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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

May 14, 2019

The Governor of California
President pro Tempore of the Senate
Speaker of the Assembly
State Capitol
Sacramento, California 95814

Dear Governor and Legislative Leaders:

As requested by the Joint Legislative Audit Committee, the California State Auditor presents this audit report regarding the San Francisco Bay Conservation and Development Commission’s (commission) enforcement program. This report concludes that the commission has neglected its responsibility to protect the San Francisco Bay (Bay) and the Suisun Marsh.

The Legislature created the commission to regulate development in and around the Bay by issuing permits to ensure that activities do not harm the Bay and protect public access. However, the commission has struggled to enforce permit requirements and has a backlog of 230 enforcement cases. The commission is considering amnesty for some of the violators in these cases, even though cases may represent ongoing harm to the Bay. Moreover, the commissioners have not provided staff sufficient guidance for the enforcement process, resulting in the improper delegation of certain enforcement decisions to staff. In fact, the commission’s enforcement committee never met from October 2011 through June 2016, and during this period staff handled all enforcement cases. Some of these cases involved violations that could cause significant harm to the Bay, even though regulations do not generally authorize staff to process cases causing significant harm to the Bay.

We reviewed a selection of the commission’s enforcement case files and identified multiple instances where staff failed to follow requirements when imposing fines. Although a single case may include multiple violations, each with a $30,000 maximum fine, neither state law nor commission regulations provide specific guidance for what constitutes a single violation. This absence of guidance increases the risk of staff inconsistently applying fines to comparable cases, as it did in two enforcement cases that involved substantially similar dredging activities. In these cases, staff identified differing numbers of individual violations within each case, which resulted in assessment of significantly different fine amounts for, essentially, the same actions. Finally, it is unclear whether the commission’s recent creation and implementation of a complex system to prioritize its cases will help the commission identify and close cases more efficiently, and the system may not effectively identify cases that the commission should give high priority.

Respectfully submitted,

California State Auditor

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