COMMITMENT • INTEGRITY • LEADERSHIP	View full PDF report
San Francisco Bay Conservation and Development Commission Its Failure to Perform Key Responsibilities Has Allowed Ongoing Harm to the San Francisco Bay Report Number: 2018-120

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• Chapter 1—The Commission Has Neglected Its Mission to Protect the Bay and the Suisun Marsh
• Chapter 2—The Commission's Lack of Coherent Processes Has Led to Inconsistent Enforcement Decisions
• Conclusions and Recommendations

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Chapter 1

THE COMMISSION HAS NEGLECTED ITS MISSION TO PROTECT THE BAY AND THE SUISUN MARSH

Chapter Summary

One of the commission’s primary responsibilities is enforcing state laws and regulations intended to protect the Bay. However, in part because staff often spend years attempting to resolve violations before initiating enforcement action, the commission has amassed a backlog of more than 230 enforcement cases. The commission’s failure to resolve some of these cases has allowed significant, ongoing harm to the Bay. Further, because its backlog has become so unmanageable, the commissioners are now considering amnesty for certain categories of cases, which could result in these cases being closed without the violations being resolved. Even if it chooses to address its current backlog through amnesty, the commission has not created a strategy to resolve violations more efficiently in the future to prevent similar backlogs from occurring.

The commission has also not met two of its other responsibilities. Although under state law the commission is responsible for protecting the Suisun Marsh, it has not assessed the implementation of a plan to safeguard the marsh, as state law requires. Further, although state law created the abatement fund to pay for clean-up projects in the Bay, the commission has used very little of the fund for this purpose. Instead, the commission—with the Department of Finance’s approval—has used a portion of the fund to pay staff salaries.

The Commission Has an Expanding Backlog of Enforcement Cases

The commission has a large backlog of enforcement cases that has been growing steadily. According to the commission, it considers all open cases on which staff are not currently working to be part of its backlog; using this standard, it calculated that it had about 30 active cases and a backlog of about 230 cases as of December 2018. We determined that as of November 2018, this backlog included about 170 cases that were at least 10 months old. Although the commission has been able to close more cases than it opened in some years, its total cases grew by an average of 14 per year from 2012 through 2017. The commission estimates that eliminating its backlog will take 20 years based on historical averages, but the backlog’s recent growth suggests that the problem will likely get worse rather than better. One of the primary causes of the backlog is the amount of time staff take trying to resolve cases without initiating enforcement action—an issue we discuss in the next section.

In some instances, the commission’s failure to resolve cases promptly can result in considerable, ongoing damage to the Bay. For example, the commission has taken no enforcement action in a case begun in 2010 related to harmful activity in Richardson Bay. The commission’s 1984 special area plan for Richardson Bay (Richardson plan) describes the area as a shallow, ecologically rich arm of the San Francisco Bay.⁶ Since at least 1984—35 years ago—unpermitted boats have illegally anchored in Richardson Bay outside of marinas, even though state law requires commission permits for boats moored in the Bay for extended periods and the Bay Plan does not allow residential use of boats anchored outside of marinas. Some of the boats moored in Richardson Bay are residential.

One component of the Richardson plan specifically requires the removal of illegally anchored boats. However, the commission has taken limited steps to address these boats: in 1997 it issued a cease-and-desist order to an individual boat owner, and it helped the Richardson Bay Regional Agency (Richardson agency)—the agency responsible for maintaining and implementing the policies of the Richardson plan—secure a grant to support a vessel removal program in 2013. However, according to the chief of enforcement, the commission has taken no action to enforce either state law or the Richardson plan since opening an enforcement case in 2010 to address the roughly 40 illegally anchored boats that were present at the time. Illegal anchoring and abandonment of vessels in Richardson Bay has continued over time, and despite removal efforts by the Richardson agency, more than 200 vessels were illegally anchored in Richardson Bay as of February 2018.

The lack of action on this issue has resulted in continued harm to this ecologically sensitive area, as well as risks to the public. According to the chief of enforcement, many of these boats are in a state of disrepair, and they often sink, resulting in the release of harmful chemicals. According to a 2018 Audubon Society study, the illegally anchored boats have damaged nearly 57 acres of the sea floor and caused a loss of eelgrass, which provides a critical habitat for commercially important sea life, such as Pacific herring. In addition, the San Francisco Bay Regional Water Quality Control Board stated in 2009 that vessel discharges are a source of sewage contamination in the area. Since that time, it has indicated on several occasions that the water quality of Richardson Bay is impaired, as noted in a water quality plan update in May 2017. Moreover, the city of Sausalito stated in a 2018 press release that these illegally anchored boats pose a grave danger to other boats of all sizes navigating through Richardson Bay.

The chief of enforcement noted that the commission has been reluctant to pursue enforcement because the issue is highly political and involves concerns over displacement of residents. Staff presented their concerns about these anchored boats continuing to violate the law to the commissioners in a 2013 meeting; however, neither the commissioners nor staff proposed an enforcement action at that time. In February 2019, staff held a briefing during an enforcement committee meeting to discuss the anchored boats and the Richardson agency’s potential upcoming proposal for a permanent mooring system. Commission staff explained to the enforcement committee that the Richardson agency removed more than 1,000 vessels at a cost of more than $2 million from 1997 to 2019. However, rather than increasing the commission’s involvement, the commissioners stated that they would continue to hold discussions and monitor the situation. We acknowledge that the issue involves several governmental entities, special interests, and vulnerable communities. However, because vessels continue to anchor there illegally, the Richardson agency’s actions have not reduced the overall number of illegal vessels. In addition, the work done by the Richardson agency does not absolve the commission of its statutory responsibilities. Given its mission to protect the Bay, and given that it represents the combined interests of multiple Bay Area jurisdictions, the commission is best positioned to lead in the resolution of this concern.

Although Richardson Bay may be one of the commission’s most significant cases, it is just one of many enforcement cases that the commission has yet to resolve. In fact, its backlog has now become so significant that the commission is considering granting amnesty for some violations. Violations of state law result in harm through either uncoordinated filling of the Bay, unauthorized dredging of the Bay, or interference with public access. At a December 2018 meeting of the enforcement committee, staff presented a number of proposals for eliminating cases in the commission’s backlog by granting mass amnesty to certain groups of violators. The text box presents a selection of these proposals. As of February 2019, the enforcement committee had not decided how to proceed, according to commission staff.

Although amnesty could significantly reduce or eliminate the commission’s current backlog, it could also perpetuate harm to the Bay and create problems for future enforcement. Were the commission to allow violations to persist, the damage from those violations might continue indefinitely. Staff have based certain amnesty proposals on the commission’s prioritization matrix; we describe our concerns with this matrix in Chapter 2. Further, given that a single enforcement case may represent multiple violations, the commission would need to track the violations to which it granted amnesty carefully, because it would not be able to take action against those violations in the future. Amnesty could also significantly increase future litigation risks to the commission from both environmental groups and alleged violators who do not receive amnesty. Finally, if the commissioners decide to grant violators amnesty without resolving the causes of the backlog, they risk allowing the backlog to reoccur.

