BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 246 (Wieckowski)
As Amended March 29, 2011
Hearing Date: June 28, 2011
Fiscal: Yes
Urgency: No
BCP
SUBJECT
Water Quality: Enforcement
DESCRIPTION
Existing law allows the Attorney General, upon request of the
State Water Resources Control Board or a Regional Water Quality
Control Board, to bring a civil action or petition the court to
impose, assess, and recover civil penalties for violations of
the Porter-Cologne Water Quality Control Act. This bill would:
authorize a district attorney or city attorney, upon request
and after approval by the Attorney General, to bring an action
or petition the court;
authorize 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; and
remove a provision requiring a public hearing before
requesting the Attorney General to take specified actions.
BACKGROUND
Under the Porter-Cologne Water Quality Control Act
(Porter-Cologne), the State Water Resources Control Board
(SWRCB) has the ultimate authority over state water rights and
water quality policy. There are also nine Regional Water Quality
Control Boards (RWQCB) to oversee water quality on the local and
regional levels. The Attorney General, upon request of the
SWRCB or RWQCB, may petition the court or bring a civil action
to impose, assess, and recover civil penalties for violations of
Porter-Cologne.
(more)
AB 246 (Wieckowski)
Page 2 of ?
To facilitate the enforcement of Porter-Cologne, this bill would
authorize a district attorney or city attorney to petition the
court or bring a civil action; allow a RWQCB to delegate certain
authority to its executive officer; and remove a provision
requiring a public hearing before requesting the Attorney
General to take action on certain civil penalties.
This bill was approved by the Senate Environmental Quality
Committee on June 20, 2011, and is substantially similar to AB
1946 (Nava, 2008), which was vetoed by Governor Schwarzenegger.
CHANGES TO EXISTING LAW
1.Existing law the Porter-Cologne Water Quality Act, authorizes
each regional water quality control board to delegate any of
its powers and duties vested in it to its executive officer.
That authorization, except as specified, excludes the
delegation of the application to the Attorney General for
judicial enforcement. (Water Code Sec. 13223(a).)
This bill would delete that exemption, thus authorizing a
regional board to delegate to its executive officer the
authority to apply to the Attorney General for judicial
enforcement.
This bill would provide that on or after January 1, 2012, each
regional board may 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.
This bill would authorize judicial enforcement to be pursued
by the above parties only after the Attorney General approves
an application by the regional board for judicial enforcement.
The Attorney General is deemed to have granted approval
unless a written denial is issued within 30 days after the
Attorney General is notified, in writing, of the application
for judicial enforcement.
2.Existing law authorizes 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, including the ability to
petition the court for injunctive relief. (Water Code Secs.
13350, 13361, 13385, 13386.)
AB 246 (Wieckowski)
Page 3 of ?
Existing law requires that, prior to requesting the Attorney
General to take action on certain civil penalties in court,
the state or regional board must hold a public hearing. (Water
Code Sec. 13350.)
This bill would modify those provisions by additionally
allowing 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 in the name of the people of
the State of California to enforce those specified provisions.
This bill would condition that ability on the Attorney
General approving a request by the state or regional board to
rely on offices other than the Attorney General; approval
shall be deemed granted unless the Attorney General issues a
written denial within 30 days after written notification of
the request.
This bill would, in the context of injunctions, allow the
court to issue an order directing defendants to appear before
the court at a time and place certain and show cause why the
injunction should not be used. The court would be permitted
to grant prohibitory or mandatory relief as may be warranted.
This bill would also eliminate the above public hearing
requirement.
COMMENT
1. Stated need for the bill
According to the author:
This bill seeks to correct an anomaly in the law that is
unique to Porter-Cologne civil cases. Currently, only the
Attorney General may bring a civil action or petition the
superior court or other appropriate court to impose, assess,
and recover civil penalties for violations of the
Porter-Cologne Water Quality Control Act ("Porter-Cologne"),
including violations of Chapter 5.5 which incorporates the
Federal Clean Water Act. District attorneys may prosecute
selected violations of Porter-Cologne as criminal cases
(Water Code ÝSec.] 13387), but under current law are not
permitted to file civil prosecutions for violations of
Porter-Cologne.
AB 246 (Wieckowski)
Page 4 of ?
This bill addresses this problem by allowing Executive
Officers to delegate civil prosecutions to environmental
prosecutors in district attorney offices, a city attorney of
a city with population exceeding 750,000, or a city attorney
in any city and county to petition the superior court or
other appropriate court to impose, assess, and recover civil
penalties and other remedies for violations of Porter
Cologne and to bring civil actions for violations of Chapter
5.5 of Porter-Cologne (Federal Clean Water Act).
