Please complete the form below to subscribe and recieve our monthly eAlerts via email.
On December 5, 2023, the State Water Resources Control Board (State Board) held a public hearing on the proposed amendments to its Water Quality Enforcement Policy (“Enforcement Policy” or “Policy”). The Enforcement Policy guides enforcement staff at the State Board and regional water quality control boards (Regional Boards) on how to develop, calculate, and assess penalties imposed for violations of water quality laws and other compliance actions. The Enforcement Policy was last amended in 2017, and under its terms, it is the State Board’s intent to review and revise the Policy every five years. The State Board first issued the proposed revisions for public comment in February 2023. Over a period of several months, stakeholders submitted comments and conferred with State Board staff on the proposed revisions.
One area of revision and comment is protection for disadvantaged communities and consideration of environmental justice. In response to concerns that the State Board and Regional Boards should be doing more to engage with the disadvantaged and environmental justice communities that may be impacted by enforcement actions, the revised Enforcement Policy incorporated new language to prioritize racial equity in enforcement. The State Board added definitions for “disadvantaged community” and “environmental justice,” incorporating statutory definitions from different code sections and suggested prioritization of enforcement when there is an impact or threatened impact to black, indigenous, or other communities of color. The changes will be monitored for their effectiveness, although State Board staff noted at the December 5 hearing that in 2023, there has been an increase in the amount of funds going to environmental justice and disadvantaged communities. Four out of seven Supplemental Environmental Projects (SEPs) were directed to these communities, with 89 percent of the total SEP funds benefiting the communities.
In assessing a penalty, the Office of Enforcement assigns scores to certain factors under the Policy (e.g., potential for harm), which then are used to calculate an initial proposed penalty amount. The revised Policy made several important changes to the “Step 4 Adjustment Factors” concerning the violator’s conduct. These adjustment factors consider the discharger’s degree of culpability, history of violations, and the voluntary efforts taken to cleanup and cooperate with regulatory authorities in returning to compliance after the violation. With respect to history of violations, the 2023 revisions added a definition of “violation” and clarified that this factor may never be less than 1.0. With respect to the cleanup and cooperation factor, the revisions now prompt consideration of culpability—specifically the failure to respond—as part of the cleanup and cooperation analysis. The new language was the subject of comment at the December 5 hearing as well as written comments, and State Board staff clarified when a discharger’s post-event conduct might be considered as part of both the culpability and cleanup and cooperation factors, multiplying the impact and resulting in higher adjustments to the penalty amount.
To calculate a penalty for a high-volume discharge (more than 100,000 gallons), the Office of Enforcement selects a “per gallon” value between $2.00 and $10.00 to apply in the formula. The revised Enforcement Policy adds language related to the selection of the per gallon value in the case of high volume discharges. The Policy now provides: “The Water Boards should be thoughtful when reducing the per gallon liability in order to avoid rewarding or incentivizing the failure to mitigate the number of gallons discharged and to further consistency in enforcement.” At the December 5 hearing, State Board staff noted that this addition is not promulgating a mandatory factor applicable to all high volume discharges. This language will only be applied in appropriate cases at the Board’s discretion and is intended to disincentivize mitigating spills in order to reach the high-volume spill threshold.
Finally, at the December 5 hearing, Chair Esquivel expressed interest in receiving annual updates from the Office of Enforcement so that the State Board can stay informed on enforcement actions and monitor enforcement priorities. Other State Board members agreed, and this instruction is captured in the adopting resolution, State Board Resolution No. 2023-0043, which directs the Office of Enforcement to provide an annual report to the State Board at a meeting on enforcement activities completed across the Water Boards’ programs during the prior year.
Somach Simmons & Dunn represents the Central Valley Clean Water Association, which submitted comments and engaged in the stakeholder process for the Policy. For more information or questions on the Policy revisions and potential implications, please contact:
Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
Read more news and alerts »