Staff Expend Significant Resources Attempting to Resolve Violations Before Referring Them to the Commissioners

One of the main reasons for the backlog is the significant amount of time staff spend trying to resolve cases before initiating enforcement action. State law requires that the commission grant or deny a permit within 90 days of receiving a completed application; however, neither state law nor the commission’s regulations specify the amount of time the commission may take to determine whether to initiate either the standardized fines process or formal enforcement proceedings after identifying a potential violation.

The seven enforcement cases staff forwarded to the commissioners for formal enforcement in 2016 and 2017 had been open for between one and 17 years—an average of seven and a half years—before staff referred them to the commissioners. In five of these seven cases, staff had previously initiated the standardized fines process. When the standardized fines process did not succeed in resolving the violations, staff did not refer the cases to the commissioners for formal enforcement for an average of more than seven years after starting the standardized fines process. This represents an extraordinarily long time, given that the violations had been causing ongoing harm or limiting public access to the Bay. A lack of timelines and milestones for the commission’s enforcement process contributed to these delays.

When staff do not take action to resolve enforcement cases in a timely manner, they also jeopardize the State’s ability to resolve the violations in court if necessary, and risk allowing evidence to go stale. If the commission fails to bring claims to court within a reasonable amount of time, it risks having those claims rejected by the court in the interest of ensuring fairness and preventing undue harm to the defendant. As of December 2018, staff reported that the commission had 260 open enforcement cases, and we calculated that about 80 had been unresolved for at least five years. Of these, 30 were at least 10 years old. According to the regulatory director, the enforcement unit did not have timelines or milestones to resolve cases at the staff level due to the small size of the enforcement unit, and instead staff relied on each other to remain apprised of ongoing resolution efforts. However, as an enforcement committee member noted in 2016, by allowing cases to go on for so long, the commission may hamper its ability to ensure a resolution through the legal process.

We reviewed documented policies and practices for governmental entities both in California and throughout the United States and identified a best practice related to establishing timelines at Virginia’s Department of Environmental Quality (Virginia). Virginia serves as the lead agency for the Virginia Coastal Zone Management Program (Virginia program), which is a network of state agencies and governments that administers state law and policies to protect and enhance more than 5,000 miles of shoreline. The Virginia program’s goals—protecting and restoring coastal resources, improving public access, and ensuring sustainable development—are similar to those of the commission.⁷ Virginia’s enforcement process includes milestones related to what it refers to as its compliance and enforcement phases, as Figure 7 shows. During the compliance phase, Virginia works to resolve violations using the least adversarial methods appropriate, including issuing notices and letters that establish timelines for achieving compliance. Similarly, its enforcement phase uses milestones within certain time frames. Virginia’s goal is to resolve all enforcement cases within a year of entering the enforcement phase. If it cannot resolve a case within 15 months, its management evaluates additional options, such as seeking assistance from the federal government, referring the case to the attorney general, or closing the case. Virginia’s detailed milestones enable it to ensure a timely and consistent response to noncompliance. We believe the commission would benefit from having a similar process.

Figure 7
Virginia’s Compliance and Enforcement Timelines Are an Example of a Best Practice for Processing Enforcement Cases

Source: Virginia's enforcement manual.

The Commission's Enforcement Program Lacks Sufficient Leadership

The commissioners have not provided sufficient leadership and guidance for the commission’s enforcement process. Although the commissioners have taken some actions in recent years to improve enforcement, such as approving two strategic plans, reconvening the enforcement committee, and holding meetings on enforcement strategy, their guidance has fallen short of addressing the major concerns we identified with the enforcement program. Further, because certain commission regulations related to enforcement lack clarity, the commissioners have improperly delegated their authority to staff. Finally, a lack of management review and staffing challenges have exacerbated deficiencies in the commission’s already troubled enforcement process. Collectively, these failings have allowed harm to the Bay.

The Commissioners Have Not Provided Sufficient Guidance to Staff

Although the commissioners have taken some steps to address weaknesses in the enforcement program, these steps have been insufficient. For example, although the commissioners approved two strategic plans in the last six years, the plans provide only limited guidance to the enforcement program. The first plan, which the commissioners approved in 2013, did not establish specific goals for the enforcement program. However, the executive director credits this plan for his decision to develop a data-driven enforcement strategy, which we discuss in Chapter 2. The second strategic plan, which the commissioners approved in 2017, set objectives for staff to develop and implement a permit compliance system and to consistently engage the commissioners on enforcement issues. However, neither strategic plan established measurable deliverables, such as setting milestones or goals for reducing the backlog of enforcement cases.

Similarly, the commission’s decision to reconvene the enforcement committee in 2016 was a positive step, but only because it corrected a weakness in the enforcement program that the commissioners had allowed to persist for five years. The commissioners created the enforcement committee in part to fulfill their enforcement obligations. However, the enforcement committee did not meet from October 2011 through June 2016. According to the executive director, the commission’s lack of legal resources and enforcement staff turnover prevented staff from forwarding longstanding, difficult cases to commissioners, which contributed to this lapse. Staff handled all enforcement cases during that time. Since the commissioners reconstituted the enforcement committee, the committee has held several strategy discussions with staff. For example, the committee heard a presentation by staff related to various amnesty options and informally requested that staff come back to the committee with a more detailed plan of action. The lapse in enforcement committee meetings deprived staff of guidance for the commission’s enforcement program for nearly five years.

Further, the enforcement committee has held three enforcement strategy meetings since 2016; however, these meetings did not result in formal guidance on how staff should address issues such as the enforcement backlog. State law requires state government commissions with enforcement authority to provide clear guidelines for staff to ensure that they perform the necessary functions to support the commission’s mission. However, the commission has not provided such guidance to its staff. Moreover, although commissioners have been receiving regular reports on the enforcement caseload since at least 2000, and those reports demonstrated a growing backlog in recent years, they have not yet voted on any measures to resolve the backlog or establish clear strategic deliverables. Without additional leadership from the commissioners, this trend will likely continue.

The commissioners could also have provided guidance on the commission’s enforcement program through resolutions, but they have not done so since 1993. In total, the commissioners have issued only three resolutions related to the enforcement process; however, these resolutions did not provide guidance for case handling or prioritization. Instead, they confirmed the establishment of the enforcement committee and indicated the commissioners’ strong opposition to any violation of the commission’s laws. Without guidance on prioritizing cases based on severity, staff could expend the commission’s limited resources on violations that may be inconsequential. During the period from 2012 through 2017, we identified instances in which staff pursued seemingly insignificant concerns—such as traffic cone placement and slightly faded signs.

Finally, the commission has not convened its citizens’ advisory committee since 2001, possibly depriving staff of an additional source of guidance and insight on addressing the enforcement backlog. State law requires the commissioners to appoint a committee of public agency representatives, scientists, architects, and other interested parties to assist and advise the commission in carrying out its functions, including enforcement. However, in December 2018, the executive director reported to the commissioners that staff had no record of the citizens’ advisory committee holding meetings since 2001. The executive director stated that he was unaware of why the committee did not meet during the tenure of the previous executive director, and began the process to revive it recently when he realized it was legally required. By not convening the committee for 17 years, the commission has conducted its business without soliciting advice from the advisory committee as required by law and has missed an opportunity for staff to seek guidance on the enforcement program from professionals in relevant fields.

