Current through Register Vol. 24-18, September 15, 2024
A project proponent must comply with all provisions of
chapter 77.55 RCW, this chapter, and the HPA. If a project proponent violates
chapter 77.55 RCW or this chapter or deviates from any provision of an HPA
issued by the department, the department may issue a correction request, a stop
work order, a notice to comply, or a notice of civil penalty. The term "project
proponent" has the same definition as in
RCW
77.55.410. This section does not apply to a
project, or to that portion of a project, that has received a forest practices
hydraulic project (FPHP) permit from the department of natural resources under
chapter 76.09 RCW.
The department is responsible to help the regulated community
understand how to comply. The department achieves voluntary compliance through
education and technical assistance when the department advises and consults on
permits, conducts compliance checks, performs on-site technical visits, or
provides guidance materials written in easily understood language.
When the department cannot get voluntary compliance by
issuing a correction request, the department may use a range of increasingly
strict enforcement tools. This ranges from issuing notices of correction and
stop work orders to penalties and, when appropriate, criminal
prosecution.
(1)
Technical
assistance program: Under chapter 43.05 RCW, the department will
continue to develop programs to encourage voluntary compliance by providing
technical assistance consistent with chapter 43.05 RCW. The programs include
technical assistance visits, printed information, information and assistance by
telephone, training meetings, and other appropriate methods for the delivery of
technical assistance. In addition, the department must provide, upon request, a
list of organizations that provide technical assistance. This list is compiled
by the department from information submitted by the organizations and does not
constitute an endorsement by the department of any organization.
(a) Technical assistance is defined in
chapter 43.05 RCW as including:
(i)
Information on the laws, rules, and compliance methods and technologies
applicable to the department's programs;
(ii) Information on methods to avoid
compliance problems;
(iii)
Assistance in applying for permits; and
(iv) Information on the mission, goals, and
objectives of the program.
(b) "Technical assistance documents" means
documents prepared to provide information specified in (a) of this subsection
that is labeled a technical assistance document by the department. Technical
assistance documents do not include correction requests or civil or criminal
enforcement actions. "Correction request" means a notice of violation or a
notice of correction as defined in chapter 43.05 RCW. Technical assistance
documents do not impose mandatory obligations or serve as the basis for a
citation.
(2)
Technical assistance visit:
(a)
Under
RCW
43.05.030, a technical assistance visit is
defined as a visit by the department to a project site or other location that:
(i) Has been requested or is voluntarily
accepted; and
(ii) The department
declares to be a technical assistance visit at the start of the
visit.
(b) During a
technical assistance visit, or within a reasonable time thereafter, the
department must prepare a correction request to inform the project proponent of
any violations of law or department rules identified by the department.
"Correction request" means a notice of violation or a notice of correction as
defined in chapter 43.05 RCW.
(c)
As provided in
RCW
43.05.050, the department may issue a civil
penalty under this section without first issuing a correction request when a
violation is observed during a technical assistance visit only if:
(i) The project proponent has previously been
subject to an enforcement action for the same or similar type of HPA violation,
or has been given previous notice for the same or similar type of HPA
violation; or
(ii) The violation
has a probability of causing more than minor harm to fish life.
(3)
Compliance
inspection:
(a) If, during any
inspection or visit that is not a technical assistance visit, the department
becomes aware of conditions that do not comply with applicable laws and rules
enforced by the department and are not subject to penalties as provided for in
this section, the department may issue a correction request to the project
proponent.
(b) If the department
issues a correction request, it must not issue a civil penalty for the
violations identified in the correction request unless the project proponent
fails to comply with the notice request.
(c) As provided in
RCW
43.05.050, the department may issue a civil
penalty under this section without first issuing a correction request when a
violation is observed during a compliance inspection only if:
(i) The project proponent has previously been
subject to an enforcement action for the same or similar type of HPA violation,
or has been given previous notice of the same or similar type of HPA violation;
or
(ii) Compliance for the current
violation is not achieved by the date set or modified by the department in a
previous correction request for the current violation; or
(iii) The violation has a probability of
causing more than minor harm to fish life.
(4)
Correction request:
(a) "Correction request" means a notice of
violation or a notice of correction as defined in chapter 43.05 RCW. A
correction request is not a formal enforcement action and is not subject to
appeal under state law or WAC
220-660-460
Informal appeal of administrative actions or WAC
220-660-470
Formal appeal of administrative actions.
