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PDFWAC 220-660-480

Compliance with HPA provisions.

A project proponent must comply with all provisions of chapter 77.55 RCW, this chapter, and the HPA. If a project proponent violates chapter 77.55 RCW or this chapter or deviates from any provision of an HPA issued by the department, the department may issue a correction request, a stop work order, a notice to comply, or a notice of civil penalty. The term "project proponent" has the same definition as in RCW 77.55.410. This section does not apply to a project, or to that portion of a project, that has received a forest practices hydraulic project (FPHP) permit from the department of natural resources under chapter 76.09 RCW.
The department is responsible to help the regulated community understand how to comply. The department achieves voluntary compliance through education and technical assistance when the department advises and consults on permits, conducts compliance checks, performs on-site technical visits, or provides guidance materials written in easily understood language.
When the department cannot get voluntary compliance by issuing a correction request, the department may use a range of increasingly strict enforcement tools. This ranges from issuing notices of correction and stop work orders to penalties and, when appropriate, criminal prosecution.
(1) Technical assistance program: Under chapter 43.05 RCW, the department will continue to develop programs to encourage voluntary compliance by providing technical assistance consistent with chapter 43.05 RCW. The programs include technical assistance visits, printed information, information and assistance by telephone, training meetings, and other appropriate methods for the delivery of technical assistance. In addition, the department must provide, upon request, a list of organizations that provide technical assistance. This list is compiled by the department from information submitted by the organizations and does not constitute an endorsement by the department of any organization.
(a) Technical assistance is defined in chapter 43.05 RCW as including:
(i) Information on the laws, rules, and compliance methods and technologies applicable to the department's programs;
(ii) Information on methods to avoid compliance problems;
(iii) Assistance in applying for permits; and
(iv) Information on the mission, goals, and objectives of the program.
(b) "Technical assistance documents" means documents prepared to provide information specified in (a) of this subsection that is labeled a technical assistance document by the department. Technical assistance documents do not include correction requests or civil or criminal enforcement actions. "Correction request" means a notice of violation or a notice of correction as defined in chapter 43.05 RCW. Technical assistance documents do not impose mandatory obligations or serve as the basis for a citation.
(2) Technical assistance visit:
(a) Under RCW 43.05.030, a technical assistance visit is defined as a visit by the department to a project site or other location that:
(i) Has been requested or is voluntarily accepted; and
(ii) The department declares to be a technical assistance visit at the start of the visit.
(b) During a technical assistance visit, or within a reasonable time thereafter, the department must prepare a correction request to inform the project proponent of any violations of law or department rules identified by the department. "Correction request" means a notice of violation or a notice of correction as defined in chapter 43.05 RCW.
(c) As provided in RCW 43.05.050, the department may issue a civil penalty under this section without first issuing a correction request when a violation is observed during a technical assistance visit only if:
(i) The project proponent has previously been subject to an enforcement action for the same or similar type of HPA violation, or has been given previous notice for the same or similar type of HPA violation; or
(ii) The violation has a probability of causing more than minor harm to fish life.
(3) Compliance inspection:
(a) If, during any inspection or visit that is not a technical assistance visit, the department becomes aware of conditions that do not comply with applicable laws and rules enforced by the department and are not subject to penalties as provided for in this section, the department may issue a correction request to the project proponent.
(b) If the department issues a correction request, it must not issue a civil penalty for the violations identified in the correction request unless the project proponent fails to comply with the notice request.
(c) As provided in RCW 43.05.050, the department may issue a civil penalty under this section without first issuing a correction request when a violation is observed during a compliance inspection only if:
(i) The project proponent has previously been subject to an enforcement action for the same or similar type of HPA violation, or has been given previous notice of the same or similar type of HPA violation; or
(ii) Compliance for the current violation is not achieved by the date set or modified by the department in a previous correction request for the current violation; or
(iii) The violation has a probability of causing more than minor harm to fish life.
(4) Correction request:
(a) "Correction request" means a notice of violation or a notice of correction as defined in chapter 43.05 RCW. A correction request is not a formal enforcement action and is not subject to appeal under state law or WAC 220-660-460 Informal appeal of administrative actions or WAC 220-660-470 Formal appeal of administrative actions.
(b) If during a technical assistance visit or compliance inspection, the department discovers a violation of any provisions within chapter 77.55 RCW, this chapter, or an HPA issued by the department, it must, during the visit or within a reasonable time thereafter, issue a correction request to the project proponent detailing steps needed to bring the project into compliance.
