Amended in Assembly June 20, 2016

Amended in Assembly June 8, 2016

Senate BillNo. 1263


Introduced by Senators Wieckowski and Pavley

February 18, 2016


An act to amend Section 116540 of, and to add Section 116527 to, the Health and Safety Code, and to add Section 106.4 to the Water Code, relating to drinking water.

LEGISLATIVE COUNSEL’S DIGEST

SB 1263, as amended, Wieckowski. Public water system: permits.

(1) Existing law, the California Safe Drinking Water Act, imposes on the State Water Resources Control Board various responsibilities and duties relating to providing a dependable, safe supply of drinking water. The act prohibits a person from operating a public water system unless he or she first submits an application, including a technical report, to the state board and receives a permit, as specified. The act requires the state board, upon determination that the application is complete, to make a specified investigation, and allows the state board to impose permit conditions, requirements for system improvements, and time schedules as the state board deems necessary to ensure an affordable, reliable, and adequate supply of water at all times that is pure, wholesome, and potable. The act provides that a person who knowingly makes a false statement or representation in a report submitted, maintained, or used for purposes of compliance with the act may be punished as a misdemeanor.

This bill would require an application for a permit for a proposed new public water system to first submit a preliminary technical report to the board at least 6 months before initiating construction of any water-related improvement, as defined. Because a misstatement in the report could be a crime under the provision described above, this bill would impose a state-mandated local program by expanding the scope of a crime. The bill would allow the board to direct the applicant to undertake additional discussion and negotiation with certain existing public water systems the board determines have the technical, managerial, and financial capacity to provide an adequate and reliable supply of domestic water to the service area of the proposed new public water system, as specified, and would require an applicant to comply before submitting an application for a permit to operate a system and would prohibit the application from being deemed complete unless the applicant has complied. The billbegin delete would authorize the board to deny the permitend deletebegin insert would,end insert if the board determines thatbegin insert it is feasible forend insert the service area of the public water systembegin delete canend deletebegin insert addressed by the application toend insert be served by one or more currently permitted public waterbegin delete systems or that the proposed new public water system may lack the technical, managerial, or financial capacity to sustainablyend deletebegin insert systems, authorize the board to deny the permit of a proposed new public water system if it determines that it is reasonably foreseeable that the proposed new public water system will be unable toend insert provide affordable, safe drinking water in the reasonably foreseeable future, as prescribed.

(2) Existing law allows the state board to delegate primary responsibility for the administration and enforcement of the act within a county to a local health officer if certain criteria are met. Existing law requires that the local primacy agency be empowered with all of the authority granted to the state board over the specified public water systems.

This bill would prohibit a local primacy agency from issuing a permit to operate a public water system without the concurrence of the state board. The bill would require, for a proposedbegin insert newend insert public water system that would be regulated by a local primacy agency, the applicant to also submit a copy of the preliminary technical report to the state board.

(3) Existing law declares the established policy of the state that every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes. Existing law requires a city or county that determines a project, as defined, is subject to the California Environmental Quality Act to identify certain water systems that may supply water for the project and to request those public water systems to prepare and approve a specified water supply assessment. Under existing law, if no public water system is identified, the city or county is required to prepare and approve the water supply assessment. Existing law provides that if, as a result of its assessment, the public water system or city or county concludes that its water supplies are, or will be, insufficient, the public water system or city or county is required to provide its plans for acquiring additional water supplies, as prescribed.

This bill would prohibit a city, including a charter city, or a county from issuing a building permit for the construction of a new residential development where a source of the water supply is water transported by a water hauler, bottled water, a water-vending machine, or a retail water facility. By imposing new duties on a city or county in connection with the issuance of a building permit, the bill would impose a state-mandated local program.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for specified reasons.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

3(a) There are over 7,500 public water systems in California.
4The vast majority of these systems provide a reliable supply of
5safe drinking water. However, there are hundreds of smaller public
6water systems that consistently fail to provide a reliable supply of
7safe drinking water to their customers. Many failing public water
8systems were created without the necessary technical, managerial,
9or financial capacity to be sustainable in the long term in view of
10water supply uncertainties. These uncertainties can be created by
11effects on water quality and quantity, global climate change,
12migration of groundwater contamination, the establishment of new
13drinking water standards, and other factors that are known to
14significantly erode a system’s capacity.

15(b) Failing public water systems disproportionately affect
16disadvantaged communities who are least able to afford to address
17the conditions that led to the failure.

