BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: AB 2446 ----------------------------------------------------------------- |Author: |Gordon | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |5/10/2016 |Hearing |6/15/2016 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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. AB 2446 (Gordon) Page 2 of ? 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. AB 2446 (Gordon) Page 3 of ? 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 AB 2446 (Gordon) Page 4 of ? 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 AB 2446 (Gordon) Page 5 of ? 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. AB 2446 (Gordon) Page 6 of ? SOURCE: State Water Resources Control Board SUPPORT: Sierra Club OPPOSITION: The Turlock Irrigation District -- END --