(c) Contents of a correction request: A correction request must indicate whether it originates from a technical assistance visit or a compliance inspection. A correction request must include:
(i) A description of what is not in compliance with chapter 77.55 RCW, this chapter, or the HPA;
(ii) The text of the specific section(s) or subsection(s) of chapter 77.55 RCW, this chapter, or the HPA provision(s) for that violation;
(iii) A statement of what is required to achieve compliance;
(iv) The date by which the project proponent must achieve compliance;
(v) Notice of the means to obtain technical assistance services provided by the department or others; and
(vi) Notice of when, where, and to whom a request may be submitted to the department to extend, for good cause, the deadline for achieving compliance with the correction request.
(d) The department must provide for a reasonable time to achieve compliance.
(e) Time extension to comply: A request for an extension of the deadline for achieving compliance with the correction request must be submitted to the department in writing within ten calendar days of receiving the correction request. "Date of receipt" is defined in WAC 220-660-460 (4)(b) and 220-660-470 (5)(b). The department must respond in writing to a request for extension of the deadline.
(5) Stop work order:
(a) The department may issue a stop work order if:
(i) A violation of chapter 77.55 RCW or this chapter occurs or a deviation from any provisions of an HPA occurs. To qualify for a stop work order, the violation must be serious enough that it could cause significant harm to fish life; and
(ii) Immediate action is necessary to prevent continuation of harm, or to avoid more than minor harm, to fish life.
(b) Stop work orders are effective immediately upon issuance. Project proponents must therefore comply with stop work orders immediately upon receipt.
(c) Scope of a stop work order: A stop work order may require that any person stop all work connected with the violation until corrective action is taken, and the department has indicated that work may resume. A stop work order may also require that the project proponent take corrective action to prevent, correct, or compensate for adverse impacts to fish life caused by the violation.
(d) Contents of a stop work order. The stop work order must include:
(i) A description of the condition that is not in compliance with chapter 77.55 RCW, this chapter, or the HPA;
(ii) The text of the specific section(s) or subsection(s) of chapter 77.55 RCW, this chapter, or the HPA provision(s) for that violation;
(iii) A statement of what is required to achieve compliance;
(iv) The date by which the department requires compliance with the corrective actions identified in the order;
(v) Notice of the means to contact any technical assistance services provided by the department or others;
(vi) Notice of when, where, and to whom a request may be submitted to the department to extend, for good cause, the deadline for achieving compliance with the order;
(vii) Means for contacting the department to schedule an inspection to assess compliance; and
(viii) The right to appeal the order.
(e) Signature authority for a stop work order: A stop work order for hydraulic projects conducted without an HPA must be authorized by a regional habitat program manager, regional director, habitat program division manager, habitat program director, habitat program deputy director, or department director. A stop work order for permitted hydraulic projects must be authorized by the regional director, habitat program division manager, habitat program director, habitat program deputy director, or department director.
(f) Providing notice of a stop work order: A stop work order may be issued and provided directly and immediately to the person whose actions are in violation of chapter 77.55 RCW, this chapter, or the HPA, regardless of whether that person is the project proponent. Upon receipt of the stop work order, that person must immediately comply with it. Within five business days of issuing a stop work order, the department must mail a copy of the order to the last known address of any project proponent, to the last known address of the owner of the land on which the hydraulic project is located, and to the local jurisdiction in which the hydraulic project is located. The department must take all reasonable measures to ensure that the project proponent actually receives notice of the stop work order.
(g) Consequences of noncompliance: Failure to comply with a stop work order can result in subsequent civil or criminal enforcement actions, and can also cause the project proponent to be disapproved for future HPA applications as set forth in WAC 220-660-050.
(h) Appealing a stop work order: A stop work order may be appealed within thirty days from receipt of the order by a person who received a copy of the order or by the owner of the land on which the hydraulic project is located. Informal appeals must be filed in the form and manner provided in WAC 220-660-460, and formal appeals must be filed in the form and manner provided in WAC 220-660-470.
(6) Notice to comply:
(a) The department may issue a notice to comply if a violation of chapter 77.55 RCW or this chapter occurs, a deviation from any provisions of an HPA occurs, or damage or potential damage to fish life occurs, and the department determines that a stop work order is not necessary to prevent continuation of or avoid more than minor harm to fish life.