P4    1(c) The proliferation of new, unsustainable public water systems
2also may undermine the state’s human right to water policy.

3(d) Therefore, it is the policy of the state to discourage the
4establishment of new, unsustainable public water systems when
5there is a feasible alternative.

6

SEC. 2.  

Section 116527 is added to the Health and Safety Code,
7to read:

8

116527.  

(a) As used in this section, “water-related
9improvement” includes, but is not limited to, a water pipe, a water
10pump, or drinking water infrastructure.

11(b) (1) Before a person submits an application for a permit for
12a proposed new public water system, the person shall first submit
13a preliminary technical report to the state board at least six months
14before initiating construction of any water-related improvement.

15(2) In order to assist in expediting the permitting process, a
16person that is considering submitting an application for a permit
17for a proposed new public water system is encouraged, but is not
18required,begin delete within seven days of an applicationend deletebegin insert to submit the
19preliminary technical report no later than seven days after
20submittal of an application to the city or countyend insert
for a building
21permit for any water-relatedbegin delete improvement to submit the preliminary
22technical report to the city or county.end delete
begin insert improvement.end insert

23(3) For a proposedbegin insert newend insert public water system that would be
24regulated by a local primacy agency, the applicant shall also submit
25a copy of the preliminary technical report to the state board.

26(c) The preliminary technical report shall include all of the
27following:

28(1) The name of each public water system for which any service
29area boundary is within three miles, as measured through existing
30publicbegin delete right of ways,end deletebegin insert rights-of-way,end insert of any boundary of the
31applicant’s proposed public water system’s service area.

32(2) A discussion of the feasibility of each of the adjacent public
33water systems identified pursuant to paragraph (1) annexing,
34connecting, or otherwise supplying domestic water to the
35applicant’sbegin delete newend delete proposedbegin insert newend insert public water system’s service area.
36The applicant shall consult with an adjacent public water system
37in preparing the report and shall include in the report any
38information provided by an adjacent public water system regarding
39the feasibility of annexing, connecting, or otherwise supplying
40domestic water to that service area.

P5    1(3) A discussion of all actions taken by the applicant to secure
2a supply of domestic water from an existing public water system
3for the proposed new public water system’s service area.

4(4) All sources of domestic water supply for the proposed new
5public water system.

6(5) The estimated cost to construct, operate, and maintain the
7proposed new public water system, including long-term operation
8and maintenance costs and a potential rate structure.

9(6) A comparison of the costs associated with the construction,
10operation and maintenance, and long-term sustainability of the
11proposed new public water system to the costs associated with
12providing water to the proposed new public water system’s service
13area through annexation by, consolidation with, or connection to
14an existing public water system.

15(7) A discussion of all actions taken by the applicant to pursue
16a contract for managerial or operational oversight from an existing
17public water system.

18(8) An analysis of whether abegin delete newend delete proposedbegin insert newend insert public water
19system’s total projected water supplies available during normal,
20single dry, or multiple dry water years during a 20-year projection
21will meet thebegin delete projectend deletebegin insert projectedend insert water demand for the service area.

22(d) (1) If documents prepared to comply with Division 13
23(commencing with Section 21000) of the Public Resources Code
24or any other application for public agency approval concerning
25providing drinking water to thebegin delete newend delete proposedbegin insert newend insert public water
26system’s service area include the information required by
27subdivision (c),begin insert including documentation of the consultation with
28an adjacent public water system,end insert
the applicant may submit those
29documents to the state board in lieu of the preliminary technical
30report and the documents shall be considered the functional
31equivalent of the preliminary technical report.

32(2) If documents prepared to comply with Division 13
33(commencing with Section 21000) of the Public Resources Code
34or any other application for public agency approval concerning
35providing drinking water to thebegin delete newend delete proposedbegin insert newend insert public water
36system’s service area include some, but not all, of the information
37required by subdivision (c),begin insert including documentation of the
38consultation with an adjacent public water system,end insert
the applicant
39shall submit those documents and the preliminary technical report
40to the state board and together those documents and the preliminary
P6    1technical report shall be considered the functional equivalent of
2the preliminary technical report requirements of this section. A
3preliminary technical report submitted pursuant to this paragraph
4shall only be required to include information that is not otherwise
5addressed by the other submitted documents.

