Court Limits Authority of Water Board and BCDC
In three wide-ranging statements of decision that could help the regulated community throughout California, the Solano Superior Court has overturned penalties of $3.6 million and limited the enforcement authority of the San Francisco Bay Regional Water Quality Control Board and the San Francisco Bay Conservation and Development Commission (“BCDC”).
The Court held that both agencies violated the Suisun Marsh Preservation Act, that dirt placed to repair a levee is not a “waste” subject to regulation under the Porter-Cologne Act, that cutting vegetation is not a “discharge”, that the Regional Board’s conclusory statement of need was not sufficient to require a report under Water Code section 13267, that the agencies did not provide fair trials, that the agencies violated the due-process prohibition on vindictive prosecution, and that the penalties were excessive fines in violation of the Eighth Amendment.
In 2014, John Sweeney repaired the levee encircling 39-acre Point Buckler Island, which has been encircled by one or two levees and used as a duck club since the 1920s. A tight levee is needed to maintain the water level in duck ponds. Although the agencies were aware of the levee repair from the beginning, they did not contact Sweeney or object to the repair until after it was effectively complete—when they insisted he must restore the island to its former condition. Initial negotiations failed. Briscoe Ivester & Bazel was retained after the Regional Board issued a cleanup and abatement order against Point Buckler Club, which owns the island.
Attempts at permitting the levee repair or reaching an amicable resolution failed when the Regional Board refused to extend the deadline for submitting a restoration plan. In response, the Club filed suit and requested a stay of the cleanup and abatement order on the ground that the Regional Board had issued it in violation of due process. The Solano Superior Court agreed, and granted the stay.
The Regional Board and BCDC responded with a vengeance. They began proceedings directed at issuing three new orders and imposing more than $5.5 million in penalties. After three hearings, the agencies issued three orders and imposed a total of $3.6 million in penalties.
Mr. Sweeney and the Club filed suit to challenge the decisions on more than a dozen grounds. The Solano Superior Court overturned all three orders, and agreed with most of the asserted grounds.
To duck clubs in Suisun Marsh, the decision may be most significant because it held that both agencies violated the Suisun Marsh Preservation Act, which protects duck clubs and requires all state agencies to carry out their duties in conformity with that act.
The Court also limited the Regional Board’s authority under the Porter-Cologne Act to regulate discharges of “waste” to waters of the State. The Court, following precedent from the California Supreme Court, concluded that material becomes a waste when it is discarded as worthless or useless. Here, the dirt used to repair the levee was not discarded, but rather carefully placed to produce a valuable improvement. Because the dirt was not a waste, the Regional Board did not have authority to regulate it.
The Regional Board had also insisted that the “discharge” of waste regulated by the Porter-Cologne Act included the removal of vegetation and other material. The Court rejected this argument, and held that removing vegetation is not a regulated discharge.
The Court also rejected the Regional Board’s arguments about Water Code section 13267, which authorizes the Regional Board to require the submission of reports, but also requires the Regional Board to provide a written explanation showing that the cost and burden of providing a report bears a reasonable relationship to the need and benefits of the report. The Regional Board, as it usually does, provided only a conclusory statement without any real explanation. The Court found that the conclusory statement was not sufficient to comply with the requirements of section 13267.
Neither the Regional Board nor BCDC has much experience with adjudicatory hearings, or with the requirements for a fair trial. Due process requires agencies acting as adjudicators to separate staff prosecuting the case from the decision makers and their advisors. The Court found that neither the Regional Board nor BCDC provided a fair trial for any of the three orders. Among other things, the agencies did not provide enough time, and the decision-makers delegated their decisions to the prosecution teams. Unless the agencies change their procedures, they may face more litigation in the future.
Finally, the Court held that the penalties violated Constitutional prohibitions. The agencies engaged in vindictive prosecution, in violation of due process, when they imposed penalties in response to the Club’s lawsuit. They imposed excessive fines, in violation of the Eighth Amendment, when they ordered bankrupting penalties that were grossly disproportional to the harm. Penalty policies did not prevent the agencies from violating the Constitution.
Larry Bazel
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2711
