Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2446

Introduced by Assembly Member Gordon

February 19, 2016

begin delete An act relating to natural resources. end delete begin insert An act to amend Section 116700 of the Health and Safety Code, and to amend Sections end insert begin insert 13321, 13330, and 13361 of the Water Code, relating to the State Water Resources Control Board. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2446, as amended, Gordon. begin delete Natural resources: protection. end delete begin insert State Water Resources Control Board: judicial review. end insert

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(1) Existing law, the Porter-Cologne Water Quality Control Act, within 30 days of any action or failure to act by a California regional water quality control board under specified law, authorizes an aggrieved person to petition the State Water Resources Control Board to review that action or failure to act. Existing law authorizes the state board, in the case of such a review, upon notice and hearing, if a hearing is requested, to stay in whole or in part the effect of the decision and order of a regional board or of the state board.

end insert begin insert

This bill would expand that provision to authorize the state board to issue a stay in the case of review by the state board of a decision or order issued under authority delegated to an officer or employee of the state board where the state board by regulation has authorized a petition for reconsideration by the state board. The bill would authorize any aggrieved party, within 30 days of any order of the state board issuing or denying a stay, to file with the superior court a petition for writ of mandate.

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The act authorizes an aggrieved party to file with the superior court a petition for writ of mandate for review of a decision or order issued by the state board or a regional board, and requires those proceedings to be governed by specified law. Existing law, except as specified, requires the court to exercise its independent judgment on the evidence in cases involving the judicial review of a decision or order of the state board, or a decision or order of a regional board for which the state board denies review under the act.

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This bill, except as specified, would prohibit any legal or equitable process from issuing in any proceeding in any court against the state board, a regional board, or any officer of the state board or a regional board to review, prevent, or enjoin any adjudicative proceeding under the act, or a decision or order by the state board or a regional board before a decision or order is issued and the procedures for administrative review of that decision or order have been exhausted.

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(2) Existing law, the California Safe Drinking Water Act, requires the state board to administer provisions relating to the regulation of drinking water to protect public health. The state board’s duties include, but are not limited to, conducting research, studies, and demonstration programs relating to the provision of a dependable, safe supply of drinking water, enforcing the federal Safe Drinking Water Act, and adopting and enforcing regulations. Existing law requires the state board to appoint a deputy director to oversee the issuance and enforcement of public water system permits and delegates certain authorities of the state board to the deputy director. The act authorizes the deputy director to issue an order directing certain actions whenever the deputy director determines that a person has violated or is violating the act, or any permit, regulation, or standard issued or adopted pursuant to the act. The act authorizes an aggrieved party 30 days after service of a copy of the order or decision to file with the superior court a petition for a writ of mandate for review of the order or decision. The act requires that the evidence before the court consist of all relevant evidence that, in the judgment of the court, should be considered to effectuate and implement the act and requires, in every case, the court to exercise its independent judgment on the evidence. The act prohibits a failure to file an action from precluding a party from challenging the reasonableness and validity of the decision or order in specified judicial proceedings.

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This bill would provide that a decision or order of the state board is not subject to review by any court if no aggrieved party petitions for a writ of mandate within 30 days after service of a copy of an order or decision issued by the state board. The bill would eliminate the requirement that the evidence before the court consist of all relevant evidence that, in the judgment of the court, should be considered to effectuate and implement the act.

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Existing law declares that resource conservation is of fundamental importance to the prosperity and welfare of the people of this state.

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This bill would declare the intent of the Legislature to enact legislation that would protect the state’s land and water resources.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 116700 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

116700.  

(a)  Within 30 days after service of a copy of an order
issued by the begin delete department, any end delete begin insert state board, an end insert aggrieved party may
file with the superior court a petition for a writ of mandate for
review begin delete thereof. Failure to file an action shall not preclude a party
from challenging the reasonableness and validity end delete of begin delete a decision or
order of end delete the begin delete department in any judicial proceedings brought to
enforce the decision or order or for any civil or criminal remedy
authorized by this chapter. end delete begin insert order. end insert

(b)  begin delete The evidence before the court shall consist of all relevant
evidence that, in the judgment of the court, should be considered
to effectuate and implement the provisions of this chapter. end delete In every
case, the court shall exercise its independent judgment on the
evidence.

(c)  Except as otherwise provided in this section, subdivisions
(e) and (f) of Section 1094.5 of the Code of Civil Procedure shall
govern proceedings pursuant to this section.

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(d) If no aggrieved party petitions for a writ of mandate within
the time provided by this section, the decision or order of the state
board is not subject to review by any court.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 13321 of the end insert begin insert Water Code end insert begin insert is amended to read: end insert

13321.  

(a) In the case of a review by the state board under
Section begin delete 13320, end delete begin insert 13320 or review by end insert the state begin insert board of a decision
or order issued under authority delegated to an officer or employee
of the state board where the state board by regulation has
authorized a petition for reconsideration, the state end insert board, upon
notice and hearing, if a hearing is requested, may stay in whole or
in part the effect of the decision begin delete and end delete begin insert or end insert order of a regional board
or of the state board.

