Pillsbury Winthrop Shaw Pittman

Improvements proposed to regulations governing petitions to the California State Water Resources Control Board

By Amy E Gaylord

Anyone who has challenged the action or inaction of a Regional Water Quality Control Board (‘Regional Board’) knows that more often than not that by the time the State Water Resources Control Board (‘State Board’) takes action on a petition — if it ever does — the petitioner has experienced long delay, legal uncertainty as to its rights and obligations and significant expense. In some cases, by the time the State Board acts, the reason for the petition no longer exists. In an effort to minimise the delays commonly associated with State Board action on petitions, the State Board has proposed amendments to sections 2050, 2050.5 and 2051 of Title 23 of the California Code of Regulations. The proposed changes to the regulations would render petitions on which the State Board has not taken action within 90 days of receipt, dismissed by operation of law. These proposed revisions should improve the petition process, but may result in an increase in the number of court challenges to Regional Board decisions.

Any person aggrieved by the action or inaction of a Regional Board may, within 30 days of the Regional Board’s action or failure to act, submit a written petition for review to the State Board outlining the manner in which the petitioner is aggrieved and the relief requested from the State Board. The State Board has the power to overturn the decision of the Regional Board and to require the Regional Board to take action specified by the State Board.

Although the process is straightforward, the demands on the State Board’s limited resources have turned the petition process into a black hole. Petitions are submitted, and the State Board acknowledges receipt, but generally nothing comes of them. It is not uncommon for years to pass without any action from the State Board. In fact, many petitions simply never are addressed. The result for petitioners is a no-win situation: they may defy the Regional Board action (or inaction) that they are challenging and risk penalties for doing so, or they may comply and risk rendering their petition moot by the time the State Board takes action, if it ever does. What petitioners generally cannot do is undertake any further legal challenge while the administrative process is pending…

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