(b) Scope of a notice to comply: A notice to comply must specify the corrective action to be taken, and may also require additional action to prevent, correct, or compensate for adverse impacts to fish life caused by the violation.
(c) Contents of a notice to comply. A notice to comply must include:
(i) A description of the condition that is not in compliance;
(ii) The text of the specific section(s) or subsection(s) of chapter 77.55 RCW, this chapter, or the HPA provision(s) for that violation;
(iii) A statement of what is required to achieve compliance;
(iv) The date by which the department requires compliance to be achieved;
(v) Notice of the means to contact any technical assistance services provided by the department or others;
(vi) Notice of when, where, and to whom a request may be submitted to the department to extend, for good cause, the deadline for achieving compliance with the order; and
(vii) The right to appeal the notice.
(d) The department must provide for a reasonable time to achieve compliance.
(e) Signature authority for a notice to comply: A notice to comply must be authorized by a regional habitat program manager, regional director, habitat program division manager, habitat program director, habitat program deputy director, or department director.
(f) Providing notice: Within five business days of issuing a notice to comply, the department must mail a copy of the notice to the last known address of any project proponent, to the last known address of the owner of the land on which the hydraulic project is located, and to the local jurisdiction in which the hydraulic project is located. The department must take all reasonable measures to ensure that the project proponent actually receives the notice.
(g) Consequences of noncompliance: Failure to comply with a notice to comply can result in subsequent civil or criminal enforcement actions, and can also cause the project proponent to be subject to disapproval of future HPA applications as set forth in WAC 220-660-050.
(h) Appealing a notice to comply: A notice to comply may be appealed within thirty days from the date of receipt of the notice by a person who received the notice or by the owner of the land on which the hydraulic project is located. Informal appeals must be filed in the form and manner provided in WAC 220-660-460 and formal appeals must be filed in the form and manner provided in WAC 220-660-470.
(7) Civil penalties:
(a) The department may levy civil penalties of up to ten thousand dollars for each and every violation of chapter 77.55 RCW, this chapter, or provisions of an HPA. Each and every violation is a separate and distinct civil offense. Penalties are issued in accordance with the penalty schedule provided in subsection (8) of this section.
(b) Notice of civil penalty: The department must issue written notice of any civil penalty imposed under this section. At a minimum, the notice must include:
(i) The factual and legal basis for the penalty, including a description of the violation(s) for which the penalty is imposed and the text of the specific section(s) or subsection(s) of chapter 77.55 RCW, this chapter, or the HPA provision(s) for those violation(s);
(ii) The amount of the penalty; and
(iii) The right of the person incurring the civil penalty to appeal it.
(c) Signature authority for a notice of civil penalty: Civil penalties must be authorized by the regional habitat program manager, regional director, habitat program division manager, habitat program director, habitat program deputy director, or department director. Civil penalties of two thousand five hundred dollars or more must be authorized by the habitat program director, habitat program deputy director, or department director.
(d) Service of notice: The department must serve a notice of civil penalty as follows:
(i) By certified mail to:
(A) The last known address of the person incurring the penalty; and
(B) The local jurisdiction in which the hydraulic project is located; or
(ii) By personal service to:
(A) The person incurring the penalty; and
(B) The local jurisdiction in which the hydraulic project is located.
Within five business days of issuing a penalty, the department must mail a copy of the notice of civil penalty to the last known address of any project proponent and the owner of the land on which the hydraulic project is located. The department must take all reasonable measures to ensure that the project proponent actually receives notice of the penalty.
(e) Effective date of penalty: The penalty imposed becomes due and payable thirty days after receipt of a penalty notice unless an appeal is filed. Whenever an appeal is filed, the penalty becomes due and payable only upon completion of all review proceedings and the issuance of a final notice or order confirming the penalty in whole or in part.
Failure to pay a civil penalty can result in disapproval of future HPA applications as set forth in WAC 220-660-050. When a penalty becomes past due, it is also subject to interest at the rate allowed by RCW 43.17.240 for debts owed to the state.
Unpaid penalties may also be subject to enforcement under RCW 77.55.440 and other applicable laws and regulations under RCW 77.55.470.
(f) Right to appeal civil penalty: Any person incurring a civil penalty issued under RCW 77.55.440 and this section may appeal the civil penalty informally or formally within thirty days of receiving the notice of civil penalty. Informal appeals are conducted under WAC 220-660-460, and formal appeals are conducted under WAC 220-660-470.