6(e) Upon review of a preliminary technical report submitted
7pursuant to this section, the state board may do all of the following
8actions:

9(1) Ifbegin delete the applicant has not already sought annexation or an
10extension of services agreement from the local agency formation
11commission,end delete
begin insert an existing public water system has not already sought
12annexation of the service area of a proposed new water system
13from the local agency formation commission or the applicant has
14not already sought an extension of services agreement from an
15existing public water system,end insert
direct the applicant to undertake
16additional discussion and negotiation with any existing public
17water system meeting the requirements of paragraph (1) of
18subdivision (c) that the state board determines has the technical,
19managerial, and financial capacity to provide an adequate and
20reliable supply of domestic water to the service area of the proposed
21new public water system. The state board shall not direct the
22applicant to undertake additional discussion and negotiation if
23documentation submitted to the state board demonstrates that
24additional discussion and negotiation is unlikely to be successful,
25including, but not limited to, documentation that a local agency
26formation commission has already denied the application for an
27
begin delete extension or annexation.end deletebegin insert extension of service or annexation, or
28that the existing public water system has declined to apply to the
29local agency formation commission for approval of an extension
30of services to, or annexation of, the service area of the proposed
31new public water system.end insert

32(2) Direct the applicant to report on the results of discussion
33and negotiations conducted pursuant to paragraph (1) to the state
34board.

35(3) Establish a time schedule for the applicant’s performance
36of directives issued pursuant to this subdivision.

37(f) (1)  An applicant shall comply with the state board’s
38directives as assigned in and consistent with subdivision (e) before
39submitting an application for a permit under this chapter.

P7    1(2)  An application for a permit for abegin insert proposedend insert new public water
2system under this chapter shall not be deemed complete unless the
3applicant has complied with the requirements of this section.

4(g) The state board’s review of a preliminary technical report
5pursuant to this section shall not be deemedbegin delete approval ofend delete a project
6or approval of a permit application submitted under this chapter.

7(h) The requirements of this section do not apply tobegin delete anend deletebegin insert either
8of the following:end insert

9begin insert(1)end insertbegin insertend insertbegin insertAnend insert application for a permit for a new public water system
10that was deemed complete prior to January 1, 2017, pursuant to
11the statutory permit application requirements effective at the date
12of the permit submittal.

begin insert

13
(2) An extension of, or annexation to, an existing public water
14system.

end insert

15(i) (1) The requirements of this section do not apply to a service
16area where an applicant certifies in writing to the state board that
17the applicant will not rely on the establishment of a new public
18water system for its water supply. The state board shall
19acknowledge receipt of the applicant’s certification in a timely
20manner.

21(2) An applicant who certifies that the service area will not rely
22on the establishment of a new public water system and later seeks
23a permit for a new public water system shall comply with the
24provisions of this section and shall assume all risk of delay or
25rejection related to the permit application.

26(j) (1) The provisions of this subdivision apply to a proposed
27new public water system that achieves either or both of the
28following:

29(A) Consolidates two or more existing public water systems,
30existing state small water systems, or other existing water systems,
31which results in the creation of a new public water system.

32(B) Provides water service in lieu of individual domestic wells.

33(2) At least six months before the construction of any
34water-related improvements, an applicant for a new public water
35system that meets the criteria in paragraph (1) shall provide a
36written notice to the state board that does both of the following:

37(A) Clearly describes the proposed new public water system
38and how it meets the criteria in paragraph (1).

39(B) Requests an exemption from the requirements of this section.

P8    1(3) The state board shall promptly acknowledge receipt of a
2written notice described in paragraph (2). The state board shall
3have 30 days from the acknowledgment of receipt of the written
4notice to issue a written notice to the applicant that compliance
5with the requirements of this section is necessary and that an
6application for a permit of a new public water system under this
7chapter is not complete until the applicant has complied with the
8requirements of this section. A determination by the state board
9that compliance with the requirements of this section is necessary
10shall be final and is not subject to review. A determination by the
11state board pursuant to this subdivision is not considered a project
12subject to Division 13 (commencing with Section 21000) of the
13Public Resources Code.

14(4) If the state board receives a written notice from a project
15applicant that satisfies the requirements of paragraph (2), the
16project described in the notice is deemed exempt from the
17requirements of this section on the 35th day following the date of
18the state board’s acknowledgment of receipt of the written notice,
19unless the state board has issued a notice to comply pursuant to
20paragraph (3).

21

SEC. 3.  

