On August 4, 2016, the California State Water Resources Board (State Water Board) issued a draft rule amending its 2010 Water Quality Enforcement Policy. The proposed amendments are intended to provide additional clarity, allow disadvantaged communities to receive assistance with compliance matters akin to that provided under the current policy to facilities serving small communities, and to establish a process for coordination within and among Regions to improve transparency, uniformity and fairness. Written comments on the Draft Policy are due no later than September 13, 2016 at noon.
The Water Quality Enforcement Policy was promulgated in 2010, to provide a degree of uniformity in enforcement priorities and penalties among California’s nine Regional Water Quality Control Boards. However, experience under the Policy indicated that problems of consistency continued, due to ambiguities and gaps in the language. Accordingly, this new draft is largely an effort to provide more guidance and clarity.
The draft provides a definition of “fairness” that is based on eliminating any benefit received by the violator in comparison to voluntarily compliant entities, clarifies the definitions for various penalty factors, and expands the explanations of their application. One example is that the treatment of “high volume” releases now includes a definition of “high volume” along with specific examples of its application. With respect to other penalty calculations, the draft eliminates Class 3 (minor) violations because it was often conflated with Class 2 (moderate) violations, and discontinued the use of algorithms in the calculation of penalties. The most notable substantive change is that unlike the 2010 policy, this draft is clear in not allowing the Board to recover attorney fees and costs associated with preparing for or attending a hearing.
The Notice for the proposed amendments states that the proposed penalty policy is not a significant alteration of the current methodology. On review, that conclusion appears to be accurate. The changes appear aimed at providing more certainty in the process, rather than on imposing new or greater burdens. However, practitioners should look the changes over carefully, to see how they might impact their clients in dealings with their local Regional Board, and make comments as appropriate.