Amended in Assembly August 11, 2016

Amended in Assembly June 29, 2016

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 a person submitting 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 bill would, if the board determines that it is feasible for the service area of the public water system addressed by the application to be served by one or more currently permitted public water 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 to 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 proposed new 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.

P4    1(b) Failing public water systems disproportionately affect
2disadvantaged communities who are least able to afford to address
3the conditions that led to the failure.

4(c) The proliferation of new, unsustainable public water systems
5also may undermine the state’s human right to water policy.

6(d) Therefore, it is the policy of the state to discourage the
7establishment of new, unsustainable public water systems when
8there is a feasible alternative.

9

SEC. 2.  

Section 116527 is added to the Health and Safety Code,
10to read:

11

116527.  

(a) As used in this section, “water-related
12improvement” includes, but is not limited to, a water pipe, a water
13pump, or drinking water infrastructure.

14(b) (1) Before a person submits an application for a permit for
15a proposed new public water system, the person shall first submit
16a preliminary technical report to the state board at least six months
17before initiating construction of any water-related improvement.

18(2) In order to assist in expediting the permitting process, a
19person that is considering submitting an application for a permit
20for a proposed new public water system is encouraged, but is not
21required, to submit the preliminary technical report no later than
22seven days after submission of an application to the city or county
23for a building permit for any water-related improvement.

24(3) For a proposed new public water system that would be
25regulated by a local primacy agency, the applicant shall also submit
26a copy of the preliminary technical report to the state board.

27(c) The preliminary technical report shall include all of the
28following:

29(1) The name of each public water system for which any service
30area boundary is within three miles, as measured through existing
31public rights-of-way, of any boundary of the applicant’s proposed
32public water system’s service area.

33(2) A discussion of the feasibility of each of the adjacent public
34water systems identified pursuant to paragraph (1) annexing,
35connecting, or otherwise supplying domestic water to the
36applicant’s proposed new public water system’s service area. The
37applicant shall consult withbegin delete anend deletebegin insert eachend insert adjacent public water system
38in preparing the report and shall include in the report any
39information provided bybegin delete anend deletebegin insert eachend insert adjacent public water system
P5    1regarding the feasibility of annexing, connecting, or otherwise
2 supplying domestic water to that service area.

3(3) A discussion of all actions taken by the applicant to secure
4a supply of domestic water from an existing public water system
5for the proposed new public water system’s service area.

6(4) All sources of domestic water supply for the proposed new
7public water system.

8(5) The estimated cost to construct, operate, and maintain the
9proposed new public water system, including long-term operation
10and maintenance costs and a potential rate structure.

11(6) A comparison of the costs associated with the construction,
12operation and maintenance, and long-term sustainability of the
13proposed new public water system to the costs associated with
14providing water to the proposed new public water system’s service
15area through annexation by, consolidation with, or connection to
16an existing public water system.

17(7) A discussion of all actions taken by the applicant to pursue
18a contract for managerial or operational oversight from an existing
19public water system.

20(8) An analysis of whether a proposed new public water system’s
21total projected water supplies available during normal, single dry,
22or multiple dry water years during a 20-year projection will meet
23the projected water demand for the service area.

begin insert

24
(9) Any information provided by the local agency formation
25commission. The applicant shall consult with the local agency
26formation commission if any adjacent public water system
27identified pursuant to paragraph (1) is a local agency as defined
28by Section 56054 of the Government Code.

end insert

29(d) (1) If documents prepared to comply with Division 13
30(commencing with Section 21000) of the Public Resources Code
31or any other application for public agency approval concerning
32providing drinking water to the proposed new public water
33system’s service area include the information required by
34subdivision (c), including documentation of the consultation with
35begin delete anend deletebegin insert eachend insert adjacent public waterbegin delete system,end deletebegin insert system and the local agency
36formation commission,end insert
the applicant may submit those documents
37to the state board in lieu of the preliminary technical report and
38the documents shall be considered the functional equivalent of the
39preliminary technical report.

