No. 29096 (Amendment): R655-14. Administrative Procedures for Enforcement Proceedings Before the Division of Water Rights

DAR File No.: 29096
Filed: 09/29/2006, 02:46
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the amendment is to clarify portions of the existing rule and to add procedures for determining and imposing administrative fines and penalties.

Summary of the rule or change:

Several changes clarify some of the definitions in the existing rule. Two changes are submitted to clarify that a respondent has a right to judicial review, and to define the associated time deadlines. Two changes are submitted to clarify the requirements for motions to set aside a Final Judgment and Order. A new section is added to put into rule the process and criteria for determining the administrative fine and penalties that should be assessed for water right violations based upon the considerations outlined in Subsections 73-2-26(2)(a) through (d).

State statutory or constitutional authorization for this rule:

Sections 73-2-25 and 73-2-26

Anticipated cost or savings to:

the state budget:

No anticipated costs or savings to the State Budget. The administrative fines and penalties section is based on authority given to the State Engineer in Section 73-2-26 and assures that a standard process will be followed to determine the fines and penalties should be imposed for each individual water right violation.

local governments:

No anticipated costs or savings to the local government. The administrative fines and penalties section is based on authority given to the State Engineer in Section 73-2-26 and assures that a standard process will be followed to determine the fines and penalties should be imposed for each individual water right violation.

other persons:

No anticipated costs or savings to other persons. The administrative fines and penalties section is based on authority given to the State Engineer in Section 73-2-26 and assures that a standard process will be followed to determine the fines and penalties should be imposed for each individual water right violation.

Compliance costs for affected persons:

No compliance costs other than the requirement to pay the administrative fines and penalties in the event of a water right violation.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no direct fiscal impacts on businesses. If a business unlawfully diverts and uses water, or other similar actions, they could be subject to a penalty and/or fine. The legislation passed during the 2005 General Session and set forth the type and extent of the penalties and fines. These amendments are intended to define the procedures of the State Engineer in enforcement of the law. Michael Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Water Rights
1594 W NORTH TEMPLE
SALT LAKE CITY UT 84116-3154

Direct questions regarding this rule to:

Kaelyn Anfinsen at the above address, by phone at 801-538-7370, by FAX at 801-538-7442, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/14/2006

This rule may become effective on:

11/22/2006

Authorized by:

Jerry Olds, Director

RULE TEXT

R655. Natural Resources, Water Rights.

R655-14. Administrative Procedures for Enforcement Proceedings Before the Division of Water Rights.

R655-14-1. Authority.

(1) These rules establish procedures for water enforcement adjudicative proceedings as required by Utah Code Ann. Section 73-2-25 of the Utah Water and Irrigation Code, which authorizes the State Engineer, as the Director of the Utah Division of Water Rights, to make rules to implement the water enforcement powers and duties of the State Engineer and Division of Water Rights.

(2) The Division's powers and duties include acting on behalf of the State of Utah to administer, under the supervision of the State Engineer, the distribution and use of all surface and ground waters within the state in accordance with statutory authority, including but not limited to Utah Code Ann. Sections 73-2-1, 73-2-1.2, and 73-2-25.

 

R655-14-2. Application and Preamble.

(1) These rules are applicable statewide to the use of the waters of the state. Additional rules may be promulgated to address water enforcement for specific hydrologic areas.

(2) The [State Engineer, or his designated Presiding Officer]Division, may issue an Initial Order for any violation of the Water and Irrigation Code as set forth in Utah Code Ann. Sections 73-1-1 through 73-5a.

(3) Following the issuance of an Initial Order, the respondent may contest the Initial Order in a proceeding before the State Engineer or his appointed Presiding Officer. Water enforcement adjudicative proceedings are not governed by the Utah Administrative Procedures Act as provided under Utah Code Ann. Section 63-46b-1 and are not governed by Utah Admin. Code Sections R655-6-1 through R655-6-20.

(4) These rules shall be liberally construed to permit the Division to effectuate the purposes of Utah law.

 

R655-14-3. Purpose.

(1) These rules are intended to:

(a) Assure the protection of Utah's water and the public welfare by promoting compliance and deterring noncompliance with the statutes, rules, regulations, permits, licenses and orders administered and issued under the Division's authority by removing any economic benefit realized as a direct or indirect result of a violation; and

(b) Assure that the State Engineer assess administrative penalties lawfully, fairly, and consistently, which reflect:

(i) The nature and gravity of the violation and the potential for harm to Utah's water and the public welfare by the violation;

(ii) The length of time which the violation was repeated or continued; and

(iii) The additional costs which are actually expended by the Division during the course of the investigation and subsequent enforcement.

(c) Clarify the Division's authority to enforce the laws it administers under the State Engineer's supervision, and the rules, regulations, permits, and orders adopted pursuant to appropriate authority.

(2) The three elements of the statutorily provided penalties are intended to achieve different aims of equity and public policy. To achieve these aims, the following classes of penalties have been established by statute:

(a) Administrative fines are intended to remove the financial incentive of the violation by removing the economic benefit as well as imposing a punitive measure.

(b) Replacement of water is intended to make whole the resource and impacted water users, as far as this is possible, by requiring respondents to leave an amount of water undiverted or undiminished in the resource for use by others. The allowance of up to 200% replacement indicates the penalty can incorporate a punitive element, as appropriate.

(c) Reimbursement of enforcement costs is intended to make whole the state by requiring a violator to replace the public funds expended to achieve compliance with the law.

 

R655-14-4. Definitions.

(1) Terms used in this rule are defined in Utah Code Ann. Section[s] 73-3-24.

(2) In addition,

(a) "Administrative Cost" means a monetary sum assessed by the Presiding Officer for any expense incurred by the Division in investigating and stopping a violation of, or a failure to comply with, a law administered by the Division, or any rule, permit, license, or order adopted pursuant to the Division's authority.

(b) "Administrative Penalty" or "Administrative Fine" means a monetary sum assessed by the Presiding Officer in response to a violation of, or a failure to comply with, a law administered by the Division, or any rule, regulation, license, permit or order adopted pursuant to the Division's authority. "Administrative Penalty" and "Administrative Fine" may be used interchangeably.

(c) "Cease and Desist Order" (CDO) means a written order requiring a respondent to cease and desist his violations and/or directing that positive steps be taken to mitigate any harm or damage arising from the violation, including the imposition of administrative penalties and administrative costs. Cease and Desist Order's are further described in Utah Admin. Code Section R655-14-11. A CDO constitutes an Initial Order (IO), whether issued alone or in conjunction with a Notice of Violation (NOV).

(d) "Consent Order" means an order reflecting the voluntary agreement between the parties concerning the resolution of the water enforcement adjudicative proceeding.

