Report 2018-120 All Recommendation Responses

Report 2018-120: San Francisco Bay Conservation and Development Commission: Its Failure to Perform Key Responsibilities Has Allowed Ongoing Harm to the San Francisco Bay (Release Date: May 2019)

Recommendation for Legislative Action

To improve the efficiency of the commission's current enforcement process, the Legislature should require the commission to create and implement by fiscal year 2020-21 a procedure to ensure that managers perform documented review of staff decisions in enforcement cases.

Description of Legislative Action

AB 2809 (Chapter 220, Statutes of 2020) requires, by the end of the 2020-21 fiscal year, that the commission create and implement a procedure to provide managerial review of staff decisions in enforcement cases.

California State Auditor's Assessment of Annual Follow-Up Status: Legislation Enacted

Description of Legislative Action

AB 2809 (Mullin) was introduced on February 20, 2020, and would require, by the end of the 2020-21 fiscal year, that the commission create and implement procedures to provide managerial review of staff decisions in enforcement cases.

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

Description of Legislative Action

As of November 2019, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 6-Month Status: No Action Taken

Description of Legislative Action

The Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

To improve the efficiency of the commission's current enforcement process, the Legislature should require the commission to create and implement by fiscal year 2020-21 timelines for resolving enforcement cases.

Description of Legislative Action

AB 2809 (Chapter 220, Statutes of 2020) requires, by the end of the 2020-21 fiscal year, that the commission create and implement timelines for resolving enforcement cases.

California State Auditor's Assessment of Annual Follow-Up Status: Legislation Enacted

Description of Legislative Action

AB 2809 would require, by the end of the 2020-21 fiscal year, that the commission create and implement timelines for resolving enforcement cases.

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

Description of Legislative Action

As of November 2019, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 6-Month Status: No Action Taken

Description of Legislative Action

The Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

To improve the efficiency of the commission's current enforcement process, the Legislature should require the commission to create and implement by fiscal year 2020-21 a penalty matrix for applying fines and civil penalties.

Description of Legislative Action

AB 2809 (Chapter 220, Statutes of 2020) requires, by the end of the 2020-21 fiscal year, that the commission create and implement a penalty matrix for assessing fines and civil penalties and a method for assessing civil penalties in cases involving multiple violations.

California State Auditor's Assessment of Annual Follow-Up Status: Legislation Enacted

Description of Legislative Action

AB 2809 would require, by the end of the 2020-21 fiscal year, that the commission create and implement a penalty matrix for assessing fines and civil penalties.

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

Description of Legislative Action

As of November 2019, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 6-Month Status: No Action Taken

Description of Legislative Action

The Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

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.

Description of Legislative Action

As of September 9, 2022, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of Annual Follow-Up Status: No Action Taken

Description of Legislative Action

As of May 14, 2021, the Legislature has not taken action to address this specific recommendation.

Although AB 2809 (Chapter 220, Statutes of 2020) requires that the commission create and implement a method for assessing civil penalties in cases involving multiple violations by the end of the 2020-21 fiscal year, it does not specifically require the commission to develop regulations to define single violations or a method of resolving minor violations through fines.

California State Auditor's Assessment of Annual Follow-Up Status: No Action Taken

Description of Legislative Action

As of May 14, 2020, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 1-Year Status: No Action Taken

Description of Legislative Action

As of November 2019, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 6-Month Status: No Action Taken

Description of Legislative Action

The Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

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.

Description of Legislative Action

AB 2809 (Chapter 220, Statutes of 2020) requires the commission to perform and complete the required review of the marsh program by no later than July 1, 2025, and to perform successive reviews under the act every five years.

California State Auditor's Assessment of Annual Follow-Up Status: Legislation Enacted

Description of Legislative Action

AB 2809 would require the commission to perform and complete the required review of the marsh program by no later than July 1, 2021, and to perform successive reviews under the act every five years.

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

Description of Legislative Action

As of November 2019, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 6-Month Status: No Action Taken

Description of Legislative Action

The Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

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.

Description of Legislative Action

As of September 9, 2022, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of Annual Follow-Up Status: No Action Taken

Description of Legislative Action

As of May 14, 2021, the Legislature has not taken action to address this specific recommendation.

Commencing with the 2021-22 fiscal year, AB 2809 (Chapter 220, Statutes of 2020) would have prohibited the commission from using money paid into the abatement fund to pay for the commission's staff salaries or enforcement actions. This provision was removed from the bill before its enactment.

California State Auditor's Assessment of Annual Follow-Up Status: No Action Taken

Description of Legislative Action

As of November 2019, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 6-Month Status: No Action Taken

Description of Legislative Action

The Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation for Legislative Action

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.

Description of Legislative Action

As of September 9, 2022, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of Annual Follow-Up Status: No Action Taken

Description of Legislative Action

As of May 14, 2021, the Legislature has not taken action to address this specific recommendation.

Commencing with the 2022-23 fiscal year, AB 2809 (Chapter 220, Statutes of 2020) would have authorized the commission to record notices of violation on the titles of properties that have been subject to enforcement actions. This provision was removed from the bill before its enactment.

California State Auditor's Assessment of Annual Follow-Up Status: No Action Taken

Description of Legislative Action

As of November 2019, the Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 6-Month Status: No Action Taken

Description of Legislative Action

The Legislature has not taken action to address this specific recommendation.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation #8 To: San Francisco Bay Conservation and Development Commission

To ensure that it maximizes the efficiency and effectiveness of its enforcement and permitting programs, the commission should 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.

