BILL ANALYSIS Ó
SB 163
Page 1
Date of Hearing: June 14, 2016
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
SB
163 (Hertzberg) - As Amended June 8, 2016
SENATE VOTE: 28-12
SUBJECT: Wastewater treatment: recycled water
SUMMARY: Requires, by January 1, 2023, holders of National
Pollutant Discharge Elimination System (NPDES) permits to submit
a plan to the California State Water Resources Control Board
(State Water Board) for the beneficial reuse of treated
wastewater that would otherwise be discharged through ocean or
bay outfalls and requires, by January 1, 2033, NPDES permit
holders to beneficially reuse at least 50% of treated wastewater
that would otherwise be discharged through ocean or bay
outfalls. Specifically, this bill:
1)Makes legislative findings that it is a waste and an
unreasonable use of water within the California Constitution
to discharge treated wastewater from an ocean or bay outfall
or for a water supplier or water replenishment district to not
take treated wastewater made available to the supplier or
district for groundwater recharge, surface water augmentation,
or landscape irrigation.
SB 163
Page 2
2)Requires, on or before January 1, 2020, the State Water Board
to promulgate regulations that require both of the following:
a. On or before January 1, 2023, each holder of an
NPDES permit to submit to the State Water Board the
permitholder's plans to achieve beneficial reuse, to the
maximum extent possible, of treated wastewater that would
otherwise be discharged through ocean or bay outfalls;
and,
b. On or before January 1, 2033, the beneficial reuse
of at least 50% of treated wastewater that the NPDES
permitholder would otherwise discharge through ocean or
bay outfalls relative to the inflow to the treatment
plant.
3)Requires the regulations promulgated by the State Water Board
to provide operational and compliance flexibility in the event
of an emergency, scheduled maintenance or repairs, extreme
weather events, or any other factor that the State Water Board
determines warrants consideration.
4)Authorizes the State Water Board, in developing the
regulations for the beneficial reuse of treated wastewater, to
convene an advisory group for the purpose of preparing a
report or recommendations to the State Water Board about how
to implement the plan to beneficially reuse treated
wastewater, authorizes the State Water Board to consider any
other recommendations or testimony provided during the
regulation adoption process.
5)Authorizes the State Water Board to adopt reasonable fees
payable by a holder of an NPDES permit to recover the costs of
developing and implementing the regulations for beneficially
SB 163
Page 3
reusing treated wastewater that would otherwise be discharged
through an ocean or bay outfall, including the convening of an
advisory group.
EXISTING LAW:
1)Declares that because of the conditions prevailing in this
State the general welfare requires that the water resources of
the State be put to beneficial use to the fullest extent of
which they are capable, and that the waste or unreasonable use
or unreasonable method of use of water be prevented, and that
the conservation of such waters is to be excercised with a
view to the reasonable and beneficial use thereof in the
interest of the people and for the public welfare. (Section 2
of Article X of the California Constitution)
2)Establishes state policy goal to increase the use of
recycled water in the state over 2002 levels by at least
1,000,000 acre-feet per year by 2020 and by at least
2,000,000 acre-feet per year by 2030. (State Water Board
Resolution No. 2009-0011)
3)Defines "direct potable reuse" as the planned introduction
of recycled water either directly into a public water system
or into a raw water supply immediately upstream of a water
treatment plant. (WC § 13561 (b))
4)Defines "indirect potable reuse for groundwater recharge" as
the planned use of recycled water for replenishment of a
groundwater basin or an aquifer that has been designated as
a source of water supply for a public water system. (WC §
SB 163
Page 4
13561 (c))
5)Defines "surface water augmentation" as the planned
placement of recycled water into a surface water reservoir
used as a source of domestic drinking water supply. (WC
§13561 (d))
6)Requires, on or before December 31, 2016, the State Water
Board to investigate and report to the Legislature on the
feasibility of developing uniform water recycling criteria
for direct potable reuse. Requires the State Water Board to
complete a public review draft of its report by September 1,
2016. Requires the State Water Board to provide the public