(e) "Default Order" means an order that is issued by a Presiding Officer after a respondent fails to respond to an IO within the designated time frame. A Default Order constitutes a Final Order and Judgment.

(f) "Distribution Order" means a written order from the State Engineer that includes any or all of the following:

(i) An interpretation of the water rights on a river system or other water source and procedures for the regulation and distribution of water according to those water rights;

(ii) A requirement of specific action or actions on the part of a water right owner or a group of water right owners to ensure that water is diverted, stored, or used according to the water rights involved and that the diversion, storage, or use does not infringe on the rights of other water right owners;

(iii) A description of the hydrologic limitations of a river system or other water source and a plan based on the water rights of record designed to manage and maximize beneficial use of water while protecting the sustainability of the water source;

(iv) A requirement that reports be submitted to the Division as provided in Utah Code Ann. Section 73-5-8.

(v) A regulation tag issued by the Division or by a Water Commissioner according to Utah Code Ann. Section 73-5-3.

(g) "Division" means the Division of Water Rights. The terms State Engineer, Presiding Officer, or Division may be used interchangeably unless clearly indicated otherwise by the context of the sentence in which it appears.

(h) "Economic Benefit" means the benefit actually or potentially realized and/or a cost avoided by a violator as a result of the unlawful activity defined as a violation in the IO.

(i) "Enforcement Costs" are those costs defined in this rule at Utah Admin. Code R655-14-12(6). Collection of said costs is authorized at Utah Code Ann. Section 73-2-26 (1)(a)(iii).

[(h)](j) "Filed" means submission of papers to the Division pursuant to Utah Admin. Code R655-14-8(3).

[(i)](k) "Files" means information maintained in the Division files, which may include both paper and electronic information.

[(j)](l) "Final Judgment and Order" means a final decision issued by the State Engineer on the whole or part of a water enforcement adjudicative proceeding. This definition includes "Default Orders."

(m) "Initial Administrative Penalty" means an administrative fine, a requirement to replace water unlawfully taken, or the enforcement costs required to be repaid as these are assessed in the Initial Order (IO) as authorized at Utah Code Ann. Subsection 73-2-26(1)(a). These penalties do not include accrued penalties for violations continuing past the date of the IO.

[(m)](n) "Initial Order" (IO) means a Notice of Violation and/or Cease and Desist Order.

[(l)](o) "Issued" as it applies to an IO and Final Judgment and Order means the document has been[are issued when ] deposited in the mail.

[(k)](p) "Knowing" or "Knowingly" as used in[required by] Utah Code Ann. Section 73-2-26, means the same as the definition contained in Utah Code Ann. Section 76-2-103, which is: a person engages in conduct knowingly, or with knowledge with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

[(n)](q) "License" means the express grant of permission or authority by the Division to carry on an activity or to perform an act, which, without such permission or authority, would otherwise be a violation of State law, rule or regulation.

[(o)](r) "Location" means the current, residential address of a party as recorded in the Division's files. If a current residential address is not available, "location" means an employment or business address if known, or nonresidential mailing address such as a Post Office Box or Rural Route, at which a party whose location information is being sought receives mail.

[(p)](s) "Mitigation" means to provide compensation acceptable to the Division for injury caused by the violation.

[(q)](t) "Mitigation Plan" means a document submitted to the Division by the respondent that identifies or proposes actions to provide mitigation.

[(r)](u) "Noncompliance" or "Nonconformance" or "Failure to Comply" or "Violation" each mean any act or failure to act which constitutes or results in:

(i) Engaging in any activity prohibited by, or not in compliance with, any law administered by the Division or any rule, license, permit or order adopted or granted pursuant to the Division's authority;

(ii) Engaging in any activity without a necessary permit or approval that is required by law or regulation;

(iii) The failure to perform, or the failure to perform in a timely fashion, anything required by a law administered by the Division or by a rule, license, permit or order adopted pursuant to the Division's authority.

[(s)](v) "Notice of Violation" (NOV) means a written notice that informs a respondent of Water and Irrigation Code violations. Notice of Violation is further described in Utah Admin. Code R655-14-11. A NOV constitutes an Initial Order (IO), whether issued alone or in conjunction with a Cease and Desist Order (CDO).

[(t)](w) "Participate" means, in an enforcement proceeding that was commenced by an IO, to:

(i) Present relevant information to the Presiding Officer within the time period described by statute or rule for requesting a hearing; and/or

(ii) Attend [the]a preliminary conference or hearing if a preliminary conference or hearing is scheduled.

[(u)](x) "Party" means the Division, and/or the respondent.

[(v)](y) "Permit" means an authorization, license, or equivalent control document issued by the Division to implement the requirements of any federally delegated program or Utah law administered or enforced by the Division.

[(w)](z) "Person" means an individual, trust, firm, joint stock company, corporation (including a quasi-governmental corporation), partnership, association, syndicate, municipality, municipal or state agency, fire district, club, non-profit agency or any subdivision, commission, department bureau, agency, department or political subdivision of State or Federal Government (including quasi-governmental corporation) or of any interstate body and any agent or employee thereof.

(aa) "Post Initial Order Penalty Adjustments" means those adjustments, in the form of increases or decreases, made to the initial administrative penalties assessed in the IO by the Presiding Officer in consideration of information pertaining to the violation.

[(x)](ab) "Presiding Officer" means the State Engineer, persons appointed by the State Engineer, or persons designated by the Division's rules, or statute, to conduct a water enforcement adjudicative proceeding. State Engineer, Presiding Officer, or Division may be used interchangeably unless clearly indicated otherwise by the context of the sentence in which it appears.

[(y)](ac) "Record" means the official collection of all written and electronic materials in water enforcement adjudicative proceedings, including but not limited to the administrative action, pleadings, motions, exhibits, orders and testimony that took place during the proceeding.

[(z)](ad) "Respondent" means any person against whom the Division commences an enforcement action by issuing an IO.

[(aa)](ae) "Requirement" means any law administered by the Division, or any rule, regulation, permit, license or order adopted or granted pursuant to the Division's authority.

[(ab)](af) "State Engineer" is the Director of the Division of Water Rights appointed as provided by Utah Code Ann. Sections 73-2-1 and 73-2-1.2. The terms State Engineer, Presiding Officer, or Division may be used interchangeably unless clearly indicated otherwise by the context of the sentence in which it appears.

[(ac)](ag) "Unknowingly" or "Not Knowing" means the converse of the definition of "Knowingly" contained in Utah Code Ann. Section 76-2-103, which is: a person engages conduct unknowingly, or without knowledge with respect to his conduct or to circumstances surrounding his conduct when he is unaware of the nature of his conduct or the existing circumstances. A person acts unknowingly, or without knowledge, with respect to a result of his conduct when he is unaware that his conduct is reasonably certain to cause the result.

