On August 4, 2016, the State Water Resources Control Board (“SWB”) released draft rules to amend its 2010 Water Quality Enforcement Policy (“Policy”). The draft amendments are intended to ensure better transparency and consistent enforcement of water quality violations by each Regional Water Quality Control Board (“Regional Board”). Some provisions, however, could lead to less certainty and greater penalties, depending on their application.

Below is a brief summary of the notable amendments to the Policy:

Enforcement 

The Policy emphasizes SWB’s commitment to “progressive enforcement,” first through the issuance of notices of violations and compliance orders, following through with administrative civil liability actions if the compliance orders are violated. The draft amendments, however, note that progressive enforcement “is not always the most appropriate enforcement strategy” and that immediate penalties could be imposed resulting from intentional or grossly negligent misconduct, or in any case “where the impacts to beneficial uses are above moderate or major.”

Transparency

The Policy amendments urge Regional Boards to provide clear, consistent, evidence-based findings in support of enforcement actions. The amendments also propose a new system to rank the priority of enforcement actions. In implementing the enforcement priorities, however, the proposed amendments would establish periodic meetings among enforcement staff of each Regional Board, the SWB and SWB attorneys. The draft amendments indicate that the dialogue and materials presented at these meetings may be privileged and therefore withheld from public disclosure.

Class I Violations 

The draft amendments revise Class I priority violations, which are generally intended to encompass substantial threat to water quality or the environment. The amendments add specific examples in an effort to provide more clarity. These examples, however, include any discharge of construction materials to certain waterways, and any discharges contributing to in-stream turbidity in certain waters.

Monetary Assessments 

The existing Policy includes a matrix for calculating penalties on a “per gallon factor”, using a scale of potential harm ranging from 1 through 10, with level 10 harms more significant. The scale of harm is then multiplied against numerical factors for “Minor”, “Moderate” and “Major” violations. This product is then multiplied against the number of gallons discharged, in order to assess the dollar amount of the penalty.

Under the proposed amendments, the numerical factors have been increased for low to moderate harms, in some cases by more than 50%. If implemented, this could result in significantly higher penalties for discharge violations that are not major violations, but which involve significant amounts of water.

The proposed amendments also revise the provisions for determining high volume discharge violations. Under the proposed amendments, the statutory minimum generally ranges from $2 per gallon to $10 per gallon. For discharge violations larger than 100,000 gallons, the statutory minimum may be lowered to $1 per gallon.

Adjustment Factors 

The existing Policy authorizes Regional Boards to apply adjustment factors for each discharge violation. Under the existing Policy, Regional Boards are authorized to reduce penalties using the adjustment factors. In some cases, the Regional Boards can reduce a penalty by 50%, based on the discharger’s degree of culpability. Under the proposed amendments, however, this adjustment factor is eliminated. The only adjustment factor for reducing a penalty is a 25% reduction for cooperation during cleanup. As a result, the adjustment factors have been revised to result in less overall potential reductions, and greater increases in penalties associated with discharge violations.

Public Comments

Additional details, such as proposed amendments addressing staff costs and attorney fees in the total civil liability calculation, will lead to new or additional costs of enforcement under the proposed amendments. We encourage all permitted discharges to review the proposed amendments and consider a more active role in the rule making process. Public comments must be sent by 12:00 pm on September 13, 2016.

The proposed amendments to the Policy can be viewed here.

Please contact Barbara Brenner at (916) 468-0625 or Barbara@whitebrennerllp.com if you have questions or concerns, or if you would like more information about the proposed amendments to the Policy.