(b) If during a technical assistance visit or
compliance inspection, the department discovers a violation of any provisions
within chapter 77.55 RCW, this chapter, or an HPA issued by the department, it
must, during the visit or within a reasonable time thereafter, issue a
correction request to the project proponent detailing steps needed to bring the
project into compliance.
(c)
Contents of a correction request: A correction request must indicate whether it
originates from a technical assistance visit or a compliance inspection. A
correction request must include:
(i) A
description of what is not in compliance with chapter 77.55 RCW, this chapter,
or the HPA;
(ii) The text of the
specific section(s) or subsection(s) of chapter 77.55 RCW, this chapter, or the
HPA provision(s) for that violation;
(iii) A statement of what is required to
achieve compliance;
(iv) The date
by which the project proponent must achieve compliance;
(v) Notice of the means to obtain technical
assistance services provided by the department or others; and
(vi) Notice of when, where, and to whom a
request may be submitted to the department to extend, for good cause, the
deadline for achieving compliance with the correction request.
(d) The department must provide
for a reasonable time to achieve compliance.
(e) Time extension to comply: A request for
an extension of the deadline for achieving compliance with the correction
request must be submitted to the department in writing within ten calendar days
of receiving the correction request. "Date of receipt" is defined in WAC
220-660-460(4)(b)
and
220-660-470(5)(b).
The department must respond in writing to a request for extension of the
deadline.
(5)
Stop
work order:
(a) The department may
issue a stop work order if:
(i) A violation of
chapter 77.55 RCW or this chapter occurs or a deviation from any provisions of
an HPA occurs. To qualify for a stop work order, the violation must be serious
enough that it could cause significant harm to fish life; and
(ii) Immediate action is necessary to prevent
continuation of harm, or to avoid more than minor harm, to fish life.
(b) Stop work orders are effective
immediately upon issuance. Project proponents must therefore comply with stop
work orders immediately upon receipt.
(c) Scope of a stop work order: A stop work
order may require that any person stop all work connected with the violation
until corrective action is taken, and the department has indicated that work
may resume. A stop work order may also require that the project proponent take
corrective action to prevent, correct, or compensate for adverse impacts to
fish life caused by the violation.
(d) Contents of a stop work order. The stop
work order must include:
(i) A description of
the condition that is not in compliance with chapter 77.55 RCW, this chapter,
or the HPA;
(ii) The text of the
specific section(s) or subsection(s) of chapter 77.55 RCW, this chapter, or the
HPA provision(s) for that violation;
(iii) A statement of what is required to
achieve compliance;
(iv) The date
by which the department requires compliance with the corrective actions
identified in the order;
(v) Notice
of the means to contact any technical assistance services provided by the
department or others;
(vi) Notice
of when, where, and to whom a request may be submitted to the department to
extend, for good cause, the deadline for achieving compliance with the
order;
(vii) Means for contacting
the department to schedule an inspection to assess compliance; and
(viii) The right to appeal the
order.
(e) Signature
authority for a stop work order: A stop work order for hydraulic projects
conducted without an HPA must be authorized by a regional habitat program
manager, regional director, habitat program division manager, habitat program
director, habitat program deputy director, or department director. A stop work
order for permitted hydraulic projects must be authorized by the regional
director, habitat program division manager, habitat program director, habitat
program deputy director, or department director.
(f) Providing notice of a stop work order: A
stop work order may be issued and provided directly and immediately to the
person whose actions are in violation of chapter 77.55 RCW, this chapter, or
the HPA, regardless of whether that person is the project proponent. Upon
receipt of the stop work order, that person must immediately comply with it.
Within five business days of issuing a stop work order, the department must
mail a copy of the order to the last known address of any project proponent, to
the last known address of the owner of the land on which the hydraulic project
is located, and to the local jurisdiction in which the hydraulic project is
located. The department must take all reasonable measures to ensure that the
project proponent actually receives notice of the stop work order.
(g) Consequences of noncompliance: Failure to
comply with a stop work order can result in subsequent civil or criminal
enforcement actions, and can also cause the project proponent to be disapproved
for future HPA applications as set forth in WAC
220-660-050.
(h) Appealing a stop work order: A stop work
order may be appealed within thirty days from receipt of the order by a person
who received a copy of the order or by the owner of the land on which the
hydraulic project is located. Informal appeals must be filed in the form and
manner provided in WAC
220-660-460,
and formal appeals must be filed in the form and manner provided in WAC
220-660-470.