P6    1(2) If documents prepared to comply with Division 13
2(commencing with Section 21000) of the Public Resources Code
3or any other application for public agency approval concerning
4providing drinking water to the proposed new public water
5system’s service area include some, but not all, of the information
6required by subdivision (c), including documentation of the
7consultation with an adjacent public waterbegin delete system,end deletebegin insert system and the
8local agency formation commission,end insert
the applicant shall submit
9those documents and the preliminary technical report to the state
10board and together those documents and the preliminary technical
11report shall be considered the functional equivalent of the
12preliminary technical report requirements of this section. A
13preliminary technical report submitted pursuant to this paragraph
14shall only be required to include information that is not otherwise
15addressed by the other submitted documents.

16(e) Upon review of a preliminary technical report submitted
17pursuant to this section, the state board may do all of the following
18actions:

19(1) If an existing public water system has not already sought
20annexation of the service area of a proposed new public water
21system from the local agency formation commission or the
22applicant has not already sought an extension of services agreement
23from an existing public water system, direct the applicant to
24undertake additional discussion and negotiation withbegin insert the local
25agency formation commission andend insert
any existing public water system
26meeting the requirements of paragraph (1) of subdivision (c) that
27the state board determines has the technical, managerial, and
28financial capacity to provide an adequate and reliable supply of
29domestic water to the service area of the proposed new public
30water system. The state board shall not direct the applicant to
31undertake additional discussion and negotiation if documentation
32submitted to the state board demonstrates that additional discussion
33and negotiation is unlikely to be successful, including, but not
34limited to, documentation thatbegin delete aend deletebegin insert theend insert local agency formation
35commission hasbegin delete alreadyend deletebegin insert previouslyend insert denied the application for an
36extension of service or annexation, or that the existing public water
37system has declined to apply to the local agency formation
38commission for approval of an extension of services to, or
39annexation of, the service area of the proposed new public water
40system.

P7    1(2) Direct the applicant to report on the results of discussion
2and negotiations conducted pursuant to paragraph (1) to the state
3board.

4(3) Establish a time schedule for the applicant’s performance
5of directives issued pursuant to this subdivision.

6(f) (1) An applicant shall comply with the state board’s
7directives as assigned in and consistent with subdivision (e) before
8 submitting an application for a permit for a proposed new public
9water system under this chapter.

10(2) An application for a permit for a proposed new public water
11system under this chapter shall not be deemed complete unless the
12applicant has complied with the requirements of this section.

13(g) The state board’s review of a preliminary technical report
14pursuant to this section shall not be deemed a project or approval
15of a permit application submitted under this chapter.

16(h) The requirements of this section do not apply to either of
17the following:

18(1) An application for a permit for a new public water system
19that was deemed complete prior to January 1, 2017, pursuant to
20the statutory permit application requirements effective at the date
21of the permit submission.

22(2) An extension of, or annexation to, an existing public water
23system.

24(i) (1) The requirements of this section do not apply to a service
25area where an applicant certifies in writing to the state board that
26the applicant will not rely on the establishment of a new public
27water system for its water supply. The state board shall
28acknowledge receipt of the applicant’s certification in a timely
29manner.

30(2) An applicant who certifies that the service area will not rely
31on the establishment of a new public water system and later seeks
32a permit for a new public water system shall comply with the
33provisions of this section and shall assume all risk of delay or
34rejection related to the permit application.

35(j) (1) The provisions of this subdivision apply to a proposed
36new public water system that achieves either or both of the
37following:

38(A) Consolidates two or more existing public water systems,
39existing state small water systems, or other existing water systems,
40which results in the creation of a new public water system.

P8    1(B) Provides water service in lieu of individual domestic wells.

2(2) At least six months before the construction of any
3water-related improvements, an applicant for a new public water
4system that meets the criteria in paragraph (1) shall provide a
5written notice to the state board that does both of the following:

6(A) Clearly describes the proposed new public water system
7and how it meets the criteria in paragraph (1).

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

9(3) The state board shall promptly acknowledge receipt of a
10written notice described in paragraph (2). The state board shall
11have 30 days from the acknowledgment of receipt of the written
12notice to issue a written notice to the applicant that compliance
13with the requirements of this section is necessary and that an
14application for a permit of a new public water system under this
15chapter is not complete until the applicant has complied with the
16requirements of this section. A determination by the state board
17that compliance with the requirements of this section is necessary
18shall be final and is not subject to review by the state board. A
19determination by the state board pursuant to this subdivision is not
20considered a project subject to Division 13 (commencing with
21Section 21000) of the Public Resources Code.

