BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 1263
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|Author: |Wieckowski and Pavley |
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|Version: |2/18/2016 |Hearing |4/6/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dan Brumbaugh/Rachel Wagoner |
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SUBJECT: Public water system: permits
ANALYSIS:
Existing law: Under the California Safe Drinking Water Act (SDWA):
1) Requires the State Water Resources Control Board (SWRCB) to
regulate drinking water and enforce the federal Safe Drinking
Water Act and other regulations.
2) Requires permits for the operation of public water systems;
permit applications to the SWRCB must include a technical
report;
3) Authorizes the SWRCB, upon determination that an application is
complete, to make a specified investigation, and, if deemed
necessary, impose permit conditions, requirements for system
improvements, and time schedules to ensure an affordable,
reliable, and adequate supply of water at all times that is
pure, wholesome, and potable;
4) Prohibits a public water system that was not in existence on
January 1, 1998, or changes ownership after that date, from
receiving a permit unless the system demonstrates that the water
supplier possesses adequate financial, managerial, and technical
capability to ensure delivery of pure, wholesome, and potable
drinking water;
5) Allows the SWRCB to delegate primary responsibility for the
SB 1263 (Wieckowski) Page 2 of ?
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:
1) Commencing January 1, 2017, prohibits an application for a
permit for a new public water system from being deemed complete
unless the applicant has submitted a preliminary technical
report to the state board, as specified, and allows the state
board to impose technical, financial, or managerial requirements
on the permit.
2) Prohibits a public water system not in existence on January 1,
1998, or one that experiences subsequent changes in system
ownership or consolidation, from receiving a permit unless the
public water system demonstrates that the water supplier also
possesses adequate water rights to ensure the delivery of pure,
wholesome, and potable drinking water.
3) Authorizes SWRCB to deny the permit if the state board
determines that the service area of the public water system can
be served by one or more currently permitted public water
systems.
4) Requires concurrence of SWRCB before a local primacy agency may
issue a permit.
Background
1) History of California Drinking Water Program.
California's drinking water program was created in 1915, when the
Bureau of Sanitary Engineering was established by the State
Board of Health. The bureau's primary duty at that time was to
prevent and eliminate water-borne diseases. In 1974, the federal
Safe Drinking Water Act was passed to protect public health by
regulating the nation's public drinking water supply, which
requires the United States Environmental Protection Agency (U.S.
EPA) to establish mandatory nationwide drinking water standards.
It also requires water systems to monitor public water supplies
to ensure drinking water standards are met and report to
consumers if the standards are not met.
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Two years after the federal act was passed, California adopted
its own Safe Drinking Water Act. The state's act has two main
goals: to continue the state's drinking water program, and to be
the delegated authority (referred to as the "primacy") by the
U.S. EPA for enforcement of the federal act. And, as required by
the federal act, the state's drinking water program must set
drinking water standards that are at least as stringent as the
U.S. EPA's standards. Each community water system also must
monitor for a specified list of contaminants, and the findings
must be reported to SWRCB.
In 1989, Assembly Bill 21 (Sher, Chapter 823, Statutes of 1989)
amended California's Safe Drinking Water Act. This law requires
the development of a comprehensive safe drinking water plan,
sets forth requirements for adopting primary drinking water
standards, requires large water systems to identify all
reasonable measures to reduce contaminant levels in their water,
and requires operators of public water systems to notify the
California Department of Health Services (CDHS subsequently DPH)
and the public whenever the system is not in compliance with
drinking water standards.
In 1993, CDHS (subsequently DPH) submitted to the Legislature
the report entitled, "Drinking Water into the 21st Century: Safe
Drinking Water Plan for California" (1993 Plan).
In 1996, the California Legislature enacted Senate Bill (SB)
1307 (Chapter 755, Statutes of 1996). SB 1307 amended Section
116355 of the Health and Safety Code to require a periodic
update of the original Plan. The issues that were to be
addressed were essentially the same as those included in the
1993 Plan.
However, DPH did not release an update of the Safe Drinking
Water Plan and was subsequently sued by California Rural Legal
Assistance in 2009 for failing to ensure safe drinking water in
certain communities, including failing to comply with this
reporting requirement. The suit was settled in 2011 and
included a requirement that DPH complete the Safe Drinking Water
Plan update within three years.
