Article provided by Patti Kreb, Industrial Environmental Association

http://www.ieasdc.org/

Possible structural reforms for State Water Quality Control Board and Regional Water Resources Control Board

This year in Sacramento, the roles and relationships between the State Water Quality Control Board and the Regional Water Resources Control Board, as well as their governance structure, are a major topic.  Also under discussion are such issues as:

·        The need for oversight and policy guidance from the state board to regional boards

·        Support for decision-making processes based on scientific review and data collection

·        Setting of standards in permits and TMDLs that were not designed for that purpose

·        Updating basin plans

·        Developing effective strategic plans

·        Adhering to a cost-effectiveness analysis requirement in Porter-Cologne

·        Addressing inconsistencies between regional boards.

SOME SPECIFICS:

·        Little Hoover Commission. The Little Hoover Commission recently held two full-day hearings listening to testimony about the organization and effectiveness of the boards. Admiral Len Herring, Commander, Navy Region Southwest, and Terry Ghio, former Industrial Environmental Association President and former member of the San Diego Regional Water Quality Control Board testified at the hearing.  The Little Hoover Commission will report directly to the Governor with their recommendations. 

·        SB 1176 (Perata). Senator Perata has introduced a bill again this year that would reduce the number of regional water board seats and eliminate the categories for serving (i.e., agricultural representative, industrial representative, water supply, etc.) to general public seats.

·        SB 1520 (Kehoe). Senator Kehoe has introduced a bill that would force the State Board to assume jurisdiction of a clean-up matter in San Diego if the regional board does not adopt a final cleanup order by January 30, 2009.  This bill would put undue pressure on a regional board to finalize a tentative order by an arbitrary deadline, usurp the executive functions delegated to state agencies and circumvent due process rights for appeals. 

The Little Hoover Commission has scheduled an additional hearing to look into possible restructuring proposals.  The Industrial Environmental Association is working with a coalition that is being formed to address water board concerns, with the coalition to include dischargers, the military, wastewater associations, cities, the building industry, and others.

REGIONAL BOARD LEADERSHIP

Following is a list of fundamental issues, statement of the problem and a potential way to reform the system. 
Problem

Regional boards have overwhelming workloads and limited staff.  Lacking scientific and technical staff expertise has resulted in their inability to address complex technical issues with the result being inappropriate or delayed decision-making.

Possible Reform Measure

One idea being put forward is to make the Regional Board Chair a fulltime position, appointed by the Governor with a salary, as is the case with the Air Resources Board.  The Chair would be technically proficient and qualified on the range of issues before the board.  This would allow a counterbalance to the current system where staff essentially makes decisions that are rubber-stamped by the Boards.  This would also make the Board more accountable to the Governor’s office.
Problem

Emotions and politics are now a dominant theme at the regional boards.  Urban runoff, sediment, groundwater, emerging pollutants and a host of water quality issues are highly complex and technical and require expert scientific interpretations.  Complex problems merit careful consideration – much more than “we need clean water” comments.  Currently, decisions are being made and standards are being set with little regard for science, cost-effectiveness,  transparency of the process or ability to comply.
Possible Reform Measure

One proposal is to remove the state/regional boards from this technical function and instead have these decisions made through an administrative process.  Under this idea, permits, enforcement actions, etc. would follow an administrative process under the Executive Officer of the Regional Boards.  Applicants would have appeal rights to administrative law judges – or an administrative law judge panel – with their own central staff and access to scientific resources.  Regional boards and the state board would be freed up to work on policy, such as a statewide policy on stormwater, basin planning and TMDL projects.  This would help make permit/standards consistent through the state and through a separate administrative process help assure adherence to statutory and policy requirements, e.g., consideration of cost-effectiveness.
Problem

A recurring comment during the Little Hoover discussions was the lack of a scientific basis for water quality decisions in comparison to the well-established work of the Air Resources Board. 
Possible Reform Measure

One solution might be to follow the example of the air program and establish a permanently funded central scientific research/support office to review data and suggest data needs, consider technologies appropriate for long-term resolution of issues and provide support to the program whether it be the state/regional boards and/or administrative law judges.  The program would require identification of a funding mechanism.  This is an idea the regulated community can bring to the table in good faith to achieve the goals of a transparent, science-based and cost-effectiveness review process.
These proposed measures are a starting point in order to contribute input and ideas to the ever-growing dialogue in Sacramento that fundamental changes are necessary to the state and regional water boards.