Water quality enforcement

By CMTA Staff

Capitol Update, July 2, 2008 Share this on FacebookTweet thisEmail this to a friend

Assemblymember Pedro Nava (D-Santa Barbara) is the author of AB 1946 concerning water quality enforcement. Existing law requires that actions for civil penalties or punitive damages relating to hazardous waste and hazardous substances be commenced within five years of discovery by the regulating agency. This bill would provide the five-year protection to hazardous material release response plans and inventory. CMTA sees this as a positive step, however, there are problems with the bill. It delegates authority to the executive officer to apply for judicial enforcement with the Attorney General (AG), a district attorney (DA), a city attorney (with a population of more than 750,000) or a city attorney for a city and county. The State Water Board has recently created an Office of Enforcement to respond to calls for increased enforcement activities. This Office has hired staff attorneys and is currently developing policies. This Office should be given time to fulfill its mission of fully utilizing existing enforcement tools and aggressively seeking civil penalties and other appropriate remedies. It is not sound policy to launch another enforcement initiative before stakeholders have a chance to see how the Office of Enforcement works in practice. The State and Regional Water Boards occupy a unique place in state environmental law. These entities are the only environmental agencies created with "natural" environmental borders (watersheds) instead of political borders. One consequence of this structure has been that Water Board enforcement authority has never been pushed down to the county DA level. This longstanding policy is in keeping with the watershed nature of the Regional Boards and should be maintained. The State Water Resources Control Board recently circulated its "2008 Proposal for Water Quality Improvement Initiative". It addresses a broad range of reform ideas, including the subject matter of AB 1946, and is intended to spur negotiations among the Legislature, the Governor’s Administration and stakeholders leading to legislative action this session. The negotiations will require the balancing of many different interests. They should start on a clean slate and not against a backdrop of enrolled legislation. AB 1946 will lead to inconsistencies in enforcement as 58 county DAs and several city attorneys begin filing civil actions previously brought by one division in the AG's office. Special expertise – which the AG has – is needed to prosecute cases in this highly technical area. It is not possible for that expertise to be replicated in 58 counties throughout the State. Under current law, only DAs can bring criminal water quality actions. They are assisted in this regard by the Environmental Circuit Prosecutor Project, which was created by AB 960 (Keeley, 2001) -- a bill sponsored by the California District Attorneys Association -- because environmental cases "require specialized knowledge and can be time and resource consuming." Civil enforcement actions are more common than criminal actions, yet there is no mechanism to provide needed assistance to DAs in bringing civil water quality cases. AB 1946 has cleared the Assembly and Senate policy committees. It is now in Senate Appropriations. The bill has been targeted by CMTA’s Environmental Quality Committee for opposition.
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