No. 31431 (Amendment): R655-14. Administrative Procedures for Enforcement Proceedings Before the Division of Water Rights.

DAR File No.: 31431
Filed: 05/14/2008, 03:50
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The division has recognized points in which the rule may be clarified and amended to more closely parallel similar adjudicative processes in other venues. The proposed amendments will make application of the rule more equitable, as is detailed in the summary of the change. The amendments will accommodate statutory changes implemented by the passage of S.B. 228 (2008 General Session). (DAR NOTE: S.B. 228 (2008) is found at Chapter 282, Laws of Utah 2008, and was effective 05/05/2008.)

Summary of the rule or change:

The proposed changes incorporate both substantive and nonsubstantive amendments which provide for: 1) clarification of the roles, authority, and functions of division personnel administering the enforcement program; 2) amendment of monetary penalty calculations in certain situations ("Avoided Cost Economic Benefit") to achieve results more equitable and proportionate to the seriousness of the violations; 3) addition of monetary penalty calculations for violations pertaining to well drilling; 4) deletion of duplicative and nonessential language; and 5) technical and grammatical corrections to make the rule consistent with the Division of Administrative Rules' preferred format and standards (e.g., citations to statutes and other rules).

State statutory or constitutional authorization for this rule:

Subsection 73-2-1(4)(g), and Sections 73-2-25, 73-2-26, and 73-3-25

Anticipated cost or savings to:

the state budget:

The proposed amendments will result in minimal costs to reprint the rule once the amendments are made effective.

local governments:

The proposed amendments do not apply to local governments; no costs or savings are anticipated. The amendments will apply only to application of the rule by division personnel and to the penalties calculated in specific circumstances.

small businesses and persons other than businesses:

The proposed amendments do not apply to a small business or other persons except as a small business or other person may be alleged to have violated a pertinent statute. In that case, compliance costs or savings would be as described for affected persons.

Compliance costs for affected persons:

The proposed substantive amendments to penalty calculations apply only to persons alleged to have violated statutes in specific circumstances. For some persons, depending on the facts pertaining to the alleged violation, a lower monetary penalty may be calculated.

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

There is no anticipated fiscal impact to businesses from this rule amendment beyond the potential compliance cost or savings that may result if a business is determined to have violated a statute implemented under the amended rule. 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:

07/01/2008

This rule may become effective on:

07/08/2008

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.]which may be commenced under Section 73-2-25[ of the Utah Water and Irrigation Code, which authorizes]. Under Subsection 73-2-1(4)(g), the State Engineer, as the Director of the Utah Division of Water Rights, is required to make rules [to implement]regarding [the water ]enforcement [powers and duties of the State Engineer and Division of Water Rights]orders and the imposition of fines and penalties.

(2) The [Division's]State Engineer's powers and duties include acting on behalf of the State of Utah to administer, [under the supervision of the State Engineer ]as the agency head of the Division of Water Rights, 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 Division[,]may issue an Initial Order for any violation of the Water and Irrigation Code as set forth in [Utah Code Ann. ]Subsection[s 73-1-1 through 73-5a]73-2-25(2)(a).

(3) Following the issuance of an Initial Order, the respondent may contest the Initial Order in a proceeding before the State Engineer or [his]the appointed Presiding Officer. [Water e]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]Rule R655-6[-1 through R655-6-20] regarding informal proceedings before the Division of Water Rights.

(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 assesses and imposes administrative fines and penalties lawfully, fairly, and consistently, which fines and penalties 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 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)](a) "Administrative Penalty" [or "Administrative Fine" ]means a monetary [sum]fine or water replacement [assessed]ordered by the Presiding Officer to be paid or accomplished by the respondent in response to a violation of, or a failure to comply with, a law administered by the [Division]State Engineer, or any rule, regulation, license, permit or order adopted pursuant to the [Division]State Engineer's authority.[ "Administrative Penalty" and "Administrative Fine" may be used interchangeably.]

[(c)](b) "Cease and Desist Order" (CDO) means a written order issued by the State Engineer or the Enforcement Engineer 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]a notice of administrative penalties [and administrative costs]to which a respondent may be subject. [Cease and Desist Order]CDO'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)](c) "Consent Order" means an order issued by the Presiding Officer reflecting [the]a stipulated and voluntary agreement between the parties concerning the resolution of [the]an [water ]enforcement adjudicative proceeding. A Consent Order constitutes a Final Judgment and Order.

