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 AB 1834 Page 2 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. AB 1834 Page 3 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 AB 1834 Page 4 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 AB 1834 Page 5 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. AB 1834 Page 6 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