[(ad)](ah) "Water Commissioner" means a person appointed to distribute water within a water distribution system pursuant to Utah Code Ann. Section 73-5-1.

 

R655-14-8. Computation of Time.

(1) Computation of any time period referred to in these rules shall begin with the first day following the act that initiates the running of the time period. The last day of the time period computed is included unless it is a Saturday, Sunday, or legal holiday or any other day on which the Division is closed, in which event the period shall run until the end of the business hours of the following business day. When the time period is less than seven (7) days, intervening days when the Division is closed shall be excluded in the computation.

(2) The State Engineer, for good cause shown, may extend any time limit contained in these rules, unless precluded by statute. All requests for extensions of time shall be made by motion[ before the expiration of the original or previously extended time period].

(3) Papers required or permitted to be filed under these rules shall be filed with the Division within the time limits for such filing as are set by the Division, the Presiding Officer, or other provision of law. Papers filed in the following manner shall be deemed filed as set forth:

(a) Papers hand delivered during regular business hours shall be deemed filed on the date of hand-delivery. Papers delivered by hand at times other than during regular business hours shall be deemed filed on the next regular business day when stamped by the Division.

(b) Papers deposited in the U.S. mail shall be deemed filed on the date stamped received by the Division. In the event that no stamp by the Division appears, papers shall be deemed filed on the postmarked date. All papers shall show the date received by the Division.

(c) Papers transmitted by facsimile, telecopier or other electronic transmission shall not be accepted for filing unless permitted in writing by the Presiding Officer.

 

R655-14-11. Options for Adjudicative Enforcement.

(1) The Presiding Officer may pursue any combination of the following administrative and judicial enforcement actions depending upon the circumstances and gravity of each case.

(a) Notice of Violation: a formal notice of a suspected violation issued in accordance with Section 73-2-25 which:

(i) Cites the law, rule, regulation, permit and/or order allegedly violated;

(ii) States the facts that form the basis for the Division's belief that a violation has occurred;

(iii) States the administrative penalty and cost, and/or other relief deemed appropriate by the Presiding Officer;

(iv) Specifies a reasonable deadline or deadlines by which the respondent:

(A) Shall come into compliance with the requirements described in the Notice of Violation, and/or

(B) Shall submit a written mitigation plan or proposal setting forth how and when that respondent proposes to achieve compliance.

(v) Informs the respondent:

(A) Of the right to file a timely written request for a hearing on either the alleged violation, administrative penalty and cost or remedy imposed, or both;

(B) That the respondent must file said written request for a hearing with Division within seven (7) days after service of the Notice of Violation;

(C) That said written request shall strictly comply with R655-14-[15]16;

(D) That said notice shall become a Final Judgment and Order of the Division upon the respondent's election to waive participation or failure to respond or otherwise participate in a timely manner, and

(E) That the Presiding Officer may treat each day's violation as a separate violation under Section 73-2-26(1)(d); that is, the administrative penalty continues to accrue each day from the time the Notice of Violation is issued until compliance is achieved.

(vi) Identifies the individual to whom correspondence and inquiries regarding the Notice of Violation should be directed;

(vii) States to whom and the date by which the administrative penalty and cost shall be paid if the respondent elects to waive or fails to request an adjudicative hearing in a timely manner and elects to pay the penalty and cost; and

(viii) States the Division's authority to pursue further administrative or judicial enforcement action.

(b) Cease and Desist Order: an immediate compliance order issued pursuant to Section 73-2-25 either upon discovery of a suspected violation of the Water and Irrigation Code or in combination with a Notice of Violation, which:

(i) Cites the law, rule, license, permit and/or order allegedly violated;

(ii) Describes the act or course of conduct which is prohibited by the Cease and Desist Order;

(iii) Orders the respondent to immediately cease the prohibited act or prohibited course of conduct;

(iv) States the mitigation action deemed necessary by the State Engineer.

(v) Takes effect immediately upon issuance or within such time as specified by the State Engineer in the CEASE AND DESIST ORDER; and

(vi) States the remedies, costs and penalties that the State Engineer may lawfully impose for any violation of the Cease and Desist Order.

(c) Court Action

(i) Civil: direct recourse to a court of competent jurisdiction either in addition to or in lieu of administrative action where:

(a) It is necessary to enforce a Final Judgment and Order and seek civil and/or administrative penalties

(b) An imminent threat to the public health, safety, welfare or environment exists which warrants injunctive or other emergency relief; or

(c) A pattern of continuous, significant violations exists such that administrative enforcement action alone is unlikely to achieve compliance; or

(d) The court is the most convenient or appropriate forum for resolution of the dispute.

(ii) Criminal: referral to the County Prosecutor or the Attorney General's Office for prosecution or criminal investigation where:

(a) The alleged act or failure to act may be defined as a criminal offense by State law;

(b) Enforcement is beyond the jurisdiction or investigative capability of the Division; or

(c) Criminal sanctions may be appropriate.

(d) Miscellaneous - other enforcement options may be pursued to achieve compliance. Additional options include, but are not limited to

(i) Joint actions with or referrals to other federal, state or local agencies;

(ii) Direct legal or equitable actions in state or federal court; and/or

(iii) Denial, suspension or revocation of state grants or required permits or certifications.

(2) Unless otherwise stated, all enforcement actions are effective upon issuance.

(3) Combinations of enforcement actions are not mutually exclusive and may be concurrent and/or cumulative.

(4) All IO's shall become final if not contested within 14 days after the date issued.

(5) The date of issuance of an IO is the date the IO is mailed.

(6) A respondent who [Failure]fails to timely contest an IO waives any right of reconsideration of the Final Judgment and Order [or judicial appeal]per Utah Admin. Code R655-14-25.

 

R655-14-12. Assessment of Administrative Penalties and Administrative Costs.

(1) Pursuant to Utah Code Ann. Sections 73-2-1, 73-2-25, and 26, and these rules, the Presiding Officer, may assess administrative penalties and administrative costs for any violation of the Water and Irrigation Code as set forth in Utah Code Ann. Sections73-1-1 through 73-5a et seq. Such penalties and costs may be assessed either before or after a hearing.

(2) No penalty shall exceed the maximum penalty allowed by State law for the violation(s). The maximum administrative penalty that the Presiding Officer has authority to impose is determined by reference to the civil penalty provision of Utah Code Ann. Section 73-2-26(1) as may be amended.