The Commissioners' Inaction Has Resulted in Improper Delegation of Their Authority to Staff

Commission regulations allow staff to use the standardized fines process only to resolve cases that do not result in significant harm; however, these regulations do not define what constitutes such harm. This lack of specificity in the commission’s regulations allowed staff rather than the commissioners to direct the course of enforcement cases. As we discussed previously, from October 2011 through June 2016, the commission’s enforcement committee did not hold hearings and staff handled all enforcement cases, including some involving violations that could cause significant harm to the Bay. Appendix B provides a breakdown of cases closed and enforcement actions taken from 2012 through 2017. Because of the lack of specificity in the commission’s regulations, as well as the lack of other guidance to staff regarding enforcement, the commissioners in effect delegated their enforcement authority to staff for the majority of the six-year period we reviewed.

When the Legislature creates a governmental entity such as the commission, that entity has no authority to enact rules or procedures that alter or enlarge the terms of the legislative act that created it. Moreover, the entity cannot delegate to staff its ability to exercise judgment in the absence of statutory authorization. State law provides for the appointment of an executive director who is in charge of administering the affairs of the commission, subject to the direction and policies of the commission. The executive director may delegate those functions to the staff, but retains the responsibility to see that staff carry them out. Further, the extent to which the commission may delegate its authority depends on the degree to which it has provided clear guidelines to staff regarding how they may apply, administer, or enforce the authority granted.

Without clear guidance, the commission risks that staff will reach determinations that may not be consistent with the law. We identified one instance in which the chief of enforcement decided to close a case involving a clear violation of law without taking any action to resolve it. State law requires boats planning to moor in the Bay for extended periods to obtain permits from the commission. As Figure 8 shows, in 2013 the U.S. Coast Guard (Coast Guard) reached out to the commission for potential enforcement action against a tugboat grounded on the shoreline of Contra Costa County. The Coast Guard believed there was significant risk that the tugboat’s hull would rupture and discharge fuel. However, almost a year later, commission staff closed the case, stating that the commission had no role to play, even though the tugboat was clearly in the commission’s jurisdiction. The chief of enforcement indicated that she took this action because she thought it was unlikely that the commission would be able to hold the owner accountable. As of April 2019, the boat remains on the shoreline, decaying in the water. The case file contains no evidence to suggest that the commission or any other agency has addressed the potential environmental hazards the Coast Guard identified.

Figure 8
The Commission Has Allowed Ongoing Harm to the Bay

Source: The commission's records and auditor's direct observation.

In the absence of clear direction from the commissioners, we would have expected the commission’s management to provide guidance as part of their involvement with enforcement cases. For example, state regulations require the executive director to determine whether a violation qualifies for handling under the standardized fines process based in large part on whether the violation will result in significant harm. However, as explained earlier, the commission has not defined significant harm. Moreover, the commission’s management has not established a process to ensure that its management reviews staff decisions. According to staff members, they consider whether to pursue the standardized fines process in consultation with the regulatory director, who oversees the enforcement staff. However, the regulatory director said he does not typically review physical case files but stays in close communication with the enforcement team and relies on the chief of enforcement to monitor active cases.

Further, the executive director stated that he had not officially delegated his authority to determine whether cases qualify for the standardized fines process; however, he has informally given staff permission to make these determinations. In 15 of the 24 cases resolved with the standardized fines process from 2012 through 2017, we found no documentation of supervisory review. In the remaining nine cases, we identified some instances of supervisory review or approval but no evidence of systematic review, such as management signing off on staff decisions. For example, in one case we found a memo that indicated the chief of enforcement had spoken with the alleged violator and explained the enforcement action her staff had taken. In another, we found a note indicating that she had instructed her staff to revise and reissue a notice letter. However, examples such as these were present in only a minority of the cases we reviewed. Without adequate management review or clear direction and guidance, the commission risks staff reaching determinations that may not be consistent with law or that may not reflect the commission’s wishes. We identify instances in which staff failed to follow regulations and applied inaccurate penalties in Chapter 2.

The Commission Has Not Ensured That It Has Adequate Staff to Support Its Mission

The commission has not ensured that it has enough enforcement staff. Of the commission’s 46 staff in November 2018, only three were assigned to enforcement. The executive director identified a lack of enforcement staff as a significant challenge and indicated that it had occurred in part due to a structural deficiency in the budget that existed when he arrived. In 2018 the commission requested and the Department of Finance approved funding to hire an enforcement manager and an attorney focusing on enforcement. As of February 2019, the commission had hired the attorney, and its director of administrative services stated that it planned to hire an enforcement manager in July 2019. According to the executive director, he cannot increase enforcement staffing, other than adding these two positions, without receiving additional funding or shifting staff from other critical areas. For example, he explained that because state law requires the commission to process permit applications within 90 days, the commission has dedicated more staff to its permit unit than to its enforcement unit. However, the commission has not conducted a study to determine what level of staff it needs to be able to conduct enforcement or whether the mix of staff performing all responsibilities within the organization is reasonable and appropriate. The executive director said that the commission has lacked the resources and capacity to conduct such a study. Nonetheless, without a workforce study, the commission will not have the information necessary to present an adequate argument to the Legislature in support of increasing its enforcement Conduct a workforce study of all its permitstaff allocation.

The Commission Could Do More to Protect the Suisun Marsh

The commission is the primary state agency responsible for implementing the Suisun Marsh Preservation Act (Preservation Act), but has not performed some of its statutory duties. State law directed the commission and the Department of Fish and Wildlife to develop a detailed plan for the Suisun Marsh to ensure long-range conservation. The Suisun Marsh Protection Plan (protection plan) was completed in 1976. A year later, the Legislature enacted the Preservation Act to establish protections for the Suisun Marsh and create a management program to protect plants and wildlife. To implement these protections, state law required the commission to certify a local protection program (marsh program) that Solano County and the Suisun Resource Conservation District (Conservation District) created and were to carry out at the local level. For example, state law requires the marsh program to include enforceable standards for diking, draining, and filling the marsh. The commission indicated in the protection plan that the marsh was of paramount importance because it makes up almost 10 percent of the remaining natural wetlands in California; provides an integral wintering habitat for waterfowl on the Pacific Flyway; and forms a critical habitat for endangered, rare, and unique California wildlife. Figure 9 lists several of the endangered species that live in the Suisun Marsh.

Figure 9
The Suisun Marsh Contains Numerous Endangered and Threatened Species

Source: Auditor-generated using the commission’s documents, the California Department of Fish and Wildlife's California Natural Diversity Database, U.S. Fish and Wildlife Service documents, and the Suisun Habitat Management, Preservation and Restoration Plan.

Although the commission has worked with the local agencies—Solano County and the Conservation District—to update components of the marsh program, it has not conducted a periodic, comprehensive review as required. State law requires the commission to conduct a review of the marsh program at least every five years to ensure the program’s effective implementation by Solano County and the Conservation District. State law also allows the commission to make recommendations to local agencies to ensure implementation of the marsh program. However, commission staff noted in a March 2019 report to the commissioners that the commission has not undertaken a full review of the marsh program since certifying it in 1982. Further, according to the commission’s planning manager, the commission has never issued recommendations for corrective action to the local agencies related to the marsh program. After we discussed this issue with the commission, commissioners approved a staff recommendation in March 2019 to conduct a comprehensive review of the Preservation Act, protection plan, and marsh program. Nonetheless, because the commission has not conducted a comprehensive review of the entire marsh program or issued recommendations to the local agencies to ensure implementation of the marsh program, the commission risks that parts of the program have not been kept current or have not been working as intended to protect the marsh.

