2005 Idaho Code - 42-1701B — ENFORCEMENT PROCEDURE -- NOTICE -- CONSENT ORDER -- CIVIL ACTION

                                  TITLE  42
                       IRRIGATION AND DRAINAGE -- WATER
                            RIGHTS AND RECLAMATION
                                  CHAPTER 17
                       DEPARTMENT OF WATER RESOURCES --
                             WATER RESOURCE BOARD
    42-1701B.  ENFORCEMENT PROCEDURE -- NOTICE -- CONSENT ORDER -- CIVIL
ACTION. (1) Authority to commence actions. The director of the department of
water resources is authorized and may commence and pursue enforcement actions
to remedy the designated violations set out in title 42, Idaho Code.
    (2)  Notice. When the director commences an administrative enforcement
action the notice of violation shall be served upon the alleged violator in
person or by certified mail. The notice of violation shall identify the
alleged violation and shall specify each provision of the designated chapter,
rule, permit, condition of approval or order which has been violated. The
notice of violation shall state the remedy, including any demand to cease and
desist, restoration and mitigation measures, and the amount of any civil
penalty the director seeks for redress of the violation. Factors the director
may consider in seeking the appropriate remedy include the impact of the
violation and whether the violation was willful,  a repeat violation for which
the violator had been given a prior written warning, or the violator has
otherwise refused to comply with the department's lawful directives. The
notice of violation shall inform the person to whom it is directed of an
opportunity to confer with the director or the director's designee in a
compliance conference concerning the alleged violation.
    (3)  Response. A written response may be required within fourteen (14)
days of the receipt of the notice of violation by the person to whom it is
directed.  If a recipient of a notice of violation contacts the department
within fourteen (14) days of the receipt of the notice, the recipient shall be
entitled to a compliance conference. The conference shall be held within
twenty-one (21) days of the receipt of the notice unless a later date is
agreed upon between the parties.  If a compliance conference is not requested,
the director may proceed with a civil enforcement action as provided in this
section.
    (4)  Compliance conference and consent order. The compliance conference
shall provide an opportunity for the recipient of a notice of violation to
explain the circumstance of the alleged violation and, where appropriate, to
present a proposal for remedying the damage caused by the violation and
assuring future compliance. If the recipient and the director agree on a plan
to remedy damage caused by the alleged violation and to assure future
compliance, they may enter into a consent order formalizing their agreement.
The consent order may include a provision providing for payment of any agreed
civil penalty. The consent order shall be effective immediately upon signing
by both parties and shall preclude a civil enforcement action for the same
alleged violation. If a party does not comply with the terms of the consent
order, the director may seek and obtain in any appropriate district court,
specific performance of the consent order and other relief as authorized by
law. If the parties cannot agree to a consent order within fifty-six (56) days
after the receipt of the notice of violation, or if the recipient does not
request a compliance conference, the director may commence and prosecute a
civil enforcement action in the district court in accordance with this
section.
    (5)  Civil enforcement actions.
    (a)  The director may initiate a civil enforcement action through the
    attorney general as provided in this section. Civil enforcement actions
    shall be commenced and prosecuted in the district court in and for the
    county in which the alleged violation occurred, and may be brought against
    any person who is alleged to have substantially violated any provision of
    title 42, Idaho Code, or any rule promulgated pursuant to that title. The
    action may be brought to compel compliance with provisions of title 42,
    Idaho Code, or rules promulgated pursuant to that title. The director
    shall not be required to prosecute an administrative enforcement action
    before initiating a civil enforcement action.
    (b)  Nothing in this section shall preclude employees of the department
    designated by the director from issuing Idaho uniform citations or written
    administrative orders directing persons to cease and desist as authorized
    by law.
    (c)  If the person who is the subject of the notice of violation fails to
    cease and desist the activity or activities constituting the alleged
    violation within the time limits set in the notice of violation, the
    director may seek, by and through the attorney general, injunctive relief
    in the district court pending the outcome of the administrative
    enforcement action.
    (d)  In an action brought against a person for diverting water without
    having obtained a valid water right to do so, the director need not allege
    or prove that irreparable injury to the state or to other water users will
    occur should the preliminary injunction not be issued or that the remedy
    at law is inadequate, and the preliminary injunction or  permanent
    injunction shall issue without those allegations and without that proof.
    (6) Penalties.
    (a)  Any person determined in a judicial civil enforcement action to have
    substantially violated any designated provision of title 42, Idaho Code,
    or any rule promulgated pursuant to that title, shall be liable for a
    civil penalty not to exceed ten thousand dollars ($10,000) per violation
    or one hundred fifty dollars ($150) per day for a continuing violation,
    whichever is greater; except that persons determined to be in violation of
    section 42-351, Idaho Code, shall be liable for a civil penalty not to
    exceed:
         (i)   For nonirrigation uses, fifty dollars ($50.00) per one-tenth
         (0.1) cubic feet per second of water or part thereof diverted per
         calendar day, or fifty dollars ($50.00) per two tenths (0.2) of an
         acre foot of water or part thereof diverted to storage, up to a
         maximum penalty of fifty thousand dollars ($50,000) per year for
         water illegally used or diverted;
         (ii)  For irrigation uses, three hundred dollars ($300) annually for
         each acre irrigated, in whole or in part, by the illegal use or
         diversion.
    (b)  Civil penalties shall not be assessed for violations that have
    occurred more than twelve (12) months prior to the issuance of the notice
    of violation. The court shall determine the amount of the penalty based
    upon the willfulness of the violation, the economic value obtained by the
    violator and the damage to public resources and other water right holders.
    A method of recovery of the penalty shall be a civil enforcement action in
    and for the county where the violation occurred.
    (c)  All civil penalties collected under this section shall be paid into
    the water right[s] enforcement account established pursuant to section
    42-1778, Idaho Code.
    (d)  Parties to an administrative enforcement action may agree to a civil
    penalty as provided in this subsection.
    (7)  No action taken pursuant to this section shall relieve any person
from any civil liability and damages that may exist for injury or damage
resulting to others.
    (8)  Upon request of the director, it shall be the duty of the attorney
general to institute and prosecute civil enforcement actions pursuant to this
section.