(3) Each day which the violation is repeated, continued or remains in place, constitutes a separate violation. The Presiding Officer may assess an administrative penalty, not to exceed five thousand dollars ($5,000) for each knowing violation or one thousand dollars ($1,000) for each unknowing violation.

(4) The penalty imposed shall begin on the first day the violation occurred, and continues to accrue through and including the day the Notice of Violation, Cease and Desist Order, or Final Judgment and Order is issued until compliance is achieved.

(5) The amount of the penalty shall be calculated based on:

(a) The value or quantity of water unlawfully taken, including the cost or difficulty of replacing the water;

(b) The gravity of the violation, including the economic injury or impact to others;

(c) Whether the respondent subject to fine or replacement attempted to comply with the State Engineer's orders; and

(d) The respondent's economic benefit from the violation.

(6) Administrative costs, interest, late payment charges, costs of compliance inspections, and collection costs may be assessed in addition to the administrative penalty. These include:

(a) Administrative costs: Time spent by water enforcement staff, supervisors and the Attorney General's Office, at the full cost of the each employee's hourly rate, including salary, benefits, overhead and other directly related costs.

(b) Late payment charges: due at the monthly percentage rate assessed by the Utah Division of Finance, Office of Debt Collections.

(c) Compliance inspections: based on staff time at the full cost of the hourly rate, including salary, benefits, overhead and other directly related costs.

(d) Collection costs: actual collection costs.

(7) The Division may report the total amount of administrative fines and/or administrative costs assessed to consumer reporting agencies and pursue collection as provided by Utah law.

(8) Any monies collected under Utah Code Ann. Section73-2-26 and these rules shall be deposited into the General Fund.

 

R655-14-13. Replacement and Mitigation.

(1) In addition to administrative fines and costs, the Presiding Officer, in accordance with Utah Code Ann. Sections 73-2-1, 73-2-25 and 73-2-26 and these rules, may order the respondent to mitigate damages caused by the violation and/or replace up to 200 percent of the water unlawfully taken.

(2) The Presiding Officer may require actual replacement of water after:

(a) a respondent fails to request judicial review of a final order issued under Utah Code Ann. Section 73-2-25; or

(b) the completion of judicial review, including any appeals.

(3) Pursuant to Utah Code Ann. Section 73-2-26, the Presiding Officer shall consider, before ordering replacement of water, the following factors:

(a) The value or quantity of water unlawfully taken, including the cost or difficulty of replacing the water;

(b) The gravity of the violation, including the economic injury or impact to others;

(c) Whether the respondent attempted to comply with the State Engineer's orders; and

(d) The respondent's economic benefit from the violation.

(4) The Presiding Officer may order the respondent to submit a mitigation plan to replace groundwater or surface water, which shall be submitted in writing and contain the following information:

(a) The name and mailing address of the respondent or persons submitting the plan;

(b) The case number the Division assigned to the IO which is the basis of the mitigation plan;

(c) Identification of the water rights or property for which the mitigation plan is proposed;

(d) A description of the mitigation plan; and

(e) Any information that assists the State Engineer in evaluating whether the proposed mitigation plan is acceptable.

(5) If the mitigation plan is submitted for the purpose of replacing water, the factors the State Engineer may consider to determine if the plan is acceptable include, but are not limited to:

(a) Whether the mitigation plan provides for the respondent to forgo use of a vested water right owned or leased by him until water is replaced to the Presiding Officer's is satisfaction;

(b) The reliability of the source of replacement water over the term in which it is proposed to be used under the mitigation plan; and

(c) Whether the mitigation plan provides for monitoring and adjustment as necessary to protect vested water rights.

(6) As provided in Utah Code Ann. Section 73-2-26, water replaced shall be taken from water that the respondent subject to the order requiring replacement would be entitled to use during the replacement period.

(7) In accordance with Utah Code Ann. Section 73-2-26(5)(a), or any other statutory authority, the Division [shall]may record any order requiring water replacement in the office of the county recorder where the place of use or water right is located. Any subsequent transferee of such property shall be responsible for complying with the requirements of said order.

(8) If the mitigation plan is submitted for the purpose of restoring an natural stream channel altered in violation of Section 73-3-29, the factors the State Engineer may consider to determine if the plan is sufficient include, but are not limited to:

(a) Whether the mitigation plan provides for reasonable means of replacing natural vegetation injured by the unlawful stream channel alteration;

(b) Whether the mitigation plan provides for a reasonable means to restore the bed and bank of the natural stream channel to its condition prior to the alteration;

(c) Whether the mitigation plan will not impair vested water rights;

(d) Whether the mitigation plan unreasonably or unnecessarily affects any recreation use or the natural stream environment;

(e) Whether the mitigation plan unreasonably or unnecessarily endangers aquatic wildlife;

(f) Whether the mitigation plan unreasonably or unnecessarily diminishes the natural channel's ability to conduct high flows; and

(g) Whether the mitigation plan uses generally accepted and appropriate engineering methods.

 

R655-14-14. Procedures For Determining The Amounts of Administrative Penalties, Enforcement Costs and Water Replacement.

(1) For water rights violations perUtah Code Ann. Section 73-2-25(2)(a)(i) through (v), the following procedures shall be employed:

(a) Administrative Fines: This penalty shall be based primarily on the actual economic benefit estimated to result or potentially to result from the violation. The economic benefit may come in the form of a direct economic benefit as income derived directly from the unlawful activity and it may come in the form of avoided costs that would otherwise be incurred in order to comply with a specific statute, rule, notice or order from the State Engineer. The administrative fine assessment procedure used (direct economic benefit or avoided costs) will be that which produces the greater fine. In order to implement the punitive intent of this penalty, a multiplier is to be calculated and applied to the estimated actual direct economic benefit or avoided costs.

(i) "Direct Economic Benefit" Initial Administrative Fine Calculations. The initial administrative fine shall be calculated in the following manner:

(A) The daily economic benefit is the gross income that could potentially be realized from the violation (without regard for production costs, taxes, etc.) through a full period of beneficial use, divided by the number of days in the period of beneficial use.

(B) The daily administrative fine amount is the product of the daily economic benefit and the multiplier to be calculated as described in paragraph (ii) below.

(C) The initial administrative fine shall be the product of the daily administrative fine and the number of days of continuing violation to date of the IO.

(D) The total initial administrative fine will have a maximum value of four times the direct economic benefit or the statutory maximum fine ($1,000 per day for an unknowing violation or $5,000 per day for a knowing violation), whichever is less.

(ii) The multiplier for penalties based on direct economic benefit shall be calculated utilizing the following statutory considerations. (Statutorily required considerations relative to the quantity of water taken and the gravity and impact of the violation are accommodated in the calculations of the economic "benefit" and "injury.")

