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Instructions for Requesting Stays in Water Quality Petitions

A person who files a petition for review of an action by a Regional Water Quality Control Board (Regional Water Board) may request a stay of the effect of that action. The stay request should be filed as part of the petition. This question and answer document provides information on filing stay requests. Information on stay requests may also be found at Water Code section 13321 and Title. 23, California Code of Regulations section CCR 2053.

What is a stay of an action?

Filing a petition does not automatically stay the effect of an action of a Regional Water Board. (For orders imposing administrative civil liability, the time for payment is extended while the State Water Board considers the petition, and a stay is therefore not necessary.) Where a Regional Board action requires certain activities by the discharger, and the discharger files a petition seeking review of the action, the discharger may request a stay of the Regional Board's action pending resolution of the petition. A stay provides interim relief prior to final action on the petition by the State Board.

How can a petitioner request a stay of the effect of an action?

A petitioner can include a request for a stay in a petition, which must allege facts that support the stay request. A stay request must include a declaration by a person or persons with knowledge of the facts.

What must be alleged to obtain a stay?

The stay request must allege facts that demonstrate all of the following:

  1. There will be substantial harm to the petitioner or to the public interest if a stay is not granted;
  2. There will be no substantial harm to other interested persons and to the public interest if a stay is granted; and
  3. There are substantial questions of fact or law regarding the disputed action.

What must be included in the affidavit or declaration?

Stay requests must be accompanied by a declaration, written under penalty of perjury, by a person having knowledge of the facts alleged. The State Board may waive the requirement for a declaration in the case of an emergency.

What facts must be alleged and proved in the stay request and declaration?

The stay documents must explain in detail the facts that support each of the three prongs of the stay requirements (substantial harm to the petitioner or the public interest, lack of substantial harm to others and the public, and substantial questions of fact or law). The explanation must focus on the need to stay the action pending review of the merits of the petition. This means that the petitioner must stress actions that will occur or costs that will be incurred during the time that the petition is subject to review by the State Board. General allegations of actions or costs that will occur over the term of the Regional Board's order are not adequate to justify a stay.

What is the process for issuing a stay?

Before the State Board can issue a stay, it must provide an opportunity to comment and to request a hearing. If the State Board decides to hold a hearing on a stay request, the petitioner, the Regional Board, and the discharger (if different from the petitioner), and others who may ask to be designated as parties will participate in a hearing, and be given the opportunity to present evidence and testimony. Following the close of the hearing, the State Board or one of its members will decide whether to issue a stay.

For questions or comments about water quality petitions, please contact:
Adrianna M. Jerome, Office of Chief Counsel
(916) 341-5156 or email: adrianna.jerome@waterboards.ca.gov

( updated 06/01/15 )