[(e)](d) "Default Order" means an order [that is ]issued by [a]the Presiding Officer after a respondent fails to participate or continue to participate in an enforcement proceeding[respond to an IO within the designated time frame]. A Default Order constitutes a Final [Order and ]Judgment and Order.

[(f)](e) "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, measured, 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 and as defined in Section R655-15.

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

[(i)](h) "Enforcement Costs" [are those costs defined in this rule at Utah Admin. Code]means a monetary sum ordered by the Presiding Officer to be paid by a respondent for any expense incurred by the State Engineer in investigating and stopping a violation of, or a failure to comply as defined herein. Enforcement costs are further defined in this rule at Subsection R655-14-12(6). Collection of said costs is authorized at [Utah Code Ann. ]Subsection 73-2-26(1)(a)(iii).

(i) "Enforcement Engineer" means the State Engineer or an authorized delegate who may commence and prosecute an enforcement action pursuant to Subsection 73-2-25(2)(a).

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

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

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

(m) "Initial Administrative Penalty" means an administrative fine, a requirement to replace water unlawfully taken, and/or the enforcement costs required to be repaid as these are [assessed]described and set forth in the Initial Order (IO) as [authorized]required at [Utah Code Ann. ]Subsection [73-2-26(1)(a)]73-2-25(2)(b)(ii). These penalties do not include accrued penalties for violations continuing past the date of the IO.

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

(o) "Issued" as it applies to an IO [and]or a Final Judgment and Order means the document has been executed by an authorized delegate of the State Engineer (in the case of an IO) or by the Presiding Officer (in other cases) and deposited in the mail.

(p) "Knowing" or "Knowingly" as used in [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] 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.

(q) "License" means the express grant of permission or authority by the [Division]State Engineer 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.

(r) "Location" means the current[,]residential or business address of a party as recorded in the Division's files. If a current residential address is not available for an individual, "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.

(s) "Mitigation" means [to provide ]compensation acceptable to the Division for injury caused by [the]a stream channel or dam safety violation.

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

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

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

(ii) Engaging in an[y] 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]State Engineer or by a rule, license, permit or order adopted pursuant to the [Division]State Engineer's authority.

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

[(w)](v) "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]prescribed by statute or rule or order of the Presiding Officer for submitting relevant information or requesting a hearing; and/or

(ii) Attend a preliminary conference or hearing if a preliminary conference or hearing is scheduled and a notice is properly issued.

[(x)](w) "Party" means the [Division]State Engineer, an authorized delegate of the State Engineer, and/or the respondent(s).

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

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

[(ab)](aa) "Presiding Officer" means the State Engineer or an authorized delegate of[, persons appointed by] the State Engineer[, or persons designated by the Division's rules, or statute, to conduct] who conducts an [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.]

[(ac)](ab) "Record" means the official collection of all written and electronic materials produced in an[water] enforcement [adjudicative ]proceeding[s], including but not limited to the [administrative action]IO, pleadings, motions, exhibits, orders and testimony produced during the adjudicative proceedings, as well as the files of the Division as defined herein[that took place during the proceeding].

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

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

[(af)](ae) "State Engineer" is the Director and agency head of the Division of Water Rights in whom ultimate legal authority is vested[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.]

[(ag)](af) "Unknowingly" or "Not Knowing" means the converse of the definition of "Knowingly" contained in [Utah Code Ann. ]Section 76-2-103[, which is: a]. A person engages in 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.

[(ah)](ag) "Water Commissioner" or "Commissioner" means a person appointed to distribute water within a water distribution system pursuant to [Utah Code Ann. ]Section 73-5-1 and Section R655-15.

(ah) "Well" means an open or cased excavation or borehole for diverting, using, or monitoring underground water made by any construction method.

(ai) "Well driller" means a person with a license to engage in well drilling for compensation or otherwise.

(aj) "Well drilling" means the act of drilling, constructing, repairing, renovating, deepening, cleaning, developing, or abandoning a well.

 

R655-14-5. Other Authorities.

(1) Nothing in these rules shall limit the [Division]State Engineer's authority to take alternative or additional actions relating to the administration, appropriation, adjudication and distribution of the waters of Utah as provided by Utah law.

 

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]Presiding Officer, 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.