(A) Whether the violation was committed knowingly or unknowingly;

(B) The economic injury to others;

(C) The length of time over which the violation has occurred; and

(D) The violator's efforts to comply. The multiplier is the sum of the points calculated using the following table:

 

TABLE

DIRECT ECONOMIC BENEFIT PENALTY MULTIPLIER

CONSIDERATION / CRITERIA                    MULTIPLIER POINTS

Knowing or unknowing violation

Knowing . . . . . . . . . . . . . . . . . . . . . .1.00

Unknowing . . . . . . . . . . . . . . . . . . . . .0.00

Economic injury to others

greather than $15,000 . . . . . . . . . . . . . . .1.00

$10,000 to $14,000 . . . . . . . . . . . . . . . . 0.75

less than $9,999 or injury is not measurable or

there is no evidence others suffered economic

injury . . . . . . . . .  . . . . . . . . . . . . 0.50

Length of violation

Three (3) or more years of violation . . . . . . . 1.00

More than one (1), but less that three (3)

years of violation . . . . . . . . . . . . . . . .0.75

One (1) year or less of violation . . . . . . . . .0.50

Violator's efforts to comply prior to Initial Order

Violator has made no efforts to comply . . . . . . 1.00

Violator has made limited but ineffective

efforts to comply . . . . . . . . . . . . . . . . 0.75

Violator has made reasonable and partially

effective efforts to comply . . . . . . . . . . . 0.50

Violator fully complied prior to issuance

of Initial Order  . . . . . . . . . . . . . . . . 0.00

 

(iii) "Avoided Cost Economic Benefit" Initial Administrative Fine Calculation: Because all enforcement activities for violations under Utah Code Ann. Section 73-2-25(2)(a)(iii) through (v), must statutorily result from violation of a prior notice or order, an economic benefit will often result from an avoided cost of compliance. Statute provides for a daily administrative fine with the day following the compliance date in the notice or order being counted as the first day of violation. The economic benefit and daily administrative fine for an "avoided cost economic benefit" shall be calculated in the following manner:

(A) The economic benefit is equal to the estimated avoided costs of failing to implement specific actions required by a notice or order from the State Engineer.

(B) The daily administrative fine is initially calculated as the product of $100.00 or 5.00% of the economic benefit, whichever is greater, and the multiplier to be calculated as described in paragraph (iv), below.

(C) The initial administrative fine shall be the product of the daily administrative fine and the number of days of continuing violation preceding the date of the IO.

(D) The total initial administrative fine will have a maximum value of three times the economic benefit or the statutory maximum fine ($1,000 per day for an unknowing violation or $5,000 per day for a knowing violation), whichever is less.

(iv) The statutory considerations applicable to producing the multiplier for an avoided cost economic benefit are: (Statutorily required considerations relative to the quantity of water taken and the gravity and impact of the violation are accommodated in calculations of the economic "benefit" and "injury.").

(A) Whether the violation was committed knowingly or unknowingly;

(B) The economic injury to others; and

(C) The violator's efforts to comply. The penalty multiplier is the sum of the points resulting from the following table:

 

TABLE

AVOIDED COST ECONOMIC BENEFIT PENALTY MULTIPLIER

CONSIDERATION / CRITERIA                   MULTIPLIER POINTS

Knowing or unknowing violation

Knowing. . . . . . . . . . . . . . . . . . . . .1.00

Unknowing . . . . . . . . . . . . . . . . . . . 0.00

Economic injury to others

greater than $15,000 . . . . . . . . . . . . . .1.00

$10,000 to $14,000 . . . . . . . . . . . . . . .0.75

less than $9,999 or injury is not measurable

or there is no evidence others suffered

economic injury . . . . . . . . . . . . . . . .0.50

Violator's efforts to comply prior to Initial Order

Violator has made no efforts to comply . . . . .1.00

Violator has made limited but ineffective

efforts to comply . . . . . . . . . . . . . . .0.75

Violator has made reasonable and partially

effective efforts to comply . . . . . . . . . .0.50

Violator fully complied prior to issuance

of Initial Order . . . . . . . . . . . . . . . 0.00

 

(b) Replacement of Water: This penalty will be initially calculated as 100% of the amount unlawfully taken times the multiplier previously calculated, but not to exceed 200% of that unlawfully taken. If replacement of water unlawfully taken is deemed not feasible, this penalty will not be further considered.

(c) Reimbursement of Enforcement Costs: This penalty will be initially based on a standard requiring 100% reimbursement of the State Engineer's enforcement costs to the date of the IO.

(2) For violations related to unlawful natural stream channel alteration or dam safety regulations per Utah Code Ann. Section 73-2-25(1)(a)(vi) through (vii), the following procedures shall be employed:

(a) Daily Administrative Fine: All enforcement activities for unlawful natural stream alteration or dam safety violations must statutorily result from violation of a prior notice or order. Statute provides for a daily administrative fine with the day following the compliance date in the notice/order being counted as the first day of violation. The calculated daily administrative fine would apply to violations continuing beyond the compliance date set forth in the notice or order. The economic benefit and daily administrative fine shall be calculated in the following manner:

(i) For stream alteration and dam safety violations, the economic benefit is typically equal to the avoided costs deriving from:

(A) Initiating an activity without the benefit of proper permitting and/or,

(B) Failing to implement specific actions required by a notice, order or permit from the State Engineer.

(ii) The daily administrative fine is initially calculated as $100 or 5.00% of the economic benefit, whichever is greater, times the multiplier to be calculated as described in paragraph (iii), below, but not to exceed the statutory maximum ($1,000 per day for an unknowing violation or $5,000 per day for a knowing violation).