(6)
Notice to comply:
(a) The department may issue a notice to
comply if a violation of chapter 77.55 RCW or this chapter occurs, a deviation
from any provisions of an HPA occurs, or damage or potential damage to fish
life occurs, and the department determines that a stop work order is not
necessary to prevent continuation of or avoid more than minor harm to fish
life.
(b) Scope of a notice to
comply: A notice to comply must specify the corrective action to be taken, and
may also require additional action to prevent, correct, or compensate for
adverse impacts to fish life caused by the violation.
(c) Contents of a notice to comply. A notice
to comply must include:
(i) A description of
the condition that is not in compliance;
(ii) The text of the specific section(s) or
subsection(s) of chapter 77.55 RCW, this chapter, or the HPA provision(s) for
that violation;
(iii) A statement
of what is required to achieve compliance;
(iv) The date by which the department
requires compliance to be achieved;
(v) Notice of the means to contact any
technical assistance services provided by the department or others;
(vi) Notice of when, where, and to whom a
request may be submitted to the department to extend, for good cause, the
deadline for achieving compliance with the order; and
(vii) The right to appeal the
notice.
(d) The
department must provide for a reasonable time to achieve compliance.
(e) Signature authority for a notice to
comply: A notice to comply must be authorized by a regional habitat program
manager, regional director, habitat program division manager, habitat program
director, habitat program deputy director, or department director.
(f) Providing notice: Within five business
days of issuing a notice to comply, the department must mail a copy of the
notice to the last known address of any project proponent, to the last known
address of the owner of the land on which the hydraulic project is located, and
to the local jurisdiction in which the hydraulic project is located. The
department must take all reasonable measures to ensure that the project
proponent actually receives the notice.
(g) Consequences of noncompliance: Failure to
comply with a notice to comply can result in subsequent civil or criminal
enforcement actions, and can also cause the project proponent to be subject to
disapproval of future HPA applications as set forth in WAC
220-660-050.
(h) Appealing a notice to comply: A notice to
comply may be appealed within thirty days from the date of receipt of the
notice by a person who received the notice or by the owner of the land on which
the hydraulic project is located. Informal appeals must be filed in the form
and manner provided in WAC
220-660-460
and formal appeals must be filed in the form and manner provided in WAC
220-660-470.
(7)
Civil penalties:
(a) The department may levy civil penalties
of up to ten thousand dollars for each and every violation of chapter 77.55
RCW, this chapter, or provisions of an HPA. Each and every violation is a
separate and distinct civil offense. Penalties are issued in accordance with
the penalty schedule provided in subsection (8) of this section.
(b) Notice of civil penalty: The department
must issue written notice of any civil penalty imposed under this section. At a
minimum, the notice must include:
(i) The
factual and legal basis for the penalty, including a description of the
violation(s) for which the penalty is imposed and the text of the specific
section(s) or subsection(s) of chapter 77.55 RCW, this chapter, or the HPA
pro-vision(s) for those violation(s);
(ii) The amount of the penalty; and
(iii) The right of the person incurring the
civil penalty to appeal it.
(c) Signature authority for a notice of civil
penalty: Civil penalties must be authorized by the regional habitat program
manager, regional director, habitat program division manager, habitat program
director, habitat program deputy director, or department director. Civil
penalties of two thousand five hundred dollars or more must be authorized by
the habitat program director, habitat program deputy director, or department
director.
(d) Service of notice:
The department must serve a notice of civil penalty as follows:
(i) By certified mail to:
(A) The last known address of the person
incurring the penalty; and
(B) The
local jurisdiction in which the hydraulic project is located; or
(ii) By personal service to:
(A) The person incurring the penalty;
and
(B) The local jurisdiction in
which the hydraulic project is located.
Within five business days of issuing a penalty, the
department must mail a copy of the notice of civil penalty to the last known
address of any project proponent and the owner of the land on which the
hydraulic project is located. The department must take all reasonable measures
to ensure that the project proponent actually receives notice of the
penalty.
(e) Effective date of penalty: The penalty
imposed becomes due and payable thirty days after receipt of a penalty notice
unless an appeal is filed. Whenever an appeal is filed, the penalty becomes due
and payable only upon completion of all review proceedings and the issuance of
a final notice or order confirming the penalty in whole or in part.
Failure to pay a civil penalty can result in disapproval of
future HPA applications as set forth in WAC
220-660-050.
When a penalty becomes past due, it is also subject to interest at the rate
allowed by
RCW
43.17.240 for debts owed to the state.
Unpaid penalties may also be subject to enforcement under
RCW
77.55.440 and other applicable laws and
regulations under
RCW
77.55.470.
