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. 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. The bill would authorize any aggrieved party, within 30 days of any order of the state board issuing or denying a stay or within 30 days of a stay being deemed denied, to file with the superior court a petition for writ of mandate and would specify the law that governs those proceedings.
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 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. The 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 or employee 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, a regional board, or any officer or employee of 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.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 116700 of the Health and Safety Code
2 is amended to read:
(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.
Section 13321 of the Water Code is amended to read:
(a) (1) In 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
P4 1petition for reconsideration, the state board, upon notice and
2hearing, if a hearing is requested, may stay in whole or in part the
3effect of the decision or order of a regional board or of the state
4board. Except as provided in paragraph (2), the state board shall
5issue or deny the stay within 90 days of receipt of a request for
6stay that complies with the applicable regulations for requesting
7a stay. The party requesting the stay may
extend the 90-day period.
8(2) begin insert(A)end insertbegin insert end insertIf the request for stay relates tobegin delete a water quality begin insert either of the following,end insert
9certification issued under Section 13160 authority delegated to an
10officer or employee of the state board for a discharge for a proposed
11activity associated with a hydroelectric facility and the proposed
12activity requires a license or an amendment to a license issued by
13the Federal Energy Regulatory Commission,end delete
14 the state board shall issue or deny the stay within 45 days of receipt
15of a request for stay that complies with the
applicable regulations
16for requestingbegin delete a stay. The party requesting the stay may extend the
17
45-day period.end delete
18
(i) A water quality certification issued under Section 13160
19authority delegated to an officer or employee of the state board
20for a discharge for a proposed activity associated with a
21hydroelectric facility and the proposed activity requires a license
22or an amendment to a license issued by the Federal Energy
23Regulatory Commission.
24
(ii) A cleanup and abatement order issued under Section 13304
25authority delegated to an officer or employee of the state board
26or a regional board that requires the provision of alternate water
27supplies within 120 days of the
date of the order.
28
(B) The party requesting a stay may extend the 45-day period
29described in subparagraph (A).
30(3) If the state board fails to issue or deny the stay within the
31applicable period specified in paragraph (1) or (2), the request for
32stay shall be deemed denied on the first day following the
33applicable period.
34(b) (1) Within 30 days of any order of the state board issuing
35or denying a stay or within 30 days of a stay being deemed denied
36pursuant to paragraph (3) of subdivision (a), any aggrieved party
37may file with the superior court a petition for writ of mandate for
38review of the
state board’s order issuing or denying a stay or failure
39to issue or deny a stay.
P5 1(2) (A) Except as otherwise provided in this section, Section
21094.5 of the Code of Civil Procedure shall govern proceedings
3for which petitions are filed under this section.
4(B) If the superior court finds that the state board failed to follow
5the procedures specified in subdivision (a) or otherwise
6prejudicially abused its discretion, the superior court may set aside
7the state board’s order issuing or denying the stay and may stay,
8in whole or in part, the effect of the decision or order of a regional
9board or of the state board pending review by the state board.
10(C) Notwithstanding subparagraph (A) or (B), if a request for
11stay
is subject to paragraph (2) of subdivision (a), the superior
12court may proceed without a certified administrative record and
13may stay, in whole or in part, the effect of the order or decision
14issued under delegated authority pending the state board’s review
15of the order or decision, however, no such stay shall be imposed
16if the court is satisfied that it is against the public interest.
17(3) In an action under this section or Section 13330 involving
18a water quality certification issued pursuant to Section 13160, the
19court shall not issue a stay or other order that enjoins or has the
20effect of preventing the state board from taking action necessary
21to avoid a waiver of water quality certification for failure to act
22within the period provided under federal law. In determining
23whether there is a risk of waiver, the court shall consider the
24applicable
regulations or policies of the federal agency issuing the
25permit or license subject to the water quality certification.
26(c) If the state board or the superior court grants a stay under
27this section, the stay may be made effective as of the effective date
28of the regional board or state board decision or order.
29(d) If a petition is filed with the superior court under Section
3013330, any stay in effect at the time of the filing of the petition
31shall remain in effect by operation of law for a period of 20 days
32from the date of the filing of that petition.