In 2012, the California Legislature passed the Human Right to
Water Law, adding to the Water Code the declaration that it be
the "established policy of the state that every human being has
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the right to safe, clean, affordable and accessible water
adequate for human consumption, cooking and sanitary purposes."
In April 2013, U.S. EPA sent notice to DPH for noncompliance
with the requirements of the federal Safe Drinking Water Act
(SDWA), its implementing regulations, and the terms and
conditions of the Safe Drinking Water State Revolving Fund
(SDWSRF) grant agreements funded by the U.S. EPA for fiscal
years 2009-11. (Since 1997, the U.S. EPA had provided DPH an
annual grant from the SDWSRF to use for low-interest loans and
principal forgiveness to assist public water systems in
achieving and maintaining compliance with safe drinking water
standards.)
The letter of noncompliance from the U.S. EPA was the result of
DPH's failure to meet federal SDWA requirements regarding the
administration of SDWSRF. This included not disbursing federal
funds in a timely matter. At one point in 2012, DPH's drinking
water fund had an unspent balance of $455 million, which was the
largest unspent balance of any state in the United States.
The failing of DPH to effectively administer SDWSRF put in
jeopardy California's federal appropriation for the SRF,
precipitating the discussion to consolidate the administration
of the SDWSRF and the Clean Water SRF, which was then
administered separately by SWRCB. That discussion resulted in a
broader review of California's Drinking Water Program and water
quality programs.
In March 2014 , the California Environmental Protection Agency
and the Health and Human Services Agency published their
Drinking Water Reorganization and Transition Plan stating that
the Administration had evaluated the governance structure of the
state's drinking water and water quality activities and
concluded that "aligning the state's drinking water and water
quality programs in an integrated organizational structure would
best position the state to both effectively protect water
quality, while meeting current needs and future demands on water
supplies." The Administration also stated in this plan that
"with the Legislature's approval and appropriate legislation,
this alignment [would] be achieved by moving the Drinking Water
Program from DPH to SWRCB on July 1, 2014." The Legislature
approved the transfer in a budget trailer bill.
Senate Bill 861 (Committee on Budget and Fiscal Review, Chapter
SB 1263 (Wieckowski) Page 5 of ?
35, Statutes of 2014) transferred the Drinking Water Program
from the Department of Public Health (DPH) to SWRCB effective
July 1, 2014 creating the new Division of Drinking Water within
SWRCB and made other statutory changes to create efficiencies
and adoption and administration of the Drinking Water Program.
SWRCB directly enforces the Safe Drinking Water Act for all large
water systems (those with 200 or more service connections). For
small water systems (those with less than 200 connections), local
health departments can be delegated to have regulatory authority
as the local primacy agency (LPA).
As of January 2014, there were 7,642 public water systems in
California classified into three different categories: 3,015
Community Water Systems serving communities with full-time
residents; 1,489 Non-Transient Non-Community Water Systems
serving the same non-residents at least six months per year
(e.g., schools, places of work, and prisons); and 3,138 Transient
Non-Community Water Systems serving non-residents at least 60
days per (e.g., restaurants & campgrounds).
2)Risks for people dependent on small water systems.
When larger systems exceed maximum contaminant levels, those
problems are usually corrected promptly. In contrast, over time,
small water systems, because of their small base of rate payers,
are much less able to remain compliant with state drinking water
standards. This is especially true when water system users
include disadvantaged communities, defined as the any community
where the median household income is below 80 percent of the
statewide median household income. This problem with small water
systems experiencing the bulk of violations extends across water
system categories (e.g., Table 1). In addition to the community
systems where residents may have repeated long-term exposure to
contaminants in impure water, many Non-Transient Non-Community
systems include schools, where vulnerable populations may also
get substantial repeated exposure to contaminants. In 2014, 68
schools or day-care facilities with their own water systems
served contaminated water to more than 24,000 people.
As reported in a Senate Office of Research report, SWRCB's Drinking
Water Division estimated that in 2014, 472 out-of-compliance
drinking water systems served more than 275,000 people. If one
excludes the Total Coliform Rule (TCR) violations, which are
indicative of possible pathogen contamination, the total was 341
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contaminated water systems serving more than 184,000 people
(Table 2). In 2014, TCR violations occurred only once in about
75% of the systems with that kind of violation, presumably
because such contamination is relatively easily treated through
disinfection, flushing, and making repairs to facilities and
pipelines. In contrast, common non-TCR contaminants include
arsenic, nitrate, and uranium, which take longer to remediate and
can be ongoing issues. The DDW believes that systems with ongoing
issues are located predominantly in disadvantaged communities.
