BILL NUMBER: AB 2446 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 17, 2016
INTRODUCED BY Assembly Member Gordon
FEBRUARY 19, 2016
An act relating to natural resources. An
act to amend Section 116700 of the Health and Safety Code, and to
amend Sections 13321, 13330, and 13361 of the Water Code,
relating to the State Water Resources Control Board.
LEGISLATIVE COUNSEL'S DIGEST
AB 2446, as amended, Gordon. Natural resources:
protection. State Water Resources Control Board:
judicial review.
(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.
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.
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.
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.
(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.
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.
Existing law declares that resource conservation is of fundamental
importance to the prosperity and welfare of the people of this
state.
This bill would declare the intent of the Legislature to enact
legislation that would protect the state's land and water resources.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 116700 of the Health
and Safety Code is amended to read:
116700. (a) Within 30 days after service of a copy of an order
issued by the department, any state board, an
aggrieved party may file with the superior court a petition
for a writ of mandate for review thereof. Failure to file an
action shall not preclude a party from challenging the
reasonableness and validity of a decision or order
of the department in any judicial proceedings
brought to enforce the decision or order or for any civil or criminal
remedy authorized by this chapter. order.
(b) 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. 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.
(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.
SEC. 2. Section 13321 of the Water Code
is amended to read:
13321. (a) In the case of a review by the state board under
Section 13320, 13320 or 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, the state board, upon notice and hearing, if a
hearing is requested, may stay in whole or in part the effect of the
decision and or order of a regional
board or of the state board.
(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.
(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.
(b)
(d) If a petition is filed with the superior court
to review a decision of the state board,
under Section 13330, any stay in effect at the time of the
filing of 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.
(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.
SEC. 3. Section 13330 of the Water Code
is amended to read:
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 thereof. of the decision or order.
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 otherwise provided
herein, in this section, 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.
(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.
(f)
( g) 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.
(g)
( h) 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.
SEC. 4. Section 13361 of the Water Code
is amended to read:
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 such of
those 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 regional board or the state board seeks a temporary
restraining order, preliminary injunction, or permanent
injunction is sought, injunction, 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 such those allegations and
without such proof.
SECTION 1. It is the intent of the Legislature
to enact legislation that would protect the state's land and water
resources.