BILL ANALYSIS Ó SENATE COMMITTEE ON NATURAL RESOURCES AND WATER Senator Fran Pavley, Chair 2015 - 2016 Regular Bill No: AB 2594 Hearing Date: June 28, 2016 ----------------------------------------------------------------- |Author: |Gordon | | | ----------------------------------------------------------------- ----------------------------------------------------------------- |Version: |May 19, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Dennis O'Connor | | | | ----------------------------------------------------------------- Subject: Stormwater resources: use of captured water BACKGROUND AND EXISTING LAW The Stormwater Resources Planning Act authorizes one or more public agencies to develop a Stormwater Resources Plan. The act requires such plans, among other things, to: Be consistent with, and assist in, compliance with total maximum daily load (TMDL) implementation plans and applicable national pollutant discharge elimination system (NPDES) permits. Be consistent with all applicable waste discharge permits. The act also requires that by July 1, 2016, the State Water Resources Control Board establish guidance for the act, including, but is not limited to, the following: Identifying types of local agencies and nongovernmental organizations that need to be consulted in developing a stormwater resource plan. Defining appropriate quantitative methods for identifying and prioritizing opportunities for stormwater and dry weather runoff capture projects. Defining the appropriate geographic scale of watersheds for stormwater resource planning. Other guidance the board deems appropriate to achieve the objectives of this part. On December 15, 2015 the board adopted its "Storm Water Resource AB 2594 (Gordon) Page 2 of ? Plan Guidelines." The guidelines require, among other things, that storm water resource plans address or provide formal reference addressing the following provisions. California Environmental Quality Act Compliance. Implementation of activities and individual projects per the storm water resource plan must be in compliance with the California Environmental Quality Act. Consistency With Water Quality Control Plans, Applicable Water Quality Control Policies, And Water Rights. The plan must be consistent with, and assist in compliance with, applicable federal and state regulations and policies, and permits implementing federal and state regulations and policies, including, but not limited to: Clean Water Act and the Safe Drinking Water Act; Water rights permits/licenses; State Water Board plans and policies; State and Regional Water Board water quality control plans and policies, including TMDLs adopted by the Regional Water Board; and Any other federal and/or state laws, regulations and permits. Consistency With Applicable Permits. Plans must be implemented in accordance with applicable NPDES permits, waste discharge requirements, Areas of Special Biological Significance Compliance Plans, and/or conditional waivers issued by the State and/or Regional Water Boards. PROPOSED LAW This bill would add a new provision to the Stormwater Resources Planning Act stating "A public entity that captures stormwater, in accordance with a stormwater resource plan and consistent with a municipal separate storm sewer system permit, before the water reaches a natural channel, as that term is used in Section 1201, shall be entitled to use the captured water." ARGUMENTS IN SUPPORT According to the author, "Climate change models predict more frequent storms and more floods in California; at the same time, our state's infrastructure treats stormwater as a waste product AB 2594 (Gordon) Page 3 of ? rather than a natural resource that can help mitigate our droughts. The Stormwater Resources Planning Act encourages local watersheds to develop plans to work together to manage stormwater and compliance is required to qualify for Prop 1 funding. However, compliance with a Stormwater Resource Plan - which also requires respect for CEQA, the Clean Water Act, Health and Safety Code, and all water rights permits and licenses - does not entitle public entities to use the stormwater or to use it for water supply or water quality purposes. This means that billions of gallons of relatively clean water flows into the ocean every year. AB 2594 would allow public entities that capture stormwater in accordance with a stormwater resource plan and wastewater discharge permit to use that water before it reaches a natural channel. This bill will encourage more robust stormwater capture in California and will also provide entities with the certainty they need to pursue alternative financing for stormwater systems." ARGUMENTS IN OPPOSITION The Association of California Water Agencies (ACWA) and the California Municipal Utilities Association (CMUA) both support the idea of additional stormwater capture and use, but are concerned that such projects might adversely affect their water rights. Without explicit language protecting their water rights, they must oppose this bill. COMMENTS Existing Law And Guidelines require stormwater resources plans to be consistent with, and assist in compliance with, applicable federal and state regulations and policies, and permits implementing federal and state regulations and policies. These include water rights, water quality control plans, NPDES permits, etc. Many of the amendments suggested by opponents were simply restating requirements that stormwater resources plans already have to meet. Proposed Solution. All parties agree that stormwater capture and use projects should be encouraged. And, the opposition is generally fine with a public agency using the water captured, provided that the water is "new water" and not simply redirected from some already existing water user. The suggested amendment below was developed by committee staff, AB 2594 (Gordon) Page 4 of ? the author's staff, and opponents, and other interested parties. The amendment eliminates some unnecessary language, highlights that the captured stormwater should augment existing supplies, and clarifies that in authorizing the use of the captured stormwater, this bill should not be interpreted as affecting water rights or water rights law. Staff believes that adoption of this amendment would remove all opposition. That said, the suggested amendment should be considered "working language." The author should be encouraged to work with interested parties while the bill is in Senate Appropriations Committee to wordsmith the bill and adopt final language. SUGGESTED AMENDMENT 10561.7. (a) A public entity that captures stormwater, in accordance with a stormwater resource plan andconsistent with a municipal separate storm sewer system permit,before the water reaches a natural channel, as that term is used in Section 1201,shall be entitled to use the captured water to the extent that such water augments water supplies supporting existing water rights . (b) Nothing in this section shall be construed to do any of the following: (1) Alter or impair any existing rights. (2) Change existing water rights law. (3) Interfere with, amend, or supersede any existing water rights adjudication or other legally mandated water management plan. (4) Create a groundwater pumping right where a pumping right does not already exist. SUPPORT 7th Generation Advisors American Rivers California Coastal Protection Network California Coastkeeper Alliance California State Association of Counties Center for Oceanic Awareness, Research, & Education City of Santa Monica Clean Water Action AB 2594 (Gordon) Page 5 of ? Desal Response Group Environmental Water Caucus Heal the Bay Los Angeles Waterkeeper Natural Resources Defense Council Planning and Conservation League San Gabriel Valley Water Association (if amended) Southern California Watershed Alliance TreePeople WILDCOAST Private Individual (1) OPPOSITION Association of California Water Agencies California Municipal Utilities Association -- END --