Table 1. 2012 Percent Distribution of Maximum Contaminant Level
(MCL) Violations Based on Public Water System Size and Type. Small
is 15-199 (or <660 persons/day), Intermediate is 200-999 (or
660-3,300 person/day), Medium is 1000-9999 (or >3,300 person/day),
and Large is >10,000 connections. NC refers to Non-Community, DBPs
are Disinfectant Byproducts, and SWTR is Surface Water Treatment
Rule for pathogens. Source: SRWCB, Safe Drinking Water Plan for
California: Report to the Legislature (June 2015).
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|Community |Violation| Small |Intermedia| Medium | Large |
| | s | | te | | |
|-------------+---------+---------+----------+---------+---------|
|Arsenic | 131 | 68% | 16% | 13% | 3% |
|-------------+---------+---------+----------+---------+---------|
|Nitrate | 40 | 87.5% | 7.5% | 2.5% | 2.5% |
|-------------+---------+---------+----------+---------+---------|
|Uranium | 21 | 67% | 28% | 5% | |
|-------------+---------+---------+----------+---------+---------|
|DBPs | 44 | 64% | 20% | 12% | 2% |
|-------------+---------+---------+----------+---------+---------|
|SWTR | 27 | 85% | 11% | | 4% |
|-------------+---------+---------+----------+---------+---------|
| | | | | | |
|-------------+---------+---------+----------+---------+---------|
|Non-Transient|Violation| Small |Intermedia| Medium | Large |
| NC | s | | te | | |
|-------------+---------+---------+----------+---------+---------|
|Arsenic | 61 | 90% | 10% | | |
|-------------+---------+---------+----------+---------+---------|
|Nitrate | 38 | 100% | | | |
|-------------+---------+---------+----------+---------+---------|
|Uranium | 6 | 67% | 33% | | |
|-------------+---------+---------+----------+---------+---------|
|DBPs | 14 | 86% | 14% | | |
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|-------------+---------+---------+----------+---------+---------|
|SWTR | 5 | 100% | | | |
|-------------+---------+---------+----------+---------+---------|
| | | | | | |
|-------------+---------+---------+----------+---------+---------|
|Transient NC |Violation| Small |Intermedia| Medium | Large |
| | s | | te | | |
|-------------+---------+---------+----------+---------+---------|
|Nitrate | 46 | 100% | | | |
|-------------+---------+---------+----------+---------+---------|
|SWTR | 12 | 100% | | | |
| | | | | | |
| | | | | | |
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Table 2. 2014 Public Water Systems Out of Compliance. TCR is Total
Coliform Rule. Source: SWRCB's Division of Drinking Water, in
Senate Office of Research, The Water We Drink, Part II: What is
California Doing to Ensure Safe Water is Affordable and Accessible?
(August 2015).
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|SIZE | NO. CONNECTIONS | ALL VIOLATIONS | VIOLATIONS w/o |
| | SERVED | | TCR |
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|---------+--------------------+---------+------+---------+------|
| | | Pop. |System| Pop. |System|
| | | Served | s | Served | s |
|---------+--------------------+---------+------+---------+------|
|Small | 15-199 | 76,736 | 408 | 47,667 | 294 |
| | (incl. schools & | | | | |
| | daycare)* | | | | |
|---------+--------------------+---------+------+---------+------|
|Intermedi| 200-999 | 92,252 | 46 | 59,075 | 34 |
|ate | | | | | |
|---------+--------------------+---------+------+---------+------|
|Medium | 1,000-3,300 | 106,397 | 18 | 77,386 | 13 |
|---------+--------------------+---------+------+---------+------|
|TOTAL | | 275,385 | 472 | 184,128 |341 |
| | | | | | |
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* Includes Community, Non-Transient Non-Community, and Transient
Non-Community systems for nitrate violations because nitrate is an
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acute contaminant.
