Article 10

Inspections: Notices of Violations

The Director shall make such necessary inspections and investigations of all in-channel operations within the unincorporated portion of the County in order to accomplish any of the following purposes:

• (a) To determine compliance with this chapter and the Act;

• (b) To determine compliance with the conditions of any permit approved pursuant to this chapter;

• (c) To investigate the environmental effects which the operations may be causing to the surrounding area; and

• (d) To verify the information submitted in any application or any annual report submitted pursuant to this chapter. (as amended by Ord. 1518, eff. February 13, 2020)

During the life of the permit and any required monitoring, the Director shall conduct an inspection or inspections not less than once in any calendar year (consistent with the requirements of Pub. Resources Code Section 2774) of each in-channel operation to determine whether the applicant is in compliance with the Act, the Regulations, this chapter, and any permits or other approvals, and/or whether all authorized work has been properly completed. (as amended by Ord. 1518, eff. February 13, 2020)

All inspections shall be documented using forms adopted by the State Department of Conservation. The Director shall notify the Department of the inspection within ninety (90) days after it has been completed. Said notice shall include the following:

(a) A statement regarding whether the operation is in compliance with the Act and this chapter. Any violations of either the Act or this chapter shall be specifically described;

• (b) The completed inspection forms;

(c) A description of any pending reviews or appeals of permits, financial assurances, amendments or modifications thereto;

(d) Aspects of the operation, if any, that were found to be inconsistent with the Act but were corrected before the submission of the inspection form to the Department;

(e) Aspects of the operation, if any, that were found to be inconsistent with the Act but were not corrected before the submission of the inspection form to the Department;

(f) A statement describing the County’s intended response to any aspects of the operation found to be inconsistent with the Act but were not corrected before the submission of the inspection form to the Department; and

(g) Any supporting documentation.

Copies of the notice shall also be provided to the applicant. (as amended by Ord. 1518, eff. February 13, 2020)

Inspections shall be conducted by a state-licensed geologist, state-licensed civil engineer, state-licensed landscape architect, state-licensed forester, or a qualified County employee who is familiar with land reclamation issues (as described in the Act and related regulations) and experienced in activities governed by the Act, and who has not been employed by the applicant in any capacity during the previous twelve (12) months. (as amended by Ord. 1518, eff. February 13, 2020)

Whenever the Director has reasonable cause to believe that an in-channel operation is in violation of the Act or the Regulations, this chapter, any terms or conditions of a permit issued pursuant to this chapter, or development agreement (“violation”), the following procedure shall be followed:

(a) In the event of a violation of the Act or Regulations, or a violation that in the sole discretion of the Director poses an imminent and substantial endangerment to the public health, safety, or the environment, the following procedures shall be followed:

i. The Director shall provide a written notice to the operator at the time of inspection or as soon thereafter as the violation is made known. The operator shall be provided thirty (30) days to correct. If correction is not or cannot be achieved within thirty (30) days, the operator and the County may enter into a stipulated order to comply, with notice sent to the Department. A stipulated order to comply shall include a schedule and time for compliance that the County determines is reasonable after taking into account the actions and legal processes required to correct the violation.

ii. If the operator does not comply with a notice issued pursuant to (a)(i), above, within thirty (30) days of being served the notice, the County may issue an Order to Comply, pursuant to Section 10-3.1006 of this Chapter.

(b) If the Director determines that a violation other than a violation of the Act, does not pose an imminent and substantial endangerment to public health, safety, or the environment, the following procedure shall be followed: i. The Director shall provide written notice to the operator documenting the potential violation (“condition of concern”). The Director may request additional information from the operator to assess the site conditions and

determine if a violation exists. The operator shall be provided thirty (30) days to respond to this initial notice. If the requested information is not received within thirty (30) days, the Director shall proceed with an Order to Comply as set forth in Section 10-3.1006. An extension of time may be requested by the applicant in cases where compilation of the information may take longer, but such extension shall not exceed sixty (60) days.

ii. If the operator resolves the condition of concern within the timeframe set in (b)(i) above, the Director shall verify by conducting a site inspection or review of information provided by the operator, whichever is appropriate. The Director shall notify the operator in writing that the condition of concern has been satisfactorily resolved.

iii. If the Director determines the condition of concern is still active after the timeframe described in 3(b)(i), the Director shall submit a notice to the operator requiring submittal of a Correction Plan. The Correction Plan to be provided by the operator shall at a minimum describe in detail the sequence, methods, and timeline necessary for each step to correct the conditions of concern identified by the Director. The Correction Plan must be received within thirty (30) days from the date of notification. The Director shall review and accept or request changes to the Correction Plan within thirty (30) days of receipt. If changes or clarification is requested, the operator shall then be provided another thirty (30) days to finalize and submit the final Correction Plan and commence implementation. Implementation must begin immediately (unless mutually agreed upon and documented in the Correction Plan) and must be fully completed no later than one year from the date of submission of the final Correction Plan.