Allowing civil prosecution authority for local prosecutors
for violations of Porter-Cologne would bring water quality
law into conformity with other environmental prosecution
areas. The proposed changes would permit environmental
prosecutors to file civil prosecutions with the court to
impose and recover civil penalties and other remedies under
Porter Cologne, file civil actions to enforce Chapter 5.5
(Federal Clean Water Act) of Porter-Cologne, and to accept
and expedite referrals made by an executive director of a
Regional Water Quality Control Board.
2. Civil prosecutions under the Porter-Cologne Water Quality
Act
Under existing law, the Attorney General (AG) (upon request of a
regional or state board) may petition the court to impose,
assess, and recover specified civil penalties for violations of
Porter-Cologne. This bill would allow that judicial enforcement
to be brought by specified local prosecutors (district
attorneys, city attorneys of a city with a population in excess
of 750,000, or a city attorney for a city and county), but, only
allow those individuals to bring an action after the Attorney
General approves an application or request for judicial
enforcement submitted by a state or regional board. The
Attorney General would be deemed to have granted the request if
a written denial is not issued within 30 days. The Sierra Club,
in support, asserts that allowing district attorneys and city
attorneys to file civil actions for violations of Porter-Cologne
will provide a key option to those prosecutors, that the current
lack of authority is an anomaly in California environmental law,
and that "Ýl]ocal prosecutors may bring civil prosecutions in
every other key area of environmental protection such as
hazardous materials, hazardous waste, water pollution violations
. . ., marine oil spills, underground storage tank violations,
above ground storage tank violations and air pollution
violations." Staff further notes that district attorneys are
AB 246 (Wieckowski)
Page 5 of ?
already authorized to prosecute selected violations of the Act
as criminal violations.
The opposition, a coalition of organizations, contend that this
bill would "lead to inconsistencies in enforcement as 58 county
district attorneys and several city attorneys begin filing
actions previously brought by one division in the Attorney
General's office" and argues that "Ýs]pecial expertise is needed
to prosecute cases in this highly technical area and the
Attorney General's office has accumulated the necessary
expertise. It is simply not possible for that expertise to be
replicated in 58 counties throughout the State."
In rebuttal, the author notes that "attorneys are both guided
and limited by the judicial precedence of case law and the
mandate of statutes. District attorneys have had the
responsibility of bringing criminal violations under ÝPorter-
Cologne] and no gross inconsistencies have been complained Ýand]
the same would be true of civil enforcement." The author
further argues that since local prosecutors already are trusted
to enforce important and complex environmental acts, "it
reasonably follows that they are competent enough to hand civil
violations under the Porter-Cologne Act."
By expanding the number of individuals who may bring actions for
violations of the Act, this bill could allow additional civil
enforcement actions to be brought that may otherwise not be
pursued due to insufficient evidence for a criminal prosecution
or lack of resources on the part of the Attorney General.
Despite claims that this bill would result in a lack of
uniformity, all of these actions would be subject to the court's
decision - any lack of uniformity would be due to differing
interpretations by the court itself, not the party bringing the
action. Furthermore, the Attorney General would have the option
of denying requests to bring those actions, thus, enabling the
Attorney General to oversee the type of actions that are
actually brought.
3. Diminishing the role of the regional boards
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. The opposition contends
that delegation should not occur, that board members are
AB 246 (Wieckowski)
Page 6 of ?
selected based on their background and experience, and that it
is the members' "knowledge and expertise on water issues Ýwhich]
makes them uniquely qualified to render judgment as a board on
enforcement and policy issues."
Although the ultimate determination of liability must be made by
the court, any board which decides to delegate that authority to
the executive officer would be delegating a power that has been
in place since at least 1969 (the year Water Code Section 13223
was enacted). That delegation leaves the decision about whether
or not to request authorization for judicial enforcement to the
individual, but, unlike AB 1946 (Nava, 2008), this bill would
condition that enforcement on the Attorney General's approval of
the request. It should also be noted that as part of the above
changes, AB 246 would also remove the requirement that a state
or regional board hold a hearing before referring certain
actions to the Attorney General.
The California Central Valley Flood Control Association
(CCVFCA), Desert Water Agency (DWA), East Valley Water District
(EVWD), El Dorado Irrigation District (EID), and Valley Ag Water
Coalition (VAWC), in opposition, contend that "AB 246 would make
it easier to prosecute alleged violators of the State's water
quality under ÝPorter-Cologne]. The balance a citizen-board
brings to important decisions regarding the initiation of
judicial proceedings is an important balance to maintain.