Section 116540 of the Health and Safety Code is
22amended to read:

23

116540.  

(a) Following completion of the investigation and
24satisfaction of the requirements of paragraphs (1) and (2), the state
25board shall issue or deny the permit. The state board may impose
26permit conditions, requirements for system improvements,
27technical, financial, or managerial requirements, and time schedules
28as it deems necessary to ensure a reliable and adequate supply of
29water at all times that is pure, wholesome, potable, and does not
30endanger the health of consumers.

31(1) A public water system that was not in existence on January
321, 1998, shall not be granted a permit unless the public water
33system demonstrates to the state board that the water supplier
34possesses adequate financial, managerial, and technical capability
35to ensure the delivery of pure, wholesome, and potable drinking
36water. This section shall also apply to any change of ownership
37of a public water system.

38(2) A permit under this chapter shall not be issued to an
39association organized under Title 3 (commencing with Section
4018000) of the Corporations Code. This section shall not apply to
P9    1unincorporated associations that, as of December 31, 1990, are
2holders of a permit issued under this chapter.

3(b) Notwithstanding Section 116330, a local primacy agency
4shall not issue a permit under this article without the concurrence
5of the state board.

6(c) In considering whether to approve a proposed new public
7water system, the state board shall consider the sustainability of
8the proposed new public water system and its water supply in the
9reasonably foreseeable future, in view of global climate change,
10potential migration of groundwater contamination and other
11potential treatment needs, and other factors that can significantly
12erode a system’s capacity.

begin delete

13(d) The state board may deny the permit if it determines either
14of the following:

end delete
begin delete

15(1) That it is feasible for the service area of the proposed new
16public water system addressed by an application under this chapter
17to be served by one or more currently permitted public water
18systems.

end delete
begin delete

19(2) That the proposed new public water system may lack the
20technical, managerial, or financial capacity to sustainably provide
21affordable, safe drinking water in the reasonably foreseeable future
22based on its assessment of the preliminary technical report
23submitted pursuant to Section 116527, the permit application,
24relevant substantial evidence, or the factors considered pursuant
25to subdivision (c).

end delete
begin insert

26
(d) If the state board determines that it is feasible for the service
27area of the public water system addressed by an application under
28this article to be served by one or more permitted public water
29systems identified pursuant to paragraph (1) of subdivision (c) of
30Section 116527, the state board may deny the permit of a proposed
31new public water system if it determines, based on its assessment
32of the preliminary technical report submitted pursuant to Section
33116527, the permit application, and other relevant, substantial
34evidence submitted, that it is reasonably foreseeable that the
35proposed new public water system will be unable to provide
36affordable, safe drinking water in the reasonably foreseeable
37future.

end insert

38(e) An applicant may appeal decisions and actions of the deputy
39director taken pursuant to this section to the state board.

40

SEC. 4.  

Section 106.4 is added to the Water Code, to read:

P10   1

106.4.  

(a) For the purposes of this section:

2(1) “Bottled water” has the same meaning as defined in Section
3111070 of the Health and Safety Code.

4(2) “Residential development” has the same meaning as defined
5in Section 65008 of the Government Code.

6(3) “Retail water facility” has the same meaning as defined in
7Section 111070 of the Health and Safety Code.

8(4) “Water-vending machine” has the same meaning as defined
9in Section 111070 of the Health and Safety Code.

10(5) “Water hauler” has the same meaning as defined in Section
11111070 of the Health and Safety Code.

12(b) A city, including a charter city, or a county shall not issue
13a building permit for the construction of a new residential
14development where a source of water supply is water transported
15by a water hauler, bottled water, a water-vending machine, or a
16retail water facility.

17(c) The Legislature finds and declares that this section addresses
18a matter of statewide concern and not a municipal affair, as that
19term is used in Section 5 of Article XI of the California
20Constitution.

21

SEC. 5.  

No reimbursement is required by this act pursuant to
22Section 6 of Article XIII B of the California Constitution because
23a local agency or school district has the authority to levy service
24charges, fees, or assessments sufficient to pay for the program or
25level of service mandated by this act or because costs that may be
26incurred by a local agency or school district will be incurred
27because this act creates a new crime or infraction, eliminates a
28crime or infraction, or changes the penalty for a crime or infraction,
29within the meaning of Section 17556 of the Government Code, or
30changes the definition of a crime within the meaning of Section 6
31of Article XIII B of the California Constitution.



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