BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 900| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED SB 900 Page 2 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 CONTINUED SB 900 Page 3 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 CONTINUED SB 900 Page 4 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 CONTINUED SB 900 Page 5 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 CONTINUED SB 900 Page 6 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 **** END **** CONTINUED