22(4) If the state board receives a written notice from a project
23applicant that satisfies the requirements of paragraph (2), the
24project described in the notice is deemed exempt from the
25requirements of this section on the 35th day following the date of
26the state board’s acknowledgment of receipt of the written notice,
27unless the state board has issued a notice to comply pursuant to
28paragraph (3).

29

SEC. 3.  

Section 116540 of the Health and Safety Code is
30amended to read:

31

116540.  

(a) Following completion of the investigation and
32satisfaction of the requirements of paragraphs (1) and (2), the state
33board shall issue or deny the permit. The state board may impose
34permit conditions, requirements for system improvements,
35technical, financial, or managerial requirements, and time schedules
36as it deems necessary to ensure a reliable and adequate supply of
37water at all times that is pure, wholesome, potable, and does not
38endanger the health of consumers.

39(1) A public water system that was not in existence on January
401, 1998, shall not be granted a permit unless the public water
P9    1system demonstrates to the state board that the water supplier
2possesses adequate financial, managerial, and technical capability
3to ensure the delivery of pure, wholesome, and potable drinking
4water. This section shall also apply to any change of ownership
5of a public water system.

6(2) A permit under this chapter shall not be issued to an
7association organized under Title 3 (commencing with Section
818000) of the Corporations Code. This section shall not apply to
9unincorporated associations that, as of December 31, 1990, are
10holders of a permit issued under this chapter.

11(b) Notwithstanding Section 116330, a local primacy agency
12shall not issue a permit under this article without the concurrence
13of the state board.

14(c) In considering whether to approve a proposed new public
15water system, the state board shall consider the sustainability of
16the proposed new public water system and its water supply in the
17reasonably foreseeable future, in view of global climate change,
18potential migration of groundwater contamination and other
19potential treatment needs, and other factors that can significantly
20erode a system’s capacity.

21(d) If the state board determines that it is feasible for the service
22area of the public water system addressed by an application under
23this article to be served by one or more permitted public water
24systems identified pursuant to paragraph (1) of subdivision (c) of
25Section 116527, the state board may deny the permit of a proposed
26new public water system if it determines, based on its assessment
27of the preliminary technical report submitted pursuant to Section
28116527, the permit application, and other relevant, substantial
29evidence submitted, that it is reasonably foreseeable that the
30proposed new public water system will be unable to provide
31affordable, safe drinking water in the reasonably foreseeable future.

32(e) An applicant may appeal decisions and actions of the deputy
33director taken pursuant to this section to the state board.

34

SEC. 4.  

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

35

106.4.  

(a) For the purposes of this section:

36(1) “Bottled water” has the same meaning as defined in Section
37111070 of the Health and Safety Code.

38(2) “Residential development” has the same meaning as defined
39in Section 65008 of the Government Code.

P10   1(3) “Retail water facility” has the same meaning as defined in
2Section 111070 of the Health and Safety Code.

3(4) “Water-vending machine” has the same meaning as defined
4in Section 111070 of the Health and Safety Code.

5(5) “Water hauler” has the same meaning as defined in Section
6111070 of the Health and Safety Code.

7(b) A city, including a charter city, or a county shall not issue
8a building permit for the construction of a new residential
9development where a source of water supply is water transported
10by a water hauler, bottled water, a water-vending machine, or a
11retail water facility.

12(c) The Legislature finds and declares that this section addresses
13a matter of statewide concern and not a municipal affair, as that
14term is used in Section 5 of Article XI of the California
15Constitution.

16

SEC. 5.  

No reimbursement is required by this act pursuant to
17Section 6 of Article XIII B of the California Constitution because
18a local agency or school district has the authority to levy service
19charges, fees, or assessments sufficient to pay for the program or
20level of service mandated by this act or because costs that may be
21incurred by a local agency or school district will be incurred
22because this act creates a new crime or infraction, eliminates a
23crime or infraction, or changes the penalty for a crime or infraction,
24within the meaning of Section 17556 of the Government Code, or
25changes the definition of a crime within the meaning of Section 6
26of Article XIII B of the California Constitution.



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