Annual Follow-Up Agency Response From October 2020

The Program Manager has developed new written case review and management procedures. The procedural changes include a weekly meeting to receive updates on staff's handing of cases. Procedural improvements also include sending "initial contact letters" to elicit a response within weeks from the alleged violator regarding actions they have undertaken to resolve the violation and/or facts that staff should consider to determine the proper case resolution process. In addition, while funding and staffing limitations and the COVID-19 emergency measures have complicated staff's ability to conduct site visits for every new report, visits have been undertaken in some cases and these have included conversations with property owners and managers regarding the actions to resolve violations and avoid future violations. Procedures updated to integrate Administrative Civil Penalty Policy and Supplemental Environmental Project guidance in proposed regulation amendments.

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

1-Year Agency Response

A new Program Manager was hired in 2019, and since then, new case review and management procedures have been developed and implemented and are being refined in response to knowledge gained through the pursuit of individual cases. These procedural improvements include "Initial Contact" letters to elicit prompt response when reports of violations are received; implementation of certification of compliance forms; tagging monitoring reports stored electronically to ensure monitoring compliance; and defining and implementing a process for monitoring report review. Staff and funding limitations prevent some proactive enforcement measures, including immediate site visits for all new reports of violations. Procedures are in place to document the case resolution rationale and the assessment of fines.

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

6-Month Agency Response

Not Fully Implemented. BCDC was authorized to create an Enforcement Policy Manager position in FY 19-20 and the new Enforcement Policy Manager has been hired. Staff and the new Manager are continuing to develop more robust procedures to document management and/or legal review of various decisions, including case resolutions and notices regarding violations. These will ensure that case files reflect management review.

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

60-Day Agency Response

Staff and the Regulatory Division Manager have been developing additional procedures to document management and/or legal review of various decisions, including case resolutions and notices regarding violations. Procedures are also being implemented to ensure that case files reflect management review.

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

The commission's response addresses part of the recommendation related to documenting and reviewing enforcement decisions; however, it does not address the part of the recommendation related to conducting site visits.

Recommendation #9 To: San Francisco Bay Conservation and Development Commission

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

1-Year Agency Response

Staff have been working to improve the enforcement process by instituting the reforms discussed in other responses and have implemented reforms to ensure that cases are resolved in a timely manner. Staff has reviewed the procedures used to open, investigate, and close cases, and has determined that staff act consistent with state law. Staff have determined that the existing procedures, coupled with the improvements that staff have made, are sufficient to ensure that staff are using their time responsibly.

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

Commission staff have developed new procedures to formalize the review and timely handling of cases, which satisfies the intent of this recommendation. However, further audit work would be necessary in the future to verify that these policies are consistently being followed, and are increasing the long term effectiveness of the commission's violation handling.

6-Month Agency Response

Fully Implemented. Staff has reviewed the procedures used to open, investigate, and close cases, and has determined that staff act consistent with state law. While staff continue to explore opportunities to improve the enforcement process and ensure that cases are resolved in a timely manner, staff have determined that the existing procedures, coupled with the improvements that staff is making, are adequate to ensure that staff are using their time responsibly.

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

The commission is in the process of creating policies and procedures to implement this recommendation.

60-Day Agency Response

Staff is reviewing its procedures, with input and oversight from the Enforcement Committee, and will be developing procedures to maximize the responsible use of staff time.

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

Recommendation #10 To: San Francisco Bay Conservation and Development Commission

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

Annual Follow-Up Agency Response From November 2022

No updates, fully implemented in 2020.

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

The commission did not provide an update on the implementation of this recommendation, which we found to be only partially implemented in October 2021.

Annual Follow-Up Agency Response From October 2021

Office of Administrative Law approval is pending. In consultation with the Commission, staff developed and implemented case review and management procedures and refined the case prioritization process. Commission regulation Chapter 13 Section 11386 lists the types of violations for swift resolution through standardized fines, revisions clarifying the regulation have been adopted by the Commission and in May 2021 were submitted to the Office of Administrative Law for approval. Staff determined that deferring cases for future resolution is not a viable approach as it previously resulted in case stagnation.

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

Commission staff have developed case review and management procedures. Regulatory changes are in process, but not yet finalized. However, the Commission has not voted to provide its staff with formal guidance necessary to address our recommendation.

Annual Follow-Up Agency Response From October 2020

Staff have developed case review procedures to determine how to use the prioritization scoring and other metrics to determine the appropriate effort to devote on cases, and staff regularly update the Enforcement Committee on cases opened and cases closed to allow for Commission oversight of case progress. Staff are using the standardized fine regulations set forth in Section 11386 as guidance for actions that can potentially be corrected through the standardized fine process without action by the Commission, and have updated the Enforcement Committee on the use of standardized fines and numbers of cases resolved through this process. Staff have also refined a practice of referring cases to other governmental entities when they are better equipped to address the violations, and staff have initiated a process to quickly close cases where reports are received of activities outside of BCDC's jurisdiction and to update the Enforcement Committee on these closures.

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

The commission has not yet developed and approved guidance on the violation types that require swift action and those that can be deferred for a specific amount of time, therefore this recommendation is not fully implemented.

1-Year Agency Response

Staff have developed case review procedures to determine the appropriate effort on cases. Staff are using standardized fines, as provided in section 11386 of the regulations, to resolve cases and have implemented procedural improvements to maximize the efficiency of this process. Staff have also refined a practice of referring cases to other agencies or local government where they are better equipped to address the violation and are seeking to immediately close cases involving reports of activities outside of BCDC's jurisdiction.

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

Commission staff have developed case review procedures and continue to utilize their existing standardized fine authority. However, the Commission has not voted to provide its staff with formal guidance necessary to address our recommendation.

6-Month Agency Response

Not Fully Implemented. On September 25, 2019, staff briefed the Enforcement Committee on the case prioritization system, and the Committee has determined that the prioritization system is adequate to identify violation types that require swift action. Staff also briefed the Enforcement Committee, on the standardized fine process and current case management system, and staff continues to examine and implement improvements to the process.

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

60-Day Agency Response

Staff is reviewing the standardized fines regulations, prioritization system, and current case management system, with oversight from the Enforcement Committee, in order to further the resolution of cases.

