BILL ANALYSIS Ó
AB 2446
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Date of Hearing: May 18, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
2446 (Gordon) - As Amended May 10, 2016
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Urgency: No State Mandated Local Program: NoReimbursable: No
SUMMARY:
This bill expands the authority of the State Water Resources
Control Board (SWRCB), and to a lesser extent regional water
boards, to issue or not issue a stay pending board proceedings,
prohibit certain judicial challenges to water board decisions
AB 2446
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until after the administrative process has run its course, and
clarifies two specified evidentiary requirements. Specifically,
this bill:
1)Expands a provision of existing law authorizing the SWRCB-in
response to a petition to review an order of a regional water
board, to stay the effect of a decision or order of the state
or regional water board-to additionally allow the SWRCB to
stay an order or decision issued under authority delegated to
an officer or employee of the SWRCB.
2)Requires the SWRCB to issue or deny the stay within 90 days,
or within 45 days if the request for a stay relates to a water
quality certification associated with a hydroelectric facility
requiring a license issue by the Federal Energy Regulatory
Commission. If the board fails to meet these deadlines, the
request for a stay is deemed denied.
3)Authorizes an aggrieved party, within 30 days of any order of
the SWRCB issuing or denying a stay or within 30 days of the
board failing to issue or deny a stay, to file with the
superior court a petition for writ of mandate for review of
the board's order or lack thereof.
4)Specifies that in any civil action brought pursuant to the
Porter-Cologne Act in which a regional water board or the
SWRCB seeks an injunction or restraining order, it shall not
be necessary to allege or prove that irreparable harm will
occur should the temporary restraining order, preliminary
injunction, or permanent injunction not be issued.
5)Provides that for any order or decision of the SWRCB under the
Safe Drinking Water Act, if no aggrieved party petitions for a
writ of mandate within the 30-day period authorized by the
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Act, the decision or order of the board is not subject to
review by any court.
FISCAL EFFECT:
Likely cost savings to the SWRCB and the Attorney General's
Office, associated with avoiding premature litigation.
COMMENTS:
1)Background. Under California's Porter-Cologne Water Quality
Act, the SWRCB and nine regional water boards are charged with
protecting the quality of the state's waters. The most
important tools that state and regional boards use to protect
water quality include issuing (or refusing to issue) discharge
permits, issuing clean up and abatement orders to any person
who causes or permits waste to be discharged into state water,
and issuing cease and desist orders to address violations, or
threatened violations, of waste discharges.
2)Purpose. According to the author, AB 2446 will enhance the
ability of the water boards to protect water supplies and
mitigate environmental damage by addressing ambiguities in
existing law that have been used to delay or prematurely
challenge water board proceedings, decisions, and orders.
This bill does so by amending provisions that establish rules
and procedures for challenging the decisions of the state and
regional water boards. The author contends that the bill is
primarily a clarification of existing law, insofar as it
requires the exhaustion of administrative remedies before a
party can go to court for a writ of mandate, seeking to undo a
board decision.
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The SWRCB, which is sponsoring this bill, contends that some
dischargers have exploited "ambiguities" in existing law to
seek injunctions that delay board proceedings or seek judicial
review to overturn a board decision. This bill clarifies what
is seemingly implied in existing law, and is generally true of
most administrative actions: a party who is unhappy with a
board decision must wait for the board to actually take action
before attempting to challenge the board's decision by
recourse to any available administrative proceeding, such as a
petition for review, reconsideration, a hearing, and other
administrative adjudication that is necessary before going to
the courts for relief.
Analysis Prepared by:Chuck Nicol / APPR. / (916)
319-2081