Anyone who has challenged the action or inaction of a Regional Water Quality Control Board (“Regional Board”) knows that more often than not, 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 minimize 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.

Summary of Current Petition Process
Any person aggrieved by the action or inaction of a Regional Board¹ 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) which 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.²

This problem occurs due to a loophole in the current regulations. Section 2050.5(a)³ provides that upon receipt of a compliant petition, the State Board may either dismiss it or may provide written notice “to the petitioner, informing the discharger (if not the petitioner) the regional board, or other interested persons, that they shall have 30 days from the date of the mailing of such notification to file a response to the petition with the state board.” Subdivision (b) of that section provides deadlines by which State Board shall act on a petition (the time periods differ depending on whether a hearing is held) based on the mailing of the notification described in section 2050.5(a). Because the State Board rarely mails the notification described in section 2050.5(a), the time periods for consideration of a petition are rarely triggered. This is the crux of the problem: the very agency which is required to act is wholly responsible for triggering the time period in which it is required to act! The proposed revisions to the regulations seek to remedy this situation by dismissing by operation of law those petitions on which the State Board fails to act.

Summary of Proposed Revisions
The following is a summary of the key changes proposed to the State Board petition process:

• Section 2050. Petition for Review by State Board. This provision sets forth the requirements for a petition. The primary change proposed to this section is the addition of subpart (d) which would require the State Board to notify the petitioner of the assigned petition number and the date of receipt of the petition upon its receipt. In practice this happens already, but this requirement would reduce any confusion between this notice and the notice required by section 2050.5(a), which triggers review of the petition by the State Board.
• Section 2050.5 Complete Petitions; Responses; Time Limits. Subpart (a) of this provision requires the State Board to provide notice to the petitioner and interested parties upon receipt of a completed petition. The submission of this notice triggers the deadlines for the State Board to act. The proposed revisions to this section would not change the subpart (a) notice requirement, but would add subparts (e)-(g) as follows:
  • Proposed section 2050.5(e) would require the notice described in section 2050.5(a) within 90 days of the issuance of the notice of receipt provided in new section 2050(d). If the notice described in section 2050.5(a) is not issued within 90 days, the petition will be deemed dismissed by operation of law effective the 91st day following receipt by the State Board of the petition. This deadline would be tolled during any period when the petition is held in abeyance by the petitioner.
  • Proposed section 2050.5(f) provides deadlines by which the State Board must act on any petitions in the queue at the time the revisions take effect: (1) for petitions received before January 1, 2011, within 120 days; (2) for petitions received between January 1, 2011 and December 31, 2012, within 240 days; and (3) for petitions received between January 1, 2013 and the date the revisions take effect, within one year.
  • Proposed section 2050.5(g) provides that any petition subject to subdivision (f) will be deemed dismissed if no action is taken by the State Board within the time periods described in subdivision (f).

Although these revisions are not likely to result in significantly more petitions being acted upon by the State Board, they would at least remedy the current situation where petitioners are in limbo while the State Board fails to act. Under the proposed regime, the State Board’s failure to act on a petition would result in its dismissal by operation of law, at which point the petitioner would have 30 days to seek judicial review pursuant to Water Code section 13330(b)⁴.

• Section 2051. Defective Petitions. The only change proposed to this provision is the change in wording from “dismissed” to “deemed withdrawn” with regard to any petition which a petitioner is notified is defective, and which is not resubmitted within the time period allowed by the State Board.

No Changes Proposed to Stay Provision
Section 2053 provides a mechanism for petitioners to request a stay of the Regional Board’s action during the petition process. Like a temporary restraining order, the stay provision is intended to maintain the status quo while petitions are pending State Board review. Because penalties for failure to comply with Regional Board orders can accumulate quickly, the ability to seek a stay is paramount. However, like the petition process itself, the State Board rarely acts upon requests for stays in a timely manner.

Section 2053(d) provides that the State Board shall review and act on the request for a stay within 60 days from the date of mailing the notification described in section 2050.5(a). Ideally, the stay process would mirror the process proposed for petitions so that a notice of receipt would be issued upon receipt of the stay request, and if no action is taken with 60 days, the stay request would be deemed dismissed by operation of law. Unfortunately, the proposed changes to the regulations do not encompass section 2053, meaning the problem of State Board inaction likely will persist for stay requests even if it is remedied for petitions.

Conclusion
Overall, the proposed revisions to the petition process are beneficial to the regulated community. By providing for finality within a 90-day time period, petitioners can be assured that if their grievances are not addressed by the State Board within 90-days, they will have the right to judicial review at that time. While this may not result in significantly more petitions being decided, it will at least provide an alternative to complying with improper Regional Board orders indefinitely while petition review is pending. However, the problem will not be resolved with regard to stay requests under the currently proposed revisions.

The full text of the proposed revisions can be accessed through the State Board website at: http://www.waterboards.ca.gov/laws_regulations/docs/wqpetitionregs2014feb.pdf

Comments are being accepted through April 30, 2014.

1. The same petition process applies to decisions of a Local Oversight Program (“LOP”).  See, e.g., Cal. Health & Safety Code § 25297.1 (b).
2. Although conceivably a petitioner might seek to compel  the State Board to act by way of a traditional mandamus action, because there currently is no deadline by which the State Board is required to issue the notice pursuant to section 2050.5(a) to initiate the petition process, it is difficult to demonstrate an actual failure to act.
3. Unless otherwise stated, all section references are to Title 23 of the California Code of Regulations.
4. Cal. Water Code § 13330(b) states: “A party aggrieved by a final decision or order of a regional board subject to review under Section 13320 may obtain review of the decision or order of the regional board in the superior court by filing in the court a petition for writ of mandate not later than 30 days from the date on which the state board denies review.”