BILL ANALYSIS                                                                                                                                                                                                    



                                                               AB 1834
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2009-2010 Regular Session
                                           
           BILL NO:    AB 1834
           AUTHOR:     Solorio
           AMENDED:    Proposed to be amended June 22, 2010 in SNRW
           FISCAL:     Yes               HEARING DATE:     June 28, 2010
           URGENCY:    No                CONSULTANT:       Amber Hartman
            
           SUBJECT  :  RAINWATER CAPTURE ACT OF 2010

            SUMMARY  :    
           
            Existing law  :

           1) Under the Porter-Cologne Water Quality Control Act,  
              establishes the State Water Resources Control Board (SWRCB)  
              and regional water quality control boards (RWQCBs) in the  
              California Environmental Protection Agency, which must be  
              "the principal state agencies with primary responsibility  
              for the coordination and control of water quality" (Water  
              Code 13000 et seq.).

           2) Under the Stormwater Resource Planning Act of 2009  
              (10560-10564):

              a)    Authorizes a city, county, or special district  
                 (individually or jointly) to develop a stormwater  
                 resource plan that meets certain requirements.

              b)    Provides that a stormwater resource plan must be  
                 designed to augment local water supply through  
                 groundwater recharge or storage for beneficial reuse of  
                 stormwater; prioritize source control, onsite and local  
                 infiltration, and reuse of stormwater; reestablish  
                 natural water drainage treatment and infiltration  
                 systems; and include requirements for new and upgraded  
                 infrastructure and development to meet design criteria  
                 and best management practices to prevent stormwater  
                 pollution and increase effective stormwater management.

           3) Under Article X, Section 2 of the California Constitution  









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              requires water to be put to a reasonable and beneficial  
              use.

            
           This bill  establishes the Rainwater Capture Act of 2010, that:

           1) Defines "rainwater" as "rain or snowmelt that has not  
              entered an off-site storm drain system or channel, a flood  
              control channel, or any other stream channel, and has not  
              previously been put to beneficial use."

           2) Authorizes a property owner to install, maintain, and  
              operate a rainwater capture system for outdoor nonpotable  
              water uses on the property where the rainwater was captured  
              or for groundwater recharge.  The property owner would be  
              required to comply with a local agency's program to promote  
              rainwater or stormwater capture, if such a program exists.   
              The property owner would be authorized to finance a  
              rainwater recapture system through a voluntary contractual  
              assessment on their own property through the Improvement  
              Act of 1911.

           3) Requires SWRCB to initiate a stakeholder process to develop  
              recommendations for policies that would encourage and  
              facilitate the installation and use of rainwater capture  
              systems for outdoor, nonpotable uses and groundwater  
              recharge, and capture of stormwater by public agencies.   
              The stakeholder process must address issues arising out of  
              rainwater capture for nonpotable uses, including:

              a)    Vector control.
              b)    Water supply augmentation.
              c)    Water quality.
              d)    Safe installation, maintenance, and operation of  
                 rainwater capture systems.
              e)    Water rights.
              f)    Vegetation and habitat management in flood control  
                 facilities and rainwater or stormwater capture systems.
              g)    Consistency with building standards requirements.
              h)    Potential for indoor, nonpotable use of captured  
                 rainwater.
              i)    Financial and tax incentives to encourage greater  
                 capture of rainwater and stormwater.









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              j)    Necessary monitoring and reporting of rainwater and  
                 stormwater capture programs.
              aa)  Outcomes of existing programs that promote rainwater  
                 or stormwater capture.

           1) Requires SWRCB to publish its recommendations on its  
              Internet Web site by December 31, 2011.  These  
              recommendations may include recommendations for additional  
              legislation, building standards for the installation and  
              use of rainwater capture systems, or other state agency  
              actions to implement the recommendations.  If the  
              recommendations include recommended changes in building  
              standards, the SWRCB would be required to submit those  
              recommendations to the Building Standards Commission and  
              the Department of Housing and Community Development for  
              approval and adoption.

           2) Authorizes SWRCB to develop its own policies or guidelines,  
              if SWRCB finds that those policies or guidelines would  
              encourage and facilitate greater capture of rainwater and  
              stormwater.

            COMMENTS  :

            1) Purpose of Bill  .  According to the author, "California law  
              does not address the status of rainwater before it enters a  
              channel, as water rights are required only when taken from  
              a stream channel.  Although some communities have started  
              rainwater harvesting/capture programs, state law is  
              ambiguous as to their authority.  Most are on the coast, so  
              upstream interests have not objected to impairment of their  
              water rights.  If rainwater and stormwater capture expands,  
              then many issues will arise - water rights, water quality,  
              plumbing code, vector control, and habitat management.   
              Administrative agencies do not have authority to change  
              statutes to address rainwater and stormwater water rights  
              issues, and this bill requires administrative agency action  
              to address any issues within the scope of their authority."

