WARNING: Proposed Revisions to Water Boards’ Enforcement Policy Will Likely Lead to Higher Penalties

Water Law  

August 16, 2016

The State Water Resources Control Board is proposing to modify its 2010 Enforcement Policy that guides statewide decision-making on bringing enforcement actions and issuing monetary Administrative Civil Liability (ACL) penalties.  Comments on the proposed policy are currently required to be submitted by September 13, 2016, although it is possible that this date could be extended upon request.

The existing Enforcement Policy prescribes a multi-step, mathematical spreadsheet approach to calculating a proposed discretionary penalty for alleged violations of the Water Code, Clean Water Act, permits, or other regulatory documents adopted under the applicable laws.  This approach tracks the statutorily prescribed “factors” that must be considered when the Water Boards take discretionary enforcement. Some of the proposed changes include:

  • Limiting the $2.00 per gallon cap (lower than the statutory maximum of $10.00 per gallon) prescribed in the existing Policy that was intended for all sewage and construction storm water discharges, to discharges between 100,000 and 2,000,000 gallons.  Given that storm water and sewage discharges or spills can be high volume, but not necessarily above 100,000 gallons, this change will increase the proposed penalty for those circumstances. 
  • Removing the “credit” for a good history of no violations.  Under the existing Policy, a multiplier of less than 1.0 could be invoked to offset the proposed penalty amount for good compliance history or superb cooperation.  Under the proposed changes, 1.0 is the lowest multiplier that can be used for the factor called “History of Violations.”   
  • Removing the cap on the multiplier for the “History of Violations” category. Previously, the multiplier for this factor was capped at 1.5.  Now, the proposal is for the Water Board to “consider adopting a multiplier above 1.1.” This could result in much higher multipliers that would significantly increase the proposed calculated penalty.
  • Proposing to modify the Culpability factor range from 0.5-1.5 to 1.0-1.5.  This would remove any “credit” in the proposed penalty calculation for unavoidable, non-negligent, non-intentional violations as allowed under the current Policy.

These and other changes will inevitably result in higher proposed penalty amounts, which will complicate what can already be a contentious process.  Anyone who might be subject to Water Board penalties should review and comment on the proposed changes to the 2010 Enforcement Policy.