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
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          |Author:    |Gordon                 |           |                 |
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          |Version:   |May 19, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Dennis O'Connor                                      |
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               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  







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          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  








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          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,  








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          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 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  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








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          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


                                          

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