BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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  








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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