BILL ANALYSIS Ó
AB 246
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 246 (Wieckowski) - As Amended: March 29, 2011
SUBJECT : WATER QUALITY: ENFORCEMENT
KEY ISSUE : IN ORDER TO PROVIDE MORE FLEXIBILITY TO REGIONAL
WATER QUALITY CONTROL BOARDS, SHOULD DISTRICT ATTORNEYS AND CITY
ATTORNEYS OF LARGE CITIES BE ALLOWED, AS SPECIFIED, TO BRING
CIVIL ACTIONS FOR VIOLATIONS OF THE PORTER-COLOGNE WATER QUALITY
CONTROL ACT?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
According to the author, this bill gives the State Water
Resources Control Board ("state board") or Regional Water
Quality Control Boards ("regional boards") much needed
flexibility in how they prosecute violations of the water code,
by allowing them to refer civil cases to either the district
attorney or the city attorney of large cities. Under existing
law, the Porter-Cologne Water Control Act ("the Act"), only the
Attorney General, upon request of the board, is allowed to bring
a civil action or petition the appropriate court to impose,
assess, and recover civil penalties for violations of the Act.
The author contends that this rule may unnecessarily limit
avenues for enforcement of the Act, particularly in cases where
the facts indicate civil, not criminal, enforcement is more
appropriate. To address this limitation, this bill would allow
a regional board to delegate to its executive officer the
authority to apply for judicial enforcement of the Act to the
Attorney General, a district attorney, a city attorney of a city
with a population that exceeds 750,000, or a city attorney for a
city and county, as specified. In addition, this bill seeks to
authorize a district attorney, a city attorney of a city with a
population that exceeds 750,000, or a city attorney for a city
and county, upon request of a regional board or the state board,
to bring a civil action to enforce specified provisions of the
Act, but only after the Attorney General has approved the
board's request to rely on offices other than the Attorney
General. Opponents of the bill, including numerous public water
and sanitation agencies, believe that authority to apply for
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judicial enforcement should remain with the full board and not
be delegated to its executive officer, who they contend does not
have the same level of accountability to the people of the
state. Furthermore, opponents contend that authorizing
additional officials to pursue civil enforcement of the Act
would "undermine uniform and consistent interpretation and
enforcement" of the law. This bill is double-referred to
Assembly Environmental Safety and Toxic Materials Committee.
SUMMARY : Extends civil prosecution authority for violations of
the Porter-Cologne Water Quality Control Act to district
attorneys and certain city attorneys. Specifically, this bill :
1)Permits a regional water quality control board ("regional
board"), commencing January 1, 2012, to delegate to its
executive officer the authority to apply for judicial
enforcement of the Act to the Attorney General, a district
attorney, a city attorney of a city with a population that
exceeds 750,000, or a city attorney for a city and county.
2)Deletes the requirement that a regional board or the State
Water Resources Control Board ("state board") must hold a
public hearing before the board may request the Attorney
General to petition the superior court to impose, assess, and
recover certain civil penalties.
3)Authorizes a district attorney, a city attorney of a city with
a population that exceeds 750,000, or a city attorney for a
city and county (in addition to the Attorney General), upon
request of a regional board or the state board, to bring a
civil action in the name of the people of the State of
California to enforce specified provisions of the Act, but
only after the Attorney General has approved the board's
request to rely on offices other than the Attorney General.
Also allows civil actions relating to the same waste discharge
to be joined or consolidated.
4)Authorizes a district attorney, a city attorney of a city with
a population that exceeds 750,000, or a city attorney for a
city and county, upon request of the state board or a regional
board, to petition the appropriate court for the issuance of a
preliminary or permanent injunction, or both, to restrain a
person from committing or continuing violations of the Act, as
specified. Further provides that the petition may be brought
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only after the Attorney General has approved the board's
request.
5)Provides that the Attorney General's approval of a board's
request to rely on offices other than the Attorney General
shall be presumed to have been granted unless the Attorney
General issues a written denial within 30 days after having
been notified, in writing, of the request.