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

Recommendation #11 To: San Francisco Bay Conservation and Development Commission

To ensure that it maximizes the efficiency and effectiveness of its enforcement and permitting programs, the commission should by January 2020 simplify its system for prioritizing enforcement cases, to help it focus its enforcement efforts on cases with the greatest potential for harming the Bay.

Annual Follow-Up Agency Response From October 2021

The Commission prioritizes cases by relative harm using in order of precedence: 1) Significant harm; 2) Major harm to the Bay; 3) Significant limitations on public access; 4) Unpermitted work that is permittable; 5) Case context integration; 6) Grouping cases (ten or more cases for similar issues with the same respondent); 7) Pairing cases (2 or 3 cases of the same respondent for different issues).

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

The Commission has begun using a system to prioritize cases by relative harm to the bay which integrates its existing prioritization system.

Annual Follow-Up Agency Response From October 2020

Staff has reviewed the prioritization system with guidance from the Enforcement Committee, and the Committee concurred that the system is currently adequate to provide an impact score for each case and to do so with minimal staff time and effort and in a manner that allows staff to focus on cases with the greatest potential for harm. Earlier this year, as previously reported, the Committee approved a practice of prioritizing cases in the following manner: (1) Significant harm (using the prioritization impact scoring framework); (2) Major harm to the Bay; (3) Significant limitations on public access (also using impact scoring framework); (4) Unpermitted work that is permittable; (5) Case context integration; 6) Grouping cases; and (7) Pairing cases.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

The Commission's response makes it clear that they continue to disagree with our assessment that its system for prioritizing cases is too complex and have continued to use the system largely as designed. As the system was relatively new when we assessed it, we would need to perform additional audit work to determine whether its use in practice is effective.

1-Year Agency Response

Throughout the year, staff have been reviewing the prioritization system with guidance from the Enforcement Committee. The Committee has noted that the system is adequate to provide an impact score for each case. At a meeting on March 12, 2020, the Committee approved a practice of prioritizing cases in following manner:

1) Significant harm (using the prioritization impact scoring framework); 2) Major harm to the Bay,

3) Significant limitations on public access (also using impact scoring framework); 4) Unpermitted work that is permittable; 5) Case context integration; 6) Grouping Cases; 7) Pairing Cases. A review of impact scoring and how it affects prioritization is ongoing.

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

This recommendation is partially implemented. As the commission notes, it has approved a practice for prioritizing cases; however, it has not yet assessed whether that practice is effective.

6-Month Agency Response

On September 25, 2019, staff briefed the Enforcement Committee on the case prioritization system, and the Committee has determined that the prioritization system is currently adequate to identify violation types that require swift action. Staff will continue to review the prioritization system, and will determine how to improve the system and will brief the Enforcement Committee on their recommendations in 2020.

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

60-Day Agency Response

As described at recent Enforcement Committee meetings, staff is examining the prioritization system and determining how it may be simplified and staff will be providing a report to the Enforcement Committee in the next several months.

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

Recommendation #12 To: San Francisco Bay Conservation and Development Commission

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

Annual Follow-Up Agency Response From November 2022

No updates, fully implemented in 2020.

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

The Office of Administrative Law approved new regulations created by the commission that address this recommendation.

Annual Follow-Up Agency Response From November 2022

Fully implemented. The revised enforcement regulations were approved by OAL and filed with the Secretary of State on June 7, 2022, and went into effect on October 1, 2022. They include "Appendix J.

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

The Office of Administrative Law approved new regulations created by the commission that address this recommendation.

Annual Follow-Up Agency Response From October 2021

Office of Administrative Law approval is pending. During four Enforcement Committee meetings in 2019, the Enforcement Committee reviewed and discussed several elements of an administrative penalty policy to address the calculation of penalties consistent with section 66641.9 of the McAteer-Petris Act. The Commission approved the initiation of a rulemaking process that included a new Administrative Civil Penalty Policy, and after completion of this process, adopted by vote new enforcement regulations, including a penalty calculation worksheet. In May 2021 the revised regulations were submitted to the Office of Administrative law for approval.

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

Updated regulations are under review by the Office of Administrative Law. The Commission has created an administrative civil penalty policy to assist it in implementing the regulations once approved.

Annual Follow-Up Agency Response From October 2020

During four Enforcement Committee meetings in 2019, the Enforcement Committee reviewed and discussed several elements of an administrative penalty policy to address the calculation of penalties consistent with Section 66641.9 of the McAteer-Petris Act. The Commission approved the initiation of a rulemaking process that will include the addition of a new Administrative Civil Penalty Policy, which will be added as an appendix to the Chapter 13 enforcement regulations and which includes a penalty calculation worksheet. BCDC estimates that the process will conclude by approximately April 2021.

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

1-Year Agency Response

During the Enforcement Committee meetings in August and September, staff sought guidance on several elements of a penalty calculation policy. Staff is developing a new penalty policy and guidance on penalty calculations and will be presenting a draft outline to the Committee in the next couple of months. Following Enforcement Committee approval, a policy will be presented to the full Commission. Rulemaking will also be initiated, as appropriate.

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

6-Month Agency Response

During the Enforcement Committee meetings in August and September, staff sought guidance on several elements of a penalty policy. Staff is developing a new penalty policy and guidance on penalty calculations and aim to present a draft outline to the Committee by the end of 2019.

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

60-Day Agency Response

In the twice-monthly Enforcement Committee meetings, staff and the Committee are reviewing the penalty policies and matrices of other agencies and working on developing a penalty policy or matrix and guidance on penalty calculations.