The Commission Has Not Used the Abatement Fund to Clean Up the Bay

The commission has not used the Bay Fill Clean-Up and Abatement Fund (abatement fund) for physical clean-up activities in the Bay. The abatement fund receives funds from several sources, including from commission fines, for the purposes of removing fill, enhancing resources, and performing remedial clean-up or abatement actions within the Bay. State law authorizes the commission to transfer money from the abatement fund to other coastal trust funds for Bay cleanup. However, from fiscal years 2008–09 through 2017–18, the commission made only a single payment of $20,000 to the California Coastal Conservancy trust fund, an allowable destination fund under state law.

According to the executive director, the commission has rarely used the abatement fund for clean-up efforts because the fund’s balance has historically been too low for it to provide a significant contribution to conservation entities. However, the commission does not have any policies that set minimum disbursement amounts or allow it to identify and select projects to support. The executive director stated that he is currently waiting for the abatement fund’s balance to reach $1.5 million, at which point he intends to transfer $1 million to the California Coastal Conservancy or a similar entity, while still keeping a significant reserve in the fund. However, such a transfer would be only the second instance in the last 10 fiscal years in which the abatement fund directly supported conservation activities.

Instead, the commission has used the abatement fund almost exclusively to support staff salaries and operational costs. State law does not specify personnel expenses as an allowable use for the abatement fund; however, on several occasions, the Legislature and the Department of Finance have approved such use. The executive director said that the commission has historically used it for enforcement staff salaries, likely based on informal guidance from the Department of Finance. The commission used a total of $240,000 from the abatement fund to pay salaries in three of the past four fiscal years, including $99,000 in fiscal year 2017–18.

According to the executive director, the salary expenditures were necessary both to avoid layoffs due to a lack of funding available from the State’s General Fund and to indirectly support conservation because the enforcement unit makes the Bay cleaner and more accessible through its actions. However, as described above, state law authorizes money from the abatement fund to be used only for the purposes of removing fill, enhancing resources, and performing remedial clean-up or abatement actions. Enforcement staff do not perform these activities; therefore, expenditures for their salaries are not authorized from the fund. In 2018 the Department of Finance issued formal approval for the commission to use the abatement fund for two new enforcement positions that the Legislature subsequently approved. We disagree that enforcement staff salaries are an allowable use of the fund and suggest that the Legislature clarify its intent for use of the fund.

The abatement fund represents a missed opportunity for the commission to further its mission to protect and enhance the Bay. As of June 2018, the fund balance was $1.4 million. Had the commission not used abatement fund dollars for enforcement staff, we estimate the balance could have been as high as $1.7 million. Such a balance might have allowed the commission to address potentially harmful fill in the Bay or to take other actions to support Bay cleanup. We discuss recommendations related to this and other issues in the Conclusions and Recommendations section of this report.

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Chapter 2

THE COMMISSION'S LACK OF COHERENT PROCESSES HAS LED TO INCONSISTENT ENFORCEMENT DECISIONS

Chapter Summary

The commission’s current enforcement practices have resulted in it inconsistently—and at times inappropriately—responding to violations. For example, because it does not proactively identify violations by regularly patrolling its jurisdiction, the commission relies primarily on either the public or other agencies to report potential violations. Additionally, commission staff have failed to follow the commission’s regulations when taking enforcement actions, such as imposing fines. When we reviewed seven cases in which staff levied fines, we found that the staff had not followed requirements in five cases. Moreover, the commission’s regulations do not specify how to identify distinct violations, which may cause inconsistencies in staff’s processing of cases with similar violations. For example, because the commission levies fines based in part on the number of violations present, cases that are similar to one another but in which staff identify differing numbers of violations can result in different total fines. When staff fail to follow regulations, or when the regulations themselves do not provide sufficient guidance, staff may treat violators and permit applicants inconsistently and potentially unfairly.

Although the commission has attempted to improve its enforcement efforts by adopting a data-driven enforcement strategy, which includes a system to prioritize enforcement cases and a new database, we identified several problems with the prioritization system, including its unnecessary complexity. Similarly, staff indicated that the new database was unreliable, and we found that it lacked critical information.

The Commission Does Not Proactively Identify Violations of State Law and Permit Conditions

Given that the Legislature empowered the commission to conduct enforcement actions against violations that threaten the Bay, we would have expected it to be taking reasonable steps to identify such violations. However, the commission lacks policies or procedures requiring its staff to conduct site visits or patrols, or to take similar measures. Instead, according to the chief of enforcement, the commission waits for the public or other agencies to report potential problems. Although she explained that staff sometimes identify violations during the course of other work or their personal time, she stated that the commission does not do so proactively In a 2017 enforcement strategy presentation, staff indicated that the vast majority of the commission’s enforcement cases stem from members of the public calling in complaints. For example, we found that the commission often receives complaints regarding maintenance of facilities within its jurisdiction from the public or other agency representatives. Figure 10 highlights one of these cases. The chief of enforcement explained that a lack of resources prevents the commission from taking a more proactive approach. However, the commission’s current reliance on the public means that it cannot ensure that it is aware of violations across its jurisdiction. Although the commission faces enforcement staffing limitations, it should have developed a strategy using the resources available to supplement its reliance on public reporting. For example, it could dedicate a limited number of staff hours annually to active patrolling in order to identify violations within its jurisdiction.

Figure 10
Example of Permit Violations Staff May Have Identified With a Proactive Compliance Strategy

Source: Commission enforcement records.

In addition, the commission lacks a systematic method to ensure that permit holders comply with the conditions of the permits it issues. State law authorizes the commission to include reasonable terms and conditions to ensure that its permits reflect the intent of the law and the Bay Plan. For example, the commission may place conditions on its permits requiring permit holders to record legal documents, submit annual reports, and conduct ongoing maintenance. However, according to the chief of enforcement, the commission lacks the resources to systematically track these requirements after issuing permits and instead generally relies on permit holders to comply. Given that the commission maintains more than 4,500 permits, the risk of noncompliance is high in the absence of a monitoring strategy. For example, in one case, staff opened an enforcement case to request missing annual reports related to the permittee’s activities, but then stated that they considered the violation resolved after learning that the permit holder had sold the land about a decade earlier. Without a systematic method of ensuring compliance with the conditions it imposes, the commission risks that permit violations will go undetected.

Its enforcement case records indicate that the commission could prevent potential violations and decrease its enforcement workload if it created a staff position for permit compliance review. The chief of enforcement estimated that up to 50 percent of violations were related to noncompliance with permits. We found a similar percentage of permit compliance issues in our review of the commission’s enforcement records from 2012 through 2017. Permit compliance violations that we noted included failing to provide required reports, blocking or failing to maintain public access, or neglecting to add required amenities. For example, in one enforcement case, staff noted that the permit holder failed to provide public access improvements such as chairs, tables, and umbrellas in a public access area.

Although the commission’s case files indicate that alleged violators often resolved issues without fines, the cases still required attention from enforcement staff to reach resolution—attention that the violators may not have received if someone had not complained. Two representatives of entities that hold permits from the commission suggested that permit holders would benefit from regular contact with staff to resolve compliance issues before enforcement is initiated. Allocating even one staff member to conduct reviews of selected permits could help alleviate the pressure on the commission’s enforcement staff and increase the public perception that the commission is consistently holding permit holders accountable for the conditions in their permits.

