Report 2012-120 Recommendation 6 Responses

Report 2012-120: State Water Resources Control Board: It Should Ensure a More Consistent Administration of the Water Quality Certification Program (Release Date: June 2013)

Recommendation #6 To: Water Resources Control Board

When regional water boards include staff enforcement costs in the penalty actions they issue, the state water board should require that they use a systematic method for tracking the hours staff spend on enforcement activities related to penalty actions and maintain documentary support for these staff enforcement cost calculations.

Annual Follow-Up Agency Response From November 2017

The Water Boards amended their enforcement policy and it was approved by OAL in October 2017. The amended Enforcement Policy implemented the California State Auditor's recommendations 6 and 7 by requiring regional boards to implement a systematic method for tracking hours and a declaration under penalty of perjury containing detailed time tracking information from each staff person working on the enforcement action, including documentation of the date and time for costs billed by each staff person who worked on the enforcement action, and the applicable hourly rate of that employee. This declaration must be submitted to support an award of staff costs in all enforcement actions, not just those relating to violations of the water quality certification statutes and regulations.

  • Completion Date: October 2017

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented


Annual Follow-Up Agency Response From October 2016

Amendments to the 2010 Water Quality Enforcement Policy (Policy) have been proposed that will either remove the consideration of staff costs from purview in Administrative Civil Liability actions, or provide an established method for assessing staff costs based on a declaration under penalty of perjury containing detailed time tracking information from each staff person working on the enforcement action, including documentation of the date and time for costs billed by each staff person who worked on the enforcement action, and the applicable hourly rate of that employee, including benefits and overhead.

The proposed alternative amendments must be considered and adopted by the State Water Resources Control Board (State Water Board) after due notice and opportunity for public comment.

The 2016 Policy has been posted for a public comment period, which closes at noon on October 18, 2016. The 2016 Policy, Notice, Comparison between the 2010 Policy and the 2016 Policy, and a Statement of Reason can be accessed at the following address: http://www.waterboards.ca.gov/public_notices/comments/index.shtml

We expect to bring the 2016 Policy before the State Water Board for adoption on December 6th, unless significant changes are made following the public comment period, in which case we will bring it to the Board in early 2017. Cris Carrigan, Director of the Office of Enforcement, is the lead responsible for implementation.

  • Estimated Completion Date: December 6, 2016

California State Auditor's Assessment of Annual Follow-Up Status: Not Fully Implemented


Annual Follow-Up Agency Response From September 2015

Staff will propose amendments to the 2010 Enforcement Policy that will remove the consideration of staff costs from purview in Administrative Civil Liability actions. The proposed amendment must be considered and adopted by the Board after due notice and opportunity for public comment.

Although in June 2015 we had expected to present the proposed changes to the Board during calendar year 2015, enforcement staff workloads associated with emergency drought regulations and orders, including urban conservation-related regulations and orders and curtailment notices, and with matters relating to the incorporation of the new Division of Drinking Water, transferred to the State Water Board from Department of Public Health have been unexpectedly heavy. We remain optimistic that this amendment can be presented to the Board for its consideration by the end of the first quarter of calendar year 2016."

  • Estimated Completion Date: 03/31/2015

California State Auditor's Assessment of Annual Follow-Up Status: Not Fully Implemented


Annual Follow-Up Agency Response From October 2014

Staff will propose amendments to the 2010 Enforcement Policy that will remove the consideration of staff costs from purview in Administrative Civil Liability actions. The proposed amendment must be considered and adopted by the Board after due notice and opportunity for public comment.

Although the Board's agenda has been crowded with emergency drought regulations and orders, and with matters relating to the incorporation of the new Division of Drinking Water, transferred to the State Water Board from Department of Public Health, we remain optimistic that this amendment can be presented to the Board for its consideration by the end of the calendar year, if not in early 2015.

  • Estimated Completion Date: 3/31/15

California State Auditor's Assessment of Annual Follow-Up Status: Not Fully Implemented


1-Year Agency Response

Staff is developing a proposal for an Enforcement Policy change that is being reviewed by management. Staff anticipates submitting the proposal to the Executive officers in Fall 2014. If approved, the Policy amendment will be developed for Board consideration.

  • Estimated Completion Date: December 2014
  • Response Date: June 2014

California State Auditor's Assessment of 1-Year Status: Pending


6-Month Agency Response

UNDERWAY

Staff is developing a proposal for an Enforcement Policy change that is being reviewed by management. Staff anticipates submitting the proposal to the Executive officers in April, 2014. If approved, the Policy amendment will be developed for Board consideration.

  • Estimated Completion Date: 6/5/14
  • Response Date: December 2013

California State Auditor's Assessment of 6-Month Status: Pending


60-Day Agency Response

COMPLETE

Office of Enforcement Attorneys have been instructed not to seek to recover staff costs in 401 water quality enforcement actions until further notice, and a brief discussion was held with Office of Enforcement attorneys and staff and the Enforcement Coordinators at the June, 2013 Enforcement Roundtable.

UNDERWAY

Office of Enforcement will work with executive staff to develop a work plan for ascertaining whether to pursue an Enforcement Policy change or develop appropriate reimbursement rates for staff costs on a program-by-program basis.

FUTURE

Water Board management will assess whether to: (1) amend the Water Quality Enforcement Policy to remove staff costs from consideration as an extra line item in ACL actions, or (2) calculate program-specific staff costs and develop a timekeeping system to allow more auditable staff costs for enforcement actions along with specific directions on when and how to account for enforcement costs .

  • Estimated Completion Date: TBD
  • Response Date: August 2013

California State Auditor's Assessment of 60-Day Status: Pending

The state water board identifies that its decision not to seek staff costs in penalty actions is temporary, i.e. dependent on additional actions. We conclude that the state water board's implementation of the recommendation is still pending.


All Recommendations in 2012-120

Agency responses received are posted verbatim.


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