BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   SB 900|
          |Office of Senate Floor Analyses   |                         |
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                                 THIRD READING


          Bill No:  SB 900
          Author:   Steinberg (D)
          Amended:  5/9/11
          Vote:     21

           
           SENATE ENVIRONMENTAL QUALITY COMMITTEE  :  5-0, 5/2/11
          AYES:  Simitian, Blakeslee, Kehoe, Lowenthal, Pavley
          NO VOTE RECORDED:  Strickland, Hancock


           SUBJECT  :    California regional water quality control 
          boards

           SOURCE  :     Western Growers


           DIGEST  :    This bill, with regard to a regional water 
          quality control board, provides that a person would not be 
          disqualified from being a member of that board because that 
          person receives, or has received during the previous two 
          years, a significant portion of his/her income directly or 
          indirectly from a person subject to waste discharge 
          requirements, or an applicant for waste discharge 
          requirements, that govern discharges not within the 
          jurisdiction of that regional board.  This bill provides 
          that this revised eligibility provision relating to members 
          of a regional board shall be implemented only if certain 
          requirements are met.  

           ANALYSIS  :    Under existing law, the State Water Resources 
          Control Board and the nine California regional water 
          quality control boards prescribe waste discharge 
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          requirements in accordance with the federal national 
          pollutant discharge elimination system (NPDES) permit 
          program established by the federal Clean Water Act and the 
          Porter-Cologne Water Quality Control Act (Porter-Cologne 
          Act).  The Porter-Cologne Act prescribes requirements and 
          qualifications for the membership of the state board and 
          the regional boards, and prohibits a member of the state 
          board or a regional board from participating in specified 
          board actions that involve the member or any waste 
          discharger with which the member is connected as a 
          director, officer, or employee, or in which the board 
          member has a financial interest within the meaning of the 
          Political Reform Act of 1974.

          The Porter-Cologne Act prohibits a person from being a 
          member of the state board or a regional board if that 
          person receives or has received during the previous two 
          years a significant portion of his/her income directly or 
          indirectly from any person subject to waste discharge 
          requirements or applicants for waste discharge requirements 
          that are prescribed pursuant to the NPDES permit program.  

          This bill provides that a person would not be disqualified 
          from being a member of a RWQCB because that person 
          receives, or has received during the previous two years, a 
          significant portion of his/her income directly or 
          indirectly from a person subject to waste discharge 
          requirements, or an applicant for waste discharge 
          requirements, that govern discharges not within the 
          jurisdiction of that RWQCB.  Also provides that this 
          revised eligibility provision relating to members of a 
          RWQCB must shall be implemented only if the USEPA 
          determines the provision complies with the federal Clean 
          Water Act.  

           Previous Legislation
           
          SB 1001 (Perata), 2007-08 Session:  (a) restructured the 
          membership of the nine RWQCB structure by decreasing 
          membership to seven members, (b) increased the compensation 
          of RWQCB membership and changed the qualification criteria 
          for appointment from specific sectors to appointment based 
          on his/her demonstrated interest and proven ability in the 
          field of water quality, and (c) established a process at 

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          the SWRCB to better ensure RWQCBs are adequately carrying 
          out the regulatory requirements governing water quality in 
          their respective regions, and examined the adequacy of the 
          SWRCB's fee-based water quality programs.  SB 1001 was 
          vetoed by Governor Schwarzenegger.

           Comment
           
           The Little Hoover Commission Report -- Clearer Structure, 
          Cleaner Water:  Improving Performance and Outcomes at the 
          State Water Boards  .  In 2009 the Little Hoover Commission 
          released a report finding that "the decentralized 
          governance structure, with nine regional water quality 
          boards operating with distinct policies and processes, 
          hinders accountability and transparency.  The result is a 
          system that has lost the confidence of most stakeholders."  
          The Commission's report made four overarching 
          recommendations:  (a) change the makeup of both SWRCB and 
          RWQCBs; (b) increase the use of data and scientific 
          research; (c) increase collaboration among government 
          agencies; (d) increase economic analysis and analysis in 
          decisionmaking.  This report has not resulted in changes to 
          the water boards to date, however, its findings also point 
          to a need for changes to the boards' governance structure.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  5/11/11)

          Western Growers (source)
          Alliance of Western Milk Producers
          American Council of Engineering Companies of California
          California Agricultural Irrigation Association
          California Association of Sanitation Agencies
          California Business Properties Association
          California Chamber of Commerce
          California Citrus Mutual
          California Cotton Ginners and Growers Associations
          California Forestry Association
          California Grain and Feed Association
          California Grape and Tree Fruit League
          California League of Food Processors
          California Manufacturers and Technology Association