(3) [Papers]Documents required or permitted to be filed under these rules shall be filed with the Division, to the attention of the Presiding Officer or Enforcement Engineer, as may be required, within the time limits for such filing as [are ]set by the [Division]Enforcement Engineer, 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 to the Division 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 received 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, the Enforcement Engineer or by this rule.

 

R655-14-9. Filings Generally.

(1) Papers filed with the Division shall state the [Division]State Engineer Agency Action (SEAA) [and file ]number, [if any, ]the title of the proceeding, and the name of the respondent on whose behalf the filing is made.

(2) Papers filed with the Division shall be signed and dated by the respondent on whose behalf the filing is made or by the respondent's authorized representative. The signature constitutes certification that the respondent:

(a) Read the document;

(b) Knows the content thereof;

(c) To the best of [his]the respondent's knowledge, represents [such]that the statements therein are true;

(d) Does not interpose the papers for delay; and

(e) If [his]the respondent's signature does not appear on the paper, authorized a representative with full power and authority to sign the paper.

(3) All papers, except those submittals and documents that are kept in a larger format during the ordinary course of [a party's ]business, shall be submitted on an [8 1/2]8.5 x 11-inch paper. All papers shall be legibly hand printed or typewritten.

(4) The Division may provide forms to be used by the parties.

(5) The original of all papers shall be filed with the Division with such number of additional copies as the Division may reasonably require.

(6) Simultaneously with the filing of any and all papers with the Division, the party filing such papers shall send a copy to all other parties, or their authorized representative to the proceedings, by hand delivery, or U.S. Mail, postage prepaid, properly addressed.

 

R655-14-10. Motions.

(1) A party may submit a request to the Presiding Officer for any order or action not inconsistent with Utah law or these rules. Such a request shall be called a motion. The types of motions made shall be those that are allowed under these Rules and the Utah Rules of Civil Procedure.

(2) Motions may be made in writing at any time before or after the commencement of a hearing, or they may be made orally during a hearing or a preliminary conference. Each motion shall set forth the grounds for the desired order or action and, if submitted in writing, state whether oral argument is requested. A written supporting memorandum, specifying the legal basis and support of the party's position shall accompany all motions.

 

R655-14-11. Options for Adjudicative Enforcement.

(1) The [Presiding Officer]State Engineer 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]State Engineer's belief that a violation has occurred;

(iii) States the administrative [penalty]fine, [and]enforcement costs, and/or other penalty[relief deemed appropriate by the Presiding Officer] to which the respondent may be subject;

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

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

(B) Shall pay the administrative fine and enforcement costs, and/or

[(B)](C) Shall submit a written [mitigation ]plan or proposal setting forth how and when [that]the respondent proposes to [achieve compliance]replace water taken without right.

(v) Informs the respondent:

(A) Of the right to file a timely written request for a hearing on [either ]the alleged violation, the administrative [penalty]penalties defined[ 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 R655-14-16;

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

(E) That the [Presiding Officer]Enforcement Engineer may treat each day's violation as a separate violation in describing the Initial Administrative Penalty under Subsection [73-2-26(1)(d)]73-2-25 (2)(b)(ii); that is, the administrative penalty continues to accrue each day from the time the [Notice of Violation is issued]violation begins 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]fine and enforcement costs 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]fine and costs; and

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

(b) Cease and Desist Order (CDO): 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, notice and/or order allegedly violated;

(ii) Describes the act or course of conduct [which]that 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]any action deemed necessary by the [State Engineer]Enforcement Engineer to confirm compliance and assure continued compliance;[.]

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

(vi) States the [remedies, costs and penalties that the State Engineer may lawfully impose]administrative penalties to which the respondent may be subject for any violation of the [Cease and Desist Order]CDO.

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

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

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

[(d)](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)](A) The alleged act or failure to act may be defined as a criminal offense by [S]state law;

[(b)](B) Enforcement is beyond the jurisdiction or investigative capability of the [Division]State Engineer; or

[(c)](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]state-granted licenses, approvals permits or certifications.

(2) Unless otherwise stated, all [enforcement actions]notices, orders and judgments are effective upon [issuance]the date issued.

