Amended in Assembly May 10, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2446


Introduced by Assembly Member Gordon

February 19, 2016


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. 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.begin insert The bill would generally require the state board to issue or deny the stay within 90 days of receipt of a request for stay, as specified, and would deem the request for stay denied if the state board fails to issue or deny the stay within the prescribed applicable period.end insert The bill would authorize any aggrieved party, within 30 days of any order of the state board issuing or denying abegin delete stay,end deletebegin insert stay or within 30 days of a stay being deemed denied,end insert to file with the superior court a petition for writ ofbegin delete mandate.end deletebegin insert mandate and would specify the law that governs those proceedings.end insert

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.

Thisbegin insert bill would require the state board to order or deny reconsideration on a petition not later than 90 days from the date the state board adopts the decision or order. Theend insert 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 officerbegin insert or employeeend insert 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 statebegin delete board or aend deletebegin insert board, aend insert regionalbegin delete boardend deletebegin insert board, or any officer or employee of the state board or a regional boardend insert 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

P3    1

SECTION 1.  

Section 116700 of the Health and Safety Code
2 is amended to read:

3

116700.  

(a) Within 30 days after service of a copy of an order
4issued by the state board, an aggrieved party may file with the
5superior court a petition for a writ of mandate for review of the
6order.

7(b) In every case, the court shall exercise its independent
8judgment on the evidence.

9(c) Except as otherwise provided in this section, subdivisions
10(e) and (f) of Section 1094.5 of the Code of Civil Procedure shall
11govern proceedings pursuant to this section.

12(d) If no aggrieved party petitions for a writ of mandate within
13the time provided by this section, the decision or order of the state
14board is not subject to review by any court.

15

SEC. 2.  

Section 13321 of the Water Code is amended to read:

16

13321.  

(a) begin insert(1)end insertbegin insertend insertIn the case of a review by the state board under
17Section 13320 or review by the state board of a decision or order
18issued under authority delegated to an officer or employee of the
19state board where the state board by regulation has authorized a
20petition for reconsideration, the state board, upon notice and
P4    1hearing, if a hearing is requested, may stay in whole or in part the
2effect of the decision or order of a regional board or of the state
3board.begin insert Except as provided in paragraph (2), the state board shall
4issue or deny the stay within 90 days of receipt of a request for
5stay that complies with the applicable regulations for requesting
6a stay. The party requesting the stay may extend the 90-day period.end insert

begin insert

7
(2) If the request for stay relates to a water quality certification
8issued under Section 13160 authority delegated to an officer or
9employee of the state board for a discharge for a proposed activity
10associated with a hydroelectric facility and the proposed activity
11requires a license or an amendment to a license issued by the
12Federal Energy Regulatory Commission, the state board shall
13issue or deny the stay within 45 days of receipt of a request for
14stay that complies with the applicable regulations for requesting
15a stay. The party requesting the stay may extend the 45-day period.

end insert
begin insert

16
(3) If the state board fails to issue or deny the stay within the
17applicable period specified in paragraph (1) or (2), the request
18for stay shall be deemed denied on the first day following the
19applicable period.

end insert

20(b) begin insert(1)end insertbegin insertend insertWithin 30 days of any order of the state board issuing
21or denying abegin delete stay,end deletebegin insert stay or within 30 days of a stay being deemed
22denied pursuant to paragraph (3) of subdivision (a),end insert
any aggrieved
23party may file with the superior court a petition for writ ofbegin delete mandate.end delete
24
begin insert mandate for review of the state board’s order issuing or denying
25a stay or failure to issue or deny a stay.end insert

begin insert

26
(2) (A) Except as otherwise provided in this section, Section
271094.5 of the Code of Civil Procedure shall govern proceedings
28for which petitions are filed under this section.

end insert
begin insert

29
(B) If the superior court finds that the state board failed to
30follow the procedures specified in subdivision (a) or otherwise
31prejudicially abused its discretion, the superior court may set aside
32the state board’s order issuing or denying the stay and may stay,
33in whole or in part, the effect of the decision or order of a regional
34board or of the state board pending review by the state board.

end insert
begin insert

35
(C) Notwithstanding subparagraph (A) or (B), if a request for
36stay is subject to paragraph (2) of subdivision (a), the superior
37court may proceed without a certified administrative record and
38may stay, in whole or in part, the effect of the order or decision
39issued under delegated authority pending the state board’s review
P5    1of the order or decision, however, no such stay shall be imposed
2if the court is satisfied that it is against the public interest.

end insert
begin insert

3
(3) In an action under this section or Section 13330 involving
4a water quality certification issued pursuant to Section 13160, the
5court shall not issue a stay or other order that enjoins or has the
6effect of preventing the state board from taking action necessary
7to avoid a waiver of water quality certification for failure to act
8within the period provided under federal law. In determining
9whether there is a risk of waiver, the court shall consider the
10applicable regulations or policies of the federal agency issuing
11the permit or license subject to the water quality certification.

end insert

12(c) If the state board or the superior court grants a stay under
13this section, the stay may be made effective as of the effective date
14of the regional board or state board decision or order.