Giving authority to prosecutors outside of the regional board
could easily politicize the enforcement process." In response
to those concerns about removal of the public hearing, and
delegation of authority, the author states:
The removal of the language regarding a public hearing does
not prohibit a regional board from holding a hearing on a
matter, but rather it removes the requirement to hold a
public hearing before delegating the case to the attorney
general, or district, or city attorneys. The executive
officer of each regional board serves at the pleasure of the
board, so there is little concern that the executive officer
would delegate an action without a hearing if the board
wished to hold one.
Other administrative agencies that have authority to refer
actions to local enforcement are not required to hold a
public hearing prior to that delegation. For example, the
Department of Toxic Substances Control is not required to
hold a hearing before designating enforcement to a local
AB 246 (Wieckowski)
Page 7 of ?
agency or officer (See Health & Safety Code §§ 25180 -
25187.7 ( 22 C.C.R. 4.5)). The Department of Fish & Game's
Office of Spill Prevention and Response refers criminal
violations directly to district attorneys without a hearing
beforehand.
AB 246 (Wieckowski)
Page 8 of ?
4. Remaining opposition concerns
CCVFCA, DWA, EVWD, EID, and VAWC further contend that
authorizing local prosecutors to pursue enforcement actions
"comes without the procedural protections and due process
afforded under ÝPorter-Cologne]." Although a hearing would no
longer be required prior to requesting the Attorney General to
take action, the bill would give the Attorney General the
opportunity to object and the local prosecutor would still have
to meet his or her evidentiary burden in court. It is unclear
how due process would be violated given the involvement of the
court.
The City of Roseville, in opposition, expresses concern about
"potential ethical issues caused by compelling city attorney's
offices to act as 'prosecutors' of water quality violations when
their own city may be the subject of the violation." Despite
those concerns, it should be noted that the bill uses the term
"may" with regards to enforcement by the city attorney's office,
thus arguably providing the city attorney with some discretion
not to bring an action if there is a conflict of interest. The
author's office further asserts that district attorneys (who
currently can bring criminal actions) are under no obligation to
take cases referred to them. Lastly, pursuant to the provisions
of this bill, the Attorney General would act as a check on any
inappropriate request by the board (or executive officer).
5. Veto of AB 1946 (Nava, 2008)
In vetoing a substantially similar bill, AB 1946 (Nava, 2008),
Governor Schwarzenegger stated:
California's current structure of water quality enforcement
has systemic problems that must be addressed in a
comprehensive and coordinated fashion. Last year, I asked
the State Water Resources Control Board (State Board) to
analyze the current structure and procedures of the state
and regional water boards and develop a package of reforms
that will result in improvements in the implementation and
enforcement of our water quality laws. That package of
reforms was delivered to the Legislature earlier this year
and was never acted upon.
This bill misses the mark because increasing the frequency
and severity of civil penalties via the court system is not
the truest measure of our success in addressing water
AB 246 (Wieckowski)
Page 9 of ?
quality in California. The courts are an effective tool, but
they are not the only tool that should be used to ensure
clean water.
Greater emphasis needs to be placed on increasing the
accountability, consistency, and effectiveness of the
regional and state boards. Doing so ensures that we create a
system that lays out a clear path to compliance with our
water quality laws, without having to resort to the courts.
This is an important issue and I encourage the author and
the Legislature to address it in a comprehensive fashion in
the next legislative session.
Support : California Attorney General's Office; California
Coastkeeper Alliance; California District Attorneys Association;
Sierra Club California
Opposition : Agricultural Council of California; American
Council of Engineers, California; California Building Industry
Association; California Chamber of Commerce; California Farm
Bureau; California Grain & Feed Association; California
Independent Oil Marketers Association; California League of Food
Processors; California Manufacturers and Technology Association;
California Pear Growers Association; California Seed
Association; California State Floral Association; California
Trucking Association; City of Roseville; Construction Employers
Association; Family Winemakers of California; Industrial
Environmental Association; Irvine Ranch Water District; Kings
River Water Association; Western Growers; Western Plant Health;
Western States Petroleum Association; the Wine Institute
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 1946 (Nava, 2008), See Comment 5.
Prior Vote :
Senate Environmental Quality Committee (Ayes 4, Noes 2)
Assembly Floor (Ayes 47, Noes 29)
Assembly Appropriations (Ayes 12, Noes 4)
Assembly Environmental Safety and Toxic Materials (Ayes 5, Noes
AB 246 (Wieckowski)
Page 10 of ?
3)
Assembly Judiciary (Ayes 6, Noes 4)
**************