Staff Have Not Always Followed Requirements Related to Imposing Fines

Staff did not always follow regulations related to fines. According to state regulations, staff may initiate the standardized fines process when the executive director determines that a violation meets certain requirements, which the text box describes. To initiate the standardized fines process, staff must send an alleged violator a letter describing the nature of the violation, specifying corrective action that the permit holder must take, and providing a 35-day grace period for the responsible party to correct the violation before fines begin to accrue. If the alleged violator does not resolve the matter within the grace period, staff may levy a fine based on the type of violation and the number of days the responsible party takes to correct the violation after the grace period expires. From January 2012 through December 2017, staff used the standardized fines process to close 24 of the 172 cases they closed. However, when we reviewed seven of these 24 cases, we observed errors in five.

In one 2013 case, staff inappropriately applied a standardized fine even though they had determined that the responsible party could not correct the violation. Based on state law and regulations, violations that alleged violators cannot correct either must proceed through formal enforcement—which generally involves a review by the commissioners—or be resolved through a settlement agreement. In the 2013 case, we found that staff levied a $30,000 fine for a dredging violation despite determining that the party could not correct the violation because the dredging—or excavation of mud from the bottom of the Bay—had already taken place. To determine whether the staff’s breach of regulations represented a one-time error or a normal practice, we reviewed three similar dredging cases. In 2009 and 2018, staff took similar action in two other cases, levying fines of $30,000 for each dredging-related violation. However, in a fourth case that—like the first—occurred in 2013, staff complied with state law by negotiating a settlement agreement for $20,000, suggesting that they were aware of the correct process but had chosen not to apply it in the other instances. According to the chief of enforcement, staff often used the standardized fines process for dredging violations because it is more efficient than taking the cases to the commission and they feel it results in equitable resolutions. Nevertheless, their decisions contradict state regulations, leading to an inconsistent application of penalties.

In another case based on an allegation to the commission, staff used the standardized fines process in 2013 to inform a permit holder that it had violated its permit conditions, even though the commission could not demonstrate that it had verified the allegation. To withstand legal scrutiny, staff should document sufficient evidence in the case file to justify their findings. Further, state regulations require staff to notify alleged violators of the corrective actions they must take. However, in this instance, which involved a restaurant refusing public access seating, staff did neither. Instead, staff sent a notice letter informing the permit holder that the commission had begun its standardized fines process, and they considered the issue automatically resolved within the 35-day grace period. Moreover, although the commission’s regulations require violators to take corrective action before the commission resolves the violation, staff stated in the letter that they would consider this violation automatically corrected without requiring action from the violator.

In later enforcement cases against the same permit holder, staff treated the permit holder as a repeat offender. Commission regulations require subsequent penalties for repeat offenders to increase to $100 per day but do not require staff to require corrective actions. Ultimately, staff applied the $100-per-day fine against the permit holder to levy a total of $8,000 in fines for the same type of violation across three cases. Staff cited the transitory nature of the offense as the reason they did not initially provide the permit holder with a corrective action plan; however, in the final and largest case, staff required corrective action in the form of documented employee training. Given that the commission ultimately substantiated the later violation and prescribed corrective action, we find its reasoning for not taking the required actions in the earliest case problematic. When we discussed this with the commission, staff explained that no fewer than three analysts handled the related cases over the years and that the most recent case demonstrated the current staff’s desire to follow the regulations.

We expected the commission to have developed sufficient guidance to ensure that its staff apply its regulations consistently. However, as we note in Chapter 1, our review of the commission’s enforcement program found that it has no formal guidance for staff on critical aspects of the enforcement process, including calculating and imposing fines. Its chief of enforcement explained that the commission has passed only three enforcement-related resolutions and developed two flowcharts to assist in the training of new enforcement staff. She stated that the commission is in the process of creating new policies and procedures but that its effort has been delayed by several time-consuming enforcement cases. Without formal policies and procedures, the commission risks imposing fines on permit holders in an inconsistent and unfair manner.

We also identified multiple cases in which staff misapplied fines. Commission regulations prescribe fines based on the type of violation and the number of days that a violator takes to resolve issues. In one example, staff identified a violation of a maintenance-related permit condition and sent a 35-day notice letter to the permit holder. However, the conditions of the violator’s permit allowed it an additional 30 days to resolve maintenance violations before fines accrued, for a total of 65 days overall. The evidence in the case file shows that the permit holder resolved the violation within 50 days. However, staff still fined the permit holder $1,000. Staff failed to document any evidence that they instructed the permit holder to fix this specific violation during the visit. Thus, we concluded that staff inappropriately levied the $1,000 fine.

Finally, we also identified miscalculations of fines in two cases. In one, staff undercharged a permit holder by $300 when they miscalculated the number of days that the permit holder took to resolve two violations. In another, staff inconsistently calculated penalties associated with a permit holder’s five violations by including the date of resolution in the penalty for some violations but not for others. The regulatory director stated that these miscalculations—as well as the misapplied penalties we discuss above—might have been the result of oversights on the part of staff. However, the fact that staff made multiple distinct penalty errors in three of the seven cases we reviewed indicates that the commission has not established adequate processes to prevent the inappropriate application or miscalculation of penalties.

The Commission's Approach to Imposing Fines Has Led to Inequities

The commission’s structures for its standardized fines and formal enforcement processes have resulted in disproportionate penalty amounts. Under the formal enforcement process, state law allows commissioners to impose a penalty ranging from $10 to $2,000 for each day in which a violation occurred or persisted, up to a maximum of $30,000. Under the standardized fines process, regulations allow staff to impose penalties up to the same maximum for violations that do not cause significant harm, starting on the 36th day after staff mail written notice of a violation to the violator and depending on the total number of days the violation persists. This approach has led to even relatively minor violations receiving the same fines as more significant violations because both structures rely primarily on the number of days it takes the violator to resolve the violation.

When we reviewed the commission’s enforcement cases, we found several instances that demonstrate the types of inequities that can result from the commission’s fine structure. For example, in a formal enforcement case that went before the commissioners in 2017, staff proposed a $30,000 fine for a minor violation that had persisted since 1998 involving public access signage. Even if commissioners had levied the lowest penalty available to them, the violation still would have reached the maximum amount by the time the commissioners heard the case. In another instance, commission staff initiated standardized fines for a case involving designated parking spaces in 2011. This violation reached the $30,000 maximum under the standardized fines process. When staff subsequently could not resolve the violation using standardized fines, they forwarded it for formal enforcement. They proposed the same maximum penalty—$30,000—to the commissioners, based on the length of time the violation had persisted, in this case since 2008. In a more serious case involving unauthorized construction of a pier and dock, staff imposed the same maximum penalty. Because of the commission’s fine structure, some minor violations may result in penalties that are too high to be reasonable, and the commission is in essence penalizing major and minor violations equally.

Further, the commission has not provided clarity on what constitutes an individual violation, creating a significant risk that it will treat permit holders and the public unfairly. Because the commission levies its fines per violation, the number of violations in a case can significantly affect the total amount the violator owes. However, neither state law nor commission regulations give guidance on what constitutes a single violation. According to the chief of enforcement, staff have some discretion regarding these decisions; however, we noted that this approach could lead to differing—and possibly unfair—results.