6)With respect to a petition for injunctive relief, allows the
court to issue an order directing that person to appear before
the court to show cause why the injunction should not be
issued, and to grant prohibitory or mandatory relief as may be
warranted.
EXISTING LAW :
1)Provides that the Attorney General shall have direct
supervision over every district attorney, and that whenever in
the opinion of the Attorney General any law of the State is
not being adequately enforced in any county, it shall be the
duty of the Attorney General to prosecute any violations of
law of which the superior court shall have jurisdiction, and
in such cases shall have all the powers of a district
attorney. (Article V, Sec. 13 of the California
Constitution.)
2)Provides that the written consent of the Attorney General is
required prior to employment of counsel for representation of
any state agency or employee in any judicial proceeding,
except as specified. (Government Code Section 11040(c).)
3)Pursuant to the Porter-Cologne Water Quality Act ("the Act"):
a) Authorizes a regional water quality control board to
delegate any of its powers and duties vested in it to its
executive officer, excluding, among other things, the
delegation of application to the Attorney General for
judicial enforcement. (Water Code Section 13223(a). All
other references are to this code unless otherwise noted.)
b) Requires a regional board or the state board to hold a
public hearing, with due notice given to all affected
persons, before the board may request the Attorney General
to petition the superior court to impose, assess, and
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recover certain civil penalties. (Section 13350(g).)
c) Requires the Attorney General, upon request of a
regional board or the state board, to petition the superior
court to impose, assess, and recover any amounts of civil
liability imposed by a court or by the board for specified
violations of the Act. (Sections 13350, 13361, and 13385.)
d) Requires the Attorney General to petition the
appropriate court for the issuance of a preliminary or
permanent injunction, or both, to restrain a person from
committing or continuing violations of the Act, as
specified. (Section 13386(a).)
COMMENTS : According to the author, this bill gives Regional
Water Quality Control Boards ("regional boards") much needed
flexibility in how they prosecute violations of the water code
by allowing them to refer civil cases to either the district
attorney or the city attorney of large cities. This bill seeks
to authorizes a district attorney, a city attorney of a city
with a population that exceeds 750,000, or a city attorney for a
city and county, upon request of a regional board or the state
board, to bring a civil action to enforce specified provisions
of the Act, but only after the Attorney General has approved the
board's request to rely on offices other than the Attorney
General. This bill also would allow a regional board to
delegate to its executive officer the authority to apply for
judicial enforcement of the Act to the Attorney General, a
district attorney, or the city attorneys of large cities, as
specified.
Background on Regional Water Quality Control Boards . Under the
Porter-Cologne Water Quality Control Act (Water Code Section
13000 et seq.) ("the Act"), the State Water Resources Control
Board has the ultimate authority over state water quality
policy. There are also nine Regional Water Quality Control
Boards with oversight responsibility at local and regional
levels. Each regional board consists of nine members, appointed
by the Governor for a term of four years and subject to Senate
confirmation. Under Section 13201, the board must be comprised
of individual members associated with different areas of
agriculture, water use, and local government, or have special
competence in areas related to water quality problems, as
specified. The regional board also appoints an executive
officer, an individual who must meet technical qualifications as
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defined by the state board and serves at the pleasure of the
regional board.
Under existing provisions of the Act, the regional board may
delegate any of its powers and duties vested in it to its
executive officer, with certain exceptions, one of which is the
delegation of application to the Attorney General for judicial
enforcement. In addition, while the Act allows district
attorneys to prosecute selected violations as criminal cases,
only the Attorney General is allowed to bring a civil action or
petition the appropriate court to impose, assess, and recover
civil penalties for violations of the Act.
Need for the bill. According to the author's office, there have
been a number of instances in which a regional board had asked
an appropriate District Attorney's office to pursue criminal
charges arising from a water pollution incident, but the facts
and circumstances ultimately were determined to make for a
better civil case. The author asserts that when a civil case
appears to be the appropriate action, the only option that a
regional board has is to apply to the Attorney General's office
for judicial enforcement because the Act currently allows only
the Attorney General to bring a civil action for violations of
the Act. The author contends that it is reasonable that
district attorneys and city attorneys should have the ability to
pursue civil enforcement of the Porter-Cologne Act, particularly
in light of the fact that different provisions of existing law
already allow local prosecutors to file civil actions to enforce
other environmental statutes involving hazardous waste, air
pollution, and other hazardous material spills.