(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]An IO may be incorporated into a Default Order if the respondent fails to participate as defined herein.[

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

(6) A respondent who fails to timely contest an IO waives any right of reconsideration of the Final Judgment and Order 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[,] and 73-2-25[, and 26,]and these rules, the [Presiding Officer]Enforcement Engineer[, may] shall assess the initial administrative penalties, which may include an administrative fine, a requirement to replace water and the reimbursement of [administrative]enforcement costs to which the respondent may be subject for any violation [of the Water and Irrigation Code ]as set forth in [Utah Code Ann. ]Subsection 73-2-25(2)(a)[s73-1-1 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.]Subsection 73-2-26(1), as may be amended.

(3) Each day [which the]a 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 may continue[s ]to accrue through and including the day the Notice of Violation[,] and/or Cease and Desist Order is issued, or the Final Judgment and Order is issued, or 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]Enforcement costs, interest, late payment charges, costs of compliance inspections, and collection costs may be assessed in addition to the administrative [penalty]fine. These include:

(a) [Administrative]Enforcement costs: Costs for [T]time spent by [water enforcement]Division staff, supervisors, the Presiding Officer, and personnel of 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]Costs accrued at the monthly percentage rate assessed by the Utah [Division of Finance]Department of Administrative Services, Office of Debt Collections.

(c) Compliance inspection[s] costs: [based on]Time spent by Division staff [time ]at the full cost of [the]each employee's hourly rate, including salary, benefits, overhead and other directly related costs.

(d) Collection costs: [a]Actual collection costs.

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

(8) Any monies collected under [Utah Code Ann. ]Section 73-2-26 and these rules shall be deposited into the General Fund.

 

R655-14-13. Replacement [and Mitigation]of Water.

(1) In addition to administrative fines and enforcement costs, the Enforcement Engineer may impose and 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 in accordance with Section 73-2-26.

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

(a) [a]A respondent fails to request judicial review of a [f]Final Judgment and [o]Order issued under [Utah Code Ann. ]Section 73-2-25; or

(b) [the c]Completion of judicial review, including any appeals.

(3) Pursuant to [Utah Code Ann. ]Section 73-2-26, [the Presiding Officer shall consider,]and before imposing or ordering replacement of water, the Enforcement Engineer and the Presiding Officer shall consider 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 Enforcement Engineer may require and 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]State Engineer Agency Action (SEAA) number [the Division ]assigned to the IO[ which is the basis of the mitigation plan];

(c) Identification of the water [rights]right(s) [or]and property for which the [mitigation]water replacement plan is proposed;

(d) A description of the [mitigation]water replacement plan; and

(e) Any information that assists the [State]Enforcement Engineer in evaluating whether the proposed [mitigation]water replacement plan is acceptable.

(5) [If the mitigation plan is submitted for the purpose of replacing water, t]The factors the [State]Enforcement Engineer or Presiding Officer 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]the respondent until water is replaced to the [Presiding Officer's is satisfaction]extent required in the IO or ordered in the Final Judgment and Order;

(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]to which the respondent [subject to the order requiring replacement ]would be entitled [to use ]during the replacement period.

(7) In accordance with [Utah Code Ann. ]Subsection 73-2-26(5)(a), or any other statutory authority, the Division 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) An administrative fine shall not exceed the maximum amounts established by statute at Subsection 73-2-26 (1), as such may be amended.

[(1)](2) For [water rights ]violations per[Utah Code Ann. ]Subsections 73-2-25(2)(a)(i) through (vii), 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]or 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 equal to the gross income that is or could potentially be realized from the violation (without regard for production costs, taxes, etc.) divided by the number of days of violation. For water right violations, the daily economic benefit is calculated using the gross income 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 equal to the product of the daily economic benefit and the multiplier to be calculated as described in paragraph (iii) below.

(C) The initial administrative fine [shall be]is equal to the product of the daily administrative fine and the number of days of continuing violation to the date [of ]the IO is issued, but shall not exceed the product of the highest calculated total realized economic benefit and the penalty multiplier.

(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.

