On March 7, 2014, the California State Water Resources Control Board (State Board or Board) released proposed amendments to the California Code of Regulations (C.C.R.) Title 23, Division 3, Chapter 6.  Specifically, the State Board’s proposal amends sections 2050, 2050.5, and 2051, which outline the State Board’s procedures for reviewing regional board actions or the failure to act.  The proposed amendments provide a process by which petitions to the State Board will be deemed dismissed if the Board fails to give notice within a specified time period.

Currently, under Water Code section 13320, an aggrieved person may petition the State Board to review a regional board’s action or failure to act.  The petition must be submitted in writing and received within 30 days of the regional board’s action or failure to act.  After receiving the petition, the State Board may dismiss it or provide notification to the relevant parties that they have 30 days to respond (referred to as the “30-day response letter”).  If such notification is provided, the State Board has 270 days from the date of issuing the 30-day response letter to review and act on the petition.  Neither the Water Code nor the current regulations specify how long the State Board may take prior to either dismissing the petition or issuing the 30-day response letter.  As a result, regional board decisions frequently find themselves subject to challenge long after they have been implemented.  Additionally, those challenging regional board actions are prevented from filing further action in superior court due to the State Board’s lack of a timely determination to either dismiss or consider the petition in question.  The proposed regulations seek to change this.

Rather than providing the State Board with an open-ended timeframe for dismissing petitions or issuing 30-day response letters, the amendments would require the State Board to mail the 30-day response letter within 90 days of its receipt of a petition, if the State Board determines that the petition in question should be considered.  If no 30‑day response letter is provided within that 90-day timeframe, the petition will be deemed dismissed by operation of law unless it is being held in abeyance under 2 C.C.R. section 2050.5(d).  The amendments also address time limitations for State Board action on petitions received by the State Board before the effective date of the proposed amendments that are not being held in abeyance and for which notification has not been sent.  For these petitions, the State Board has either 120 days, 240 days, or one year from the effective date of the proposed amendments to mail the notification depending on when the petition was filed.

Comments to the proposed regulations must be submitted by 5 p.m. on April 30, 2014.  The State Board has not scheduled a hearing on the proposed regulations; however, interested parties may submit a written request for a hearing at least 15 days before the close of the comment period.

For further information regarding these amendments, please contact Alexis K. Stevens at 916-446-7979 or by email at astevens@somachlaw.com.

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