Although it is difficult to assess how ongoing these water
contamination problems are, there is cause for concern in that
many vulnerable people are at potential risk. Consequently, a
number of state reports and strategies, including the SWRCB's
Resilient, Affordable, Safe, Drinking Water Framework for
Disadvantaged Communities (Framework) have recommended limiting
the proliferation of new, unsustainable public water systems.
3)New Public Water Systems.
Over the last five years, approximately 100 new public water
systems have been created, including 12 Community (11.7%), 34
Non-Transient Non-Community (33%), and 57 Transient Non-Community
(55.3%) Systems.
With respect to degree of geographical isolation, these new systems
range from being in close proximity to being remote relative to
larger existing water systems.
Figure 1. Distance in miles from new public water systems permitted
from Fiscal Years 2010/11 to 2015/16 to nearest larger water
systems. NC refers to Non-Community. Unk refers to water system
permits for which the distance is unknown. Source: data supplied
from SWRCB's Division of Drinking Water.
Comments
1) Purpose of Bill.
The author notes that SB 1263 will limit the proliferation of new,
unsustainable public water systems by creating a strengthened
review process for new system applications. Enhanced procedures
include submission and consideration of preliminary technical
reports that include discussions of existing water systems
adjacent to the applicant service area, the feasibility of these
adjacent systems providing water to the service area, proposed
sources of domestic water for the proposed water system, and
estimated costs of development and long-term operations and
maintenance of the proposed system versus costs to rate payers
associated with connecting to an existing system.
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The author asserts that with its requirements for preliminary
technical report, SB 1263 will strengthen the public water
system permitting process by systematizing and making more
transparent the analytical due diligence that developers
typically do.
The author states that given data from the last five years, it
appears that at least 25 out of 103 permittees (24.3%) would
have fallen under the scope of geographic adjacency for
consideration of existing water systems.
The author further asserts that because SB 1263 addresses
unsustainability of new, newly transferred, or consolidated
public water systems, and much of the risks faced by small
disadvantaged communities involve small water systems,
additional efforts to make all types of drinking water more
sustainable will be necessary to better ensure that people have
dependable access to pure, wholesome, and potable water.
SOURCE: Senator Wieckowski
SUPPORT:
California League of Conservation Voters
Clean Water Action
Community Water Center
Environmental Working Group
Leadership Counsel for Justice and Accountability
Lutheran Office of Public Policy - California
Sierra Club California
OPPOSITION:
Association of California Water Systems
California Building Industry Association (CBIA)
California Business Properties Association
California Chamber of Commerce
ARGUMENTS IN
SUPPORT:
Supporters state that the bill would help strengthen the permitting
process for new drinking water systems to better limit the
proliferation of small, unsustainable systems. Such small systems
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sometimes end up without adequate water supply or fall out of
compliance for contaminants and therefore threatening the health
and well-being of the communities that they serve. This represents
a violation of these communities' right to safe, clean, affordable,
and accessible drinking water, as articulated in AB 685 (Eng,
2012).
ARGUMENTS IN
OPPOSITION:
The Association of California Water Agencies (ACWA) states that
they support the goal, articulated in the Brown Administration's
Resilient, Affordable, Safe, Drinking Water Framework for
Disadvantaged Communities (Framework) and embodied in this bill, of
limiting the establishment of new, unsustainable drinking water
systems. However, they object to how the bill would allow the SWRCB
to deny permits for systems that meet the required financial,
managerial, and technical capacities if the proposed service area
could be served by one or more currently permitted systems. ACWA
therefore requests that either this provision be eliminated or
amended with language that limits permit denials to cases where one
or more of these capacities are lacking or there are insufficient
water rights to ensure delivery.
The California Building Industry Association argues "Home builders
prefer to have existing public water systems provide water service
to their customers. The formation of a new public water system only
occurs as a last resort when an existing public water system
opposes a request for annexation or an extension of service. To the
extent that SB 1263 moves in that direction, we believe it is on
the right track.
However, definite standards should be set so that if a new water
system meets those standards, it may receive a permit. It is
necessary to know at the outset what criteria the permittee must
meet to avoid arbitrary and capricious decision making.
Additionally, at the end of this process, we believe that the
public water system needs to be more strongly encouraged to annex
or extend services to the area proposed to be served by the new
public water system. A denial of a permit for a new water system
represents no incentive or threat to an existing public water
system that cannot be bothered with providing service to new
customers."
-- END --
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