not less than 45 days to review and comment on the public
review draft. (WC § 13563)
7)States that no person shall recycle water or use recycled
water for any purpose for which recycling criteria have been
established until water recycling requirements have been
established or a regional board determines that no
requirements are necessary. (WC § 13524)
8)Makes legislative findings that the use of potable domestic
water for nonpotable uses, including, but not limited to,
cemeteries, golf courses, parks, highway landscaped areas, and
industrial and irrigation uses, is a waste or an unreasonable
use of the water within the California Constitution if
recycled water is available which meets certain conditions, as
determined by the State Water Board, after notice to any
person or entity who may be ordered to use recycled water or
to cease using potable water and a hearing. (WC § 13550)
9)Makes legislative findings that the use of potable domestic
SB 163
Page 5
water for the irrigation of residential landscaping is a waste
or an unreasonable use of water within the California
Constitution if recycled water, for this use, is available to
the residents and meets specified requirements as determined
by the State Water Board after notice and a hearing. (WC §
13552.2)
10)Makes legislative findings that the use of potable domestic
water for floor trap priming, cooling towers, and
air-conditioning devices is a waste or an unreasonable use of
water within the California Constitution if recycled water,
for these uses, is available to the user, and the water meets
specified requirements as determined by the State Water Board
after notice and a hearing. (WC § 13552.6)
11)Makes legislative findings that the use of potable domestic
water for toilet and urinal flushing in structures is a waste
or an unreasonable use of water within the California
Constitution if recycled water, for these uses, is available
to the user and meets specified requirements as determined by
the State Water Board after notice and a hearing. (WC §13553)
12)Declares that the people of the state have a primary interest
in the development of facilities to recycle water containing
waste to supplement existing surface and underground water
supplies and to assist in meeting the future water
requirements of the state. (WC § 13510)
13)Makes legislative findings that a substantial portion of the
future water requirements of this state may be economically
met by beneficial use of recycled water. Finds that the
SB 163
Page 6
utilization of recycled water by local communities for
domestic, agricultural, industrial, recreational, and fish and
wildlife purposes will contribute to the peace, health, safety
and welfare of the people of the state. Use of recycled water
constitutes the development of "new basic water supplies" as
defined. (WC § 13511)
14)Declares that it is the intent of the Legislature that the
state undertake all possible steps to encourage development of
water recycling facilities so that recycled water may be made
available to help meet the growing water requirements of the
state. (WC § 13512)
FISCAL EFFECT: Unknown.
COMMENTS:
Need for the bill: According to the author, "California remains
in a historic drought. Scientists predict our changing climate
will increase the frequency, length, and severity of droughts.
California has watched as water supplies have dwindled with less
snow and fewer significant rain events. The severe drought
conditions that grip more than 90 percent of the state have
brought the issue of water conservation to the forefront of
political discussions and policymaking.
However, we in California continue to let millions of gallons of
SB 163
Page 7
treated wastewater - water that is useable and valuable - pour
into the ocean every day. It is estimated that the state of
California lets more than 1.5 billion gallons of treated fresh
water go out to the ocean per day. The Los Angeles area alone is
responsible for some 650 million gallons per day going out to
the ocean. Even in a drought, we are letting enormous quantities
of highly treated fresh water flow into the ocean. This is
unsustainable."
National Pollutant Discharge Elimination System (NPDES): As
authorized by the federal Clean Water Act (CWA), the NPDES
Permit Program controls water pollution by regulating point
sources that discharge pollutants into waters of the United
States. Point sources are discrete conveyances such as pipes or
man-made ditches. Examples of pollutants include, but are not
limited to, rock, sand, dirt, and agricultural, industrial, and
municipal waste.