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          California Metals Coalition
          California Pear Growers
          California Rice Commission
          California Rice Industry Association
          California Seed Association
          California State Floral Association
          California Trucking Association
          California Warehouse Association
          California Wheat Growers Association
          Chemical Industry Council of California
          East San Joaquin Water Quality Coalition
          El Dorado Irrigation District
          Grower Shipper Association of Central California
          Grower Shipper Association of Santa Barbara and San Luis 
          Obispo Counties
          Kings River Conservation District
          Kings River Water Association
          Monterey County Farm Bureau
          Nisei Farmers League
          Northern California Water Association
          Pacific Egg and Poultry Association
          Partnership for Sound Science in Environmental Policy
          Paso Robles Wine Country Alliance
          Regional Council of Rural Counties
          Santa Barbara County Farm Bureau
          Southern San Joaquin Valley Water Quality Coalition
          Valley Ag Water Coalition
          Western Agricultural Processors Association
          Western Plant Health Association
          Wine Institute

           OPPOSITION  :    (Verified  5/11/11)

          California Coastkeeper Alliance 
          California Sportfishing Protection Alliance
          Heal the Bay
          Natural Resources Defense Council
          Sierra Club California

           ARGUMENTS IN SUPPORT  :    According to the sponsor and 
          supporters:

            "Porter/Cologne conflict of interest requirements have 
            caused a tremendous amount of concern to the regulated 

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            community as it is increasingly difficult to find 
            qualified people to serve.  Every RWQCB has a designated 
            seat for a member from 'irrigated agriculture.'  Clearly, 
            the Legislature in creating these entities sought to 
            ensure that farmers would be appointed to and serve as 
            fully voting members of these boards.  Yet over time, the 
            effects of stringent application of the conflict 
            provisions in the state water code have caused a dramatic 
            reduction in the pool of farmers eligible to be 
            appointed, and have forced non-participation of the few 
            who are appointed when regulatory proposals affecting 
            agriculture are decided.  The result has been growing 
            insulation of water regulators from this important 
            regulated community, and a concomitant loss of confidence 
            in, and support for, the actions of the regional water 
            boards relative to agriculture.

            "The simple modifications proposed in this measure would 
            restore the full participation of agriculture on these 
            boards as was originally intended and serve to restore 
            the credibility of their regulatory programs and 
            encourage greater cooperation in their implementation.  
            Additionally, the 10 percent rule provision has likewise 
            been problematic in finding qualified people to serve.  
            This bill would apply the 10 percent rule provision to 
            income from persons/entities that receive NPDES permits 
            from the member's regional water board, and would not 
            apply the restriction to income that is from 
            persons/entities subject to an NPDES permit issued by the 
            other RWQCB.  It is our understanding this measure would 
            address about 10-15 percent of the historical regional 
            board 10 percent rule conflicts."

           ARGUMENTS IN OPPOSITION  :    Opponents state that this bill 
          would weaken conflict of interest requirements for no 
          reason.  "It has been our direct experience over many years 
          of seeking to fill Regional Water Board seats with 
          qualified members that this task can sometimes be 
          challenging - but for many reasons other than a potential 
          business conflict outside of the area where the appointee 
          lives and works, as described in SB 900.  The low pay 
          ($100/day) and conflicts with statewide permits (changes to 
          which are unlikely to pass federal U.S. EPA legal scrutiny) 
          are the major difficulties with filling seats, not 

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          other-region business ties.  Moreover, contrary to the 
          sponsor's assertion, it is inaccurate to state that the 
          federal 10% conflict provisions have caused a "dramatic 
          reduction" in the pool of farmers eligible to be appointed. 
           In fact, because the '10% rule' only applies to Clean 
          Water Act NPDES permit holders and the Act exempts 
          irrigated agriculture return flows, irrigated agriculture 
          waiver holders are not bound by this federal conflicts 
          mandate.  In addition to being unnecessary from a legal or 
          a practical perspective in solving issues with filling 
          Regional Water Board seats, Section 3 raises significant 
          concerns from a policy perspective, in light of the close 
          manner in which the Regional Water Boards interact.  For 
          example, the Regional Boards pay close attention to and 
          react in numerous ways to each other's decisions, with 
          their permits and policies evolving regional act by 
          regional act.  Also, most Regional Water Board decisions 
          that are of any meaningful controversy are appealed to the 
          State Board, which can then act to create statewide 
          precedent.  Accordingly, income obtained from one region 
          can influence a Board member's actions and decisions in 
          another.  For such reasons, and in light of the fundamental 
          importance of water to the state's population, economy and 
          environment, we 
          strongly urge that these proposed changes be rejected."


          DLW:kc  5/11/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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