In fact, we identified several instances in which staff were inconsistent in their identification of the number of violations in particular cases. For example, when an entity removes material from the Bay through a dredging process, the entity needs to dispose of that material somewhere else; per state law, both dredging and dumping require permits. In one instance, staff treated dredging and dumping as a single violation and sought a single maximum penalty of $30,000. In other instances, they counted dredging and dumping as separate violations, subjecting violators to a maximum fine of $60,000. Similarly, staff told one violator that although in the past they treated the permit holder’s violations related to multiple cars improperly parked in a public access spot as a single violation, they would in the future treat each improperly parked car as an individual violation. Without additional regulations detailing how staff should determine whether an activity constitutes one or more violations, the commission risks resolving cases in an inconsistent and unfair manner that could cost some violators thousands of dollars more than others who commit similar violations.

Although state regulations allow violators to appeal standardized fines, this option does not correct the problems with the commission’s fine structure or the inequities that can occur when staff inconsistently identify violations. Violators, who would likely not be aware of the outcome of cases similar to their own, must initiate the appeal process. In the period from 2012 through 2017, violators could have appealed their fines in 18 cases. Of those 18 cases, 12 violators, or about 67 percent, appealed. The commission chair and executive director granted 10 of the 12 appeals—or 83 percent—with an average fine reduction of about 40 percent. Although these decisions resulted in penalty reductions for some, they were dependent on requests from violators rather than a fine structure that produces proportionate and consistent penalties.

The use of a penalty matrix to assess fines could assist the commission in ensuring that it treats violators fairly and consistently. Virginia’s enforcement program sets out specific procedures and criteria for staff to calculate the appropriate penalty amounts using its penalty worksheet. When generating a penalty amount, this penalty worksheet takes into consideration specific criteria, such as the frequency and severity of the violation, as well as aggravating factors, such as history of noncompliance and degree of culpability. Moreover, Virginia also considers the responsible parties’ ability to pay. According to Virginia’s enforcement manual, a consistent enforcement program allows members of the regulated community to expect similar responses for comparable violations.

After the commission has implemented the regulatory recommendations noted in our Conclusions and Recommendations section—such as implementing the use of a penalty matrix and defining what a single violation constitutes—the Legislature should amend state law to provide the commissioners with the ability to record violations on the titles of properties. In 2002 the Legislature gave the California Coastal Commission—which performs a role that is similar to the commission’s but for the coastline outside the Bay—the authority to record violations on the titles of properties, subject to certain requirements.⁸ This provides a less expensive enforcement mechanism than litigation, which can be costly for the State and the property owner. Not only does recording a violation on a property’s title provide the property owner with an incentive to resolve the issue, it also protects future buyers from unwittingly purchasing a property with active violations. Since the commission has the authority to levy penalties of $30,000 per violation, and because unresolved violations transfer to future owners, a lack of awareness on the part of a potential buyer could lead to significant costs. Allowing the commission to record violations on property titles would address these issues and give it an additional tool to negotiate the resolution of cases.

The Commission's Recent Efforts to Improve Enforcement Have Failed to Address Inefficiencies

In 2015 the commission set a goal to develop a data-driven enforcement strategy in an attempt to use its resources more efficiently and increase the effectiveness of its enforcement program. According to the executive director’s presentation to the commissioners at that time, this strategy consisted of three components: outreach efforts to assist permit holders with compliance, the development of a regulatory database, and the development of a system to prioritize enforcement cases. We previously discussed the commission’s lack of a permit compliance strategy. Here we discuss our review of the commission’s prioritization system and database.

According to the executive director, the commission’s backlog necessitated the development of a system—which we refer to as a prioritization matrix—to enable staff to prioritize pursuit of the most potentially harmful cases. He stated that the commission’s goal was to ensure that it could quickly identify high-priority cases. The prioritization matrix, which the commission began developing in 2015 but has not finalized, considers two overall aspects of an enforcement case: the impact the violation may have and, for cases that it designates as high impact, the effort necessary for staff to achieve resolution. Staff began using the matrix to generate impact scores in 2016. According to staff, they developed the effort-scoring aspect of the matrix in 2018 to identify those high-impact cases that would require the least effort to resolve. An enforcement analyst who worked on the project said that staff have spent hundreds of hours refining the matrix and using it to determine cases’ priority levels.

According to commission records, it has closed only eight of the 49 cases it has designated as high priority since it began scoring cases in 2016. When we reviewed information related to these cases to determine whether the prioritization matrix enabled staff to close these cases more quickly or effectively, we found that staff had either initiated enforcement action or received permit amendments to resolve six of the cases several months before scoring them. Thus, staff did not use the matrix to select these six cases for enforcement action. Staff scored the seventh case and then closed it without enforcement action after issuing a permit amendment. Staff closed the final case without action when the reporting party informed the commission that the violation had ceased. Consequently, we concluded that there is not sufficient evidence to show whether prioritization has resulted in the commission more effectively closing cases the matrix has identified as high priority.

Prioritizing cases based on this system—which the executive director intended to improve the commission’s effectiveness—has not addressed the issues we identified with its enforcement program, which we describe in Chapter 1. In fact, the commission reported that its total enforcement caseload, which includes the backlog and active cases, increased from 204 to 261—or 28 percent—from 2016 through 2018. Further, the commission’s annual reports showed a 27 percent decrease in the number of cases staff closed in 2017, followed by a steeper decline of 45 percent in 2018. Given that the commission opens an average of 55 cases a year and has suffered from declining closure rates since 2016, its reallocation of its enforcement resources to prioritized cases will likely increase its backlog in the future. Further, the commission does not yet have any evidence that the matrix will increase its effectiveness in handling prioritized cases. An approach that balances handling the most harmful cases with working in tandem on a number of more easily resolved cases may serve the commission better.

Moreover, our review of the matrix indicates that it has led to staff designating some cases as high priority or low priority when such scores may not be warranted. For example, one case concerning private use of a public access area scored significantly higher than a case that staff characterized as involving unpermitted fill, new construction, and the discharge of biohazardous waste along the shoreline. Given the presence of potentially hazardous waste, we expected the latter case to score higher than the former. In addition, we found an open case in South San Francisco that did not meet the commission’s high-priority threshold even though it included multiple alleged violations involving illegal boats used as residences, abandoned vessels, discharge of wastewater, and debris from wrecked boats on the shoreline. The commission’s regulatory director agreed that the score for this case was lower than it should have been.

Such questionable scoring may occur in part because of the matrix’s overly complicated design. According to the chief of enforcement, when a new case comes in, staff review readily available information such as relevant permits and Internet research. Based on that information, staff assign numeric ratings to certain characteristics of a violation, such as its perceived toxicity, its potential effect on the ecosystem, and its visibility to the public. They then enter these values into the prioritization matrix, which uses a complex formula to derive the impact score estimating the potential harm the violation may inflict. When the impact score exceeds a certain threshold, the commission also assigns a score to assess how much effort a case might take to resolve, using criteria such as responsiveness of the alleged violator and external agency involvement. The commission combines the scores on a chart to determine which cases to address first. Overall, our analysis suggests that the commission’s matrix is likely too complicated to effectively prioritize cases with the information staff have available before they begin actively investigating and addressing the alleged violations.

