(A) Failure to comply with a corrective action notice issued under § 96.05. The county may, at its own discretion, elect to pursue the failure to comply with a corrective action notice either criminally or through an administrative penalty order as set forth herein.
(1) Failure to comply with a corrective action notice issued under § 96.05 constitutes a misdemeanor and shall be punishable as defined by law.
(2) The county may issue an APO as provided for in M.S. §§ 103F.48, subd. 7(b) and (c) and 103B.101, subd. 12a to a landowner who has failed to take the corrective action set forth in the corrective action notice. For the APO to be effective it must be served on the landowner together with a copy of the corrective action notice or alternatively the county may serve the landowner with a combined corrective action notice and APO so long as the combined notice/APO includes all the elements of both. Service is effective either by personal service or by depositing the documents set forth herein in the U.S. Mail. Any penalty assessed in the APO shall continue to accrue until the violation is corrected as provided in the corrective action notice and APO.
(B) Administrative penalty order (APO).
(1) Initial violation. The penalty for a landowner on a single parcel that has not previously been the subject of an APO issued by the county shall be:
(a) $0 for 11 months after issuance of the corrective action notice:
(b) $50 per parcel per month for the first six months (180 days) following the time period in division (a); and
(c) $200 per parcel per month after six months (180 days) following the time period in division (b).
(2) Repeat violation. The penalty for a landowner on a single parcel that has previously been the subject of an APO issued by the county shall be:
(a) $50 per parcel per day for 180 days after issuance of the corrective action notice; and
(b) $200 per parcel per dav for after 180 days following the time period in division (a).
(3) Ongoing penalty assessment. Any penalty assessed under this section shall continue until the corrective action notice has been satisfied.
(4) APO. To be valid the APO shall include, at a minimum:
(a) The facts constituting the violation of the riparian protection and water quality practices requirements set forth in this division (4) of this section or M.S. §103F.48:
(b) The specific statute and/or ordinance section(s) that has/have been violated;
(c) A written description of prior efforts to work with the landowner to resolve the violation;
(d) The amount of the penalty to be imposed;
(e) The date the penalty will begin to accrue;
(f) The date that payment of the penalty is due;
(g) The date by which all or part of the penalty may be forgiven if the landowner has/have complied with the corrective action notice; and
(h) A statement of the landowner's right to appeal the APO.
(5) All or part of the penalty may be forgiven based on the correction of the noncompliance by the date specified in the APO by the landowner as provided in M.S. § 103F.48, subd. 7(d).
(6) A copy of the APO must be sent to the SWCD and BWSR.
(7) An APO issued under this section may be appealed to the BWSR within 30 days of receipt by the landowner in accordance with the requirements set for the in M.S. § 103F.48, subd. 9. Any APO that is not appealed within the 30 day period shall be deemed final.
(C) Administrative penalty order procedures.
(1) Statute of limitations. According to M.S. § 541.07, the county has two years in which to commence an APO action after the date the violation is discovered. The goal is to complete the action as soon as reasonably practical, recognizing that situations for which data must be gathered, field investigations must be completed and/or modeling must be performed will require adequate time to complete the work and communicate with the landowner involved.
(2) Compliance verification.
(a) Once a landowner has submitted written evidence of correction of the violation set forth in the notice of compliance, compliance must be verified. The county will:
1. Review and evaluate all information related to the APO to determine if the violation has been corrected;
2. Verify compliance bv site visit, re-inspection, examination of documentation, or other means as may be reasonable under the facts of the case; and
3. Document compliance verification.
(b) The county may consult with the SWCD when conducting a compliance verification.
(3) Right to appeal. Within 30 days after receipt of the APO, a landowner mav appeal the terms and conditions of an APO issued by a county to BWSR as provided in M.S. § 103F.48, subd. 9. The appeal must be in writing and must include a copy of the APO that is being appealed, the basis for the appeal and any supporting evidence. The appeal may be submitted personally, bv U.S. mail, or electronically, to the Executive Director of BWSR.
(4) Penalty due.
(a) Unless the landowner appeals the APO as provided in division (C)(3) the penalty specified in the APO becomes immediately due and payable to the county as set forth in the APO. If. however, the landowner submits written documentation that the violations has been corrected prior to the time the penalty becomes due and payable the county shall verify compliance and adjust the penalty to an amount the landowner would have owed had the penalty been paid on the date the landowner submitted written documentation of compliance. Written documentation of compliance may include a written validation of compliance issued by the SWCD.
(b) However, if the County determines the violation was not fullv corrected, the County shall notify the landowner bv issuing a written letter of determination and depositing it in the U.S. Mail. Any determination sent bv U.S. Mail shall be deemed received three business days after the letter of
determination has been deposited in the U.S. Mail. The landowner shall have an additional 20 days after receipt of the letter of determination to pay the penalty or the time period specified in the APO as issued, whichever is later. The penalty will continue to accrue until the violation is corrected as provided in the corrective action notice and APO.
(5) Referral for collection of penalty. All penalties and interest assessed under an APO must be paid by the landowner within the time specified in this section. All payments shall be made payable to the county. Any penalty or interest not received in the specified time may be collected by the county using any lawful means.
(6) Reporting and documentation. The county shall maintain the following records for any potential violation of the riparian protection and water quality practices requirements. Said records shall include but are not limited to the following:
(a) The cause of the violation;
(b) The magnitude and duration of the violation;
(c) Documentation showing whether the violation presents an actual or imminent risk to public health and safety;
(d) Documentation showing whether the violation has the potential to harm to the natural resources of the state;
(e) A record of past violations;
(f) Efforts by the SWCD, County, Watershed District or BWSR to assist the responsible party or parties to become compliant, including written and oral communications with the responsible party or parties ; and
(g) Past and present corrective action efforts by the responsible party or parties.
(Ord. 18-3, passed 6-5-2018)