1810-S

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

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 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~~)) and may disapprove for up to one year any forest practices application or notification submitted by any person who has failed to comply with a final order or final decision or has failed to pay any civil penalties as provided in RCW 76.09.170. For purposes of this act, the terms "final order" and "final decision" shall mean the same as set forth in RCW 76.09.080, 76.09.090, and 76.09.110. The department shall provide written notice of its intent to disapprove an application or notification under this subsection. The department shall forward copies of its notice of intent to disapprove to any affected landowner. The disapproval period shall run from thirty days following the date of actual notice or when all administrative and judicial appellate processes, if any, have been exhausted. Any person provided the notice may seek review from the appeals board by filing a request for review within thirty days of the date of the notice of intent.

(2) On request of the department, the attorney general may take any action necessary to enforce this chapter, including, but not limited to seeking penalties, enforcing final orders or decisions, and seeking civil injunctions, show cause orders, or contempt orders.

((~~(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~~)) violates any provision of RCW 76.09.010 through 76.09.280 ((~~as now or hereafter amended~~)) or of the forest practices regulations, or who converts forest land to a use other than commercial timber operation within three years after completion of the forest practice without the consent of the county, city, or town, shall be subject to a penalty in an amount of not more than ((~~five hundred~~)) ten thousand dollars 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~~)). 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~~)) under this chapter.

(2) The department shall develop and recommend to the board a penalty schedule to determine the amount to be imposed pursuant to this section. The board shall adopt by rule, pursuant to chapter 34.05 RCW, such penalty schedule to be effective no later than January 1, 1994. The schedule shall be developed in consideration of the following:

(a) Previous violation history;

(b) Severity of the impact on public resources;

(d) Cooperation with the department;

(e) Repairability of the adverse effect from the violation; and

(f) The extent to which a penalty to be imposed on a forest landowner for a forest practice violation committed by another should be reduced because the owner was unaware of the violation and has not received substantial economic benefits from the violation.

(3) The penalty ((~~herein~~)) provided ((~~for~~)) in this section 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 as it may deem proper.

(4) Any person incurring ((~~any~~)) a penalty ((~~hereunder~~)) pursuant to this section 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 for remission or mitigation.

((~~Any~~)) (5) The penalty imposed ((~~hereunder~~)) pursuant to this section 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~~)) the penalty incurred ((~~hereunder~~)) is filed, the penalty shall become due and payable only upon completion of all administrative and judicial 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 collect penalties.

(7) Penalties imposed pursuant to this section for violations associated with a conversion to a use other than commercial timber operation shall be a lien upon the real property of the person assessed the penalty and the department may collect such amount in the same manner provided in chapter 60.04 RCW for mechanics' liens.

NEW SECTION. Sec. 3. The following portions of this act shall take effect on January 1, 1994: Section 1 and subsections (1) and (3) through (7) of section 2.