Delegation of authority to the executive officer of a regional
board. This bill would allow each regional board to delegate to
its executive officer the authority to apply for judicial
enforcement to the Attorney General, a district attorney, a city
attorney of a city with a population exceeding 750,000 or to a
city attorney in any city and county. According to the author,
giving the board the option to delegate this authority to refer
cases for enforcement to its executive officer will help
streamline the enforcement process by no longer requiring the
full board to deliberate every referral.
In its opposition letter, the California Association of
Sanitation Agencies (CASA) asserts that this authority should
not be delegated to the executive officer of the regional board
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because the decision to refer a case for judicial enforcement is
best left to the whole board. CASA states:
The decision to refer a case for judicial enforcement
is an important one that involves significant legal and
policy-based considerations. The board members are
selected because of the experience and qualifications
that they bring to bear in enforcement and other
matters. Accordingly, the power to makes such a
decision appropriately falls within the judgment and
responsibility of the appointed regional board members
acting as a whole rather than a single individual who
is not directly accountable to the people of the State.
Under this bill, the board may (but is not required to) delegate
such authority to its executive officer, and the board retains
its authority to apply for judicial enforcement directly in
cases where it may wish to do so. Even if the board chooses to
delegate its authority under this bill, that delegation places
the decision to refer a case for judicial enforcement within the
discretion of the executive officer, over whose actions the
board ultimately retains oversight, and who under existing law
serves at the pleasure of the board and may already be delegated
many of the powers and duties of the board.
As amended, this bill increases existing options for civil
enforcement while providing the Attorney General with the first
opportunity to proceed. As recently amended, this bill
authorizes district attorneys and city attorneys, upon request
by the regional board, to pursue various forms of civil
enforcement currently limited only to the Attorney General, but
only after the Attorney General has approved such a request.
Under the common procedure specified by this bill, the Attorney
General must be notified by writing of the board's request to
rely on offices other than the Attorney General for civil
enforcement, and then has 30 days to issue a written denial or
approval of the request shall be deemed granted. This applies
to several areas of civil enforcement under the Act, including
the recovery of civil penalties and injunctive relief, but does
not increase the scope of or otherwise change any standard of
liability under the Act itself.
Importantly, if the Attorney General issues a written denial of
the request to have another office pursue civil enforcement,
that does not necessarily mean potential violations will go
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unenforced. In those cases, existing law still requires the
Attorney General, upon request of the board, to pursue civil
enforcement of the matter, as specified in each section of this
bill providing for different remedies to enforce the Act. As
amended, the bill simply ensures that the Attorney General is
provided with the first opportunity to act pursuant to any
request for civil enforcement before district attorneys or city
attorneys may proceed. While the bill increases the options for
enforcement referral open to the water boards by authorizing
district attorney and city attorney offices to proceed if
requested, it leaves the decision to refer a case for judicial
enforcement in the hands of the state board, or the regional
boards or their executive officers. Because the enforcement
process still must be initiated by referral from a board, under
this bill the total number of civil actions remains a function
of the number of cases referred by the board. Thus, this bill
could increase the number of civil actions if the state or
regional boards begin to refer cases for enforcement that they
previously did not refer regularly-most likely, cases in which
there appears to be insufficient evidence to support a criminal
prosecution but enough to pursue civil liability.
This bill applies to city attorneys in the four largest cities
in California. In addition to district attorneys, this bill
authorizes a city attorney of a city with a population that
exceeds 750,000, or a city attorney for a city and county, with
new civil enforcement capabilities, upon request of a regional
board or the state board, as specified. According to 2010 US
Census data available from the California Department of Finance
website, there are only four cities in California that have a
population exceeding 750,000: Los Angeles, San Diego, San Jose,
and San Francisco. In addition, San Francisco is the only city
that is also a county. Thus, the bill would apply only to the
city attorneys in those four cities.
