BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Wieckowski, Chair
                                2015 - 2016  Regular 
           
          Bill No:            AB 2446
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          |Author:    |Gordon                                               |
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          |Version:   |5/10/2016              |Hearing      |6/15/2016       |
          |           |                       |Date:        |                |
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          |Urgency:   |No                     |Fiscal:      |Yes             |
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          |Consultant:|Rachel Machi Wagoner                                 |
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          SUBJECT:  State Water Resources Control Board:  judicial review

            ANALYSIS:
          
          Existing law:  
          
          1) Under the Porter-Cologne Water Quality Act:


             a)    Makes the State Water Resources Control Board (SWRCB)  
                and nine regional water quality control boards (regional  
                boards) responsible for protecting the quality of the  
                state's waters by: issuance of discharge permits, clean up  
                and abatement orders to any person who causes or permits  
                waste to be discharged into state water, and cease and  
                desist orders to address violations, or threatened  
                violations, of waste discharges.


             b)    Authorizes within 30 days of any action or failure to  
                act by a California regional water quality control board  
                under specified law, an aggrieved person to petition SWRCB  
                to review that action or failure to act.  


             c)    Authorizes SWRCB, 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.








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             d)    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 SWRCB or a regional board, and  
                governs those proceedings. 


             e)    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.


          2)  Under  the California Safe Drinking Water Act (SDWA), 


             a)    Requires SWRCB to administer provisions relating to the  
                regulation of drinking water to protect public health by:  
                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.


             b)    Requires SWRCB to appoint a deputy director to oversee  
                the issuance and enforcement of public water system  
                permits and delegates certain authorities of SWRCB to the  
                deputy director. 


             c)    Authorizes the deputy director to issue an order  
                directing certain actions whenever the deputy director  
                determines that a person has violated or is violating  
                SDWA, or any permit, regulation, or standard issued or  
                adopted pursuant to SDWA. 


             d)    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. 










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             e)    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 SDWA and  
                requires, in every case, the court to exercise its  
                independent judgment on the evidence.


             f)    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:  Expands the authority of SWRCB, and to a lesser  
          extent regional 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 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  








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            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  
            Act, the decision or order of the board is not subject to  
            review by any court.


            Background
          
          1) Under the Porter-Cologne Water Quality Control Act, SWRCB 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.   


            Comments
          
          Purpose of Bill.  According to SWRCB, the sponsor, AB 2446 will  
          "clarify the procedures for administrative and judicial review  
          of . . . actions taken by the State Water Board and Regional  
          Water Boards (collectively referred to as the Water Boards.)"   
          The State Water Board argues that this measure will "result in  
          increased program efficiency by reducing ambiguities in statute  








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          that result in premature legal challenges and substantial delays  
          in the Water Boards' abilities to take necessary and appropriate  
          actions to protect water quality."  The State Water Board also  
          argues that the provisions of this bill will clarify the intent  
          of existing law.  For example, it claims that a provision in  
          existing law which provides that the boards need not show  
          irreparable harm in seeking an injunction or a restraining order  
          does not mean that a party seeking an injunction against the  
          boards is excused from showing irreparable harm.  Finally, the  
          State Water Board argues that this will also clarify that a  
          party wishing to challenge a board cannot seek judicial review  
          before a board has taken action and the required administrative  
          review process has been exhausted. 


          According to background material provided by the author and  
          sponsor, 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.


           
           DOUBLE REFERRAL:
          
          If this measure is approved by the Senate Environmental Quality  
          Committee, the do pass motion must include the action to  
          re-refer the bill to the Senate Judiciary Committee.  









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           SOURCE:               State Water Resources Control Board
           
           SUPPORT:               

          Sierra Club
           
           OPPOSITION:    

          The Turlock Irrigation District  


           
                                          
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