The NPDES Program is a federal program which has been delegated
to the State of California for implementation through the State
Water Board and the nine Regional Water Quality Control Boards
(Regional Water Boards). In California, NPDES permits are also
referred to as waste discharge requirements (WDRs) that regulate
discharges to waters of the United States.
Waste and unreasonable use of water: SB 163 states that the
Legislature finds and declares that, except in compliance with
SB 163, it is a waste and unreasonable use of water within the
meaning of Section 2 of Article X of the California Constitution
to discharge treated wastewater from an ocean or bay outfall, or
for a water supplier or water replenishment district to not take
treated wastewater made available to the supplier or district
for groundwater recharge, surface water augmentation, or
SB 163
Page 8
landscape irrigation.
This section would become effective on January 1, 2017, meaning
that beginning on January 1, it would be considered a waste and
unreasonable use of water to discharge treated wastewater from
an ocean or bay outfall. Is it possible to not have any ocean
discharges by January 1, 2017? It's possible, given the nature
of the 2033 goal, that this section was not meant to take effect
right away.
This section also states that it's a waste and unreasonable
waste of water for a water supplier or water replenishment
district to not take treated wastewater made available to the
supplier or district for groundwater recharge, surface water
augmentation, or landscape irrigation. What is meant by "made
available"? If a holder of a NPDES permit treats it wastewater
water for beneficial reuse, and "makes it available" at any
price the NPDES permit holder chooses, is the supplier or
district required to take the water, even if it can't use the
water? Lastly, it is not clear what happens to a NPDES permit
holder or a supplier or district if they fail to comply with
this section.
Given the uncertainty of how to comply with this section and the
overall goal of the bill the Committee may wish to consider
whether or not this section should be kept or amended out of the
bill.
SB 163
Page 9
Regulations by the State Water Board: The bill requires, by
January 1, 2020, the State Water Board to adopt regulations that
require both of the following:
a. On or before January 1, 2023, each holder of an
NPDES permit to submit to the State Water Board the
permit holder's plans to achieve beneficial reuse, to the
maximum extent possible, of treated wastewater that would
otherwise be discharged through ocean or bay outfalls;
and,
b. On or before January 1, 2033, the beneficial reuse
of at least 50% of treated wastewater that the NPDES
permit holder would otherwise discharge through ocean or
bay outfalls relative to the inflow to the treatment
plant.
These requirements are not consistent. First, the bill requires
NPDES permit holders to submit a plan to the State Water Board
to achieve beneficial reuse, to the maximum extent possible, of
treated wastewater otherwise discharged to the ocean or bay
outfalls. The phrase "maximum extent possible" does not take
into account feasibility, either financial feasibility or
technological feasibility. This is simply a plan; it does not
speak of what percent of treated wastewater should be recycled.
The second requirement of the section requires a NPDES permit
holder to reuse at least 50% of treated wastewater relative to
the inflow to the treatment plant. It is not clear, what the
SB 163
Page 10
actual target is. Is the goal to reduce 50% of treated
wastewater discharged as of 2017? Or a different date? Or is
the goal a 50% reduction based on inflow into the wastewater
system, which could fluctuate each year due to rainfall?
The bill makes a strong point that it could be beneficial to the
state to have statutory goals. These goals can drive innovation
and technology in order to achieve environmental and public
health benefits. In this case, the goal is designed to provide
greater supplies of clean, safe drinking water to all
Californians in wet or dry years and to have the ability to have
surplus water to store in groundwater aquifers and surface
storage reservoirs. However, the State Water Board is currently
working with an expert panel to develop regulations for surface
water augmentation with recycled water. It is on target to adopt
these regulations by December 31, 2016.
The (water) elephant in the room: In California there are
several legally allowable uses for recycled water, such as for
groundwater recharge, landscape and agricultural irrigation, and
upon adoption of regulations by the State Water Board at the end
of this calendar year, surface water augmentation. However,
there is one key recycling option not currently on the table:
direct potable reuse. This could one day be a component of the
state's water recycling portfolio, however many questions
remain. First, there would need to be greater public outreach
to dispel concerns over using "toilet to tap" water. Second,
before this option is used on a wide scale in this state, it's
important to thoroughly investigate the ability to effectively
treat this water so that would be a safe option for drinking
water. The State Water Board will be releasing a feasibility
study for direct potable reuse at the end of this calendar year.
