Section 337.64 - Total Base Penalty AdjustmentsThe department shall adjust the total base penalty considering each of the following adjustment factors:
(a) Cooperation. The department shall consider the violator's cooperation, including any voluntary disclosure of violations and efforts to return to compliance. Adjustment shall be made by multiplying the total base penalty by the applicable adjustment factor in Table 4. Table 4: Adjustment Factors for Cooperation
| Degree of Cooperation | Circumstance | Adjustment Factor |
| Extraordinary | Violator voluntarily disclosed violation, exceeded the minimum requirements in returning to compliance, or returned to compliance faster than requested | 0.5--1.0 |
| Good Faith | Violator demonstrated a cooperative effort | No Adjustment |
| Recalcitrance | Violator failed to cooperate, delayed compliance, created unnecessary obstacles to achieving compliance, or the compliance submittal failed to meet requirements | 1.0--1.5 |
| Refusal | Violator intentionally failed to return to compliance | 1.5--2.0 |
(b) Compliance History. The total base penalty shall be increased if the violator has demonstrated a history of noncompliance over the prior five (5) years. A maximum adjustment factor of up to 2.0 shall be applied based on compliance history. The adjustment shall be made by multiplying the total base penalty by the applicable adjustment factor. When adjusting the penalty for compliance history, the department shall consider the following criteria: (1) Previous violations with the dam in question receive more weight than previous violations at another dam owned or operated by the same dam owner.(2) Recent violations receive more weight than older violations.(3) The same or substantially similar previous violations receive more weight than previous unrelated violations.(c) Impacts to Disadvantaged Communities. The total base penalty shall be adjusted downward if the department is provided with documentation that demonstrates that the penalty will result in an adverse financial impact to a disadvantaged community. For purposes of this article, an "adverse financial impact" occurs when the imposition of a penalty will cause increased costs to rate payers, and a "disadvantaged community" means a community with an annual median household income that is less than 80 percent of the statewide annual median household income.(d) Ability to Pay. Payment of the final penalty may be extended over a period of time if immediate, full payment would cause, in the judgment of the department, extreme financial hardship, and the final penalty shall be reduced if extending the final penalty payment over a period of time would cause, in the judgment of the department, extreme financial hardship. "Extreme financial hardship" is the condition under which a final penalty prevents a dam owner from paying their ordinary and necessary personal or business expenses. The department will determine extreme financial hardship by considering information provided by the dam owner, such as the dam owner's assets, liabilities, income, and expenses. Notwithstanding the foregoing, no adjustment for ability to pay shall be made if the final penalty has been adjusted upward because of failure to cooperate, pursuant to subsection (a), or based on compliance history, pursuant to subsection (b).Cal. Code Regs. Tit. 23, § 337.64
1. New section filed 9-19-2022; operative 9-19-2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 38). Note: Authority cited: Section 6078, Water Code. Reference: Section 6432, Water Code.
1. New section filed 9-19-2022; operative 9/19/2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 37).