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

Recommendation #13 To: San Francisco Bay Conservation and Development Commission

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

Annual Follow-Up Agency Response From October 2021

Staff developed and implemented case management procedures to identify the oldest unresolved cases and to prevent case resolution progress from stalling. The Enforcement Team is using an Aged Case Status Report and a Closed Case Report to prevent cases stagnation. Staff has also reviewed the oldest cases (opened 2016 or earlier), resolved most of them other than the complex cases with regulatory requirements outside BCDC's control. In addition, Staff has obtained standardized fines or civil penalties in resolving these cases as applicable.

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

The Commission reports making significant strides in reducing its overall caseload. In total it has reduced its overall caseload from 284 in December of 2019, to 113 at the end of the 3rd quarter of 2021. Further, the Commission has closed a significant percentage of its case files from 2016 or earlier.

Annual Follow-Up Agency Response From October 2020

Staff has developed case management procedures to identify the oldest unresolved cases and prevent case progress from stalling. The Enforcement Team is using an Aged Case Report and a Closed Case Report to prevent case stagnation. Staff has also reviewed the oldest cases and resolved some of these cases and anticipates resolving all of them by June 2021, except those with permitting requirements outside of BCDC's control. At the meeting last month, staff updated the Enforcement Committee on the efforts and steps to resolve one of the most complex oldest cases.

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

Although the commission has taken steps to identify aged cases, it is still working to resolve cases, which it anticipates will be complete by June 2021.

1-Year Agency Response

Staff has developed case management procedures with an Aged Case Report and a Closed Case Report to prevent case stagnation. Staff has also reviewed the oldest cases and has resolved some of these and will be seeking to resolve the remainder as soon as possible.

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

Commission staff have developed aged and closed cases reports. In addition, commission staff have resolved some old cases and plan to seek the closure of remaining aged cases; however the total number of closed aged cases remains low. Further, commission staff have not yet developed policies to ensure systematic responses to all aged cases and appropriate settlements.

6-Month Agency Response

In November, staff briefed the Enforcement Committee on the oldest unresolved cases. Several of these cases have since been resolved, and staff is working to resolve the remaining cases while continuing with program improvements and management of other cases.

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

60-Day Agency Response

Staff is working to develop procedures to resolve backlogged cases and ensure that incoming cases are resolved within established timelines. These procedures will incorporate efforts to resolve cases, including older cases, through settlement, where appropriate.

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

Recommendation #14 To: San Francisco Bay Conservation and Development Commission

To ensure that it maximizes the efficiency and effectiveness of its enforcement and permitting programs, the commission should by January 2020 evaluate and update permit fees every five years in accordance with its regulations.

1-Year Agency Response

The Commission adopted amendments to its permit application fee regulations to increase the fees and these were approved by the Office of Administrative Law on April 13, 2020. The new fees take effect in July 2020, and the Commission will regularly evaluate and, as appropriate, adjust the permit fees in accordance with the regulations, as amended.

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

The Commission has updated its permit fees and received approval from the Office of Administrative Law.

6-Month Agency Response

The Commission adopted amendments to its permit application fee regulations to increase the fees and has submitted the amendments to the Office of Administrative Law for review. Following the completion of this process, the Commission will regularly evaluate and possibly adjust permit fees in accordance with the regulations, as amended.

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

This recommendation will be fully implemented when the regulations have been officially approved by the Office of Administrative Law and published.

60-Day Agency Response

The Commission is engaged in a rulemaking process to amend its permit application fee regulations to increase the fees. Following the completion of this process, the Commission will evaluate and possibly adjust permit fees in accordance with the regulations, as amended.

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

The commission states that it is in the process of amending its permit fee regulations. As this process is not complete, this recommendation is pending.

Recommendation #15 To: San Francisco Bay Conservation and Development Commission

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

1-Year Agency Response

In March 2019, the Commission voted to initiate a review of the Suisun Marsh Preservation Act, Suisun Marsh Protection Plan, and the Suisun Marsh Local Protection Program. Staff subsequently reviewed compliance of each of the components of the Suisun Marsh Local Protection Program for consistency with the Commission's Suisun Marsh Protection Plan and provided each of the LPP agencies with a written analysis and recommendations on January 31, 2020. In February 2020, the Commission started a collaborative process with the Suisun local governments and agencies to prepare a comprehensive review of the Marsh Plan and LPP for any needed amendment.

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

The Commission voted to initiate a review of the Suisun Marsh Preservation Act, Suisun Marsh Protection Plan, and the Local Protection Plan in March 2019. Subsequently commission staff reviewed the local protection program for consistency and provided written analyses and recommendations to stakeholders satisfying the applicable legal requirements. Further, the commission is currently engaged in a collaborative process with applicable local governments and agencies to determine whether the Marsh Plan and Local Protection Plan require amendment.

6-Month Agency Response

In March, the Commission voted to initiate an update to the Suisun Marsh Protection Act, and staff is developing a work program for a comprehensive review. Staff recently began the process of reviewing local protection plan policies.

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

60-Day Agency Response

In March, the Commission voted to initiate an update to the Suisun Marsh Protection Act, and staff is developing a work program for a comprehensive review.

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

Recommendation #16 To: San Francisco Bay Conservation and Development Commission

To ensure that it maximizes the efficiency and effectiveness of its enforcement and permitting programs, the commission should by January 2020 appoint a new citizens' advisory committee as required by law and determine a schedule for the committee to conduct regular meetings.

Annual Follow-Up Agency Response From November 2022

Will Not Implement. In January 2019, the Commission determined that the CAC is no longer necessary because it duplicates other efforts. The Commission will continue to expand its outreach practices to ensure valuable and substantial community participation through BCDC's various Larry Goldzband larry.goldzband@bcdc.ca.gov 415-352-3653 N/A BCDC: Will Not Implement Auditor reported: Will Not Implement DocuSign Envelope ID: 2378DEAC-D873-4A16-905C-EB9E10013987 Commissioner and public working groups, its new Environmental Justice Advisors program, Bay Plan amendment processes, Commission public hearings and workshops, design and engineering advisory boards, and Enforcement Committee meetings.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

We remain concerned that the commission is choosing not to follow state law and establish a citizens' advisory committee.