(iii) The penalty multiplier is the sum of the points calculated using [the following table]Table 1:

 

TABLE 1

DIRECT ECONOMIC BENEFIT PENALTY MULTIPLIER



CONSIDERATION / CRITERIA                    MULTIPLIER POINTS

Knowing or unknowing violation

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

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

Economic injury to others

  [g]Great[h]er than $15,000 . . . . . . . . . . . . 1.00

  $10,000 to $1[4]5,000 . . . . . . . . . . . . . . .0.75

  [l]Less than $[9,999]10,000 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)](iv) "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,]In some cases, including but not limited to violations under Subsections 73-2-25 (2)(a) (iii) through (vii), an economic benefit [will often]may result from an avoided cost of compliance with a notice or order from the State Engineer, or from failure to obtain a necessary approval, permit or license. [Statute provides for a]In the case of a failure to comply with a prior notice or order, the daily administrative fine commences with the day following the compliance date in the notice or order[ being counted as the first day of violation]. In the event of a failure to obtain a necessary approval, permit or license, the period of violation is deemed to begin on the first day the unauthorized activity is commenced. The economic benefit and daily administrative fine for an "avoided cost economic benefit" shall be calculated in the following manner:

(A) The total realized economic benefit is equal to the [estimated]highest calculated avoided costs of failing to implement specific actions required by a statute, rule, notice or order from the State Engineer.

(B) The daily administrative fine is [initially calculated as]equal to the product of [$100.00]$20 or 5[.00]% of the total realized economic benefit, whichever is greater, and the penalty multiplier to be calculated as described in paragraph [(iv)](vi), below.

(C) The initial administrative fine [shall be]is equal to the product of the daily administrative fine and the number of days of continuing violation preceding the date of the IO, but shall not exceed the product of the highest calculated total realized economic benefit and the penalty multiplier.

(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)](v) 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.

(vi) The penalty multiplier is the sum of the points resulting from [the following table]Table 2:

 

TABLE 2

AVOIDED COST ECONOMIC BENEFIT PENALTY MULTIPLIER



CONSIDERATION / CRITERIA                   MULTIPLIER POINTS

Knowing or unknowing violation

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

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

Economic injury to others

  [g]Greater than $15,000. . . . . . . . . . . . .1.00

  $10,000 to $1[4]5,000  . . . . . . . . . . . . .0.75

  [l]Less than $[9,999]10,000 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 the product of 100% of the amount unlawfully taken [times]and the penalty multiplier previously calculated, but not to exceed 200% of that unlawfully taken. If replacement of water unlawfully taken is deemed to be [not ]infeasible by the Enforcement Engineer or the Presiding Officer, 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)](3) For violations related to unlawful natural stream channel alteration or dam safety regulations per [Utah Code Ann. ]Subsections 73-2-25(1)(a)(vi) [through]and (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, there may be a direct economic benefit, or there may be an avoided cost 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]equal to the product of [$100]$20 or 5[.00]% of the total realized economic benefit, whichever is greater, [times]and 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 3 or Table 4, as may be appropriate:

 

TABLE 3

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

  [R]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

 

TABLE 4

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) [r]Related to building, enlarging or

   substantially altering same without prior

   approval or authorization; OR

    2) [a]Addressing an existing unsafe condition . .1.00

  Failure to comply with a notice or order for

   a high-hazard or moderate-hazard dam:

    1) [a]Addressing a developing unsafe condition OR

    2) [r]Requiring monitoring or critical dam

   performance indicators; OR

   [f]Failure to prepare and file acceptable required

   operational documents, OR

   [f]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 

  [f]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

 

(iv) The total administrative fine shall not exceed the product of the highest calculated total realized economic benefit and the penalty multiplier.

(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) For violations under Subsection 73-2-25(2)(a)(iii) related to failure to submit a report required by Section 73-3-25, the following procedures shall be employed:

(a) The daily administrative fine is equal to $5.00.

(b) The number of days of continuing violation commences 90 days after the day on which the well driller license lapses.

(c) The initial administrative fine is equal to the product of the daily administrative fine and the number of days of continuing violation to the date the IO is issued.

(d) The total administrative fine shall not exceed the product of the daily administrative fine and the number of days of continuing violation.

(e) 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.

(4) For violations under Subsection 73-2-25(2)(a)(ix) related to engaging in well drilling without a license required by Section 73-3-25, the following procedures shall be employed:

(a) The direct economic benefit is equal to the gross income that is or could potentially be realized (without regard for production costs, taxes, etc.) from engaging in well drilling (as defined herein) without a license.

(b) The total initial administrative fine is equal to the product of the direct economic benefit resulting from the violation and the penalty multiplier described in paragraph (c) below.

(c) The penalty multiplier is calculated as the sum of the points from Table 5.

