HF 3761

1st Engrossment - 92nd Legislature (2021 - 2022) Posted on 03/17/2022 04:51pm

A bill for an act
relating to natural resources; modifying enforcement authority for appropriating
water; amending Minnesota Statutes 2020, section 103G.299, subdivisions 1, 2,
5, 10; proposing coding for new law in Minnesota Statutes, chapter 103G.

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

Section 1.

new text begin [103G.134] ORDERS AND INVESTIGATIONS.
new text end

new text begin (a) The commissioner has the following powers and duties when acting pursuant to the
enforcement provisions of this chapter:
new text end

new text begin (1) to adopt, issue, reissue, modify, deny, revoke, enter into, or enforce reasonable orders,
schedules of compliance, and stipulation agreements;
new text end

new text begin (2) to issue notices of violation;
new text end

new text begin (3) to require a person holding a permit issued under this chapter or otherwise impacting
the public waters of the state without a permit issued under this chapter to:
new text end

new text begin (i) make reports;
new text end

new text begin (ii) install, use, and maintain monitoring equipment or methods;
new text end

new text begin (iii) perform tests according to methods, at locations, at intervals, and in a manner as
the commissioner prescribes; and
new text end

new text begin (iv) provide other information as the commissioner may reasonably require; and
new text end

new text begin (4) to conduct investigations; issue notices, public and otherwise; and order hearings as
the commissioner deems necessary or advisable to discharge duties under this chapter,
including but not limited to issuing permits and authorizing an employee or agent appointed
by the commissioner to conduct the investigations and other authorities cited in this section.
new text end

Sec. 2.

new text begin [103G.146] DUTY OF CANDOR.
new text end

new text begin (a) A person must not knowingly:
new text end

new text begin (1) make a false statement of fact or fail to correct a false statement of material fact
regarding any matter pertaining to this chapter;
new text end

new text begin (2) fail to disclose information that the person knows is necessary for the commissioner
to make an informed decision under this chapter; or
new text end

new text begin (3) offer information that the person knows to be false.
new text end

new text begin (b) If a person has offered material information to the commissioner and the person
comes to know the information is false, the person must take reasonable remedial measures
to provide the accurate information.
new text end

Sec. 3.

Minnesota Statutes 2020, section 103G.299, subdivision 1, is amended to read:

Subdivision 1.

Authority to issue new text begin administrative new text end penalty orders.

(a) As provided in
paragraph (b), the commissioner may issue an order requiring violations to be corrected
and administratively assessing monetary penalties for violations of sections 103G.271 and
103G.275, and any rules adopted under those sections.

(b) An order under this section may be issued to a person for water appropriation activities
without a required permit new text begin or for violating the terms of a required permit new text end .

(c) The order must be issued as provided in this section and in accordance with the plan
prepared under subdivision 12.

Sec. 4.

Minnesota Statutes 2020, section 103G.299, subdivision 2, is amended to read:

Subd. 2.

Amount of penalty; considerations.

(a) The commissioner may issue orders
assessing administrative penalties deleted text begin based on potential for harm and deviation from compliance.
For a violation that presents: deleted text end new text begin up to $40,000.
new text end

deleted text begin (1) a minor potential for harm and deviation from compliance, the penalty will be no
more than $1,000;
deleted text end

deleted text begin (2) a moderate potential for harm and deviation from compliance, the penalty will be
no more than $10,000; and
deleted text end

deleted text begin (3) a severe potential for harm and deviation from compliance, the penalty will be no
more than $20,000.
deleted text end

(b) In determining the amount of a penalty the commissioner may consider:

(1) the gravity of the violation, including potential for, or real, damage to the public
interest or natural resources of the state;

(2) the history of past violations;

(3) the number of violations;

(4) the economic benefit gained by the person by allowing or committing the violation
based on data from local or state bureaus or educational institutions; and

(5) other factors as justice may require, if the commissioner specifically identifies the
additional factors in the commissioner's order.

(c) For a violation after an initial violation, including a continuation of the initial violation,
the commissioner must, in determining the amount of a penalty, consider the factors in
paragraph (b) and the:

(1) similarity of the most recent previous violation and the violation to be penalized;

(2) time elapsed since the last violation;

(3) number of previous violations; and

(4) response of the person to the most recent previous violation identified.

Sec. 5.

Minnesota Statutes 2020, section 103G.299, subdivision 5, is amended to read:

Subd. 5.

Penalty.

(a) new text begin Except as provided in paragraph (b), if the commissioner determines
that the violation has been corrected or appropriate steps have been taken to correct the
action, the penalty must be forgiven. new text end Unless the person requests review of the order under
subdivision 6 or 7 before the penalty is due, the penalty in the order is due and payable:

(1) on the 31st day after the order was received, if the person subject to the order fails
to provide information to the commissioner showing that the violation has been corrected
or that appropriate steps have been taken toward correcting the violation; or

(2) on the 20th day after the person receives the commissioner's determination under
subdivision 4, paragraph (c), if the person subject to the order has provided information to
the commissioner that the commissioner determines is not sufficient to show that the violation
has been corrected or that appropriate steps have been taken toward correcting the violation.

(b) new text begin For repeated or serious violations, the commissioner may issue an order with a penalty
that is not forgiven after the corrective action is taken. new text end The penalty is due deleted text begin by deleted text end 31 days after
the order deleted text begin was deleted text end new text begin is new text end received, unless review of the order under subdivision 6 or 7 deleted text begin has been deleted text end new text begin is new text end
sought.