ARGUMENTS IN SUPPORT : The California Coastkeeper Alliance
(CCA), representing 12 Waterkeeper groups spanning the
California coast, contends that this bill will help make
enforcement of the Porter-Cologne Act consistent with other
provisions of state environmental protection law. According to
CCA:
The lack of authority for local prosecutors to file
civil prosecutions for violations of Porter-Cologne is
an anomaly in California environmental law. Local
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prosecutors may bring civil prosecutions in other key
areas of environmental protection, such as hazardous
materials, hazardous waste, water pollution violations,
marine oil spills, storage tank violations, and air
pollution violations. It is appropriate to provide the
same authority to local prosecutors for violations of
Porter-Cologne.
The author has submitted to the Committee a list of a dozen
environmental protection statutes that grant statutory authority
for local prosecutors to pursue civil enforcement. (See e.g.
Fish & Game Code Sections 5650.1(d) and 1615(d); Health and
Safety Code Sections 25516.1, 25720.12, 25249(c), and 42403(a);
Gov. Code Section 8670.58) As amended, this bill is consistent
with these statutes to the extent that it grants authority to
local prosecutors to pursue civil enforcement of the
Porter-Cologne Act, but differs from many of these statutes
that, unlike this bill, do not make such authority subject to
the approval of the Attorney General. Instead, this bill is
more similar to Section 25189.1 of the Health and Safety Code
(relating to hazardous waste control), which allows the district
attorney to file a civil action only after a specified trustee,
after consultation with the Attorney General, approves the
action within 30 days.
ARGUMENTS IN OPPOSITION : Opponents of the bill, including the
Valley Ag Water Coalition, a coalition of water companies and
public water agencies, contend that "it is not necessary to
alter current enforcement procedures" and that "authorizing
outside counsel to pursue civil actions abandons the experience
and expertise of the regional board . . . to prioritize
enforcement actions." A similar argument is put forth by CASA:
If passed, AB 246 would seriously undermine uniform and
consistent interpretation and enforcement of State
water quality law as at least three different
prosecutorial agencies (the Regional Water Board,
Attorney General, and city or district attorney) could
undertake actions against a regulated entity in varying
venues. In addition, the Regional Water Boards and
Attorney General employ attorneys and technical experts
that specialize in the State's complex system of
environmental law to enforce water quality matters. It
is simply not possible for that expertise to be
replicated in more than 58 counties throughout the
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State.
With respect to the contention that only the Attorney General
has the expertise necessary to enforce water quality laws, it
should be noted that existing law already authorizes local
prosecutors to enforce selected violations of the Porter-Cologne
Act as criminal matters. Finally, it should also be noted that
this bill does nothing to change the fact that the ultimate
determination of liability must be still made by the court,
based on judicial interpretation of the law and the evidence
presented in each case. Any lack of uniformity in actual
enforcement of the Act would be due to differing interpretations
by the court itself, not the official bringing the action,
whether that is the Attorney General, a district attorney, or a
city attorney.
Previous Legislation : AB 1946 (Nava) of 2008 contained language
substantially similar to the as-introduced version of this bill.
AB 1946 would have authorized a district attorney or city
attorney, upon request of the state board or a regional board,
to pursue civil enforcement of the Porter-Cologne Act, and would
have authorized a regional board to delegate authority to its
executive officer to request judicial enforcement by the
Attorney General, district attorney, or city attorney, as
specified. That bill, however, did not condition enforcement by
a district attorney or city attorney upon approval by the
Attorney General. AB 1946 was vetoed by Governor
Schwarzenegger.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys' Association
California Coastkeeper Alliance
Opposition
American Council of Engineering Companies, CA
Association of California Water Agencies
California Association of Sanitation Agencies
California Central Valley Flood Control Association
Cal Chamber
California Farm Bureau Federation
California Manufacturers and Technology Association
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Desert Water Agency
Industrial Environmental Association
Valley Ag Water Coalition
Western Growers
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334