Water Board Adopts Revisions to Enforcement Policy That Are Expected to Generally Increase Penalties

April 4, 2017

On April 4, 2017, the State Water Resources Control Board adopted revisions to its 2010 Enforcement Policy that guides statewide decision-making on bringing enforcement actions and issuing monetary Administrative Civil Liability (ACL) penalties.  The 2010 Enforcement Policy prescribed a multi-step, mathematical approach to calculating a proposed discretionary penalty for alleged violations of the Water Code and/or Clean Water Act, and permits or other regulatory documents adopted thereunder.  This approach tracks the statutorily prescribed “factors” that must be considered when the Water Boards take discretionary enforcement.

In 2016, the Office of Enforcement began to seek revisions to the 2010 Enforcement Policy. Multiple drafts of the policy were issued, and a determined group of stakeholders secured some beneficial changes to the proposed policy on issues including, but not limited to:

• Consistent and Fair Enforcement.  Improved language regarding use of similarly situated enforcement matters to guide outcomes, where appropriate.
• Class “A” Violations. Clarified how and when Class “A” violations are prioritized and might result in enforcement.
• Potential for Harm.  The final language incorporated stakeholder input that the “potential” for harm element be linked to the site-specific harm that could actually occur based on the circumstances, rather than what “could” happen in the abstract.
• Downward Multipliers Retained for Degree of Culpability and Cleanup & Cooperation Factors.  Stakeholders were able to reverse recommendations by State Water Board staff to eliminate the ability for these factors to be used to decrease the proposed penalty amount, though the potential downward multiplier for the Degree of Culpability factor was increased from .5 to .75 in the final policy, as compared to the 2010 Policy.

Additional stakeholder concerns remain as to how the revised Enforcement Policy will affect new enforcement actions because of changes to the policy, which include:

• High Volume Discharges and Per Gallon Penalty Values. The revised Enforcement Policy expands the types of discharges that might be considered “high volume discharges” beyond sewage spills and construction or municipal storm water discharges, to include partially-treated sewage spills, discharges from irrigated agricultural operations, and potable water discharges,.  However, the revised Policy removes the previous recommendation that $2.00 per gallon should be used to calculate proposed penalties on a per gallon basis, and instead provides enforcement staff with the discretion to use a value between $2.00 per gallon and $10.00 per gallon.  High volume discharges are now numerically defined as 100,000 – 2,000,000 gallons.  Discharges in excess of 2,000,000 gallons, or recycled water discharges, may qualify for a $1.00 per gallon penalty factor.
• History of Violations Factor.  Under the 2010 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 revised Policy, a value of 1.0 now appears to be the lowest multiplier for the factor called “History of Violations,” but only where the discharger has no prior history of violations.  Where there is any history of violations in the preceding five years, or history of similar or numerous dissimilar violations, a multiplier of 1.1 or higher, is to be applied, respectively.  The previous multiplier “cap” of 1.5 was also removed, which could allow for increases in a proposed calculated penalty.

If you have any questions regarding the revised Enforcement Policy, or about its application, please contact one of our listed attorneys with substantive expertise.