Section 13330 of the Water Code is amended to read:
(a) Not later than 30 days from the date of service of
35a copy of a decision or order issued by the state board under this
36division, other than a decision or order issued pursuant to Article
377 (commencing with Section 13550) of Chapter 7, any aggrieved
38party may file with the superior court a petition for writ of mandate
39for review of the decision or order. An aggrieved party must file
40a petition for reconsideration with the state board to exhaust that
P6 1party’s administrative remedies only if the initial decision or order
2is issued under authority delegated to an officer or employee of
3the state board and the state board by regulation has authorized a
4petition for reconsideration. The state board shall order or deny
5reconsideration on a petition
therefor not later than 90 days from
6the date the state board adopts the decision or order.
7(b) A party aggrieved by a final decision or order of a regional
8board subject to review under Section 13320 may obtain review
9of the decision or order of the regional board in the superior court
10by filing in the court a petition for writ of mandate not later than
1130 days from the date on which the state board denies review.
12(c) The time for filing an action or proceeding subject to Section
1321167 of the Public Resources Code for a person who seeks review
14of the regional board’s decision or order under Section 13320, or
15who seeks reconsideration under a state board regulation
16authorizing a petition for reconsideration, shall commence upon
17the state board’s completion of that review or
reconsideration.
18(d) If no aggrieved party petitions for writ of mandate within
19the time provided by this section, a decision or order of the state
20board or a regional board shall not be subject to review by any
21court.
22(e) Except as provided in this section, Section 1094.5 of the
23Code of Civil Procedure shall govern proceedings for which
24petitions are filed pursuant to this section. For the purposes of
25subdivision (c) of Section 1094.5 of the Code of Civil Procedure,
26the court shall exercise its independent judgment on the evidence
27in any case involving the judicial review of a decision or order of
28the state board issued under Section 13320, or a decision or order
29of a regional board for which the state board denies review under
30Section 13320, other than a decision or order issued
under Section
3113323.
32(f) Except as provided in this section, no legal or equitable
33process shall issue in any proceeding in any court against the state
34board, a regional board, or any officer of the state board or a
35regional board to review, prevent, or enjoin any adjudicative
36proceeding under this division. Except as provided in this section
37and Section 13321, no legal or equitable process shall issue in any
38proceeding in any court against the state board, a regional board,
39or any officer or employee of the state board or a regional board
40to review, prevent, or enjoin a decision or order by the state board,
P7 1a regional board, or any officer or employee of the state board or
2a regional board before a decision or order is issued and the
3procedures for administrative review of that decision or order have
4been exhausted.
5(g) A party aggrieved by a decision or order issued by the state
6board under Article 7 (commencing with Section 13550) of Chapter
77 may petition for reconsideration or judicial review in accordance
8with Chapter 4 (commencing with Section 1120) of Part 1 of
9Division 2.
10(h) For purposes of this section, a decision or order includes a
11final action in an adjudicative proceeding and an action subject to
12Section 11352 of the Government Code, but does not include an
13action subject to Section 11353 of the Government Code or the
14adoption, amendment, or repeal of a regulation under Chapter 3.5
15(commencing with Section 11340) of Part 1 of Division 3 of Title
162 of the Government Code.
Section 13361 of the Water Code is amended to read:
(a) Every civil action brought under the provisions of
19this division at the request of a regional board or the state board
20shall be brought by the Attorney General in the name of the people
21of the State of California and any of those actions relating to the
22same discharge may be joined or consolidated.
23(b) Any civil action brought pursuant to this division shall be
24brought in a county in which the discharge is made, or proposed
25to be made. However, any action by or against a city, city and
26county, county, or other public agency shall, upon motion of either
27party, be transferred to a county or city and county not a party to
28the action or to a county or
city and county other than that in which
29the city or public agency is located.
30(c) In any civil action brought pursuant to this division in which
31a regional board or the state board seeks a temporary restraining
32order, preliminary injunction, or permanent injunction, it shall not
33be necessary to allege or prove at any stage of the proceeding that
34irreparable damage will occur should the temporary restraining
35order, preliminary injunction, or permanent injunction not be
36issued, or that the remedy at law is inadequate, and the temporary
37restraining order, preliminary injunction, or permanent injunction
38shall issue without those allegations and proof.
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