BILL ANALYSIS Ó
AB 2446
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CONCURRENCE IN SENATE AMENDMENTS
AB
2446 (Gordon)
As Amended August 1, 2016
Majority vote
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|ASSEMBLY: |50-23 |(May 23, 2016) |SENATE: |23-13 |(August 18, |
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Original Committee Reference: JUD.
SUMMARY: Seeks to expand the authority of the State Water
Resources Control Board (State Water Board), and to a lesser
extent regional water 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 clarify two specified evidentiary
requirements. Specifically, this bill:
1)Expands a provision of existing law that authorizes the State
Water Board, in response to a petition to review an order of a
regional water board, to stay the effect of a decision or
order of a state or regional water board, to additionally
allow the State Water Board to stay an order or decision
issued under authority delegated to an officer or employee of
the State Water Board, as specified. Authorizes an aggrieved
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party, within 30 days of any order of the State Board issuing
or denying a stay, to file with the superior court a petition
for writ of mandate.
2)Requires the State Water Board to issue or deny the
above-described stay within 90 days, or within 45 days if the
request for a stay relates to either of the following:
a) A water quality certification issued, as specified, for
a discharge for a proposed activity associated with a
hydroelectric facility and the proposed activity requires a
license issued by the Federal Energy Regulatory Commission.
b) A cleanup and abatement order issued under, as
specified.
3)Provides that no legal or equitable process shall issue in any
proceeding in any court against the State Water Board, a
regional board, or any officer of a state or regional board,
to review, prevent, or enjoin any adjudicative proceeding
under the Porter-Cologne Act. Except for a petition for writ
of mandate, as authorized in Water Code Section 13321, no
legal or equitable process shall issue in any proceeding in
any court against the state board or regional board to review,
prevent, or enjoin a decision or order by a state or regional
water board before a decision or order has been issued and the
procedures for administrative review of that decision or order
have been exhausted.
4)Specifies that in any civil action brought pursuant to the
Porter-Cologne Act in which a regional water board or the
State Water Board 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.
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5)Provides that for any order or decision of the State Water
Board under the Safe Water Drinking 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 State
Water Board is not subject to review by any court. Specifies
that in every case that comes before the court under this
provision, the court shall exercise its independent judgment
on the evidence.
The Senate amendments clarify the time frame within which the
state board must issue or deny a requested stay.
EXISTING LAW:
1)Provides, under the Porter-Cologne Water Quality Control Act,
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.
2)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
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date on which the State Water Board denies review.
3)Provides that if no aggrieved party petitions for a writ of
mandate within the time provided by 2) above, a decision or
order of the state board shall not be subject to review by any
court.
4)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.
5)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.
6)Requires the State Water Board to administer provisions in the
Health and Safety Code that regulate drinking water.
Authorizes a 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 day 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.
7)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
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Safe Drinking Water Act. In every case, the court shall
exercise its independent judgment on the evidence.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: Under the Porter-Cologne Water Quality Control Act,
the State Water Board 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.
According to the State Water Board, the sponsor of this bill,
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
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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.
This bill would clarify what is seemingly implied in existing
law, and is generally true of most administrative actions: a
party who is unhappy with a board decision must wait for the
board to actually take action before attempting to challenge the
board's decision by recourse to any available administrative
proceeding, such as a petition for review, reconsideration, a
hearing, and other administrative adjudication that is necessary
before going to the courts for relief. The bill would specify
that in every case that comes before the court under this
provision, the court shall exercise its independent judgment on
the evidence presented to it, but eliminates an existing
requirement that the court consider all relevant evidence that,
in the court's judgment, should be considered. Finally, to
address a concern raised by some water agencies about the
possible consequences of delay in responding to a request for a
stay, the bill was recently amended to require the State Water
Board to respond to a request for a stay within 90 days, or
within 45 days if the stay relates to a hydroelectric facility
requiring a license by the Federal Energy Regulatory Commission.
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334 FN:
0003827
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