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(b) Within 30 days of any order of the state board issuing or
denying a stay, any aggrieved party may file with the superior
court a petition for writ of mandate.

end insert begin insert

(c) If the state board or the superior court grants a stay under
this section, the stay may be made effective as of the effective date
of the regional board or state board decision or order.

end insert begin delete

(b)

end delete

begin insert (d) end insert  If a petition is filed with the superior court begin delete to review a
decision of the state board, end delete begin insert under Section 13330, end insert any stay in effect
at the time of the filing begin insert of end insert the petition shall remain in effect by
operation of law for a period of 20 days from the date of the filing
of that petition.

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(c) If the superior court grants a stay pursuant to a petition for
review of a decision of the state board denying a request for a stay
with respect to waste discharge requirements, the stay may be
made effective as of the effective date of the waste discharge
requirements.

end delete begin delete end delete

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 13330 of the end insert begin insert Water Code end insert begin insert is amended to read: end insert

13330.  

(a) Not later than 30 days from the date of service of
a copy of a decision or order issued by the state board under this
division, other than a decision or order issued pursuant to Article
7 (commencing with Section 13550) of Chapter 7, any aggrieved
party may file with the superior court a petition for writ of mandate
for review begin delete thereof. end delete begin insert of the decision or order. end insert An aggrieved party
must file a petition for reconsideration with the state board to
exhaust that party’s administrative remedies only if the initial
decision or order is issued under authority delegated to an officer
or employee of the state board and the state board by regulation
has authorized a petition for reconsideration.

(b) A party aggrieved by a final decision or order of a regional
board subject to review under Section 13320 may obtain review
of the decision or order of the regional board in the superior court
by filing in the court a petition for writ of mandate not later than
30 days from the date on which the state board denies review.

(c) The time for filing an action or proceeding subject to Section
21167 of the Public Resources Code for a person who seeks review
of the regional board’s decision or order under Section 13320, or
who seeks reconsideration under a state board regulation
authorizing a petition for reconsideration, shall commence upon
the state board’s completion of that review or reconsideration.

(d) If no aggrieved party petitions for writ of mandate within
the time provided by this section, a decision or order of the state
board or a regional board shall not be subject to review by any
court.

(e) Except as begin delete otherwise end delete provided begin delete herein, end delete begin insert in this section, end insert Section
1094.5 of the Code of Civil Procedure shall govern proceedings
for which petitions are filed pursuant to this section. For the
purposes of subdivision (c) of Section 1094.5 of the Code of Civil
Procedure, the court shall exercise its independent judgment on
the evidence in any case involving the judicial review of a decision
or order of the state board issued under Section 13320, or a decision
or order of a regional board for which the state board denies review
under Section 13320, other than a decision or order issued under
Section 13323.

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(f) Except as provided in this section, no legal or equitable
process shall issue in any proceeding in any court against the state
board, a regional board, or any officer of the state board or a
regional board to review, prevent, or enjoin any adjudicative
proceeding under this division. Except as provided in this section
and Section 13321, no legal or equitable process shall issue in
any proceeding in any court against the state board, a regional
board, or any officer of the state board or a regional board to
review, prevent, or enjoin a decision or order by the state board
or a regional board before a decision or order is issued and the
procedures for administrative review of that decision or order
have been exhausted.

end insert begin delete

(f)

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begin insert ( end insert begin insert g) end insert  A party aggrieved by a decision or order issued by the state
board under Article 7 (commencing with Section 13550) of Chapter
7 may petition for reconsideration or judicial review in accordance
with Chapter 4 (commencing with Section 1120) of Part 1 of
Division 2.

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(g)

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begin insert ( end insert begin insert h) end insert  For purposes of this section, a decision or order includes a
final action in an adjudicative proceeding and an action subject to
Section 11352 of the Government Code, but does not include an
action subject to Section 11353 of the Government Code or the
adoption, amendment, or repeal of a regulation under Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code.

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begin insert SEC. 4. end insert   

end insert

begin insert Section 13361 of the end insert begin insert Water Code end insert begin insert is amended to read: end insert

13361.  

(a) Every civil action brought under the provisions of
this division at the request of a regional board or the state board
shall be brought by the Attorney General in the name of the people
of the State of California and any begin delete such end delete begin insert of those end insert actions relating to
the same discharge may be joined or consolidated.

(b) Any civil action brought pursuant to this division shall be
brought in a county in which the discharge is made, or proposed
to be made. However, any action by or against a city, city and
county, county, or other public agency shall, upon motion of either
party, be transferred to a county or city and county not a party to
the action or to a county or city and county other than that in which
the city or public agency is located.

(c) In any civil action brought pursuant to this division in which
a begin insert regional board or the state board seeks a end insert temporary restraining
order, preliminary injunction, or permanent begin delete injunction is sought, end delete
begin insert injunction, end insert it shall not be necessary to allege or prove at any stage
of the proceeding that irreparable damage will occur should the
temporary restraining order, preliminary injunction, or permanent
injunction not be issued, or that the remedy at law is inadequate,
and the temporary restraining order, preliminary injunction, or
permanent injunction shall issue without begin delete such end delete begin insert those end insert allegations
and begin delete without such end delete proof.

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SECTION 1.  

It is the intent of the Legislature to enact
legislation that would protect the state’s land and water resources.

end delete