            2) A new frontier  .  The capture and use of rainwater for  
              non-potable sources is new territory for state law and fits  
              well with the Governor's 2008 "20x2020" mandate to reduce  
              water usage 20% by the year 2020.  The use of rainwater for  









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              non-potable sources does raise a host of unknowns as  
              suggested by the author's comments above, but it also  
              allows for innovative and direct use of water for key state  
              goals such as groundwater recharge and decreased usage of  
              potable water for non-potable purposes.

            3) Dry weather runoff  .  During stakeholder discussions, the  
              related issue of how to properly handle and process dry  
              weather runoff was discussed.  It was initially proposed  
              that the present bill include definitions for "dry weather  
              runoff" and "dry weather runoff capture systems".  However,  
              it seems that the issues surrounding dry weather runoff  
              fall somewhat outside the scope of the current bill and  
              should be dealt with separately from rainwater capture,  
              although it ultimately may prove to be appropriate to  
              define these terms and concerns within or near this code  
              section.

            4) As proposed to be amended in SNRW  .  This bill was  
              double-referred to the Senate Natural Resources & Water  
              (SNRW) Committee and was heard and passed (6-1) on June 22,  
              2010.  Amendment 1 to 2 and 5 to 10 on page 4 of the SNRW  
              analysis were taken in committee and this bill is analyzed  
              based on those accepted amendments.

              Amendments 3 and 4, which were not taken in SNRW, dealt  
              with the word "urbanized" and its associated definition.   
              The concern was that if the proposed definition of  
              "urbanized" was accepted, then it would not enable smaller  
              municipalities under 100,000 citizens to be able to install  
              and employ "rainwater capture systems".

              In discussion with staff, it is has been recommended that  
              the words "in developed or developing lands but not in  
              agricultural lands" be inserted where the word "urbanized"  
              would have been under Amendment 3 in the SNRW analysis,  
              i.e., on page 5, line 38 after "facility".  The words  
              "developed or developing lands" and "agricultural lands"  
              should be defined on page 6, between lines 7 and 8 pursuant  
              to Government Code 56375.3 and 56016, respectively.

            5) Stakeholder concerns and amendments  .  In discussions with  
              stakeholders, concerns have arisen that the policies and  









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              recommendations developed by SWRCB could be perceived as a  
              mandate and thus potentially imply rainwater capture  
              systems must be installed in all new development.  While no  
              language in the bill indicates either intent or explicit  
              mandate that all homes must install rainwater capture  
              systems, insertion of the word "voluntary" would serve to  
              make this absolutely clear.

              An additional concern is that control of the stakeholder  
              process by SWRCB might overlook water use issues.  SWRCB's  
              jurisdiction comprises water quality and water rights  
              issues, but not water use, which is the domain of the  
              Department of Water Resources (DWR).  Rainwater issues  
              clearly affect a host of water jurisdictions including  
              water rights, quality, and use (as described in the  
              author's comments above).  While it would be inappropriate  
              to completely cede the stakeholder process from SWRCB to  
              DWR, a proposed solution is to amend the bill to explicitly  
              state that DWR will participate in the stakeholder process.  
               Furthermore, the committee may wish to consider an  
              amendment that clarifies SWRCB will appoint a chairperson  
              from SWRCB to chair the stakeholder process and DWR will  
              appoint a vice-chairperson to assist in administering the  
              stakeholder proceedings.

            6) Water quality amendments  .  To clarify that rainwater can be  
              used for non-potable purposes, and must meet water quality  
              requirements for non-potable uses, but does not need to  
              adhere to drinking water standards, the committee may  
              consider amending page 6, line 32, by inserting "outdoor"  
              after "for".  Also, on page 6, line 32, after "by", strike  
              "water quality requirements for potable water use" and  
              replace with "drinking water standards in Title 22 of the  
              California Code of Regulations, but shall fully comply with  
              non-potable water requirements in the Porter-Cologne Water  
              Quality Control Act".

              One page 6, line 34, after "any" the words "additional  
              state, regional, or local" should be added.  On page 6,  
              line 34, after "quality", the words "for the purpose of  
              protecting protect public and environmental health" should  
              be inserted.










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            7) Stakeholder process amendments  .  The committee may wish to  
              amend the list of topics the stakeholder process will  
              address to include more specific considerations for water  
              quality such as:
                        On page 8, line 22, after "quality" insert "(A)  
                   First rain contamination hazards.  (B) Potential  
                   changes in the concentration, quantity, or abundance  
                   of runoff pollution from increased rainwater  
                   collection.
                        On page 8, at the end of line 26, insert a new  
                   line, "Effects on downstream, in-stream flow volumes  
                   and native fish and wildlife."
                        One page 8, line 32, after "rainwater" insert  
                   "for toilets and laundry".
                        On page 10, line 3, after "stormwater" insert  
                   "while protecting public and environmental health".

            SOURCE  :        Assemblymember Solorio  

           SUPPORT  :       American Federation of State, County and  
                          Municipal Employees, American Planning  
                          Association California Chapter, California  
                          Coastkeeper, Alliance, California Landscape  
                          contractors Association, California State  
                          Association of Counties, California State Pipe  
                          Trades Council, Inland Empire Utilities Agency,  
                          Natural Resources Defense Council, TreePeople
            
           OPPOSITION  :    None on file