(iii) The penalty multiplier is calculated as the sum of the points resulting from the following tables:

 

TABLE

STREAM ALTERATION PENALTY MULTIPLIER

CONSIDERATION / CRITERIA                   MULTIPLIER POINTS

Knowing or unknowing violation

Knowing . . . . . . . . . . . . . . . . . . . . 1.00

Unknowing . . . . . . . . . . . . . . . . . . . 0.00

Gravity of violation

Natural stream environment harmed to

significant levels not readily

reversible by mitigation efforts . . . . . . . 1.00

Natural stream environment harmed to moderate

levels partially reversible by

mitigation efforts . . . . . . . . . . . . . . 0.75

Natural stream environment harmed to minor levels

Readily reversible by mitigation efforts . . . .0.50

Violator's efforts to comply prior to Initial Order

Violator has made no efforts to comply . . . . .1.00

Violator has made no reasonable or effective

efforts to comply . . . . . . . . . . . . . . .0.75

Violator has made reasonable and partially

effective efforts to comply . . . . . . . . . .0.50

Violator achieved full compliance prior to

issuance of Initial Order . . . . . . . . . . .0.00



DAM SAFETY PENALTY MULTIPLIER

CONSIDERATION / CRITERIA                   MULTIPLIER POINTS

Knowing or unknowing violation

Knowing . . . . . . . . . . . . . . . . . . . . 1.00

Unknowing . . . . . . . . . . . . . . . . . . . 0.00

Gravity of violation

Failure to comply with a notice or order for

a high-hazard or moderate-hazard dam:

 1) related to building, enlarging or

substantially altering same without prior

approval or authorization; OR

 2) addressing an existing unsafe condition . .1.00

Failure to comply with a notice or order for

a high-hazard or moderate-hazard dam:

 1) addressing a developing unsafe condition OR

 2) requiring monitoring or critical dam

performance indicators; OR

failure to prepare and file acceptable required

operational documents, OR

failure to comply with a notice or order for

a low-hazard dam related to building, enlarging

or substantially altering same without prior

authorization . . . . . . . . . . . . . . . . .0.75

Failure to comply with a notice or order for

a high-hazard or moderate-hazard dam related

to routine operation or maintenance activities, OR

failure to comply with a notice or order for

a low-hazard dam to address an existing or developing

unsafe condition . . . . . . . . . . . . . . . 0.50

Violator's efforts to comply prior to Initial Order

Violator has made no efforts to comply . . . . .1.00

Violator has made limited reasonable or

effective efforts to comply . . . . . . . . . .0.75

Violator has made reasonable and partially

effective efforts to comply . . . . . . . . . .0.50

Violator achieved full compliance prior to

issuance of Initial Order . . . . . . . . . . .0.00

 

(b) Reimbursement of Enforcement Costs is initially based on a standard requiring 100% reimbursement of the State Engineer's enforcement costs to the date of the Initial Order.

(3) Post-Initial Order penalty adjustments: Subsequent to issuance of the IO, the Presiding Officer may make adjustments to the initial administrative fine, the requirement for replacement of water unlawfully taken, requirements for mitigation of the effects of unlawful natural stream channel alterations or violations of dam safety regulations, and/or the requirement for reimbursement of enforcement costs. Such adjustments may be based on one or more of the following considerations:

(a) Errors or Omissions in Calculation of the Initial Penalty: If the violator or Division can show by acceptable evidence or testimony that any fact used in calculation of the economic benefit or the penalty multiplier was in error, or that a significant fact or group of facts was omitted from consideration, the Presiding Officer shall recalculate the initial penalties taking consideration of the corrected or additional fact(s).

(b) Reduction in Penalty Multiplier: The penalty multiplier used in calculating the Initial Administrative Fine may be reduced according to the table shown below on the basis of the violator's efforts to comply after receiving the IO.

 

TABLE

PENALTY MULTIPLIER REDUCTION

CONSIDERATION / CRITERIA                   MULTIPLIER POINTS

Violator's efforts to comply with

the Initial Order

Violator has made extraordinary efforts

to successfully achieve full and prompt

compliance with the IO. . . . . . . . . . . . .1.00

Violator has made efforts to successfully

achieve full and prompt compliance with the

IO, but these efforts are not extraordinary . .0.50

Violator has made efforts that achieve full

compliance with the IO, but the efforts were

neither extraordinary nor prompt . . . . . . . 0.25

Violator has made no efforts to comply or has

made efforts that fail to achieve full

compliance with the IO . . . . . . . . . . . . 0.00

 

If the Presiding Officer determines that the penalty multiplier should be reduced according to the table above, the appropriate number of points will be subtracted from the penalty multiplier used in calculating the initial administrative penalty and the penalty will be re-calculated with the new multiplier.

(c) Failure to take reasonable and effective measures to achieve full and prompt compliance with the requirements of the IO will allow the daily administrative fines to continue to accrue as provided in rule at Utah Admin. Code R655-14-12(4) until full compliance is achieved.

(d) Adjustments to recovery of enforcement costs:

(ii) If the violator can show by acceptable evidence or testimony that any expense incurred by the Division and assessed for reimbursement resulted from activities not pertinent to the violation, the Presiding Officer may reduce that portion of the initial reimbursement penalty accordingly.

(iii) Pursuit of an enforcement action after issuance of the IO will continue to require the expenditure of varying amounts of staff time and may require acquisition and analysis of special data or information. Such costs may be added to the initial reimbursement requirement, specifically including all costs incurred that are unique to the particular enforcement action under consideration.

(e) Mitigating Factors: Other factors which the Presiding Officer may consider in amendment of initial penalties for incorporation into a Final Order or Consent Order may include, as appropriate:

(i) Ability to pay: This factor will be considered only if raised by a Respondent and only if the Respondent provides all necessary information to evaluate the claim. The burden to demonstrate inability to pay rests solely on the Respondent. The Presiding Officer shall disregard this factor if a Respondent fails to provide sufficient or persuasive financial information.

If it is determined that a Respondent cannot afford the initial administrative fine or other initial penalty prescribed by this rule without suffering financial bankruptcy, or if it is determined that payment of all or a portion of the monetary fines or penalties will preclude the Respondent from achieving compliance or from carrying out remedial measures which are deemed more important than the deterent effect of the administrative penalties, the following options may be considered by the Presiding Officer:

(A) A delayed payment schedule;

(B) An installment payment plan with a reasonable rate of interest; or

(C) A direct reduction of the initial administrative fines and/or penalties, but only as a last recourse.

 

R655-14-[14]15. Procedures for Commencing an Adjudicative Enforcement Action.

(1) The procedures for water enforcement adjudicative proceedings are as follows:

(a) In proceedings initiated by a IO, the Presiding Officer shall issue a default order unless the respondent does one of the following within fourteen (14) days in response to service of the notice:

(i) Ceases the violation and pays the administrative penalty and cost in full; or,

(ii) Files with the Division a proper written response within the fourteen (14) day time period but waives a hearing and submits its case upon the record. Submission of a case without a hearing does not relieve the respondent from the necessity of providing the facts supporting his burdens, allegations or defenses; or

(iii) Files with the Division a proper written response and requests a hearing as provided in Utah Admin. Code Section R655-14-[15]16.

(b) Within a reasonable time after the close of a water enforcement adjudicative proceeding, the Presiding Officer shall issue a written and signed Final Judgment and Order, including but not limited to:

(i) Statement of law and jurisdiction;

(ii) Statement of facts;

(iii) Explanation of the Violation(s);

(iv) Order;

(v) A notice of the option to request reconsideration and the right to petition for judicial review;

(vi) The time limits for requesting reconsideration or filing a petition for judicial review; and

(vii) Other information the State Engineer deems appropriate.