Finally, before this is an option, the State Water Board would
need to first develop and adopt regulations for direct potable
reuse in California, a process that could take a year or more.
SB 163
Page 11
Given all of the uncertainties over the feasibility of
beneficially reusing 50% of treated wastewater by 2033, the
Committee may wish to consider replacing this section with the
following:
(b) On or before January 1, 2020, each holder of an NPDES
permit shall submit to the state board a plan (Plan) for
beneficially reusing treated wastewater that would otherwise
be discharged through ocean or bay outfalls. The Plan shall
include, but not be limited to, the average annual ocean or
bay outfalls by the permit holder, the average annual water
that is recycled and the beneficial use of that recycled
water, all current and future options of beneficially reusing
treated wastewater, including the feasibility of those
options, steps the permit holder is current taking to
beneficially reuse treated wastewater and the percentage of
the treated wastewater currently being reused.
Advisory group: This bill authorizes the State Water Board to
convene an advisory group for the purpose of preparing a report
or recommendations to the State Water Board about how to
beneficially reuse at least 50 percent of treated wastewater
that would otherwise be discharged to the ocean or bay outfalls.
Given the complexities of this issue allowing the affected
permit holders, suppliers and districts to provide input to the
State Water Board is a good idea.
Given the importance of this issue, the Committee may wish to
consider whether or not this advisory group should be required
(not simply authorized) and should provide for broad stakeholder
input as well as have a date certain by which they must produce
recommendations to the State Water Board.
Arguments in support: According to the Natural Resources Defense
SB 163
Page 12
Council,
"Water recycling is a critically important part of
California's water portfolio for cities, farms, and the
environment. The 2009 statewide survey concluded that agencies
were recycling 669,000 acre feet per year, with agricultural
irrigation the single largest user of recycled water. However,
California did not meet the State's objective of recycling 1
million acre feet per year by 2010 (see Water Code § 13577),
nor is the State on track to meet the objectives of recycling
1.5 million acre feet per year by 2020 and 2.5 million acre
feet per year by 2030 (see SWRCB Water Recycling Policy). SB
163 focuses on the coast because water that is discharged to
the ocean cannot be beneficially reused. The State estimates
that more than 1.3 million acre feet of water was discharged
into the ocean and bays in 2014. Instead of recycling this
water so it can be beneficially reused, agencies are diverting
water from California's overtapped rivers and the Bay-Delta
estuary, transporting that water hundreds of miles (often
using significant amounts of energy), treating it, using it
once, treating it again, and dumping it in the ocean. This is
a waste of water that we cannot afford.
SB 163 would provide agencies more than fifteen years to
achieve the requirement of recycling 50% of the water that
would otherwise be wastefully discharged to oceans and bays,
with local agencies determining how best to achieve this
requirement. The bill also allows the State Water Resources
Control Board to grant exceptions from the requirement for
exigent circumstances like extreme weather events,
emergencies, or repairs.
Agencies such as the Orange County Water District (OCWD) have
SB 163
Page 13
demonstrated that SB 163 will be feasible, particularly with
such a long timeline for achieving compliance. According to
OCWD, with its recent expansion in 2015 their Groundwater
Replenish Project now recycles 100 million gallons per day, at
a lower cost than imported water and using half of the energy
involved in importing water to Southern California."
Arguments in opposition: According to a coalition of
associations and individual water and wastewater agencies,
"This measure would impose an unworkable mandate on ocean and
bay dischargers to achieve 50 percent beneficial reuse of
discharge to bay or ocean outfalls by 2033?.The coalition
strongly supports water recycling and reuse, but SB 163 would
disrupt existing efforts to promote recycled water production
and use as well as innovative reuse projects currently being
implemented throughout the state.