Once the Correction Plan is finalized, the Director shall forward the Correction Plan to the Planning Commission as an informational/ correspondence item with the next Planning Commission agenda packet. No formal action shall be taken by the Planning Commission on the Correction Plan.

iv. In the event that the procedure set forth above does not result in correction of a violation, an order to comply shall be served to the operator pursuant to Section 10-3.1006. (as amended by Ord. 1518, eff. February 13, 2020)

If the violation continues after the timeframes specified in Section 10-3.1005, the Director shall issue an order to comply requiring that the violation be corrected or abated and that the operator come into compliance with the applicable law, regulation, or requirement. The order to comply shall be delivered by personal service or certified mail, with a copy sent to the Department. An order to comply issued pursuant to this Section shall take effect 30 days following the service of the order to comply unless within those thirty (30) days the operator appeals the order and requests a hearing before the Planning Commission. The order shall specifically describe both the violation(s) and the remedial steps required for compliance. The order shall specify a time by which compliance must be completed, as determined by the Director. A reasonable amount of time shall be allowed to bring the operation into compliance, taking into account the seriousness of the violation, the potential harm to public health, safety, and the environment, and any good faith efforts to comply with the applicable requirements.

Upon the filing of an appeal pursuant to Section 10-3.1006, the Planning Commission shall conduct a public hearing to consider the violation. Upon the close of the hearing, the Commission shall take one of the following actions:

• (a) Affirm the order to comply of the Director;

• (b) Remove any of the violations or remedy steps required for compliance and affirm the order as modified; or

• (c) Vacate the order to comply.

If the order of the Director is affirmed, the Planning Commission’s decision shall become final, unless an appeal is filed with the Board within fifteen (15) days after the decision, pursuant to Article 10 of this chapter. (as amended by Ord. 1518, eff. February 13, 2020)

If an applicant fails to abide by the requirements of an order to comply following the final decision of the Planning Commission pursuant to Section 10-3.1007, above, then the FHDP shall be considered revoked and the Director shall initiate procedures to revoke the applicant’s permit(s) and forfeit the financial assurances in accordance with Article 11 of this chapter. (as amended by Ord. 1518, eff. February 13, 2020)

If the applicant fails to comply with an order to comply, issued pursuant to this article, the Director may issue an order imposing administrative penalties of up to, but not more than five thousand dollars ($5,000) per day for noncompliance with this article in addition to noncompliance with any other article or chapter, retroactive to the original date of noncompliance. When determining the amount of the penalty, the Director shall consider, but may not be limited to, the following factors:

• (a) The nature, circumstances, extent, and gravity of the violation(s);

• (b) Any prior history of violations; and,

• (c) The degree of culpability by the applicant.

The order establishing administrative penalties shall be served by certified mail to the applicant. Any such order shall become effective upon issuance and the penalties imposed therein shall be paid to the Director within fifteen (15) days. If the order imposing administrative penalties is appealed to the Planning Commission, the applicant shall deposit any amounts due pursuant to Section 10-11.10 with the County Treasury in an account earning interest at the County pooled rate. Any appeal to the Planning Commission must be filed within fifteen (15) days after the order if first mailed. The Planning Commission shall hear the appeal de novo.

Any decision to order administrative penalties shall become effective within thirty (30) days of the exhaustion of the administrative remedies provided in this chapter, unless the applicant files a petition for writ of mandate in the superior court for review of the order. If no writ petition is filed, then the order setting administrative penalties shall not be subject to review by any court or agency. The order establishing administrative penalties shall be served by certified mail to the applicant.

Penalties collected by the Director shall only be used to cover the reasonable costs incurred by the County in administering either the Act or Chapters 3, 4, and 5 of Title 10 of this Code. (as amended by Ord. 1518, eff. February 13, 2020)

Any in-channel activity in violation of this title, or in violation of any permit or order to comply issued pursuant to this chapter, shall be considered a public nuisance. If the applicant fails to comply with an order to comply, issued pursuant to this article, the Director may refer the violation to County Counsel for abatement or the District Attorney for criminal remedies.

(§ 1, Ord. 820, eff. February 22, 1979, as amended by § 3, Ord. 1376, eff. August 14, 2008; as amended by Ord. 1518, eff. February 13, 2020)