 

TABLE 5

WELL DRILLING PENALTY MULTIPLIER



CONSIDERATION/ CRITERIA . . . MULTIPLIER POINTS

Knowing or unknowing violation

  Knowing . . . . . . . . . . . . .  1.50

  Unknowing . . . . . . . . . . . .  1.00



Gravity of Violation

  New well construction . . . . . .  1.00

  Deepening a well . . . . . . . .   0.80

  Renovating a well . . . . . . . .  0.60

  Abandoning a well . . . . . . . .  0.40

  Cleaning/developing a well . . .   0.20

 

(d) The total administrative fine shall not exceed the product of the direct economic benefit and the penalty multiplier.

(e) 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)](5) 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]pertaining to violations of stream channel alteration or 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]an Initial Administrative Penalty: If [the violator or Division can ]shown by acceptable evidence or testimony that any fact used in calculation of the economic benefit, of the quantity of water unlawfully taken, or of 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 administrative 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]Penalties may be reduced according to [the table shown]Table 6 [below ]on the basis of the [violator]respondent's efforts to comply after receiving the IO.

 

TABLE 6

PENALTY MULTIPLIER REDUCTION



CONSIDERATION / CRITERIA                   MULTIPLIER POINTS

[Violator]Respondent's efforts to comply with

 the Initial Order

  [Violator]Respondent has made extraordinary efforts

   to successfully achieve full and prompt

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

  [Violator]Respondent has made efforts to successfully

   achieve full and prompt compliance with the

   IO, but these efforts are not extraordinary . .0.50

  [Violator]Respondent has made efforts that achieve full

   compliance with the IO, but the efforts were

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

  [Violator]Respondent 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 ]Subsection R655-14-12(4) until full compliance is achieved.

(d) Adjustments to recovery of enforcement costs:

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

[(iii)](ii) 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 [R]respondent and only if the [R]respondent provides all necessary information to evaluate the claim. The burden to demonstrate inability to pay rests solely on the [R]respondent. The Presiding Officer shall disregard this factor if a [R]respondent fails to provide sufficient or persuasive financial information.

If it is determined that a [R]respondent cannot afford the full monetary penalties[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 [R]respondent from achieving compliance or from carrying out remedial measures which are deemed more important than the [deterent]deterrent effect of the [administrative]monetary penalties, the following options may be considered by the Presiding Officer:

(A) A delayed payment schedule with full payment of monetary penalties to be made at a date not exceeding 180 days from the date the Final Judgment and Order is issued; or

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

(C)](B) A direct reduction of the [initial administrative fines and/or]monetary penalties, [but only as a last recourse]which reduction is deemed by the Presiding Officer to be consistent with achieving the purposes of the enforcement action and the aims of equity and justice.

(C) A portion of the monetary penalties may be suspended with conditions as determined by the Presiding Officer, which suspension is deemed by the Presiding Officer to be consistent with achieving the purposes of the enforcement action and the aims of equity and justice. Failure by a respondent to adhere to the conditions of the suspension may result in an Order of reinstatement of any part of the suspended monetary penalties, which will be due and payable immediately upon reinstatement.

 

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

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

(a) In proceedings initiated by an 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]of the date the IO is issued:

(i) [Ceases]Satisfies all requirements of the IO, including but not limited to ceasing the violation(s), [and pays]full payment of all the administrative [penalty]fines, reimbursement of the State Engineer's enforcement [and ]costs in full, and submission of any required water replacement plan; or,

(ii) Files with the Division a timely and proper written response to the IO[within the fourteen (14) day time period] but waives a hearing and submits [its]the 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]the respondent's burdens, allegations or defenses; or

(iii) Files with the Division a timely and proper written response to the IO, having timely filed a[and] request[s] for a hearing as provided in the IO and in[Utah Admin. Code] Section R655-14-16.

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

(i) [S]A statement of law and jurisdiction;

(ii) [S]A statement of facts;

(iii) [Explanation]An identification of the confirmed [V]violation(s);

(iv) An [O]order setting forth actions required of the respondent(s);

(v) A notice of the option to request reconsideration and the right to petition for judicial review, except as such are waived in a Consent Order;

(vi) The time limits for requesting reconsideration or filing a petition for judicial review, except as such are waived in a Consent Order; and

(vii) Other information the [State Engineer]Presiding Officer deems necessary or 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]record, as defined in this rule, or, in the case of a Consent Order, on the stipulation accepted by the parties and the Presiding Officer.

