Water Resources: Decisions & Orders AB 3036 (Mazzoni)

SUMMARY:

AB 3036 would consolidate and clarify existing law governing petitions for reconsideration and judicial review of orders and decisions issued by the State Water Resources Control Board (SWRCB) and the Regional Water Quality Control Boards (RWQCB).

BACKGROUND:

The Water Code statutes governing petitions for reconsideration and judicial review are out of date, ambiguous, and incomplete. The current patchwork of statutes has created confusion and uncertainty over issues such as when a petition for reconsideration is required before seeking judicial review, and what statutes of limitations apply. This has resulted in, and will continue to cause, unnecessary litigation.

PROBLEM:

Many problems have arisen because of the out-dated and ambiguous Water Code sections. For example:

Petitions for Reconsideration: Section 1357 authorizes SWRCB to order a reconsideration of a decision or order on the board's own motion, or on petition of any person "interested in any application, permit, or license affected by the decision or order." Using the terms "application, permit or license" can be construed as limiting reconsideration to only controversies involving those issues. That potential interpretation could thus prevent reconsideration for other types of orders, such as those involving unauthorized diversions, riparian or pre-1914 rights, or reclaimed wastewater. The SWRCB has interpreted that reconsideration should be allowed for any water right order or decision, not only those involving applications, permits or licenses, and is proposing to codify this interpretation.

Further, current law is inconsistent as to when a petition for reconsideration must be filed to establish exhaustion of administrative remedies before filing a lawsuit. Several Water Code sections authorizing judicial review of SWRCB orders and decisions specify that a petition for reconsideration is not required. However, some SWRCB orders and decisions are not subject to any of those Water Code sections, although judicial review is still authorized under Section 1094.5 of the Code of Civil Procedure. This means that a petition for reconsideration is still required for those orders and decisions. There is pending litigation on this issue, and further litigation can be anticipated.

Judicial Review: The judicial review provisions for the SWRCB need improvement. There are several provisions governing various decisions and orders, some of which require a 30-day statute of limitations, while others do not. Some provisions allow challenges based on evidence outside the administrative record, authorize a reviewing court to exercise its independent judgment, and permit collateral attacks on SWRCB orders in enforcement proceedings. These provisions create uncertainty in the law, and lead to unnecessary litigation, problems which could be avoided by modifying them to follow the customary rules for judicial review of administrative actions.

Consolidating and generalizing the provisions governing the petition for reconsideration and judicial review of SWRCB decisions and orders would provide consistency to the law, eliminate potential traps for the unwary, and reduce the potential amount of litigation, thereby reducing the cost to the state.

ANALYSIS:

AB 3036 would amend the Water Code to:

1. consolidate the provisions for reconsideration and judicial review in a single chapter, and repeal most of the specific judicial review provisions;
2. codify existing SWRCB practice concerning the decisions or orders subject to reconsideration and judicial review;
3. codify case law interpretation of existing statutes to allow for review of RWQCB orders where the SWRCB denies review; and
4. repeal provisions that authorize the court to exercise its independent judgment when reviewing administrative orders, and limit review to the administrative record.

CONTACT:

Tom Jones, Chief, Office of Legislation and Public Affairs, State Water Resources Control Board, (916) 657-1247.