BILL ANALYSIS Ó
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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