(g) Civil penalties received or recovered under RCW 77.55.440 must be deposited into the state's general fund, except that the department is authorized to retain any attorneys' fees and costs it may be awarded in connection with an action brought under RCW 77.55.440 to recover a civil penalty.
(8) Civil penalty schedule:
(a) The department may levy a civil penalty, as defined in this section, in any of the following circumstances:
(i) The project proponent fails to complete actions required to be completed in a correction request, stop work order or notice to comply within the time period required for completion contained in the request or notice. Unless the project proponent has previously been subject to an HPA enforcement action or the violation has a probability of more than minor harm to fish life, the department will make a reasonable attempt to achieve voluntary compliance before issuing a civil penalty.
(ii) A project proponent is conducting or has conducted a hydraulic project without having an active HPA or without first obtaining an HPA for the project.
(b) The department's decision to issue a civil penalty under RCW 77.55.440 is based upon consideration of the following:
(i) Previous violation history of the person who will be incurring the penalty;
(ii) Severity and repairability of the impact of the violation(s) on fish life;
(iii) Whether the violation(s) was intentional;
(iv) The extent, if any, to which the person who would be incurring the penalty has cooperated or is cooperating with the department in addressing the violation(s) and its impact on fish life; and
(v) If the penalty will be imposed on a person for a violation committed by another, the extent to which the person incurring the penalty was unaware of the violation, and whether that person received a substantial economic benefit from the violation.
(c) Determining civil penalty amounts: When a penalty is assessed it will be calculated by the department using the following process:
(i) Determine the base civil penalty:
(A) The following violations have a base civil penalty amount of two thousand dollars: Conducting a hydraulic project without a valid HPA; willful misrepresentation of information on the HPA application; or a significant, in the opinion of the department, deviation from the valid HPA that adversely impacts fish life.
(B) All other violations not specifically mentioned have a base penalty of five hundred dollars.
(ii) Calculate the civil penalty amount from the considerations specific to the incident and the site. The following considerations will be independently evaluated for each violation and added to the base civil penalty to calculate the total civil penalty for each violation:
(A) Previous violation history of the person who will be incurring the penalty, including the frequency and similarity of any previous violations within five years preceding the violation leading to the issuance of the penalty. A history of violations that, under a preponderance of the evidence, shows a pattern of disregard for specific HPA provisions, chapter 77.55 RCW, or this chapter will likely result in a higher penalty amount. In reviewing a person's violation history for purposes of this section, the department may consider previously issued correction requests, stop work orders, notices to comply, notices of civil penalty imposed under chapter 77.55 RCW, criminal convictions imposed under RCW 77.15.300, and any other relevant information that may be available. Points are assessed to determine the penalty amount imposed under (d) of this subsection according to the following criteria:
0 points = The violator has no documented violations within five years preceding the violation leading to the issuance of the penalty.
2 points = The violator has one documented violation within five years preceding the violation leading to the issuance of the penalty.
4 points = The violator has more than one documented violation within five years preceding the violation leading to the issuance of the penalty.
(B) Severity and repairability of impacts, which the department assesses based on harm to fish life caused by the violation(s).
Violations that injure or kill fish life, decrease habitat function, value, or quantity, or cause long term or irreparable damage will likely result in a higher penalty amount. Points are assessed to determine the penalty amount imposed under (d) of this subsection according to the following criteria:
0 points = There is no adverse impact to fish life.
2 points = There is adverse impact to fish life, but it is minor, and no impacts will last beyond the duration of the construction activity.
4 points = There is extensive and/or significant adverse impact to fish life and impacts will last beyond the duration of the construction activity.
(C) Whether the violation(s) was intentional, which the department determines by considering whether the person knew or should have known the action was a violation, whether and to what extent the violation was foreseeable, whether the person to incur the penalty took precautions to avoid committing the violation, and whether the person to incur the penalty had an economic incentive for committing the violation. Violations that are intentional, foreseeable, where economic incentives are clear, or when precautions were not taken to avoid the impact likely result in a larger penalty amount. Points are assessed to determine the penalty amount imposed under (d) of this subsection according to the following criteria:
0 points = The violation was not foreseeable.
1 point = The violation was foreseeable, and no precaution was taken to avoid it.
