BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 1750 HEARING DATE: June 12, 2012
AUTHOR: Solorio URGENCY: No
VERSION: June 6, 2012 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: Rules FISCAL: No
SUBJECT: Rainwater Capture Act of 2012
BACKGROUND AND EXISTING LAW
Article X, Section 2 of the California Constitution requires
water to be put to a reasonable and beneficial use. Current law
further includes numerous provisions that encourage the
efficient use of water.
Current law also defines water subject to appropriation as
"water flowing in any natural channel ?" Such water does not
include water typically considered as rainwater.
PROPOSED LAW
This bill would establish the Rainwater Capture Act of 2011.
Specifically, this bill would:
1.Define a number of terms, including:
"Rainwater" - "precipitation on any public or private
parcel that has not entered an offsite storm drain system
or channel, a flood control channel, or any other stream
channel, and has not previously been put to beneficial
use."
"Rain barrel system" - "a type of rainwater capture
system that does not use electricity and is not connected
to a pressurized water distribution system for distribution
of potable water."
"Rainwater capture system" - "a facility designed to
capture, retain, and store rainwater flowing off of a
building, parking lot, or any other manmade, impervious
surface, for subsequent onsite use."
"Stormwater" - "temporary surface water runoff and
snowmelt runoff drainage generated by immediately preceding
storms."
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1.Authorize any residential, commercial, or governmental
landowner to install, maintain, and operate any of the
following systems on the landowner's property for the capture
of rainwater on developed or developing lands:
A rain barrel system, if the system is used only to
supply water for outdoor, nonpotable uses and is used in
compliance with all manufacturer instructions.
A rainwater capture system for subsequent outdoor
nonpotable use or infiltration into groundwater.
A rainwater capture system for subsequent indoor
nonpotable use, if specific conditions are met.
1.Exempt a local government entity, which captures and treats
rainwater that otherwise would be conveyed through the
stormwater system of that local government entity and
discharged directly to a body of saltwater, from the
restriction that the rainwater be used on its property.
2.Require the property owner to comply with a local agency's
program to promote rainwater or stormwater capture, if such a
program exists.
3.Declare that nothing in this bill shall be construed to do the
following
Alter or impair any existing rights.
Change existing water rights law.
Impair the authority of the California Building
Standards commission to adopt and implement building
standards for rainwater capture systems
The bill would also:
1.Authorize a licensed landscape contractor to install a
rainwater capture system under certain circumstances.
2.Declare that nothing in this bill shall be construed to
authorize a landscape contractor to engage in or perform
activities that require a license pursuant to the Professional
Engineers Act.
3.Make a number of statements of legislative intent, including:
The use of rainwater for nonpotable uses should not be
constrained by water quality requirements for drinking
water or recycled water.
The use of rainwater for nonpotable uses should fully
comply with water quality requirements pursuant to the
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Porter-Cologne Water Quality Control Act.
1.Make numerous findings and declarations regarding the
potential benefits of rainwater capture.
ARGUMENTS IN SUPPORT
According to the Author, "AB 1750 will take important steps
toward expanding rainwater capture in California. It clarifies
the law by explicitly authorizing landowners to install and use
'rainwater capture systems' on their property, for a range of
uses, from simple rain barrels for garden use to more complex
systems for use in toilets. Capturing rainwater also may allow
for gradual infiltration into the groundwater aquifer. These
authorizations will empower individuals to take steps to capture
and use rainwater. The bill also encourages local agencies to
adopt programs that promote greater rainwater and stormwater
capture by requiring landowners who install rainwater capture
systems to comply with the local agency's requirements.
Finally, authorizing landscape contractors to install rainwater
capture systems relating to irrigation will promote greater
awareness of the options for rainwater capture, as homeowners
consider how to landscape their grounds."
ARGUMENTS IN OPPOSITION
Most of the opponents raise concerns that this bill somehow
seeks to circumvent the California code adoption process of the
Building Standards Commission.
The City of San Diego is concerned that this bill does not
require a specific anti-backflow approach, known as air-gap
separation, between any rainwater capture system and a potable
water source.
COMMENTS
Towards More Frugal Use Of Water. By some estimates, one inch
of rain on a 2,000 square foot roof generates more than 1,000
gallons of water. Since outdoor water use can account for up to
50 to 70% of a household's total usage, rainwater harvesting for
landscape irrigation could help alleviate some of the pressure
on California's limited potable water supplies.
Definitions. It may seem difficult to believe, but there is
no commonly accepted definition of rainwater, or stormwater
for that matter. This bill defines both, drawing the
distinction between any precipitation that has not entered
into a natural or artificial channel (rainwater) and
precipitation generated by a storm event that has entered
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into a natural or artificial channel (stormwater).