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

 

R655-14-16. 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 date the IO['s issuance] was issued.

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

(3) The Presiding Officer may, upon [his]the Presiding Officer's 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]shall, if [he determines]it is determined a hearing is warranted, give all parties 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]Any party 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.

 

R655-14-17. General Requirements for Hearings.

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

(a) The proceeding was commenced by an IO; and

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

(c) The respondent raises a genuine issue of material fact[.]; or

(d) The Presiding Officer determines that a hearing is required to serve the interests of equity or justice.

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

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

(b) No [other ]evidence presented by the respondent conflicts with or substantially counters the evidence the [Presiding Officer]Enforcement Engineer relied on when issuing [an order]the IO.

(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]issue a Final Judgment and Order in reliance upon the record, as defined in this rule, or may order a preliminary conference to supplement or clarify 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]respondent at any time may withdraw [his]the respondent's request for a hearing[, but t]. The withdrawal shall be filed with the Division, in writing, signed by the respondent or [his]an authorized representative, and is deemed final upon the date filed.

 

R655-14-18. Preliminary Conference.

(1) The Presiding Officer may require the parties to appear for a preliminary conference prior to [the]granting a request for a hearing or prior to the scheduled commencement of [the]a hearing or at any time before issuing a Final Judgment and Order.

(2) The purpose of a preliminary conference is to consider any or all of the following:

(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]or

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

(2) [At the initial preliminary conference prior to the hearing]If a request for hearing has been timely and properly filed and has not been denied, all parties shall prepare and exchange the following information at the initial preliminary conference:

(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]all parties at least three (3) days notice of the preliminary conference.

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

 

R655-14-20. Procedures and Standards for Orders Resulting from Service of an Initial Order.

(1) Consent Order:

(a) If the respondent substantially agrees with or does not contest the statements of fact in the IO, or if the parties agree to specific amendments to the statements of fact in the IO, [he]the parties may enter into a Consent Order by stipulating to the facts[,] andeither or both ofthe following:

(i) Negotiated administrative penalties[,];

(ii) Negotiated replacement of water; or

(iii) [ and administrative]Negotiated reimbursement of enforcement costs.

(b) A [stipulation, judgment, and ]Consent Order based on that stipulation, shall be prepared by the [Division]Enforcement Engineer for [the respondent's signature]execution by the parties. The executed Consent Order shall be reviewed by the Presiding Officer and, if found to be acceptable, will be signed and issued by the Presiding Officer.

(c) A Consent Order[s are]issued by the Presiding Officer is not subject to reconsideration or judicial review.

(2) Final Judgment and Order Without Hearing: If the respondent does not request a hearing or is not granted a request for a hearing, 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]unable or unwilling to [sign a stipulation within 30 days after responding to the IO, and does not request a hearing]negotiate a stipulated Consent Order, the Presiding Officer shall issue a Final Judgment and Order based on [that participation]the record, as defined in this rule.

(3) Final Judgment and Order After Hearing: If the respondent timely and properly requests a hearing, the hearing request is granted, the respondent participates by attending all scheduled[a] preliminary conferences, and/or [participates ]by attending the hearing, but is unwilling or unable to negotiate a stipulated Consent Order, the Presiding Officer [who conducts the hearing ]shall issue a Final Judgment and Order based upon the record, as defined in this rule.

(4) Default Order: 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]and fails to respond to the IO; or

(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 R655-14-17, the Presiding Officer shall issue a Final Judgment and Order based upon the information in the case record.]A respondent who fails to participate pursuant to an IO waives any right to request reconsideration of the Final Judgment and Order per Section R655-14-25, but may petition for judicial review per Section R655-14-29.

 

R655-14-21. 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)](2) 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.]

 

R655-14-22. 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 is 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]The Enforcement Engineer shall present evidence before a Presiding Officer [the Division's ]supporting [evidence for its]the State Engineer's claim. At the State Engineer's discretion, a representative from the office of the Attorney General may also present [the Division's ]supporting evidence.

 

R655-14-23. Transcript of Hearing.

(1) Testimony and argument at the hearing shall be either recorded electronically or stenographically. The Division shall make copies of electronic recordings available to any party, upon written request. The fee charged for this service shall be equal to the actual costs of providing the copy. The Division is not responsible to supply any party with a transcript of [the]a hearing.

