BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2446 (Gordon)
Version: May 10, 2016
Hearing Date: June 28, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
State Water Resources Control Board: judicial review
DESCRIPTION
This bill would expand the authority of the State Water
Resources Control Board (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.
BACKGROUND
Under the Porter-Cologne Water Quality Control Act, the 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.
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. The author and sponsor argue that ambiguities in
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some provisions of current law have resulted in the Water Boards
receiving, and having to defend against, premature or
unnecessary lawsuits. In these cases, the Water Boards expend
limited resources to defend against these lawsuits.
This bill, sponsored by the SWRCB, seeks to ensure that the
Water Boards are able to act in a timely fashion to protect
water supplies and prevent or mitigate environmental damage, by
clarifying that parties must exhaust administrative remedies
prior to seeking judicial relief.
This bill was heard by the Senate Environmental Quality
Committee on June 15, 2016, and passed out with a vote of 5-2.
CHANGES TO EXISTING LAW
Existing law , the Porter-Cologne Water Quality Control Act,
provides 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. (Wat. Code Secs. 13320
and 13321.)
Existing law 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 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. (Wat. Code Sec. 13330 (a)-(b).)
Existing law provides that if no aggrieved party petitions for a
writ of mandate within the time provided above, a decision or
order of the state board shall not be subject to review by any
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court. (Wat. Code Sec. 13330 (d).)
Existing law 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. (Wat. Code Sec.
13361 (a).)
Existing law 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. (Wat. Code Sec.
13361 (c).)
Existing law requires the State Water Board, under the
California Safe Water Drinking Act, to administer provisions in
the Health & Safety Code that regulate drinking water. To carry
out this responsibility, existing law requires the State Water
Board to appoint a deputy director to oversee issuance and
enforcement of public water system permits and authorizes the
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
days after service of a copy of the order, to file in superior
court a petition for a writ 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. (Health & Saf. Code Sec. 116700
(a).)
Existing law 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. (Health &
Saf. Code Sec. 116700 (b).)
This bill would extend 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
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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.
This bill would require 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.
This bill would authorize 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.
This bill would specify 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.
This bill would provide 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.
COMMENT
1.Stated need for the bill
According to the author:
The State Water Board has identified ambiguities in some
provisions of current law that have resulted in the Water
Boards receiving, and having to defend against, premature
and/or unnecessary lawsuits. In these cases, the Water Boards
expend limited resources to defend against these lawsuits.
Unfortunately, some of these lawsuits are brought for the
purpose of delay, rather than on the merits of any Water Board
action. This bill seeks to ensure that the Water Boards are
able to act in a timely fashion to protect water supplies and
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prevent or mitigate environmental damage.
According to the sponsor:
AB 2446 would result in increased program efficiency by
reducing ambiguities in statute that result in premature legal
challenges and substantial delays in the Water Boards'
abilities to take necessary and appropriate actions to protect
water quality. AB 2446 would enhance the Water Boards'
abilities to protect public health and the environment.
2.Exhaustion of administrative remedies
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. 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.
As a general rule, administrative remedies must be exhausted
before a party may seek judicial review. Thus, a party who is
unhappy with a board decision must typically wait for the board
to actually take action before attempting to challenge the
board's decision. Challenging a board's decision and seeking
remedy must first be attempted through the administrative
process, such as a petition for review, reconsideration, a
hearing, or another form of administrative adjudication, prior
to petitioning a court for relief. For the author and sponsor,
these administrative procedures were established for a reason:
to seek a resolution before resorting to the courts and to
ensure that any potentially harmful conduct is stayed during the
administrative process. This bill, consistent with the general
principles of administrative law, would clarify that all
administrative remedies must be exhausted before a party may
turn to the courts.
3.Evidentiary changes
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This bill would provide two clarifications with regard to SWRCB
actions before the court. First, under an existing provision
of the Safe Drinking Water Act, when a review of the SWRCB
action comes before the court, "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."
