BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                    AB 2446


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          ASSEMBLY THIRD READING


          AB  
          2446 (Gordon)


          As Amended  May 10, 2016


          Majority vote


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Judiciary       |6-2  |Mark Stone, Chau,     |Wagner, Gallagher   |
          |                |     |Chiu, Cristina        |                    |
          |                |     |Garcia, Holden, Ting  |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Appropriations  |14-5 |Gonzalez, Bloom,      |Bigelow, Patterson, |
          |                |     |Bonilla, Bonta,       |Jones, Obernolte,   |
          |                |     |Calderon, Daly,       |Wagner              |
          |                |     |Eggman, Eduardo       |                    |
          |                |     |Garcia, Roger         |                    |
          |                |     |HernŠndez, Holden,    |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Weber, Wood           |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 


          SUMMARY:  Seeks to expand the authority of the State Water  
          Resources Control Board (State Water Board), and to a lesser  








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          extent regional water boards, to issue or not issue a stay  
          pending board proceedings, prohibit certain judicial challenges  
          to water board decisions until after the administrative process  
          has run its course, and clarify two specified evidentiary  
          requirements.  Specifically, this bill:  


          1)Expands a provision of existing law that authorizes the State  
            Water Board, in response to a petition to review an order of a  
            regional water board, to stay the effect of a decision or  
            order of a state or regional water board, to additionally  
            allow the State Water Board to stay an order or decision  
            issued under authority delegated to an officer or employee of  
            the State Water Board, as specified.  Authorizes an 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.  


          2)Requires the State Water Board to issue or deny the  
            above-described stay within 90 days, or with 45 days if the  
            request for a state relates to a water quality certification  
            associated with a hydroelectric facility requiring a license  
            issued by the Federal Energy Regulatory Commission. 


          3)Provides that no legal or equitable process shall issue in any  
            proceeding in any court against the State Water Board, a  
            regional board, or any officer of a state or regional board,  
            to review, prevent, or enjoin any adjudicative proceeding  
            under the Porter-Cologne Act.  Except for a petition for writ  
            of mandate, as authorized in Water Code Section 13321, no  
            legal or equitable process shall issue in any proceeding in  
            any court against the state board or regional board to review,  
            prevent, or enjoin a decision or order by a state or regional  
            water board before a decision or order has been issued and the  
            procedures for administrative review of that decision or order  
            have been exhausted. 









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          4)Specifies that in any civil action brought pursuant to the  
            Porter-Cologne Act in which a regional water board or the  
            State Water Board 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 State Water  
            Board under the Safe Water Drinking Act, if no aggrieved party  
            petitions for a writ of mandate within the 30-day period  
            authorized by the Act, the decision or order of the State  
            Water Board is not subject to review by any court.  Specifies  
            that in every case that comes before the court under this  
            provision, the court shall exercise its independent judgment  
            on the evidence. 


          EXISTING LAW:  


          1)Provides, under the Porter-Cologne Water Quality Control Act,  
            that within 30 days of any action or failure to act by a  
            regional water board, an aggrieved person may petition the  
            State Water Board to review that action or failure to act.   
            Authorizes the State Water Board, in the case of such review  
            and upon notice and hearing, if hearing is requested, to stay  
            in whole or in part the effect of the decision and order of a  
            regional board of the State Water Board.  


          2)Authorizes an aggrieved party, not later than 30 days from  
            service of a copy of a decision or order issued by the State  
            Water Board, to file in superior court a petition for a writ  
            of mandate for review of the decision or order.  Specifies  
            that an aggrieved party must file a petition for  
            reconsideration with the State Water Board to exhaust that  








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            party's administrative remedies only if the initial decision  
            or order is issued under authority delegated to an officer or  
            employee of the State Water Board and the State Water Board by  
            regulation has authorized a petition for reconsideration.   
            Specifies that the party aggrieved by the decision of the  
            State Water Board may obtain a review of the decision or order  
            of a regional water board by filing in superior court a  
            petition for writ of mandate not later than 30 days from the  
            date on which the State Water Board denies review.  


