Committee backs further consideration of bill to expand judicial review of DES decisions

The House Judiciary Committee recommended further legislative consideration of House Bill 1614, a measure to permit judicial appeals of Department of Environmental Services (DES) decisions and decisions ratified by DES councils.

Representative Rebecca McWilliams, the prime sponsor, said HB1614 would create an avenue to appeal scientific determinations when existing administrative review processes leave no effective remedy. "The goal of this bill is the ability to appeal decisions of either DES or a council that has ratified a decision by DES," McWilliams said, and she cited PFAS as an example of where new scientific evidence may arise after a decision.

DES Water Division Director Rainey Pelletier described the current appeals structure: permits and orders include appeal instructions, appellants generally have 30 days to file, appeals are calendared with the applicable council, and hearing officers conduct evidentiary hearings. Pelletier said the councils routinely accept new evidence and that appeals processes are overseen administratively and by DOJ staff.

Chip Kimball, chairman of the Wetlands Council, pushed back on statements that councils cannot consider new scientific evidence, saying councils do admit new evidence and are composed of members from other agencies and technical backgrounds. Alan Brooks of the Department of Justice confirmed that appeals are evidentiary hearings and that the statutory standard (unreasonable or unlawful) aligns closely with what some states call an "arbitrary and capricious" standard.

After discussion about standards of review, staffing, and channeling appeals through the existing council/hearing officer structure, Representative Smith moved and the committee adopted a motion to recommend further legislative consideration of HB1614. The committee will include the recommendation in its brief report to the House.