§ 73-2-26. Administrative penalties.

(1)

(a) As part of a final order issued under Section 73-2-25, the state engineer may order that a person to whom an order is issued:

(i) pay an administrative fine not to exceed:

(A) $5,000 for each knowing violation; or

(B) $1,000 for each violation that is not knowing;

(ii) replace up to 200% of water taken; and

(iii) be liable for any expense incurred by the state engineer or division in investigating and stopping the violation.

(b) The definition of "knowingly" under Subsection 76-2-103(2) shall apply to determinations under Subsection (1)(a)(i).

(c) The penalties described in Subsection (1)(a) shall be in addition to:

(i) any criminal penalty established for a violation described in Subsection (1); and

(ii) any private right of action.

(d)

(i) Each day of a continuing violation of the provisions described in Subsection 73-2-25(2)(a) or an initial or final order issued under Section 73-2-25 is a separate violation.

(ii) A penalty may not be imposed for a violation of the provisions listed in Subsection 73-2-25(2)(a) or an initial or a final order issued under Section 73-2-25 for a violation occurring more than 12 months before the day on which a notice of violation is issued.

(e) Separate violations under Subsection (1)(d) may be consolidated for resolution in one enforcement proceeding under Section 73-2-25.

(f) The state engineer has discretion to pursue an administrative fine, order requiring replacement, or both.

(2) Before imposing a fine or ordering replacement under Subsection (1), the state engineer shall consider:

(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 person subject to fine or replacement attempted to comply with the state engineer's orders; and

(d) the violator's economic benefit from the violation.

(3)

(a) The state engineer may require that the water unlawfully taken be replaced after:

(i) a person fails to request judicial review of a final order issued under Section 73-2-25; or

(ii) the completion of judicial review, including any appeals.

(b) The state engineer's order shall require that replacement of water begin within one year of the day on which:

(i) the time period for requesting judicial review of a final order issued under Section 73-2-25 expires without a person requesting judicial review of the final order; or

(ii) the completion of judicial review, including any appeals.

(4) Water replaced under Subsection (3) shall be taken from water that the person subject to the order requiring replacement would be entitled to use during the replacement period.

(5)

(a) If the state engineer issues an order requiring replacement, a copy of the order shall be placed in the Division of Water Rights' water rights records.

(b) The order requiring replacement shall constitute a lien upon the water right affected if the state engineer files a notice of lien in the office of the county recorder in the county where the place of use of the water right is located.

(c) A notice of lien under Subsection (5)(b) shall include a legal description of the place of use of the water right.

(6) Any money collected under this section shall be deposited into the General Fund.

Enacted by Chapter 33, 2005 General Session