15(d) If a petition is filed with the superior court under Section
1613330, any stay in effect at the time of the filing of the petition
17shall remain in effect by operation of law for a period of 20 days
18from the date of the filing of that petition.

19

SEC. 3.  

Section 13330 of the Water Code is amended to read:

20

13330.  

(a) Not later than 30 days from the date of service of
21a copy of a decision or order issued by the state board under this
22division, other than a decision or order issued pursuant to Article
237 (commencing with Section 13550) of Chapter 7, any aggrieved
24party may file with the superior court a petition for writ of mandate
25for review of the decision or order. An aggrieved party must file
26a petition for reconsideration with the state board to exhaust that
27party’s administrative remedies only if the initial decision or order
28is issued under authority delegated to an officer or employee of
29the state board and the state board by regulation has authorized a
30petition for reconsideration.begin insert The state board shall order or deny
31reconsideration on a petition therefor not later than 90 days from
32the date the state board adopts the decision or order.end insert

33(b) A party aggrieved by a final decision or order of a regional
34board subject to review under Section 13320 may obtain review
35of the decision or order of the regional board in the superior court
36by filing in the court a petition for writ of mandate not later than
3730 days from the date on which the state board denies review.

38(c) The time for filing an action or proceeding subject to Section
3921167 of the Public Resources Code for a person who seeks review
40of the regional board’s decision or order under Section 13320, or
P6    1who seeks reconsideration under a state board regulation
2authorizing a petition for reconsideration, shall commence upon
3the state board’s completion of that review or reconsideration.

4(d) If no aggrieved party petitions for writ of mandate within
5the time provided by this section, a decision or order of the state
6board or a regional board shall not be subject to review by any
7court.

8(e) Except as provided in this section, Section 1094.5 of the
9Code of Civil Procedure shall govern proceedings for which
10petitions are filed pursuant to this section. For the purposes of
11subdivision (c) of Section 1094.5 of the Code of Civil Procedure,
12the court shall exercise its independent judgment on the evidence
13in any case involving the judicial review of a decision or order of
14the state board issued under Section 13320, or a decision or order
15of a regional board for which the state board denies review under
16Section 13320, other than a decision or order issued under Section
1713323.

18(f) Except as provided in this section, no legal or equitable
19process shall issue in any proceeding in any court against the state
20board, a regional board, or any officer of the state board or a
21regional board to review, prevent, or enjoin any adjudicative
22proceeding under this division. Except as provided in this section
23and Section 13321, no legal or equitable process shall issue in any
24proceeding in any court against the state board, a regional board,
25or any officerbegin insert or employeeend insert of the state board or a regional board
26to review, prevent, or enjoin a decision or order by the statebegin delete board
27or a regional boardend delete
begin insert board, a regional board, or any officer or
28employee of the state board or a regional boardend insert
before a decision
29or order is issued and the procedures for administrative review of
30that decision or order have been exhausted.

31(g) A party aggrieved by a decision or order issued by the state
32board under Article 7 (commencing with Section 13550) of Chapter
337 may petition for reconsideration or judicial review in accordance
34with Chapter 4 (commencing with Section 1120) of Part 1 of
35Division 2.

36(h) For purposes of this section, a decision or order includes a
37final action in an adjudicative proceeding and an action subject to
38Section 11352 of the Government Code, but does not include an
39action subject to Section 11353 of the Government Code or the
40adoption, amendment, or repeal of a regulation under Chapter 3.5
P7    1(commencing with Section 11340) of Part 1 of Division 3 of Title
22 of the Government Code.

3

SEC. 4.  

Section 13361 of the Water Code is amended to read:

4

13361.  

(a) Every civil action brought under the provisions of
5this division at the request of a regional board or the state board
6shall be brought by the Attorney General in the name of the people
7of the State of California and any of those actions relating to the
8same discharge may be joined or consolidated.

9(b) Any civil action brought pursuant to this division shall be
10brought in a county in which the discharge is made, or proposed
11to be made. However, any action by or against a city, city and
12county, county, or other public agency shall, upon motion of either
13party, be transferred to a county or city and county not a party to
14the action or to a county or city and county other than that in which
15the city or public agency is located.

16(c) In any civil action brought pursuant to this division in which
17a regional board or the state board seeks a temporary restraining
18order, preliminary injunction, or permanent injunction, it shall not
19be necessary to allege or prove at any stage of the proceeding that
20irreparable damage will occur should the temporary restraining
21order, preliminary injunction, or permanent injunction not be
22issued, or that the remedy at law is inadequate, and the temporary
23restraining order, preliminary injunction, or permanent injunction
24shall issue without those allegations and proof.



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