Improvements Proposed to Regulations Governing Petitions to the California State Water Resources Control Board

by Pillsbury Winthrop Shaw Pittman LLP
Contact

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.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pillsbury Winthrop Shaw Pittman LLP | Attorney Advertising

Written by:

Pillsbury Winthrop Shaw Pittman LLP
Contact
more
less

Pillsbury Winthrop Shaw Pittman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.