3 points = The violation occurred after consultation, a technical or compliance site visit, or an enforcement action; or there was a clear economic incentive.
(D) The extent, if any, to which the person who would be incurring the penalty has cooperated or is cooperating with the department in addressing the violation(s) and its impact on fish life. The department assesses the level of a person's cooperation by examining whether the person reported the violation voluntarily, the time lapse, if any, between when the person discovered the violation and when the person reported it, and how responsive the person to incur the penalty was toward department staff. Evidence of a person's poor or inconsistent cooperation with department staff will likely result in a higher penalty amount. Points are assessed to determine the penalty amount imposed under (d) of this subsection according to the following criteria:
0 points = The violator reported the violation in a timely manner and cooperated with department staff to correct the violation.
1 point = The violator did not report the violation in a timely manner, or they did not cooperate with department staff to correct the violation.
3 points = The violator ignored or evaded department contacts or refused to allow department staff to enter the job site where the violation occurred.
(d) The department will calculate a penalty for each violation by adding the points assessed under (c)(ii) of this subsection and applying those corresponding amounts listed in the table below to the base penalty assessed under (c)(i) of this subsection. The base penalty plus the additional amount assessed using the department's point system will determine the total penalty for each violation not to exceed $10,000.
Points
1
2
3
4
5
Penalty
$1,000
$2,000
$3,000
$4,000
$5,000
Points
6
7
8
9
10 or greater
Penalty
$6,000
$7,000
$8,000
$9,000
$10,000
Adjusting civil penalty amounts:
(i) A penalty for a violation committed by another may be adjusted downward based on the extent, if any, to which a person incurring the penalty was unaware of the violation and did not receive a substantial economic benefit from the violation.
(ii) The department senior or executive level staff person with signature authority for the notice of civil penalty may adjust penalty amounts based on circumstances not listed under (c) of this subsection.
(iii) The department will determine whether all or a portion of a penalty should be assessed against a landowner, lessee, contractor or another project proponent. The department should consider the responsible party, the degree of control, the sophistication of the party, and whether different parties conducted different violations.
(e) Nothing in this section prevents the department from:
(i) Choosing not to issue a civil penalty;
(ii) Issuing a stop work order or notice to comply in lieu of a civil penalty; or
(iii) Referring a violation to any local, state, tribal, or federal agency with jurisdiction.
(f) Penalties determined under this subsection are administered in accordance with procedures in subsection (7) of this section.
(9) Criminal penalty: Under RCW 77.15.300, it is a gross misdemeanor to conduct any form of hydraulic project or perform other work on a hydraulic project without having first obtained an HPA from the department, or to violate any requirements or conditions of the HPA for such construction or work.
(10) Remedies not exclusive: The remedies under this chapter are not exclusive and do not limit or abrogate any other civil or criminal penalty, remedy, or right available in law, equity, or statute.
(11) Permission to enter property denied - Administrative inspection warrant: If the department is denied entry to a project site for the purpose of ensuring compliance or it has probable cause to believe a violation of chapter 77.55 RCW, this chapter, or the HPA provision(s) has occurred it must obtain landowner consent or an administrative inspection warrant under RCW 77.55.450 before entering the property for this purpose.
(12) First time paperwork violations by small businesses:
(a) The department will provide notice and waiver of fines, civil penalties, and administrative sanctions for first time paperwork violations by a small business, consistent with RCW 34.05.110.
(b) A paperwork violation is limited to:
(i) Failure to have a copy of the HPA, plans, and specifications for a permitted project on-site during construction of, or work on, the project;
(ii) Failure to submit to the department photos or survey results required as a provision in the HPA;
(iii) Failure to notify the department when such notification described in WAC 220-660-050 (13)(d) is required as a provision of the HPA; and
(iv) Failure to submit reports required in the HPA.
(c) A small business may request the waiver by contacting the department and submitting a copy of the business's most recent federal income tax return or most recent return filed with the Washington state department of revenue.
[Statutory Authority: RCW 77.04.012, 77.12.047, 77.55.021, 34.05.328, and 2019 c 290. WSR 20-11-019 (Order 20-75), § 220-660-480, filed 5/12/20, effective 6/12/20. Statutory Authority: RCW 77.04.012, 77.04.020, and 77.12.047. WSR 15-02-029 (Order 14-353), § 220-660-480, filed 12/30/14, effective 7/1/15.]
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