          3)Provides that if no aggrieved party petitions for a writ of  
            mandate within the time provided by 2) above, a decision or  
            order of the state board shall not be subject to review by any  
            court.  


          4)Provides that every civil action brought under the provisions  
            of the Porter-Cologne Water Quality Control Act at the request  
            of the 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 of those actions relating to the same  
            discharge may be joined or consolidated.  


          5)Provides that in any civil action brought under the provisions  
            of the Porter-Cologne Water Quality Control Act, for an  
            injunction or temporary restraining order, it shall not be  
            necessary to allege or prove that irreparable harm will occur  
            if the injunction or restraining order is issued.  


          6)Requires the State Water Board to administer provisions in the  
            Health and Safety Code that regulate drinking water.   
            Authorizes a deputy director to issue orders directing  
            corrective actions if the conditions of any permit,  
            regulation, or standard is violated.  Authorizes a party  
            aggrieved by any order, within 30 day after service of a copy  
            of the order, to file in superior court a petition for a writ  








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            of mandate to review the order.  Specifies, however, that  
            failure to file an action shall not preclude a party from  
            challenging the reasonableness or validity of a decision or  
            order in any judicial proceeding brought to enforce the  
            decision or order.  


          7)Provides that in any action challenging an order or decision,  
            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 the  
            Safe Drinking Water Act.  In every case, the court shall  
            exercise its independent judgment on the evidence.  


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, likely cost savings to the State Water Board and the  
          Attorney General's Office, associated with avoiding premature  
          litigation. 


          COMMENTS:  Under the Porter-Cologne Water Quality Control Act,  
          the State Water Board has ultimate authority to regulate water  
          quality in the state.  Porter-Cologne also established nine  
          regional water boards to oversee water quality on a day-to-day  
          and regional basis.  Among the key tools available to the state  
          and regional water boards are the power to issue or deny water  
          discharge permits, issue clean-up and cease and desist orders to  
          polluters, and issue stays against harmful conduct and  
          discharges while a matter is pending before the board.  This  
          bill deals primarily with the ability of persons subject to such  
          orders to challenge those orders.  Existing law sets out  
          prescribed procedures and timelines that the state and regional  
          water boards must conform to, including noticing hearings,  
          making decisions, and issuing orders designed to protect water  
          quality.  Existing law also sets forth procedures and timelines  
          that persons aggrieved by an order or decision must conform to  
          when challenging those orders and decisions.   









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          According to the State Water Board, the sponsor of this bill,  
          one of the more vexing problems water boards sometimes face is  
          the efforts of dischargers and polluters to delay board  
          proceedings, both state and regional, and to seek injunctions  
          and court orders overturning or staying a board order even  
          before the administrative process runs its course.  That is,  
          under existing law, a state or regional water board has the  
          authority to issue or deny waste discharge permits and to take  
          actions against those who violate the conditions of the permit  
          or other laws or regulations.  For example, if a regional water  
          board issues an order to halt a permittee from discharging  
          waste, the person aggrieved - the person subject to the order -  
          may file a petition with the State Water Board for  
          "reconsideration" of a board's decision.  Only after the  
          administrative process is complete, would the aggrieved party be  
          permitted to seek a court order.  However, the sponsor, the  
          State Water Board, 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 would clarify 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.  The bill would specify  
          that in every case that comes before the court under this  
          provision, the court shall exercise its independent judgment on  
          the evidence presented to it, but eliminates an existing  
          requirement that the court consider all relevant evidence that,  
          in the court's judgment, should be considered.  Finally, to  
          address a concern raised by some water agencies about the  
          possible consequences of delay in responding to a request for a  
          stay, the bill was recently amended to require the State Water  








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          Board to respond to a request for a stay within 90 days, or  
          within 45 days if the stay relates to a hydroelectric facility  
          requiring a license by the Federal Energy Regulatory Commission.  





          Analysis Prepared by:                                             
                          Thomas Clark / JUD. / (916) 319-2334  FN:  
          0003004