In addition to creating the prioritization matrix, commission staff began populating a new database in 2017 to track enforcement cases; however, the limited information in the database detracts from its potential value. State regulations require the commission to double the fine it imposes on a violator if the violator has resolved any previous violations using the standardized fines process within the previous five years.⁹ Further, if the violator repeats the same violation within five years, regulations require the commission to charge a daily fine of $100 until the violator resolves the problem. For this reason, we would have expected the commission’s database to document the cases in which staff had initiated the standardized fines process and to identify the individual violations in those cases. However, the database indicates that staff sent only two notice letters—which start the standardized fines process—from 2002 through 2018. This conflicts with our review of the commission’s paper files, which show that staff issued 25 notice letters from 2012 through 2017.

Five of the 10 paper case files we reviewed did not have sufficient records of the number of specific violations the commission was investigating. In the other five files, staff did not record the number of specific violations until issuing a notice letter. Yet even after issuing these documents, staff did not update the database to reflect the number of individual violations. When we discussed this issue with the commission, staff said that they still rely on paper files to conduct their work. This calls into question the usefulness of the database.

Because of these issues, we could not rely on the commission’s database to review case information or trends in the commission’s enforcement efforts. Instead, to draw valid conclusions from sufficient and appropriate evidence, as audit standards require, we created our own database covering the commission’s cases from 2012 through 2017. The commission’s chief of enforcement acknowledged in October 2018—shortly after we started the audit—that its enforcement database was missing an unknown number of enforcement records and that some records were missing important information. According to the staff member leading the database project, the commission plans to have all of its cases entered into the database by May 2019. He stated that as of February 2019 staff had reviewed all cases opened in 2018 to ensure that every field was complete and accurate. In addition, staff update fields for older cases as they begin actively investigating them. Until the commission ensures that its database contains complete and accurate information and has the necessary capabilities to track cases and violations in a useful manner, the database is unlikely to contribute to a data-driven enforcement strategy.

Collectively, the issues with the commission’s prioritization matrix and database indicate that the commission’s attempts at a data-driven enforcement strategy have not increased the effectiveness or efficiency of its enforcement program. In fact, when staff proposed amnesty options that would use scores based on the prioritization matrix to the enforcement committee, the chair of the enforcement committee said that he did not understand the framework of the matrix enough to determine whether the commission could use it to grant amnesty or dismiss cases. This is concerning, as it indicates that staff have not been able to adequately explain the prioritization matrix—a third of their data-driven strategy—to the enforcement committee, even after three years of development. Moreover, he indicated in the most recent enforcement strategy presentation that he did not see that staff had developed a systematic approach to resolving incoming violations. Rather than relying on an overly complex prioritization formula, an incomplete database, or potentially harmful amnesty options, the commission must resolve its backlog by creating and implementing an effective and efficient enforcement process, the requirements of which we describe in the Conclusions and Recommendations section of this report.

The Commission Did Not Regularly Update Its Permit Fees and May Need to Update Its Staff Guidelines for Permit Issuance

The commissioners have not updated permit application fees at regular intervals, which may have resulted in lost revenue. The commission charges permit fees ranging from $100 to $600,000, depending on the type and total cost of a project. For example, a permit for a minor repair or improvement costing $5,000 requires a $175 fee, whereas a permit for a project costing $200,000 requires a $900 fee. State regulations require the commission to review its fees every five years to calculate new fees using a formula based on its expenditures and fee revenue from the previous five years. Regulations specifically required the commission to recalculate its fees in 2013, but it waited until 2018 to perform the needed analysis.

We analyzed budgetary data provided by the commission and determined that had staff performed the fee calculation in 2013, the commission likely would have increased its fees, due to lower fee revenue in the preceding years. If it had done so, it would have collected an additional $1 million since 2013. When the commission eventually did recalculate its fees in 2018, using the previous five years of budget data, it determined no fee increase was necessary, because its budget for permitting and enforcement had not increased enough relative to fees collected over those years to trigger an increase, according to regulations. By delaying its review of permitting fees, the commission missed an opportunity to raise them. In November 2018, the executive director reported to the commissioners that staff had delayed this calculation in part because of the lack of a chief counsel. However, it is unclear why a chief counsel was necessary for this process, as the commission had staff counsel available. By reviewing its permitting fees at regular five-year intervals, as state regulations require, the commission can ensure that its fees remain current and that it does not deny additional revenue to the State’s General Fund.

Other than not adjusting its fees as required, the commission generally drafted reasonable permit conditions that complied with applicable state law. State laws and regulations set a 30-day deadline for the commission to respond to incomplete applications by notifying the requestor of the steps required to complete its submission and a 90-day deadline for issuing decisions on complete applications. We reviewed five permits and found no instances when the commission included a condition that appeared unreasonable or outside its legal authority. Further, we reviewed six other permit application files and found that staff generally responded by requesting additional information or approving the permits within the required time frames.

However, we found that staff had used their discretion to issue permits in a manner that may be inconsistent with regulations. Citing the public’s interest in the Bay as a natural resource, state law requires that any proposed project to add or extract materials or to change the use of land, water, or structures within the commission’s jurisdiction receive a public hearing. Commission regulations list certain types of projects, such as boat docks below a certain size and routine repairs, as being exempt, meaning that staff can issue permits for these and similar projects without requiring a commissioner hearing. However, the regulations do not provide guidance for determining when a project is sufficiently similar to those on the list to be considered exempt. When we initially reviewed six applications, we identified an instance in which staff issued a permit for a building and connected deck on the Bay by declaring the project similar in size to a marina expansion, which regulations exempt from commissioner hearings. Staff provided a second instance in which they issued a permit for a bridge project by comparing its area to that of a multiple-boat dock, which the regulations also exempt. While these are not clear violations of regulations, they may represent another area in which the commissioners should provide additional guidance. Staff said they would prefer that the regulations have a more complete list of exempt projects but believe that as written they allow staff’s current practices. The commission chair indicated that he supports the staff’s interpretation of the regulations, but that the commission should review the flexibility staff have in permitting. Without such guidance, staff may use their discretion and the latitude provided by regulations to approve a broader range of projects than intended.

The Commission Did Not Always Comply With Public Meeting Requirements

Although the commissioners and enforcement committee generally conducted their hearings in compliance with open meeting laws, we noted some instances in which they failed to follow relevant requirements. State law requires the commission to take specific actions when the commissioners meet, including providing notice of their meetings in advance and allowing public comments on each item. In addition, regulations require staff to provide enforcement committee members with related documentation at least 10 days before each meeting and to summarize violation reports and recommended enforcement decisions during enforcement hearings. We reviewed three commissioner meetings and six enforcement committee meetings that occurred from 2016 through 2018 and found that the meetings generally met open meeting and enforcement hearing requirements. Although we identified one enforcement committee hearing in which committee members expressed an intent to skip public comments for an agenda item, they allowed comments on advice from legal counsel.

However, we found that the commission did not consistently take minutes during closed sessions in public meetings. Although state open meeting laws allow the commissioners to hold sessions that are closed to the public to discuss pending litigation, personnel matters, or other confidential subjects, the laws require that the commissioners include descriptions of those sessions on a public agenda and designate a staff member to record minutes on the issues discussed and agreements reached. However, from 2016 through 2018, the commissioners did not ensure that staff took minutes during seven of the nine closed sessions we judgmentally selected for review. In the remaining two closed sessions, a member of the Office of the Attorney General took minutes, which satisfied the requirement.

