BILL ANALYSIS Ó
SB 1306
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2007-2008 Regular Session
BILL NO: SB 1306
AUTHOR: Blakeslee
AMENDED: March 26, 2012
FISCAL: Yes HEARING DATE: April 23, 2012
URGENCY: No CONSULTANT: Rachel Wagoner
SUBJECT : STATE WATER RESOURCES CONTROL BOARD: SCIENTIFIC PEER
REVIEW
SUMMARY :
Existing law :
1) Under the federal Clean Water Act (CWA), establishes
the structure for regulating discharges of pollutants
into the waters of the United States and regulating
quality standards for surface waters. The CWA makes it
unlawful to discharge any pollutant from a point source
into navigable waters, unless a permit was obtained.
U.S. Environmental Protection Agency's (USEPA) National
Pollutant Discharge Elimination System (NPDES) permit
program controls discharges. Industrial, municipal, and
other facilities must obtain permits if their discharges
go directly to surface waters.
2) Under the California Porter-Cologne Water Quality
Control Act (Porter-Cologne), the State Water Resources
Control Board (SWRCB) has the authority over State water
rights and water quality policy. Porter-Cologne also
establishes nine Regional Water Quality Control Boards
(regional boards) to oversee water quality at the
local/regional level. Under the auspices of the U.S.
EPA, the State Board and nine Regional Boards also have
the responsibility of granting NPDES permits, for certain
point-source discharges.
3) Establishes external scientific peer review
requirements for all boards, departments and offices in
the California Environmental Protection Agency (CalEPA).
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(Health and Safety Code §57004).
This bill :
1) For the specific purpose of requiring a scientific peer
review under the Health and Safety Code, adds to the
definition of "rule" the adoption of general permit
application requirements for stormwater discharges and
conditional waivers of waste discharge requirements from
irrigated lands adopted by a regional board, thereby
expanding the types of actions taken by the water boards
requiring scientific peer review.
2) Makes various findings:
a) That regulations intended to attain the highest water
quality within reason are most likely to be successful
when developed in collaboration with entities subject to
those regulations.
b) That compliance and the intended water quality
objectives will be more readily achieved when regulated
entities have ample opportunity to participate in the
development and promulgation of programs and
regulations.
c) That failure to consider the compliance challenges of
regulated entities and to provide a cost-effective and
technologically feasible compliance pathway will likely
result in the inability of regulated entities to satisfy
programmatic requirements and will significantly
diminish the efficacy of the program or regulation.
COMMENTS :
1) Purpose of Bill . According to the author, in the early
1990's there was a bi-partisan concern about the quality
and consistency of the science underpinning major
environmental protection regulations.
The author argues that one of the more significant reforms
from this time was the requirement for an external peer
review of all proposed regulations by a CalEPA board,
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department or office prior to adoption. SB 1320 (Sher)
Chapter 295, Statutes of 1997, included peer review
provisions, which were recommended by a report commissioned
by the Office of Environmental Health Hazard Assessment in
response to Governor Wilson's Executive Order W-137-96.
The author states, in 1998 following the passage of SB
1320, CalEPA issued a "Policy and Guiding Principles for
External Scientific Peer Review." The guidance document
noted that peer review is an important and effective
mechanism for evaluating the accuracy or validity of
technical data, observations, and scientific aspects of
regulatory decisions and initiatives. In providing
guidance, the document differentiated between actions that
require an external peer review - such as "products that
address emerging or controversial issues, have significant
cross-media implications, or establish a significant
precedent" - and those actions that do not require an
external peer review - such as "permit, variance standards,
and conditions set by Cal/EPA BDOs, unless they are applied
through regulation."
The author states that while issuance of an individual
permit or variance to a specific individual arguably does
not require an external scientific peer review, the
adoption of general permit requirements that apply across a
broad sector arguably do, especially if the proposed
general requirements "address emerging or controversial
issues, have significant cross-media implications, or
establish a significant precedent."
2) Arguments in support. Supporters argue that, for regulated
entities, ensuring the quality and consistency of any
scientific rationale underpinning a regulation is
important. Supporters argue that SB 1306 recognizes that
the most effective way to achieve a desired water quality
is through the collaboration with stakeholders to develop
fair programs and objectives backed by solid science.
Supporters believe, through such inclusive regulatory
proceedings, it is more likely that programs will receive
the support required for widespread success.
3) Arguments in opposition. Opponents state that SB 1306
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requires both stormwater and irrigated lands discharge
requirements to undergo scientific peer review, and argue
that these water board programs have historically been
exempt from this peer review requirement because of the
extensive review already built into the programs.
Opponents further believe the development of discharge
requirements is the final step in a long process that
includes the development of water quality objectives,
assignment of load allocations, environmental review, and,
in the case of agricultural requirements, economic
analysis. Opponents note that it is not clear what purpose
is served by requiring additional scientific review of
these particular board functions, other than to delay
program implementation. Opponents also note that
unfortunately, delayed implementation comes at a very high
cost, citing the UC Davis Center for Watershed Sciences
study which identified a quarter of a million residents of
the Salinas Valley and Tulare Lake Basin that are already
impacted by nitrate contamination - warning that 80% of the
population of these areas could be impacted by 2050, if
action is not taken to address agricultural inputs.
4) General Permits and conditional waiver of irrigated land
discharge requirements are not rules . General permits and
conditional waivers are not themselves rules or regulations
but rather implement adopted rules and regulations, which
is why they were not included in requirements of SB 1320
(Sher) Chapter 295, Statutes of 1997. For the most part
the science and independent scientific peer review that is
the basis of the permit or conditional waiver is required
to be conducted as part of the regulatory process that the
permit or waiver is implementing. There is a very small
portion of a permit or conditional waiver that would
qualify for scientific peer review under this bill and the
work would likely be duplicative of work that was done
earlier in the process. This would result in a further
delay in implementation and an additional cost in the
adoption of the permit or conditional waiver that may be
borne by fee payers in some cases, but in other cases such
as the conditional waiver for timber harvest where there is
not an industry fee, it would be paid by the General Fund.
It is unclear if the concern by the regulated community is
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that the decisions made by water boards on general permits
and conditional waivers of waste discharge requirements
from irrigated lands are based on incomplete or unsound
science or if the concern is that the scientific basis for
the permit or conditional waiver is not well justified as
part of the permit or conditional waiver process.
An amendment is needed to address the specific concern of
the regulated community that would not be duplicative or
result in further delay and cost for the permit and
conditional waiver process. If the concern is that the
board does not fully explain the scientific basis of the
decision on the permit or conditional waiver, the bill
should be amended to require the board to more fully
outline the scientific basis of the permit or conditional
waiver as part of the permit or conditional waiver
documents and board proceedings.
5) Legislative intent of the bill should be consistent with
the statutory requirements of the measure . These findings
do not speak to the need for greater scientific scrutiny
and should be either stricken or amended to reflect the
intent of the legislation.
SOURCE : Senator Blakeslee
SUPPORT : California Building Industry Association
California Chamber of Commerce
California League of Food Processors
California Manufacturers & Technology
Association
California State Association of Counties
Chemical Industry Council of California
City of Salinas
Lumber Association of California & Nevada
National Federation of Independent Business
Regional Council of Rural Counties
Salinas Mayor Dennis Donohue
Western Growers
Western Wood Preservers' Institute
Wine Institute
OPPOSITION : California Coastkeeper Alliance
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Clean Water Action
Environment California
Sierra Club California
Seventh Generation Advisors