(c) The Presiding Officer's Final Judgment and Order shall be based on the facts appearing in the Division's files and/or on the facts presented in evidence at any hearings or other adjudicative proceedings.

(d) A copy of the Presiding Officer's Final Judgment and Order shall be promptly mailed to each of the parties.

 

R655-14-[15]16. Request for Hearing.

(1) Regardless of any other provision of the general laws to the contrary, all requests for a hearing shall be in writing and shall be filed with the Division within seven (7) calendar days of the IO's issuance.

(2) The request for a hearing shall state clearly and concisely the specific issues that are in dispute, the supporting facts, the relief sought, the permit or order involved, and any additional information required by applicable statutes and rules.

(3) The Presiding Officer may, upon his own initiative or upon the motion of any party, order any party to file a response or other pleading, and further permit either party to amend its pleadings in a manner just to all parties.

(4) The Presiding Officer may, if he determines a hearing is warranted, give at least three (3) days notice of the date, time and place for the hearing. The Presiding Officer may grant requests for continuances for good cause shown.

(5) The respondent may, by motion, request that a hearing be held at some place other than that designated by the Presiding Officer, due to disability or infirmity of any party or witness, or where justice and equity would be best served.

 

R655-14-[16]17. General Requirements for Hearings.

(1) A hearing before a Presiding Officer is permitted in a water enforcement adjudicative proceeding if:

(a) The proceeding was commenced by an IO;

(b) The respondent files a request for hearing that meets the requirements of Utah Admin. Code Section R655-14-[15]16; and

(c) The respondent raises a genuine issue of material fact.

(2) No genuine issue of material fact exists if:

(a) The evidence gathered by the Division and the evidence the respondent offered to the Presiding Officer are sufficient to establish the violation of the respondent under applicable law; and

(b) No other evidence presented by the respondent conflicts with the evidence the Presiding Officer relied on when issuing an order.

(3) The Presiding Officer may make a decision without holding a hearing if:

(a) Presentation of testimony or oral argument would not advance the Presiding Officer's understanding of the issues involved;

(b) Delay would cause serious injury to the public health and welfare;

(c) Disposition without a hearing would best serve the public interest.

(4) If no hearing is held, the Presiding Officer may rely upon evidence in the record, including but not limited to:

(a) Water commissioner reports or information from governmental sources;

(b) Affidavit(s) documenting the respondent's violation;

(c) Failure of the respondent to produce upon request of the Presiding Officer records documenting the respondent's water use, diversions, or stream alteration; or

(d) Other applicable documentation.

(5) A party at any time may withdraw his request for a hearing, but the withdrawal shall be filed with the Division, in writing, signed by the respondent or his authorized representative, and deemed final.

 

R655-14-[17]18. Preliminary Conference.

(1) The Presiding Officer may require the parties to appear for a preliminary conference prior to the scheduled commencement of the hearing or before issuing a Final Judgment and Order to consider:

(a) The simplification or clarification of the issues;

(b) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which shall avoid unnecessary proof;

(c) The limitation of the number of witnesses or avoidance of similar cumulative evidence, if the case is to be heard;

(d) The possibility of agreement disposing of all or any of the issues in dispute; and

(e) Such other matters as may aid in the disposition of the adjudicative enforcement proceeding.

(2) At the initial preliminary conference prior to the hearing, all parties shall prepare and exchange the following information:

(a) Names and addresses of prospective witnesses including proposed areas of expertise for expert witnesses;

(b) A brief summary of proposed testimony;

(c) A time estimate of each witness' direct testimony;

(d) Curricula vitae (resumes) of all prospective expert witnesses.

(3) The scheduling of a preliminary conference shall be solely within the discretion of the Presiding Officer.

(4) The Presiding Officer shall give the respondent at least three (3) days notice of the preliminary conference.

(5) The notice shall include the date, time and place of the preliminary conference.

 

R655-14-[18]19. Telephonic or Electronic Hearings and Preliminary Conferences.

(1) The Presiding Officer may conduct hearings or preliminary conferences by telephone or other reliable electronic technology.

 

R655-14-[19]20. Procedures and Standards for Orders Resulting from Service of a Initial Order.

(1) If the respondent agrees with the IO, he may enter into a Consent Order by stipulating to the facts, administrative penalties, and administrative costs. A stipulation, judgment, and Consent Order based on that stipulation, shall be prepared by the Division for the respondent's signature. Consent Orders are not subject to reconsideration or judicial review.

(2) If the respondent participates by attending a preliminary conference or otherwise presents relevant information to the Presiding Officer, but does not reach an agreement with the Division or is unavailable to sign a stipulation within 30 days after responding to the IO, and does not request a hearing, the Presiding Officer shall issue a Final Judgment and Order based on that participation.

(3) If the respondent requests a hearing, participates by attending a preliminary conference, and participates by attending the hearing, the Presiding Officer who conducts the hearing shall issue a Final Judgment and Order based upon the record.

(4) The Presiding Officer may issue a Default Order if the respondent fails to participate as follows:

(a) The respondent does not timely request a hearing or fails to respond to the IO;

(b) After proper notice the respondent fails to attend a preliminary conference scheduled by the Presiding Officer to consider matters which may aid in the disposition of the action; or

(c) After proper notice the respondent fails to attend a hearing scheduled by the Presiding Officer pursuant to a written request for a hearing.

(5) If a respondent's request for a hearing is denied under Utah Admin. Code Section R655-14-[16]17, the Presiding Officer shall issue a Final Judgment and Order based upon the information in the case record.

 

R655-14-[20]21. Conduct of Hearings.

(1) Hearings shall be conducted informally as circumstances require.

(2) All parties, authorized representatives, witnesses and other persons present at the hearing shall conduct themselves in a manner consistent with the standards and decorum commonly observed in Utah courts. Where such decorum is not observed, the Presiding Officer may take appropriate action including adjournment, if necessary.

(3) The Presiding Officer shall conduct the hearing, make all decisions regarding admission or exclusion of evidence or any other procedural matters, and have an oath or affirmation administered to all witnesses.

(4) The Presiding Officer, based upon the IO, objections thereto, if any, and the evidence adduced at the hearing, shall determine the responsibility and administrative penalty and cost, if any, of the respondent under Utah Code Ann. Sections 73-2-25 and 26. Following determination of responsibility and penalty and cost, the Presiding Officer shall determine the acceptable periodic payment or alternative means of satisfaction of any violation amount, which shall be included in the Final Judgment and Order.

 

R655-14-[21]22. Rules of Evidence in Hearings.