(f) Right to appeal civil penalty: Any person
incurring a civil penalty issued under
RCW
77.55.440 and this section may appeal the
civil penalty informally or formally within thirty days of receiving the notice
of civil penalty. Informal appeals are conducted under WAC
220-660-460,
and formal appeals are conducted under WAC
220-660-470.
(g) Civil penalties received or recovered
under
RCW
77.55.440 must be deposited into the state's
general fund, except that the department is authorized to retain any attorneys'
fees and costs it may be awarded in connection with an action brought under
RCW
77.55.440 to recover a civil
penalty.
(8)
Civil
penalty schedule:
(a) The department
may levy a civil penalty, as defined in this section, in any of the following
circumstances:
(i) The project proponent
fails to complete actions required to be completed in a correction request,
stop work order or notice to comply within the time period required for
completion contained in the request or notice. Unless the project proponent has
previously been subject to an HPA enforcement action or the violation has a
probability of more than minor harm to fish life, the department will make a
reasonable attempt to achieve voluntary compliance before issuing a civil
penalty.
(ii) A project proponent
is conducting or has conducted a hydraulic project without having an active HPA
or without first obtaining an HPA for the project.
(b) The department's decision to issue a
civil penalty under
RCW
77.55.440 is based upon consideration of the
following:
(i) Previous violation history of
the person who will be incurring the penalty;
(ii) Severity and repairability of the impact
of the viola-tion(s) on fish life;
(iii) Whether the violation(s) was
intentional;
(iv) The extent, if
any, to which the person who would be incurring the penalty has cooperated or
is cooperating with the department in addressing the violation(s) and its
impact on fish life; and
(v) If the
penalty will be imposed on a person for a violation committed by another, the
extent to which the person incurring the penalty was unaware of the violation,
and whether that person received a substantial economic benefit from the
violation.
(c)
Determining civil penalty amounts: When a penalty is assessed it will be
calculated by the department using the following process:
(i) Determine the base civil penalty:
(A) The following violations have a base
civil penalty amount of two thousand dollars: Conducting a hydraulic project
without a valid HPA; willful misrepresentation of information on the HPA
application; or a significant, in the opinion of the department, deviation from
the valid HPA that adversely impacts fish life.
(B) All other violations not specifically
mentioned have a base penalty of five hundred dollars.
(ii) Calculate the civil penalty amount from
the considerations specific to the incident and the site. The following
considerations will be independently evaluated for each violation and added to
the base civil penalty to calculate the total civil penalty for each violation:
(A) Previous violation history of the person
who will be incurring the penalty, including the frequency and similarity of
any previous violations within five years preceding the violation leading to
the issuance of the penalty. A history of violations that, under a
preponderance of the evidence, shows a pattern of disregard for specific HPA
provisions, chapter 77.55 RCW, or this chapter will likely result in a higher
penalty amount. In reviewing a person's violation history for purposes of this
section, the department may consider previously issued correction requests,
stop work orders, notices to comply, notices of civil penalty imposed under
chapter 77.55 RCW, criminal convictions imposed under
RCW
77.15.300, and any other relevant information
that may be available. Points are assessed to determine the penalty amount
imposed under (d) of this subsection according to the following criteria:
0 points = The violator has no documented violations within
five years preceding the violation leading to the issuance of the
penalty.
2 points = The violator has one documented violation within
five years preceding the violation leading to the issuance of the
penalty.
4 points = The violator has more than one documented
violation within five years preceding the violation leading to the issuance of
the penalty.
(B) Severity
and repairability of impacts, which the department assesses based on harm to
fish life caused by the violation(s).
Violations that injure or kill fish life, decrease habitat
function, value, or quantity, or cause long term or irreparable damage will
likely result in a higher penalty amount. Points are assessed to determine the
penalty amount imposed under (d) of this subsection according to the following
criteria:
0 points = There is no adverse impact to fish life.
2 points = There is adverse impact to fish life, but it is
minor, and no impacts will last beyond the duration of the construction
activity.
4 points = There is extensive and/or significant adverse
impact to fish life and impacts will last beyond the duration of the
construction activity.
(C)
Whether the violation(s) was intentional, which the department determines by
considering whether the person knew or should have known the action was a
violation, whether and to what extent the violation was foreseeable, whether
the person to incur the penalty took precautions to avoid committing the
violation, and whether the person to incur the penalty had an economic
incentive for committing the violation. Violations that are intentional,
foreseeable, where economic incentives are clear, or when precautions were not
taken to avoid the impact likely result in a larger penalty amount. Points are
assessed to determine the penalty amount imposed under (d) of this subsection
according to the following criteria:
0 points = The violation was not foreseeable.