(2) If any party shall cause to be produced a transcript of a hearing, a copy of said transcript shall be filed with the Division and provided to all other parties. By order of the Presiding Officer and with the consent of all parties, such written transcript may be deemed an official transcript.

[(2)](3) Corrections [in the]to an 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 adjudicative proceeding. 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.

 

R655-14-24. Consent Order.

(1) At any time prior to [rendering]the Presiding Officer issuing 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) A[n admission] statement of facts accepted by the parties;

(b) A waiver of further procedural steps before the Presiding Officer and of 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.

(4) When issued by the Presiding Officer, a Consent Order constitutes a Final Judgment and Order, effective on the date issued.

 

R655-14-25. 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]a request for reconsideration is not a prerequisite for seeking judicial review of the order.

(3) The request for reconsideration shall be filed with the Division to the attention of the Presiding Officer and one copy shall be mailed to each party by the [person making]party filing the request.

(4) The Presiding Officer [shall]may issue a written order granting [the request ]or denying the request for reconsideration. It is not required that the written order explain the grounds for the Presiding Officer's decision.

(5) If the Presiding Officer does not issue an order granting a request for reconsideration within 14 days after [the filing of the request ]the date it is filed with the Division, the request [for reconsideration ]shall be considered denied.

(6) A Final Judgment and Order in the form of a Consent Order or a Default Order is not subject to a request for reconsideration under this rule.

 

R655-14-26. Setting Aside a Final Judgment and Order[s].

(1) On the motion of any party or on a motion by the Presiding Officer, the Presiding Officer may set aside a Final Judgment and Order[,]on any reasonable grounds, including but not limited to the following:

(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]A motion to set aside a final order 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]Presiding Officer shall notify the [respondent]parties of the [Presiding Officer's intent to set the order aside]receipt and consideration of a motion to set aside a final order by [serving the respondent with]issuing a notice to all parties, including therewith a copy of the motion.

(4) Any party opposing a motion to set aside a final order may submit information within the time period to be established by the Presiding Officer's notice of the motion.

[(4)](5) [If after serving the respondent with a notice]After consideration of the motion to set aside an order and any information received from the parties, the Presiding Officer [determines the order shall be set aside, the Division shall notify the respondent]shall issue an order granting or denying the motion, and provide a copy of the order to all parties.

 

R655-14-27. Amending Administrative Orders.

(1) [T]On the motion of any party or of the Presiding Officer, the Presiding Officer may amend an IO or Final Judgment and Order for [reasons]reasonable cause shown, including but not limited to the following:

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

(b) The time periods and alleged violation(s) covered in the order overlap the time periods and alleged violation(s) in another order for the same [participants]respondents.

(2) A motion by any party to amend an order shall be made in a reasonable time and, if to amend a Final Judgment and Order, not more than three (3) months after the Final Judgment and Order was issued.

[(2)](3) The [Division]Presiding Officer shall notify the [respondent]parties of the [Presiding Officer's intent]receipt and consideration of a motion to amend [the]an order by [serving the respondent with]issuing a notice. The notice shall include a copy of the motion.

(4) Any party opposing a motion to amend an order may submit information within the time period to be established by the Presiding Officer's notice of the motion.

[(3)](5) [If the respondent is served with notice]After considering a motion to amend an order and any relevant information received from the parties, the Presiding Officer shall advise the parties of his determination. If the Presiding Officer determines that the order shall be amended, the [Division]Presiding Officer shall [provide a copy of the amended order to the respondent]issue the amended order to all parties.

 

R655-14-28. 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.

 

R655-14-29. 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; or

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

(2) A respondent shall file a petition for judicial review of [the]a Final Judgment and Order within 20 days from the day on which the order was [served on that respondent]issued, 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]Presiding Officer may grant a stay of [its]an order or other temporary remedy during the pendency of the judicial review on [its]the Presiding Officer's own motion, or upon the motion of a party. The procedures for notice, for consideration of motions, and for issuing a determination shall be as set forth herein for a motion to set aside a Final Judgment and Order.

 

KEY: water rights, enforcement, [fines]administrative penalties

Date of Enactment or Last Substantive Amendment: [December 15, 2006]2008

Authorizing, and Implemented or Interpreted Law: [73-3]73-2-1(4)(g); 73-2-25; 73-2-26; 73-3-25