(Health & Saf. Code Sec. 116700 (b).) This bill would delete
everything except the final sentence: "In every case, the court
shall exercise its independent judgment on the evidence."
The "independent judgment" standard of review, which is both the
existing standard and the standard proposed by this bill, is
usually contrasted with the "substantial evidence" standard of
judicial review when a court considers a petition for a writ of
administrative mandate. Generally speaking, under the
"substantial evidence" rule, the court is more deferential to
the findings of the agency, asking only if the decision was
reasonable in light of the evidence before it. However, the
"independent judgment" rule is much less deferential to the
agency, allowing the court to use its "independent judgement on
the evidence." (See e.g. Code Civ. Proc. 1094.5 (c).) This
bill would make it clear that the independent judgment rule is
the appropriate standard with a clear simple statement.
Second, this bill would clarify when a party seeking an
injunction needs to show "irreparable harm." As a general rule,
a key requirement for obtaining an injunction is to show that
without the injunction, the party seeking the injunction will
suffer "irreparable harm." However, the Porter-Cologne Act
creates an exception to this rule, providing that in any civil
action brought under the Act in which a temporary restraining
order or an injunction is sought, "it shall not be necessary to
allege or prove at any stage of the proceeding that irreparable
damage will occur should the temporary restraining order,
preliminary injunction, or permanent injunction not be issued."
(Wat. Code Sec. 13361 (c).)
The sponsor argues that this section was intended to ensure that
the water boards do not need to show irreparable harm before
enjoining a harmful or potentially harmful contamination of the
water supply. To ensure that the section will not be
interpreted to relieve a party seeking an injunction against the
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water board from showing irreparable harm, this bill would
clarify that only when "a regional board or the state water
board" seeks an injunction is a showing of irreparable harm not
required. This clarification is consistent with existing law
which charges the boards with protecting the state's water from
harm by preventing contamination. Thus, to require the boards
to prove irreparable harm before it could issue an injunction to
prevent harm would be unreasonable.
4.Concerns raised to a prior version of this bill
A coalition of farm groups opposed an earlier version of this
bill arguing that it "would significantly expand the [State
Water Board's] authority and discretion by circumscribing
judicial review of that authority." Amendments taken on May 10,
2016, addressed these concerns and the coalition, save for one
group, removed their opposition.
The Turlock Irrigation District, in its letter of opposition
from April 18, 2016, wrote:
Under the federal Clean Water Act Section 401, a federal
agency such as Federal Energy Regulation Commission cannot
issue a new permit or license until a state's water quality
agency issues a certificate - called a 401 certificate -
stating that the new permit or license will comply with the
applicable water quality requirements. In California, the
SWRCB issues 401 certificates for hydroelectric projects. The
SWRCB has delegated the author to issue these certificates to
its Executive Director, who can issue certificates without any
public process. These certificates may cost tens of millions
of dollars, including fish passage and increased river flows.
Project owners [?] can seek reconsideration by the SWRCB
itself of a 401 certificate issued by its Executive Director,
but there is no deadline for the SWRCB to complete
reconsideration. [?] In its current form, AB 2446 would
require a hydroelectric project owner to wait until the SWRCB
itself completes its reconsideration before going to court.
It appears as though the hydroelectric permitting process falls
under Division 2 of the Water Code, while this bill would apply
to proceedings under Division 7 of the Water Code. Thus, this
bill would arguably not have any effect on the Turlock
Irrigation District's ability to enjoin the water right
adjudicatory proceedings noted in its letter.
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Support : Sierra Club California
Opposition : The Turlock Irrigation District
HISTORY
Source : State Water Resources Control Board
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Senate Environmental Quality Committee (Ayes 5, Noes 2)
Assembly Floor (Ayes 50, Noes 23)
Assembly Appropriations Committee (Ayes 14, Noes 5)
Assembly Judiciary Committee (Ayes 6, Noes 2)
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