BP BHEAD INT S

AN ACT Relating to civil enforcement of forest practices violations; amending RCW 76.09.140 and 76.09.170; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 76.09.140 and 1975 1st ex.s. c 200 s 8 are each amended to read as follows:

(1) The department ((~~of natural resources, through the attorney general,~~)) may take ((~~any necessary~~)) action necessary to enforce any final order or final decision, or ((~~to enjoin any forest practices by any person for a one year period after such person has failed to comply with a final order or a final decision~~)) may deny a forest practices application or notification submitted by the person for one year from the date of a final order or final decision.

(2) On request of the department, the attorney general shall:

(a) File suit to collect a penalty assessed by the department;

(b) Seek a civil injunction, show cause order, or contempt order;

(c) File suit asking the court to enforce a final order or decision of the department or the forest practices appeals board; and

(d) Take other legal action appropriate and necessary for the enforcement of the provisions of this chapter.

((~~(2)~~)) (3) A county may bring injunctive, declaratory, or other actions for enforcement for forest practice activities within its jurisdiction in the superior court as provided by law against the department, the forest land owner, timber owner or operator to enforce the forest practice regulations or any final order of the department, or the appeals board((~~: PROVIDED, That~~)). No civil or criminal penalties shall be imposed for past actions or omissions if such actions or omissions were conducted pursuant to an approval or directive of the department of natural resources((~~: AND PROVIDED FURTHER, That such actions shall~~)). Injunctions, declaratory actions, or other actions for enforcement under this subsection may not be commenced unless the department fails to take appropriate action after ten days written notice to the department by the county of a violation of the forest practices ((~~regulations~~)) rules or final orders of the department or the appeals board.

Sec. 2. RCW 76.09.170 and 1975 1st ex.s. c 200 s 9 are each amended to read as follows:

(1) Every person who fails to comply with any provision of RCW 76.09.010 through 76.09.280 as now or hereafter amended or of the forest practices regulations shall be subject to a penalty in an amount of not more than ((~~five hundred~~)) ten thousand dollars per day for every such violation. Each and every such violation shall be a separate and distinct offense. In case of a failure to comply with a notice pursuant to RCW 76.09.090 ((~~as now or hereafter amended~~)) or a stop work order, every day's continuance shall be a separate and distinct violation. Every person who through an act of commission or omission procures, aids or abets in the violation shall be considered to have violated the provisions of this section and shall be subject to the penalty ((~~herein provided for: PROVIDED, That~~)) in this section. No penalty shall be imposed under this section upon any governmental official, an employee of any governmental department, agency, or entity, or a member of any board or advisory committee created by this chapter for any act or omission in his or her duties in the administration of this chapter or of any ((~~regulation promulgated thereunder.~~)) rule adopted under this chapter.

(2) The department may adopt by rule a schedule to determine the amount of penalties as described in subsection (1) of this section. The schedule shall include consideration of, but shall not be limited to the following: Cooperation, prior knowledge, and extent of relative adverse effect to public resources and repairability of the adverse effect from the violation.

(3) The penalty ((~~herein~~)) in this section provided ((~~for~~)) shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the department of natural resources describing the violation with reasonable particularity. Within fifteen days after the notice is received, the person incurring the penalty may apply in writing to the department for the remission or mitigation of such penalty. Upon receipt of the application, that department may remit or mitigate the penalty upon whatever terms that department in its discretion deems proper, provided the department deems such remission or mitigation to be in the best interests of carrying out the purposes of this chapter. The department of natural resources shall have authority to ascertain the facts regarding all such applications in such reasonable manner and under such ((~~regulations~~)) rule as it may deem proper.

(4) Any person incurring any penalty hereunder may appeal the same to the forest practices appeals board. Such appeals shall be filed within thirty days of receipt of notice imposing any penalty unless an application for remission or mitigation is made to the department. When such an application for remission or mitigation is made, such appeals shall be filed within thirty days of receipt of notice from the department setting forth the disposition of the application.

(5) Any penalty imposed hereunder shall become due and payable thirty days after receipt of a notice imposing the same unless application for remission or mitigation is made or an appeal is filed. When such an application for remission or mitigation is made, any penalty incurred hereunder shall become due and payable thirty days after receipt of notice setting forth the disposition of such application unless an appeal is filed from such disposition. Whenever an appeal of any penalty incurred hereunder is filed, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final decision confirming the penalty in whole or in part.

(6) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon the request of the department, shall bring an action in the name of the state of Washington in the superior court of Thurston county or of any county in which such violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwise in this chapter provided. In addition to or as an alternative to seeking enforcement of penalties in superior court, the department may bring an action in district court as provided in Title 3 RCW, to enforce a final order or final decision.

(7) The department of natural resources may provide notice either by certified mail with return receipt requested or by personal service on either the forest land owner or timber owner, or both, describing the penalty with reasonable particularity and indicating that either the forest land owner or timber owner, or both, may seek remission or mitigation under subsection (3) of this section or appeal the penalty as provided in subsection (4) of this section. Upon the expiration of the appeal period, the amount of the penalty shall become a lien on the forest land and the department may collect the amount.

(8) Penalties imposed or assessed under this chapter shall be and are declared to be a lien respectively upon the real property of the person notified of the penalty or a bond posted by the person as required by the department or forest practice rules. The lien shall have priority to and shall be fully paid and satisfied before a mortgage, judgment, debt, obligation, or responsibility to or with which said real property is or may become charged or liable.

(9) In addition to penalties imposed under this chapter, the court, in its discretion may award reasonable attorneys' fees and costs of enforcing a penalty as provided in this chapter.