Annual Follow-Up Agency Response From November 2022

Will Not Implement. In January 2019, the Commission determined that the CAC is no longer necessary because it duplicates other efforts. The Commission will continue to expand its outreach practices to ensure valuable and substantial community participation through BCDC's various Commissioner and public working groups, its new Environmental Justice Advisors program, Bay Plan amendment processes, Commission public hearings and workshops, design and engineering advisory boards, and Enforcement Committee meetings.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

As we noted in response to the commission's prior response, and as we note on page 22 of the audit report, and in response number 21 on page 83, we are concerned that the commission is choosing not to follow state law in establishing a citizens' advisory committee.

Annual Follow-Up Agency Response From October 2021

Will Not Implement. In January 2019, the Commission determined that the CAC is no longer necessary because it duplicates other efforts. The Commission will continue to expand its outreach practices to ensure valuable and substantial community participation through BCDC's various Commissioner and public working groups, its new Environmental Justice Advisors program, Bay Plan amendment processes, Commission public hearings and workshops, design and engineering advisory boards, and Enforcement Committee meetings.

Pending. Based on the new FY21-22 General Fund allocation to support BCDC's enforcement staff, the Commission began a process in fall 2021 to discuss how the Bay Fill Clean-up and Abatement Fund will be used to remove fill in the Bay, perform cleanup actions, and enhance Bay resources. On October 7, 2021, the Commission held a public hearing and began the process of determining the process for disbursements to the appropriate entities.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

The Commission has elected to continue to act outside of the requirements of state law. We are concerned with the Commission's response as it affirmatively indicates that the Commission has determined that their compliance with state law is not necessary. We remind the Commission that it has no legal authority to refuse to comply with this duty mandated by statute.

1-Year Agency Response

The Commission determined in January 2019 that the CAC is no longer necessary because it duplicates other efforts. The Commission will continue to evaluate the efficacy and value of its expanded outreach practices and ensure ongoing substantial community participation through BCDC's various Commissioner working groups, Bay Plan amendment processes, Commission public hearings and workshops, design and engineering advisory boards, and Enforcement Committee meetings

California State Auditor's Assessment of 1-Year Status: Will Not Implement

As we note on page 22 of the report and in response number 21 on page 83, we are concerned that the commission is choosing not to follow state law in establishing a citizens' advisory committee.

6-Month Agency Response

While the Commission has determined that the CAC is no longer necessary, and is duplicative of other efforts, the Commission will continue to evaluate the efficacy and value of the CAC in light of recent actions.

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

We continue to stand by our recommendation that the commission comply with its statutory duty, as we note in response number 21 on page 83 of the report.

60-Day Agency Response

While the Commission has determined that the CAC is no longer necessary, and is duplicative of other efforts, BCDC and the Commission will continue to evaluate its efficacy and value.

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

The Commission's response indicates that it does not plan to comply with state law and appoint a citizens' advisory committee. As the commission also states that it will continue to study the value of such a committee, we consider this recommendation pending at this time.

Recommendation #17 To: San Francisco Bay Conservation and Development Commission

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.

Annual Follow-Up Agency Response From November 2022

Will not implement. BCDC's new Compliance Program now being started includes two new authorized positions that are funded through the Bay Fill Fund. As such, BCDC will not consider using the Bay Fill Fund for any other purpose at this point to ensure that the Fund holds sufficient funding to pay for those two positions over the long-term.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

It is unfortunate that the commission has deviated from the planned course it presented in its 2021 response to this recommendation. In October 2021, the commission indicated that it had begun a process to discuss how the Bay Fill Clean-up and Abatement Fund would be used to remove fill in the Bay, perform cleanup actions, and enhance bay resources. Instead the commission has elected to use these funds to support staffing.

Annual Follow-Up Agency Response From October 2021

Based on the new FY21-22 General Fund allocation to support BCDC's enforcement staff, the Commission began a process in fall 2021 to discuss how the Bay Fill Clean-up and Abatement Fund will be used to remove fill in the Bay, perform cleanup actions, and enhance Bay resources. On October 7, 2021, the Commission held a public hearing and began the process of determining the process for disbursements to the appropriate entities.

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

We look forward to reviewing the Commission's completed plan for disbursements from the Bay Fill Clean-up and Abatement Fund.

Annual Follow-Up Agency Response From October 2021

Based on the new FY21-22 General Fund allocation to support BCDC's enforcement staff, the Commission began a process in fall 2021 to discuss how the Bay Fill Clean-up and Abatement Fund will be used to remove fill in the Bay, perform cleanup actions, and enhance Bay resources. On October 7, 2021, the Commission held a public hearing and began the process of determining the process for disbursements to the appropriate entities.

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

Commission staff are planning initial priorities for their use of the Bay Fill Clean Up and Abatement Fund outside of enforcement staffing, and intend to present options to the Commission in 2022. Further, the Commission is working to obtain a grant and create a multi-agency task force to remove the derelict tug boat Polaris, which we identified in our report, from the bay.

1-Year Agency Response

The Commission will not determine whether and how the Bay Fill Clean-Up and Abatement Fund will be used for this purpose until other funds are made available to BCDC that it can use to replace the Bay Fill funds it now uses for enforcement staff salaries. Clearly, this has been further complicated by anticipated state budget deficits in light of the COVID-19 emergency.

California State Auditor's Assessment of 1-Year Status: Will Not Implement

State law explicitly states that the Commission may only utilize the Bay Fill Clean-up and Abatement Fund for the purposes of removing fill, resource enhancement, or performing any other remedial cleanup or abatement actions within the commission's jurisdiction. We are disappointed that the commission is not choosing to create a policy that ensures the implementation of state law, and protection of the Bay. The proposed fiscal year 2020-21 revision to the State budget increased the Commission's General Fund budget by more than 8 percent, with no proposed reductions in funding. We remind the Commission that this fund was established in 1982, however it has never created a policy to govern its use.

