DUE PROCESS AT THE STATE WATER BOARD

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The ailing economy has made regulatory reform a top priority for the Legislature. At the end of the 2011 Regular Session, the Legislature passed a regulatory reform bill that was signed by the Governor. The measure reforms the regulatory process by requiring an economic analysis of all major regulations at the beginning of the regulatory process, thus providing more transparency and better data on which to base selection of the most cost-effective regulatory alternative.

Nowhere is such reform needed more than at the State Water Resources Control Board (State Board). Since the beginning of the year, the State Board has been pursuing the reissuance of storm water permits for industry, municipalities, and Cal-Trans. The proposed draft permits contain the most stringent storm water permit regulations in the country. The cost to the regulated community for monitoring and compliance will increase significantly if these rules are adopted. There will be a significant increase in the risk of third party lawsuits as well as the need for investment in structural modifications. The new permitting requirements go far and beyond federal EPA rules, are not based on sound science, and would impose arbitrary numeric limits. If adopted, these permits will cost hundreds of millions of dollars to comply with, and would result in questionable water quality improvements.

CLFP has taken a lead role in opposing the draft Industrial General Permit and is currently co-chairing the "Workable Approach To Environmental Action" (WATER) Coalition. The WATER Coalition is made up of over 150 organizations representing industry, schools, and municipalities (www.wisewaterregs.com).

CLFP and the WATER Coalition are not only concerned about the policies being proposed by the State Board, but also the lack of due process that is being used in the adoption and implementation of these proposed policies. The State Board has refused requests made by stakeholders and the Legislature to conduct economic analyses of its draft permits and engage stakeholders in a meaningful dialogue about the impacts of these proposals.

The State Board is statutorily exempt from the Administrative Procedures Act and is, therefore, not required by law to conduct economic analyses or engage stakeholders in the process and will not be impacted by the newly enacted regulatory reform law.

Further, the State Board operates as a quasi-judicial body, meaning that the State Board members cannot communicate directly with the regulated community. They claim "ex-parte communication." The only direct communication and interaction that the regulated community can have with the State Board members is at formal hearings where only two to three minutes is allotted per speaker at the podium. This is hardly conducive to engaging the State Board members in a meaningful dialogue about their proposals and coming up with workable solutions.

CLFP spearheaded a legislative oversight hearing to highlight the problems associated with the Board’s proposed storm water permit and underscore the need for reform of Board practices. Senator Rod Wright (D-Los Angeles) agreed to hold a hearing of his Select Committee on California Job Creation and Retention to focus on the impacts that the proposed permits would have on the California economy. The State Water Board’s Executive Director, Tom Howard, was questioned extensively by a panel of Senators at the hearing about State Board’s storm water proposals and lack of due process employed by the State Board on moving these proposals forward.

The outcome of this hearing was promising and CLFP plans to pursue a legislative strategy in the 2012 Regular Legislative Session to reform the State Board to ensure due process on all future actions.

Article written by Trudi Hughes, Government Affairs Director

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