated fees.
(b) Even after the five years ((a)(i) of this
subsection) have passed, ecology may choose to reject the application of a
person whose certification has been revoked regardless of whether the applicant
otherwise meets minimum qualifications (WAC
173-165-060(5)(c)
).
(11) Ecology may immediately revoke the
certification of a certified water right examiner found liable or convicted for
malfeasance in a court of law.
Statutory Authority:
RCW
90.03.665(11),
43.27A.090(11),
and 43.21A.064(9).
12-24-031 (Order 11-03), § 173-165-100, filed 11/28/12, effective
12/29/12.