6-Month Agency Response

The Commission has not determined whether and how the Bay Fill Clean-Up and Abatement Fund will be used for this purpose. This is dependent upon availability of other funds to ensure that BCDC can have a robust enforcement program and carry out the other recommendations of the Audit.

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

60-Day Agency Response

The Commission has not determined whether the Bay Fill Clean-Up and Abatement Fund will be used for this purpose. This depends upon availability of other funds to ensure that BCDC can have a robust enforcement program and carry out the other recommendations of the Audit.

California State Auditor's Assessment of 60-Day Status: No Action Taken

Recommendation #18 To: San Francisco Bay Conservation and Development Commission

To build on prior recommendations and ensure that it maximizes the effectiveness of its enforcement program, the commission should 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.

Annual Follow-Up Agency Response From November 2022

Pending. The Department of Finance's Mission Based Review team began its examination of BCDC's enforcement program in October 2019 but was interrupted by the pandemic. The Department of Finance staff hoped to resume its work in 2023 and expand its review to include BCDC's permitting functions.

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

Annual Follow-Up Agency Response From October 2021

The Department of Finance's Mission Based Review team began its examination of BCDC's enforcement program in October 2019 but was interrupted by the pandemic. The Department of Finance staff hopes to resume its work in Autumn 2020 and expand its review to include BCDC's permitting functions.

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

We look forward to reviewing the workforce study by the Department of Finance when it is complete.

Annual Follow-Up Agency Response From October 2021

The Department of Finance's Mission Based Review team began its examination of BCDC's enforcement program in October 2019 but was interrupted by the pandemic. The Department of Finance staff hopes to resume its work in Autumn 2020 and expand its review to include BCDC's permitting functions.

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

Annual Follow-Up Agency Response From October 2020

The Department of Finance's Mission Based Budgeting team began its examination of BCDC's enforcement program in October 2019, and was interrupted by the pandemic, but will resume its work in Autumn 2020 and expand its scope to include BCDC's permitting functions.

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

1-Year Agency Response

Implementing such a study would require additional funding. However, the Department of Finance review that began in October 2019 to assist in this process is ongoing. Due to the COVID-19 emergency, the State budget is uncertain for FY 20-21.

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

6-Month Agency Response

Implementing such a study would require additional funding.

California State Auditor's Assessment of 6-Month Status: No Action Taken

60-Day Agency Response

A workforce study needs to be funded and conducted by an external party—not BCDC—to be seen as credible by the Legislature and other stakeholders.

California State Auditor's Assessment of 60-Day Status: No Action Taken

The commission's response does not indicate whether it will take action to address the recommendation.

Recommendation #19 To: San Francisco Bay Conservation and Development Commission

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

Annual Follow-Up Agency Response From November 2022

Fully implemented. Two compliance positions to support the efforts of enforcement staff and the implementation of process changes were created in July 2022 and filled beginning in November 2022. They are funded out of the Bay Fill Clean Up and Abatement Fund.

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

The commission has created two permit compliance positions.

Annual Follow-Up Agency Response From October 2021

The Department of Finance's Mission Based Review team began its examination of BCDC's enforcement program in October 2019 but was interrupted by the pandemic. The Department of Finance staff hopes to resume its work in Autumn 2020 and expand its review to include BCDC's permitting functions.

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

Annual Follow-Up Agency Response From October 2020

The Department of Finance's Mission Based Budgeting team began its examination of BCDC's enforcement program in October 2019, and was interrupted by the pandemic, but will resume its work in Autumn 2020 and expand its scope to include BCDC's permitting functions.

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

1-Year Agency Response

Implementing such a position would require additional funding. The Department of Finance review that began in October 2019 to assist in this process is ongoing. Due to the COVID-19 emergency, the State budget is uncertain for FY 20-21.

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

6-Month Agency Response

Implementing such a position would require additional funding.

California State Auditor's Assessment of 6-Month Status: No Action Taken

60-Day Agency Response

BCDC would like to establish a permit compliance position and initiate a permit compliance program as soon as possible, but additional funding is required.

California State Auditor's Assessment of 60-Day Status: No Action Taken

The commission does not indicate what steps it will take to address this recommendation. Therefore, its status is "No Action Taken."

Recommendation #20 To: San Francisco Bay Conservation and Development Commission

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

Annual Follow-Up Agency Response From November 2022

Pending. Long term options to acquire a fully integrated, agency-wide platform have stalled due to a lack of funding for new technology. Until such funding is secured, the enforcement team is making incremental changes to BCDC's existing database and recordkeeping resources.

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

Annual Follow-Up Agency Response From October 2021

Long term options to acquire a fully integrated, agency-wide platform have stalled due to a lack of funding for new technology. Until such funding is secured, the enforcement team is making incremental changes to BCDC's existing geospatial database, including integrating a dashboard to track recommended information and report case resolution data in real time and ensuring that key data is entered in the database.

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

Annual Follow-Up Agency Response From October 2020

In the near term, the enforcement team is making incremental changes to the existing geospatial database, including developing a dashboard function to more readily report data and ensuring that key data is entered in the database. Longer term options to acquire a comprehensive regulatory platform are being explored, and additional funding would be required to identify and acquire a platform that is sufficient to meet BCDC's needs. The Department of Finance review that began in October 2019 to assist with workforce and resource budgeting is ongoing. Due to the COVID-19 emergency, the State budget is uncertain for FY 21-22.

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

1-Year Agency Response

In the near term, the enforcement team is making incremental changes to the existing geospatial database, including developing a dashboard function to more readily report data and ensuring that key data is entered in the database. Longer term options to acquire a comprehensive regulatory platform are being explored, and additional funding would be required to identify and acquire a platform that is sufficient to meet BCDC's needs. The Department of Finance review that began in October 2019 to assist in this process is ongoing. Due to the COVID-19 emergency, the State budget is uncertain for FY 20-21.

