BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2446|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 2446
Author: Gordon (D)
Amended: 8/1/16 in Senate
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-2, 6/15/16
AYES: Wieckowski, Hill, Jackson, Leno, Pavley
NOES: Gaines, Bates
SENATE JUDICIARY COMMITTEE: 5-2, 6/28/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 50-23, 5/23/16 - See last page for vote
SUBJECT: State Water Resources Control Board: judicial
review
SOURCE: State Water Resources Control Board
DIGEST: This bill expands 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,
prohibits certain judicial challenges to water board decisions
until after the administrative process has run its course, and
clarifies two specified evidentiary requirements.
ANALYSIS:
Existing law:
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1)Enacts the Porter-Cologne Water Quality Act (Porter-Cologne
Act) which:
a) Makes 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.
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)Enacts the California Safe Drinking Water Act (SDWA) which:
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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.
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
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proceedings, prohibits 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
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
SDWA, 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.
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Background
Under the Porter-Cologne Act, SWRCB has ultimate authority to
regulate water quality in the state. Porter-Cologne Act 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
1)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.)" SWRCB argues that this bill will "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."
SWRCB 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, SWRCB argues that this will also
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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 SWRCB 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,
SWRCB, 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.
2)Evidentiary changes. AB 2446 provides two clarifications with
regard to SWRCB actions before the court.
First, under an existing provision of SDWA, 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 deletes everything except the final sentence: "In every
case, the court shall exercise its independent judgment on the
evidence."
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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 makes it clear that the independent judgment rule is
the appropriate standard with a clear simple statement.
Second, this bill clarifies 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 water board from showing irreparable
harm, this bill clarifies 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
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irreparable harm before it could issue an injunction to
prevent harm would be unreasonable.
3)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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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified7/27/16)
State Water Resources Control Board (source)
Sierra Club California
OPPOSITION: (Verified7/27/16)
The Turlock Irrigation District
ASSEMBLY FLOOR: 50-23, 5/23/16
AYES: Alejo, Atkins, Baker, Bloom, Bonilla, Bonta, Brown,
Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper,
Dababneh, Daly, Dodd, Frazier, Cristina Garcia, Eduardo
Garcia, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández,
Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, Maienschein,
McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Weber, Williams, Wood, Rendon
NOES: Achadjian, Travis Allen, Bigelow, Brough, Chang, Chávez,
Beth Gaines, Gallagher, Gatto, Gray, Grove, Harper, Jones,
Kim, Lackey, Linder, Mathis, Mayes, Melendez, Obernolte,
Olsen, Wagner, Wilk
NO VOTE RECORDED: Arambula, Dahle, Eggman, Hadley, Patterson,
Steinorth, Waldron
Prepared by:Rachel Machi Wagoner / E.Q. / (916) 651-4108
8/3/16 19:36:06
**** END ****
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