Just this month, the EPA repealed a 2015 update to the Clean Water Act that many farmers saw as overly broad and restrictive. Half a year previous, they updated guidance for Washington State’s water rules, moving to approve criteria that were previously overridden by stricter federal law. Though many are celebrating the new, looser statutes, others are concerned that constantly shifting rules will confuse the people they apply to.
Unfortunately, these changes are likely just the beginning of a complicated negotiation to settle Washington’s water rights. The EPA hosted two events to allow public discussion on the changes to Washington’s laws and is still accepting comments online. Washington’s Attorney General responded to the announcement by filing suit against the EPA, claiming the agency does not have authority to insist that states implement looser guidelines.
With water rights in flux, it can be hard to keep up with the most recent regulations—and easy to accidentally run afoul of rules you didn’t know existed. Penalties for violations can cost you thousands of dollars (between April and June of 2019, Washington’s Department of Ecology collected over $45,000). You have the right to appeal enforcement actions or fines; though you are not legally required to have attorney representation, there’s a lot to be said for having a knowledgeable advocate on your side if you find yourself in this position.
What Constitutes a Violation?
Washingtonians are required to follow both state law and EPA standards, which define how water can and cannot be used; how pollutants or other waste must be dealt with in regards to water; what bodies of water are protected; and more. State laws are enforced by the Department of Ecology, while federal rules may be dealt with by local law enforcement or the nearest regional EPA office.
Statewide water law is based on common law standards that have been modified by legislative and judiciary decisions. Many of these rules are enforced in civil court, but some violations result in criminal charges. These serious violations include:
- Failure to follow written orders, directives, or court decisions regarding your water use
- Knowingly disregarding water pollution or oil or hazardous spill rules
- Using water that you do not have rights to
- Redirecting water flow to gain access to water
- Destruction or manipulation of structures built to carry water
- Falsification of water quality data
If convicted, you may have a criminal record for the rest of your life. Fortunately, because the state’s goal is to prevent and mitigate water pollution, you may have a chance to head off criminal penalties.
Dealing with Regulatory Action
Washington allows regulators a fair amount of leeway in their response to presumed water law violations. To begin an enforcement action, they may:
- Issue a warning, verbally or in written form, for less serious offenses or for potential violations.
- Send a Notice of Correction that allows the recipient a chance to fix any issues before facing penalties.
- Send a Notice of Violation, requiring the recipient to file a report within the next 30 days outlining actions taken and plans made to mitigate harms.
- Issue an Administrative Order instructing the recipient to make changes pursuant to Washington water law.
- Assess a financial penalty: For violations of waste discharge permit requirements, fines can cost up to $10,000 each day.
- Charge anyone who knowingly breaks water law with a gross misdemeanor, which can result in up to $10,000 in fines and/or up to 364 days served in county jail.
All but the final action are civil penalties that will not be added to a permanent record. You may be able to appeal some of these actions. Due to the complexity of approaching the Pollution Control Hearings Board, you may want to enlist a qualified lawyer to help your cause. If you are charged with a criminal violation, you may be tried in federal or state court depending on whether you broke local or national laws.
Facing Charges for Violating Water Quality Laws?
If you’ve been accused of any violations by the EPA or the Washington Department of Ecology, don’t let a small issue spiral into a devastating criminal charge. Our environmental crime defense lawyers understand the complexity of water law and can help you navigate state and federal courts.
Reach out to Hester Law Group online or call us at (253) 300-3034 with your questions about the Clean Water Act or statewide water quality standards.