(1) Discovery is prohibited, but the Division may issue subpoenas or other orders to compel production of necessary evidence.

(2) A party may call witnesses and present oral, documentary, and other evidence.

(3) A party may comment on the issues and conduct cross-examination of any witness as may be required for a full and true disclosure of all facts relevant to any issue designated for hearing, and as may affect the disposition of any interest which permits the person participating to be a party.

(4) A witness' testimony shall be under oath or affirmation.

(5) Any evidence may be presented by affidavit rather than by oral testimony, subject to the right of any party to call and examine or cross-examine the affiant.

(6) Relevant evidence shall be admitted.

(7) The Presiding Officer's decision may not be based solely on hearsay.

(8) Official notice may be taken of all facts of which judicial notice may be taken in Utah courts.

(9) All parties shall have access to public information contained in the Division's files and to all materials and information gathered in the investigation, to the extent permitted by law.

(10) No evidence shall be admitted after completion of a hearing or after a case submitted on the record, unless otherwise ordered by the Presiding Officer.

(11) Intervention is prohibited.

(12) A respondent appearing before the Presiding Officer for the purpose of a hearing may be represented by a licensed attorney. A representative from the Division shall present before a Presiding Officer the Division's supporting evidence for its claim. At the State Engineer's discretion, a representative from the office of the Attorney General may present the Division's supporting evidence.

 

R655-14-[22]23. Transcript of Hearing.

(1) Testimony and argument at the hearing shall be either recorded electronically or stenographically. The Division shall make electronic recordings available to any party, upon written request. The Division is not responsible to supply any party with a transcript of the hearing.

(2) Corrections in the official transcript may be made only to conform it to the evidence presented at the hearing. Transcript corrections, agreed to by opposing parties, may be incorporated into the record, if and when approved by the Presiding Officer, at any time during the hearing, or after the close of evidence. The Presiding Officer may call for the submission of proposed corrections and may determine the disposition thereof at appropriate times during the course of the proceeding.

 

R655-14-[23]24. Consent Order.

(1) At any time prior to rendering a Final Judgment and Order, the parties may attempt to settle a dispute by stipulating to a Consent Order.

(2) Every Consent Order shall contain, in addition to an appropriate order:

(a) An admission of facts;

(b) A waiver of further procedural steps before the Presiding Officer and the right to judicial review; and

(c) A statement that the stipulation is enforceable as an order of the State Engineer and Division in accordance with procedures prescribed by law.

(3) The Consent Order may contain a statement that signing the Consent Order is for settlement purposes only and does not constitute an admission by any party that the law or rules have been violated as alleged in the IO.

 

R655-14-[24]25. Reconsideration.

(1) Within 14 days after the Presiding Officer issues a Final Judgment and Order, any party may file a written request for reconsideration with the Division, stating the specific grounds upon which relief is requested.

(2) Unless otherwise provided by statute, the filing of the request is not a prerequisite for seeking judicial review of the order.

(3) The request for reconsideration shall be filed with the Division and one copy shall be mailed to each party by the person making the request.

(4) The Presiding Officer shall issue a written order granting the request or denying the request.

(5) If the Presiding Officer does not issue an order within 14 days after the filing of the request, the request for reconsideration shall be considered denied.

 

R655-14-[25]26. Setting Aside Final Judgment and Orders.

(1) On the motion of any party, the Presiding Officer may set aside a Final Judgment and Order, on any reasonable grounds, including:

(a) The respondent was not properly served with an IO;

(b) The order has been replaced by a judicial order that covers the same violation and time period;

(c) A rule or policy was not followed when the Final Judgment and Order was issued;

(d) Mistake, inadvertence, excusable neglect;

(e) Newly discovered evidence which by due diligence could not have been discovered before the Presiding officer issued the Final Judgment and Order; or

(f) Fraud, misrepresentation or other misconduct of an adverse party;

(2) The motion shall be made in a reasonable time and not more than three (3) months after the Final Judgment and Order was issued.

(3) The Division shall notify the respondent of the Presiding Officer's intent to set the order aside by serving the respondent with a notice.

(4) If after serving the respondent with a notice, the Presiding Officer determines the order shall be set aside, the Division shall notify the respondent.

 

R655-14-[26]27. Amending Administrative Orders.

(1) The Presiding Officer may amend an IO or Final Judgment and Order for reasons including but not limited to the following:

(a) A clerical mistake was made in the preparation of the order; or

(b) The time periods covered in the order overlap the time periods in another order for the same participants.

(2) The Division shall notify the respondent of the Presiding Officer's intent to amend the order by serving the respondent with a notice.

(3) If the respondent is served with notice, the Presiding Officer determines that the order shall be amended, the Division shall provide a copy of the amended order to the respondent.

 

R655-14-[27]28. Disqualification of Presiding Officers.

(1) A Presiding Officer shall disqualify himself from performing the functions of the Presiding Officer regarding any matter in which he, his spouse, or a person within the third degree of relationship to either of them or the spouse of such person:

(a) Is a party to the proceeding, or an officer, director, or trustee of a party;

(b) Has acted as an attorney in the proceeding or served as an attorney for, or otherwise represented, a party concerning the matter in controversy;

(c) Knows that he has a financial interest, either individually or as a fiduciary, in the subject matter in controversy or in a party to the proceeding;

(d) Knows that he has any other interest that could be substantially affected by the outcome of the proceeding; or

(e) Is likely to be a material witness in the proceeding.

(2) A Presiding Officer is also subject to disqualification under principles of due process and administrative law.

(3) These requirements are in addition to any requirements under the Utah Public Officers' and Employees' Ethics Act, Utah Code Ann. Section 67-16-1 et seq.

(4) A motion for disqualification shall be made first to the Presiding Officer. If the Presiding Officer is appointed, any determination of the Presiding Officer upon a motion for disqualification may be appealed to the State Engineer.

 

R655-14-[28]29. Judicial Review.

(1) Pursuant to Utah Code Ann. Section 73-2-25, a Final Judgment and Order may be reviewed by trial de novo by the district court:

(a) In Salt Lake County;

(b) Or the county [were]where the violation occurred.

(2) A respondent shall file a petition for judicial review of the Final Judgment and Order within 20 days from the day on which the order was served on that respondent, or if a request for reconsideration has been filed and denied within 20 days of the date of denial of the request for reconsideration.

(3) The Division may grant a stay of its order or other temporary remedy during the pendency of the judicial review on its own motion, or upon the motion of a party.

 

KEY: water rights, enforcement, fines

Date of Enactment or Last Substantive Amendment: [August 15, 2005]2006

Authorizing, and Implemented or Interpreted Law: 73-3