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 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)) rules, 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)) 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
shall develop and recommend to the board a penalty schedule to determine the
amount to be imposed under 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;
(c) Whether the
violation of this chapter or its rules was intentional;
(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)) rule as it may
deem proper.
(4) Any person
incurring ((any)) a penalty ((hereunder)) under this
section may appeal the ((same)) penalty 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)) under 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)) under this section 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 under 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: Subsections (1) and (3) through
(7) of section 2 of this act.