1 point = The violation was foreseeable, and no precaution
was taken to avoid it.
3 points = The violation occurred after consultation, a
technical or compliance site visit, or an enforcement action; or there was a
clear economic incentive.
(D) The extent, if any, to which the person
who would be incurring the penalty has cooperated or is cooperating with the
department in addressing the violation(s) and its impact on fish life. The
department assesses the level of a person's cooperation by examining whether
the person reported the violation voluntarily, the time lapse, if any, between
when the person discovered the violation and when the person reported it, and
how responsive the person to incur the penalty was toward department staff.
Evidence of a person's poor or inconsistent cooperation with department staff
will likely result in a higher penalty amount. Points are assessed to determine
the penalty amount imposed under (d) of this subsection according to the
following criteria:
0 points = The violator reported the violation in a timely
manner and cooperated with department staff to correct the violation.
1 point = The violator did not report the violation in a
timely manner, or they did not cooperate with department staff to correct the
violation.
3 points = The violator ignored or evaded department contacts
or refused to allow department staff to enter the job site where the violation
occurred.
(d) The department will calculate a penalty
for each violation by adding the points assessed under (c)(ii) of this
subsection and applying those corresponding amounts listed in the table below
to the base penalty assessed under (c)(i) of this subsection. The base penalty
plus the additional amount assessed using the department's point system will
determine the total penalty for each violation not to exceed $10,000.
| Points |
1 |
2 |
3 |
4 |
5 |
| Penalty |
$1,000 |
$2,000 |
$3,000 |
$4,000 |
$5,000 |
| Points |
6 |
7 |
8 |
9 |
10 or greater |
| Penalty |
$6,000 |
$7,000 |
$8,000 |
$9,000 |
$10,000 |
Adjusting civil penalty amounts:
(i) A penalty for a violation committed by
another may be adjusted downward based on the extent, if any, to which a person
incurring the penalty was unaware of the violation and did not receive a
substantial economic benefit from the violation.
(ii) The department senior or executive level
staff person with signature authority for the notice of civil penalty may
adjust penalty amounts based on circumstances not listed under (c) of this
subsection.
(iii) The department
will determine whether all or a portion of a penalty should be assessed against
a landowner, lessee, contractor or another project proponent. The department
should consider the responsible party, the degree of control, the
sophistication of the party, and whether different parties conducted different
violations.
(e) Nothing
in this section prevents the department from:
(i) Choosing not to issue a civil
penalty;
(ii) Issuing a stop work
order or notice to comply in lieu of a civil penalty; or
(iii) Referring a violation to any local,
state, tribal, or federal agency with jurisdiction.
(f) Penalties determined under this
subsection are administered in accordance with procedures in subsection (7) of
this section.
(9)
Criminal penalty: Under
RCW
77.15.300, it is a gross misdemeanor to
conduct any form of hydraulic project or perform other work on a hydraulic
project without having first obtained an HPA from the department, or to violate
any requirements or conditions of the HPA for such construction or
work.
(10)
Remedies not
exclusive: The remedies under this chapter are not exclusive and do not
limit or abrogate any other civil or criminal penalty, remedy, or right
available in law, equity, or statute.
(11)
Permission to enter property
denied - Administrative inspection warrant: If the department is denied
entry to a project site for the purpose of ensuring compliance or it has
probable cause to believe a violation of chapter 77.55 RCW, this chapter, or
the HPA provision(s) has occurred it must obtain landowner consent or an
administrative inspection warrant under
RCW
77.55.450 before entering the property for
this purpose.
(12)
First time
paperwork violations by small businesses:
(a) The department will provide notice and
waiver of fines, civil penalties, and administrative sanctions for first time
paperwork violations by a small business, consistent with
RCW
34.05.110.
(b) A paperwork violation is limited to:
(i) Failure to have a copy of the HPA, plans,
and specifications for a permitted project on-site during construction of, or
work on, the project;
(ii) Failure
to submit to the department photos or survey results required as a provision in
the HPA;
(iii) Failure to notify
the department when such notification described in WAC
220-660-050(13)(d)
is required as a provision of the HPA; and
(iv) Failure to submit reports required in
the HPA.
(c) A small
business may request the waiver by contacting the department and submitting a
copy of the business's most recent federal income tax return or most recent
return filed with the Washington state department of revenue.