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

6-Month Agency Response

In the near term, the enforcement team is making incremental changes to the existing database. Longer term options to acquire a comprehensive regulatory platform are being explored, and additional funding would be required to identify and acquire a platform that is sufficient to meet BCDC's needs.

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

60-Day Agency Response

In the near term, the enforcement team is examining incremental changes to the existing database. Longer term options to acquire a comprehensive regulatory platform are being explored, and additional funding would be required to identify and acquire a platform that is sufficient to meet BCDC's needs.

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

Recommendation #21 To: San Francisco Bay Conservation and Development Commission

To ensure consistency in its enforcement program, the commission should by January 2021 create and implement regulations that identify required milestones and time frames for enforcement.

Annual Follow-Up Agency Response From October 2021

On May 7, 2020, the Commission determined that new regulations defining milestones and timeframes would be inappropriate and instead directed Staff to develop internal case management procedures that define milestones (assignment-investigation-negotiation-resolution) and define outer limit timeframes for when a case must move from one milestone to the next. Staff has briefed the Enforcement Committee and the Commission on these procedures, fully implemented them, and continuously improved them to ensure that cases are resolved within targeted time frames. AB-2809 Section 66640.1(b) specifically requires timeframes for resolving enforcement cases and is the regulatory provision aligned with the recommendation. The implementation of the case management procedures with its milestones has resulted in a 40% reduction in the caseload over a 21-month period beginning January 2020 and ending September 2021.

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

Although the Commission did not create regulations that identify required milestones and time frames for enforcement it did comply with a related requirement noted in AB-2809 Section 66640.1(b), by establishing internal case management procedures that include timelines for resolving enforcement cases.

Annual Follow-Up Agency Response From October 2020

Staff determined that this is not appropriate for a rulemaking, but staff have developed case management procedures with defined milestones (intake-assignment-investigation-resolution) and with defined outer limit timeframes for each milestone defining when a case can move from one milestone to the next. Staff has briefed the Enforcement Committee on these procedures, and these procedures have been continually tested and improved to ensure that cases are resolved within targeted time frames.

California State Auditor's Assessment of Annual Follow-Up Status: Will Not Implement

We disagree that creating defined milestones for case management is not appropriate for rulemaking. Rulemaking would help ensure staff apply milestones consistently and fairly. Further, it demonstrates to the public under regulation that the commission will do so.

1-Year Agency Response

Staff have developed case management procedures with defined milestones (Intake-Assignment-Investigation-Resolution) and with defined outer limit timeframes for each milestone defining when cases move from one milestone to the next. These procedures will continue to be tested and improved, and no rulemaking is planned at this point to adopt milestones, although the need for that will also be evaluated.

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

6-Month Agency Response

In July, staff presented to the Enforcement Committee its new case management system that establishes time lines for new cases and sets milestones for ensuring that cases are resolved as quickly as possible. Staff is continuing to develop this program and will provide an update to the Enforcement Committee in December.

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

60-Day Agency Response

Staff has presented a proposed program to the Enforcement Committee to establish time frames for new cases and set milestones for ensuring that cases are resolved in a timely manner, and staff is continuing to develop this program, incorporating the input from the Commission, while also evaluating changes that might be needed to BCDC's regulations implement aspects of the proposal.

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

Recommendation #22 To: San Francisco Bay Conservation and Development Commission

To ensure consistency in its enforcement program, the commission should by January 2021 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.

Annual Follow-Up Agency Response From November 2022

Fully implemented. The revised enforcement regulations were approved by OAL and filed with the Secretary of State on June 7, 2022, and went into effect on October 1, 2022, including a definition of "significant harm to the Bay's resources or to existing or future public access."

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

The commission indicates that it has fully implemented this recommendation, and it's new regulations do define substantial harm. However, when we followed up with commission staff to determine if the other elements of the recommendation were fully implemented, they did not substantiate their proposed rating with additional information.

Annual Follow-Up Agency Response From October 2021

Office of Administrative Law approval is pending. In October 2019, the Enforcement Committee discussed and approved a proposed definition of significant harm and, in October 2020, the Commission approved the initiation of a rulemaking process. In April 2021, the Commission approved the content of the regulatory amendment, which was subsequently submitted to the Office of Administrative Law in May 2021 for approval. In October 2019, and again in March and May 2020, the Enforcement Committee was also briefed on staff's proposed criteria for delineating the number of violations in cases involving multiple instances of unauthorized conduct.

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

Annual Follow-Up Agency Response From October 2020

In October 2019, the Enforcement Committee discussed and approved a proposed definition of significant harm, and in October 2020, the Commission approved the initiation of a rulemaking process that will include the addition of a new definition of significant harm in BCDC's Chapter 13 enforcement regulations. In October 2019, and again in March and May 2020, the Enforcement Committee was also briefed on staff's proposed criteria for delineating the number of violations in cases involving multiple instances of unauthorized conduct, and staff are continuing to refine these criteria.

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

1-Year Agency Response

In October, the Enforcement Committee discussed and approved a proposed definition of substantial harm. Additional steps are required to formalize the definition in BCDC's regulations. In October 2019, and again in March and May 2020, the Enforcement Committee was also briefed on staff's proposed criteria for delineating the number of violations in cases involving multiple instances of unauthorized conduct. Staff is working to incorporate the Committee's input and finalize written criteria based on the input.

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

6-Month Agency Response

Not Fully Implemented. In October, the Enforcement Committee discussed and approved a proposed definition of substantial harm. Additional steps are required to formalize the definition in BCDC's regulations. In October, the Enforcement Committee was also briefed on staff's proposed criteria for delineating the number of violations in cases involving multiple instances of unauthorized conduct. Staff is working to incorporate the Committee's input and develop guidance or criteria based on the input.