(c) Interest at the rate established in section 549.09 begins to accrue on penalties under
this subdivision on the 31st day after the order with the penalty deleted text begin was deleted text end new text begin is new text end received.

Sec. 6.

Minnesota Statutes 2020, section 103G.299, subdivision 10, is amended to read:

Subd. 10.

Cumulative remedy.

The authority of the commissioner to issue a corrective
order assessing penalties is in addition to other remedies available under statutory or common
law deleted text begin , except that the state may not seek civil penalties under any other provision of law for
the violations covered by the administrative penalty order deleted text end . The payment of a penalty does
not preclude the use of other enforcement provisions deleted text begin , under which penalties are not assessed, deleted text end
in connection with the violation for which the penalty was assessed.

Sec. 7.

new text begin [103G.2991] PENALTIES; ENFORCEMENT.
new text end

new text begin Subdivision 1. new text end

new text begin Civil penalties. new text end

new text begin (a) The commissioner, according to section 103G.134,
may issue a notice to a person who violates:
new text end

new text begin (1) this chapter;
new text end

new text begin (2) a permit issued under this chapter or a term or condition of a permit issued under
this chapter;
new text end

new text begin (3) a duty under this chapter to permit an inspection, entry, or monitoring activity or a
duty under this chapter to carry out an inspection or monitoring activity;
new text end

new text begin (4) a rule adopted under this chapter;
new text end

new text begin (5) a stipulation agreement, variance, or schedule of compliance entered into under this
chapter; or
new text end

new text begin (6) an order issued by the commissioner under this chapter.
new text end

new text begin (b) A person issued a notice forfeits and must pay to the state a penalty, in an amount
to be determined by the district court, of not more than $10,000 per day of violation.
new text end

new text begin (c) In the discretion of the district court, a defendant under this section may be required
to:
new text end

new text begin (1) forfeit and pay to the state a sum that adequately compensates the state for the
reasonable value of restoration, monitoring, and other expenses directly resulting from the
unauthorized use of or damage to natural resources of the state; and
new text end

new text begin (2) forfeit and pay to the state an additional sum to constitute just compensation for any
damage, loss, or destruction of the state's natural resources and for other actual damages to
the state caused by an unauthorized use of natural resources of the state.
new text end

new text begin (d) As a defense to damages assessed under paragraph (c), a defendant may prove that
the violation was caused solely by:
new text end

new text begin (1) an act of God;
new text end

new text begin (2) an act of war;
new text end

new text begin (3) negligence on the part of the state;
new text end

new text begin (4) an act or failure to act that constitutes sabotage or vandalism; or
new text end

new text begin (5) any combination of clauses (1) to (5).
new text end

new text begin (e) The civil penalties and damages provided for in this subdivision may be recovered
by a civil action brought by the attorney general in the name of the state in Ramsey County
District Court. Civil penalties and damages provided for in this subdivision may be resolved
by the commissioner through a negotiated stipulation agreement according to the authority
granted to the commissioner in section 103G.134.
new text end

new text begin Subd. 2. new text end

new text begin Enforcement. new text end

new text begin This chapter and rules, standards, orders, stipulation agreements,
schedules of compliance, and permits adopted or issued by the commissioner under this
chapter or any other law for preventing, controlling, or abating damage to natural resources
may be enforced by one or more of the following:
new text end

new text begin (1) criminal prosecution;
new text end

new text begin (2) action to recover civil penalties;
new text end

new text begin (3) injunction;
new text end

new text begin (4) action to compel performance; or
new text end

new text begin (5) other appropriate action according to this chapter.
new text end

new text begin Subd. 3. new text end

new text begin Injunctions. new text end

new text begin A violation of this chapter or rules, standards, orders, stipulation
agreements, variances, schedules of compliance, and permits adopted or issued under this
chapter constitutes a public nuisance and may be enjoined as provided by law in an action,
in the name of the state, brought by the attorney general.
new text end

new text begin Subd. 4. new text end

new text begin Actions to compel performance. new text end

new text begin (a) In an action to compel performance of
an order issued by the commissioner for any purpose related to preventing, controlling, or
abating damage to natural resources under this chapter, the court may require a defendant
adjudged responsible to do and perform any and all acts and things within the defendant's
power that are reasonably necessary to accomplish the purposes of the order.
new text end

new text begin (b) In case a municipality or its governing or managing body or any of its officers is a
defendant, the court may require the municipality to exercise its powers, without regard to
any limitation of a requirement for an election or referendum imposed thereon by law and
without restricting the powers of the commissioner, to do any or all of the following, without
limiting the generality hereof:
new text end

new text begin (1) levy taxes or special assessments;
new text end

new text begin (2) prescribe service or use charges;
new text end

new text begin (3) borrow money;
new text end

new text begin (4) issue bonds;
new text end

new text begin (5) employ assistance;
new text end

new text begin (6) acquire real or personal property;
new text end

new text begin (7) let contracts;
new text end

new text begin (8) otherwise provide for doing work or constructing, installing, maintaining, or operating
facilities; and
new text end

new text begin (9) do all other acts and things reasonably necessary to accomplish the purposes of the
order.
new text end

new text begin (c) The court must grant a municipality under paragraph (b) the opportunity to determine
the appropriate financial alternatives to be used to comply with the court-imposed
requirements.
new text end

new text begin (d) An action brought under this subdivision must be venued in Ramsey County District
Court.
new text end