Doesn't Change Water Law - Or Does It? The legal basis for
using rainwater under California's unique water law is
unclear. Under some legal theories, one cannot establish a
right to captured rainwater, as capturing rain water may
diminish the amount of water available to a more senior
water rights holder. Under another theory, the right to
capture rainwater is akin to a riparian right, in that by
virtue of owning the land, you have the right to acquire
any water that may fall from the sky onto your property.
Current California water law is not particularly helpful in
resolving what the rule of law is with respect to rainwater
capture. This bill attempts to clarify the law. In doing
so, it might or might not change how the courts might have
interpreted the law in the absence of this bill.
Third Time's Charmed? This bill is similar to last session's AB
1834 (Solorio) and this session's AB 275 (Solorio). Both bills
were vetoed.
AB 1834 - Vetoed by Governor Schwarzenegger because it would
have made rainwater recapture systems eligible for funding
under the Property Assessed Clean Energy (PACE) Program. This
bill does not have those provisions.
AB 275 - Vetoed by Governor Brown because it sought to adopt
an interim standard for rainwater capture outside the
established Building Standards Commission process. This bill
does not have those provisions either.
Community Gardens . The San Francisco Public Utilities
Commission was concerned that last year's AB 275 might impair
the ability of SF to develop rainwater capture projects.
Because of the density of some parts of the city, there are
numerous situations where rainwater could be captured, but not
have any opportunity for use on that property. Instead, for
example, the rainwater is often used on adjacent lots to
irrigate community gardens. There is also the potential to
capture rainwater on large government facilities, such as the
Transbay Terminal, and then use the captured rainwater offsite.
To address that issue, this bill was introduced with a provision
that exempted the capture of any rainwater, which would
otherwise directly flow to a body of saltwater through a
constructed conveyance and treatment system, from the
restriction that it be used on site.
The Assembly Committee on Water, Parks, and Wildlife, looking to
narrow the exemption, amended the bill to state that only a
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"local government entity" may use the water offsite.
Unfortunately, as drafted, the amendments appear to make illegal
current and future rainwater capture projects that capture water
on property not owned by a local government entity, and that is
subsequently used to water community gardens and other similar
outdoor water uses.
The Committee may wish to amend the bill to remove the
restriction to just "local government entities" and instead put
in place requirements that the rainwater be used solely on
adjacent properties, provided at no cost to the user of the
rainwater, and be used for exterior purposes only. Such an
amendment would resolve the community garden issue. And, it
would put off for now resolving how to address any larger scale
project that may be contemplated in the future where the
rainwater might be used further away than the adjacent lot, such
as may be proposed for the Transbay Terminal (see suggested
amendment).
Other Unresolved Issues. Last year, the Senate Environmental
Quality Committee (EQ) proposed amendments to AB 275 that were
accepted by the author. This bill, while similar to AB 275,
does not include some of the provisions proposed last year by
EQ. These include provisions regarding:
Types of disinfection devices required for interior nonpotable
uses
Explicit requirements for backflow devices for interior
nonpotable uses
Compliance with 2010 Green Plumbing and Mechanical Code
Supplement, published by the International Association of
Plumbing and Mechanical Officials (IAPMO) and
Sunset provisions to prohibit new permits for interior
nonpotable uses
Dual referred to Rules. This bill has been referred to this
committee and the Senate Rules Committee. The Rules Committee
will determine whether the bill should be referred to an
additional policy committee, and if so, which one. Previous
incarnations of this bill were referred to this committee and
the Senate Environmental Quality Committee.
SUGGESTED AMENDMENT
AMENDMENT: On page 7, delete lines 10-14, and insert:
(2) Notwithstanding paragraph (1), a city, county, or
city and county may authorize the capture and use of
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rainwater off of a landowner's property if all of the
following conditions are met:
(A) The rainwater is used solely on an adjacent
property.
(B) The rainwater is provided at no cost to the user of
the rainwater.
(C) The rainwater is used for exterior purposes only.
(D) The rainwater would otherwise be conveyed by
constructed drainage features through a stormwater system
and discharged directly to a body of saltwater.
SUPPORT
American Rainwater Catchment Systems Association
California Coastkeeper Alliance
California Landscape Contractors Association
California Park & Recreation Society
City of Santa Monica
East Bay Municipal Utility District
Environment California
Family Winemakers of California
Metropolitan Water District of Southern California
Mosquito and Vector Control Association of California
Municipal Water District of Orange County
Orange County Coastkeeper
San Francisco Public Utilities Commission
Santa Clara Valley Water District
Sierra Club
Southern California Water Committee
TreePeople
Upper San Gabriel Valley Municipal Water District
US Green Building Council California
OPPOSITION
Association of California Water Agencies
California Building Officials
California State Council of Laborers
City of San Diego
International Code Council
Structural Engineers Association of California
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