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

60-Day Agency Response

The Enforcement Committee will be discussing the definition of substantial harm and calculation of violations at upcoming meetings. At those meetings, the Committee will explore regulatory changes that may be necessary and additional actions that could be taken in the short term.

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

Recommendation #23 To: San Francisco Bay Conservation and Development Commission

To ensure consistency in its enforcement program, the commission should by January 2021 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.

Annual Follow-Up Agency Response From November 2022

Fully implemented. The revised enforcement regulations were approved by OAL and filed with the Secretary of State on June 7, 2022, and went into effect on October 1, 2022. They include revisions to the regulations governing standardized fines, designed to correct ambiguity and enhance transparency in the standardized fine process.

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

The commission indicated that it has fully implemented this recommendation; however, when we contacted them, they did not support how their new regulations specifically implement this recommendation.

Annual Follow-Up Agency Response From October 2021

Office of Administrative Law approval is pending. The Commission adopted amendments to its enforcement regulations, including the regulations governing standardized fines, and submitted the changes in May 2021 to the Office of Administrative Law for approval. The revisions are designed to correct ambiguity and enhance transparency in the standardized fine process.

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

Annual Follow-Up Agency Response From October 2020

Staff discussed with the Enforcement Committee the existing standardized fines regulations in section 11386 and the current system for managing cases that do not involve substantial harm to the Bay. The Committee concurred with staff that the existing standardized fine regulations establish an adequate process for assessing limited fines for violations that do not result involve significant harm to the Bay or public access and that there is no need to create new regulations to do this. The rulemaking that the Commission has agreed to initiate will also include revisions to the standardized fine regulations that the Commission is proposing to add clarity to the regulations and improve the standardized fine process.

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

The Commission has indicated that its existing standardized fine regulations are adequate for assessing limited fines, however these regulations were applied, and contributed in part to the commission's existing backlog during our review. We look forward to reviewing the amendments the Commission indicates it intends to make related to its Standardized fine process.

1-Year Agency Response

Staff discussed with the Enforcement Committee the existing standardized fines regulations in section 11386 and the current system for managing cases that do not involve substantial harm to the Bay. Staff have reviewed the regulations and implemented procedural improvements to maximize the efficiency of the process for resolving minor violations. BCDC will possibly revise the regulations as part of a comprehensive rulemaking. In the meantime, staff are using the regulations and the improved process and criteria set forth in section 11386 to resolve cases that do not involve substantial harm to the Bay.

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

Our recommendation was for the Commission to implement additional regulations to allow the more timely handling of selected low impact violations. While the commission has taken some steps to address the timely handling of cases it has not yet created additional regulations to ensure that minor violations can be more rapidly and consistently closed.

6-Month Agency Response

Staff discussed with the Enforcement Committee the existing standardized fines regulations and the current system for managing cases that do not involve substantial harm to the Bay. Staff will continue to review the regulations, and, as appropriate, will work with the Commission on any regulatory changes deemed necessary to resolve minor violations more efficiently.

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

60-Day Agency Response

Staff is reviewing the standardized fines regulations and current case management system, with oversight from the Enforcement Committee, in order to determine whether changes are necessary to resolve minor violations more efficiently.

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

Recommendation #24 To: San Francisco Bay Conservation and Development Commission

To ensure consistency in its enforcement program, the commission should by January 2021 update its regulations on permit issuance to offer greater clarity on the types of projects for which staff may issue permits without commissioners' hearings.

Annual Follow-Up Agency Response From November 2022

Fully implemented. The revised BCDC permit and enforcement regulations went into effect on October 1, 2022.

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

The commission indicated that it has fully implemented this recommendation; however, when we contacted them, they did not support how their new regulations specifically implement this recommendation.

Annual Follow-Up Agency Response From October 2021

The revised regulations are currently being reviewed by the Office of Administrative Law and are expected to be in effect by December 31, 2021. In April 2021, the Commission approved amendments to BCDC's enforcement regulations to provide clarity regarding staff discretion in issuing administrative permits. In May 2021, the Commission approved numerous revisions to BCDC's regulations related to permitting and other regulatory processes. These amendments, in some cases, increased the limits of work that may be authorized administratively. Further, staff have discussed additional changes to improve permitting efficiencies and BCDC will continue to explore any regulatory changes that the Commission deems appropriate to provide clarity regarding staff discretion.

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

Annual Follow-Up Agency Response From October 2020

Staff has discussed possible changes that could be made to the process for issuing minor permits, and BCDC will explore any regulatory changes that the Commission deems appropriate to provide greater clarity regarding staff discretion to issue administrative permits. However, BCDC is pursuing amendments to the enforcement regulations before undertaking changes to the permitting regulations. Staff plans to begin a comprehensive rulemaking process that addresses revisions to the permitting regulations before the end of the year. In addition, the Department of Finance's Mission Based Budgeting team will be expanding its scope to include BCDC's permitting function, which may provide additional resources to assist with pursuing changes to the permitting regulations.

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

1-Year Agency Response

Staff has discussed possible changes that could be made to the process for issuing minor permits, and BCDC will explore any regulatory changes that the Commission deems appropriate to provide clarity regarding staff discretion. It is anticipated that this will be done through a comprehensive rulemaking that addresses other revisions to the permitting regulations.

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

6-Month Agency Response

Staff has discussed possible changes that could be made to the process for issuing minor permits, and, as appropriate, BCDC will explore any regulatory changes that the Commission deems appropriate to provide clarity regarding staff discretion.

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

60-Day Agency Response

BCDC is exploring a potential regulatory change to provide clarity regarding the Executive Director's discretion regarding administrative permits.

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

All Recommendations in 2018-120

Agency responses received are posted verbatim.