The cost to implement a 50 percent reuse mandate on all ocean
and bay dischargers in the state would be staggering,
regardless of whether the mandate is imposed agency by agency
or on a statewide aggregate basis. Initial estimates are in
the billions of dollars (and potentially tens of billions),
and would include massive treatment facility upgrades,
significant infrastructure costs (as well as billions of
dollars in stranded infrastructure investments), and a
fundamental shift in how wastewater operations with ocean and
bay outfalls are managed today. These costs would be borne,
in part or in whole by local ratepayers.
The mandate proposed in SB 163 as amended is premature in
light of pending regulatory efforts intended to lay the
SB 163
Page 14
foundation for additional recycled water production and
beneficial uses moving forward. Specifically, an existing
"regulatory gap" needs to be filled before wastewater agencies
can determine what methods, processes and types of reuse make
the most sense for the increase in use of recycled water in
their service areas. Of particular note is the need for
regulations permitting effective Direct Potable Reuse (DPR),
which is absolutely necessary for achieving anything close to
what SB 163 proposes.
The State Water Board is currently receiving input from an
expert panel and an advisory group on the feasibility of
developing criteria for direct potable reuse (DPR), the
results of which could dramatically change the suite of
options for wastewater agencies to beneficially reuse their
water. The availability of DPR is essential for maximizing
recycled water production and beneficial use in the state, yet
SB 163 would impose a mandate before that process has been
completed."
Related legislation:
1) AB 1738 (McCarty) would require the Department of
Housing and Community Development (Department) to develop
building standards for the construction, installation, and
alteration of dark graywater systems, as defined. This
bill is currently pending before the Senate Transportation
and Housing Committee.
2) AB 2022 (Gordon) would authorize the bottling of
advanced purified demonstration water, as defined, for
educational purposes and to promote water recycling. This
bill is pending before the Senate Environmental Quality
Committee.
SB 163
Page 15
3) SB 918 (Pavley, Chapter 700, Statutes of 2010) requires
the Department of Public Health (the responsibility for
recycled water has since been shifted to the State Water
Board) to adopt uniform water recycling criteria for
indirect potable water reuse for groundwater recharge by
December 31, 2013; to develop and adopt uniform water
recycling criteria for surface water augmentation by
December 31, 2016; and, to investigate and report on the
feasibility of developing uniform water recycling criteria
for direct potable reuse.
Double-referral: Should this bill pass Environmental Safety and
Toxic Materials Committee, it will be referred to the Assembly
Water Parks and Wildlife Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Natural Resources Defense Council
Opposition
SB 163
Page 16
Association of California Water Agencies
California Association of Sanitation Agencies
California Chamber of Commerce
California Manufacturers & Technology Association
California Municipal Utilities Association
California Special Districts Association
City of San Diego, Public Utilities Department
Delta Diablo
Dublin San Ramon Services District
East Bay Municipal Utility District
Goleta West Sanitary District
Irvine Ranch Water District
Las Gallinas Valley Sanitary District
SB 163
Page 17
League of California Cities
Leucadia Wastewater District
Monterey Peninsula Water Management District
Napa Sanitation District
Oro Loma Sanitary District
Partnership for Sound Science in Environmental Policy
San Francisco Public Utilities Commission
Sanitation Districts of Los Angeles County
Sausalito-Marin City Sanitary District
Selma-Kingsburg-Fowler County Sanitation District
Silicon Valley Clean Water
Southern California Alliance of POTWs
Southwest California Legislative Council
SB 163
Page 18
Vallejo Sanitation and Flood Control District
Victor Valley Wastewater Reclamation Authority
WateReuse California
West Bay Sanitary District
West County Wastewater District
Western State Petroleum Association
Analysis Prepared by:Josh Tooker / E.S. & T.M. / (916)
319-3965