When we notified staff of this issue, they indicated that they were unaware of the requirement to take minutes and would immediately address the issue for all future meetings. Although meeting minutes remain confidential, state law allows their review by courts if necessary to demonstrate that entities used closed sessions only for purposes allowed in law. Without this documentation, the commission lacks a tool to demonstrate that it complied with state laws regarding public meetings, and it could face legal action should a court require the minutes of closed meetings and those minutes do not exist. We reviewed documentation provided by the commission and verified that it has resolved this issue.

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Conclusions and Recommendations

The commission has consistently failed to execute its duties under state law and, as a result, has allowed ongoing harm to the Bay. This report identifies a number of concerns with the commission’s efforts to protect the Bay, including its amassing of a backlog of about 230 enforcement cases, some of which are more than a decade old, and its failure to conduct site visits or actively protect its jurisdiction. Collectively, these concerns are the result of the commission’s lack of a coherent enforcement process and insufficient guidance from the commissioners.

Although this report identifies multiple failings by the commission, it also highlights the importance of having a responsive body intent on protecting the Bay. The commission performs an important regulatory function when it issues permits for the Bay’s hundreds of miles of shoreline, which in turn allow thousands of residents and visitors to enjoy public access. Moreover, as a regional entity, the commission is better positioned than local entities to ensure the consistency both of permits intended to protect the Bay and of enforcement efforts. Finally, through its involvement in the Adapting to Rising Tides program, the commission has taken recent actions to address sea-level rise in the Bay—an issue of growing importance that benefits from regional coordination.

However, to serve the purposes for which it was created, the commission will need to take action in tandem with the Legislature to correct the issues that we identify in this report, address past deficiencies, and create a robust enforcement program. The recommendations detailed here represent a suite of suggested actions for the Legislature and commission to implement, both immediately and as the commission makes progress toward revitalizing its enforcement efforts. Although full implementation of these recommendations will likely take several years, establishing an effective enforcement program is vital to the future health of the Bay.

Recommendations

Legislature

To improve the efficiency of the commission’s current enforcement process, the Legislature should require the commission to create and implement the following by fiscal year 2020–21.

• A procedure to ensure that managers perform documented review of staff decisions in enforcement cases.
• Timelines for resolving enforcement cases.
• A penalty matrix for applying fines and civil penalties.

Further, the Legislature should direct the commission to begin developing regulations by fiscal year 2020–21 to define single violations and create a method of resolving minor violations through fines.

To ensure that the commission performs its duties under state law related to the Suisun Marsh, the Legislature should require a report from the commission upon completion of its comprehensive review of the marsh program every five years, beginning with a review in fiscal year 2020–21.

To ensure that the commission uses the abatement fund appropriately, the Legislature should clarify that the fund’s intended use is for the physical cleanup of the Bay, rather than enforcement staff salaries. The Legislature should consider fully funding enforcement staff through the General Fund to align revenue sources with the commission’s responsibilities.

After the commission implements the changes noted below, the Legislature should provide the commission with an additional tool to address violations by amending state law to allow the commission to record notices of violations on the titles of properties that have been subject to enforcement action.

Commission

To ensure that it maximizes the efficiency and effectiveness of its enforcement and permitting programs, the commission should take the following actions by January 2020:

• Develop and implement procedures to ensure that its management adequately reviews staff enforcement decisions. These procedures should include requirements detailing how staff should document and substantiate violations, case resolutions, and their rationale for imposing fines. Further, the procedures should require staff to conduct proactive enforcement, such as site visits, as resources allow.
• Develop and implement procedures to ensure that staff open, investigate, and close cases in a manner that is consistent with state law and that encourages the responsible use of staff time.
• Develop guidance that enumerates the violation types that the commissioners deem worthy of swift enforcement action, those that staff can defer for a specified amount of time, and those that do not warrant enforcement action or that can be resolved through fines.
• Simplify its system for prioritizing enforcement cases, to help it focus its enforcement efforts on cases with the greatest potential for harming the Bay.
• Create a penalty calculation worksheet. The commission should require the worksheet’s use for all enforcement actions that will result in fines or penalties, and it should create formal policies, procedures, and criteria to provide staff with guidance on applying the worksheet.
• Develop a procedure to identify stale cases. After applying this procedure, the commission should seek appropriate settlements for such cases that preserve or exercise the State’s legal rights to resolve violations and levy penalties.
• Evaluate and update permit fees every five years in accordance with its regulations.
• Conduct a comprehensive review of local agency compliance with the marsh program and issue recommendations as necessary to implement the protections outlined in the Suisun Marsh Preservation Act.
• Appoint a new citizens’ advisory committee as required by law and determine a schedule for the committee to conduct regular meetings.

To ensure that it uses the abatement fund for the physical cleanup of the Bay, the commission should create a policy by January 2020 identifying the minimum amounts it will disburse and prioritizing the projects that it will support through disbursements to the appropriate entities.

To build on prior recommendations and ensure that it maximizes the effectiveness of its enforcement program, the commission should take the following actions by January 2021:

• Conduct a workforce study of all its permit and regulatory activities and determine whether it requires additional staff, including supervisors, to support its mission.
• Implement a permit compliance position to support the efforts of enforcement staff and the implementation of process changes. If necessary, it should seek additional funding for such a position.
• Update its existing database or create a new database to ensure that it can identify and track individual violations within each case, including the date staff initiate the standardized fines process for each violation. As part of this process, the commission should review its database and update it as necessary to ensure that it includes all necessary and accurate information, specifically whether staff initiated the standardized fines process for open case files and for those case files closed within the past five years.

To ensure consistency in its enforcement program, the commission should perform the following regulatory actions by January 2021:

• Create and implement regulations that identify required milestones and time frames for enforcement.
• Create and implement regulations that define substantial harm, provide explicit criteria for calculating the number of violations present in individual enforcement cases, and specify a process to handle any necessary exceptions to the criteria.
• Create and implement regulations to allow it to use limited monetary fines to resolve selected minor violations that do not involve substantial harm to the Bay.
• Update its regulations on permit issuance to offer greater clarity on the types of projects for which staff may issue permits without commissioners’ hearings.

We conducted this audit under the authority vested in the California State Auditor by Government Code 8543 et seq. and according to generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives specified in the Scope and Methodology section of the report. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Respectfully submitted,

ELAINE M. HOWLE, CPA
California State Auditor

Date: May 14, 2019

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Footnotes

⁶ To demonstrate how the Bay Plan applies to specific regions, the commission creates special area plans in partnership with local governments. These special area plans serve as amendments to the Bay Plan. Go back to text

⁷ The National Oceanic and Atmospheric Administration concluded in its most recent assessment, issued in 2015, that Virginia had satisfactorily implemented and enforced its federally approved coastal program. Go back to text

⁸ After the California Coastal Commission has completed its hearing and finds that a violation has occurred, the executive director records the notice of violation in the office of each county recorder where all or part of the real property is located. Go back to text

⁹ The total fine levied in this instance would still be subject to the $30,000 maximum cap. Go back to text

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