BILL ANALYSIS Ó
SB 1263
Page 1
Date of Hearing: June 14, 2016
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
SB
1263 (Wieckowski) - As Amended June 8, 2016
SENATE VOTE: 21-13
SUBJECT: Public water system: permits
SUMMARY: Requires a person submitting an application for a
permit for a proposed new public water system to first submit a
preliminary technical report to the State Water Resources
Control Board (State Water Board) at least six months before
initiating construction of any water-related development.
Authorizes the State Water Board to deny a permit for a new
public water system if it is feasible to connect to an existing
system or if the new public water system is unsustainable.
Specifically, this bill:
1)States that "water-related improvement" includes, but is not
limited to, a water pipe, a water pump, or drinking water
infrastructure.
2)Requires a person submitting an application for a permit for a
proposed new public water system to, at least six months
before initiating construction of any water-related
improvement, first submit a preliminary technical report to
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the State Water Board.
3)Encourages, but does not require, a person considering
submitting an application for a permit for a proposed new
public water system to, within seven days of an application
for a building permit for any water-related improvement,
submit the preliminary technical report to the city or county.
4)Requires an applicant for a permit for a proposed new public
water system that would be regulated by a local primary agency
to submit a copy of the preliminary technical report to the
State Water Board.
5)Requires the preliminary technical report, for a proposed new
public water system, to include all of the following:
a. The name of each existing public water system for
which any service area boundary is within three miles, as
measured through existing public rights-of-ways, of any
boundary of the applicant's proposed public water system's
service area;
b. A discussion of the feasibility of each of the
adjacent public water systems annexing, connecting, or
otherwise supplying domestic water to the applicant's new
proposed public water system's service area. Requires the
applicant to consult with an adjacent public water system
in preparing the report and include in the preliminary
technical report any information provided by an adjacent
public water system regarding the feasibility of annexing,
connecting, or otherwise supplying domestic water to that
service area;
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c. A discussion of all actions taken by the applicant to
secure a supply of domestic water from an existing public
water system for the proposed new public water system's
service area;
d. All sources of domestic water supply for the proposed
new public water system;
e. The estimated cost to construct, operate, and maintain
the proposed new public water system, including long-term
operation and maintenance costs and a potential rate
structure;
f. A comparison of the costs associated with the
construction, operation, and maintenance, and long-term
sustainability of the proposed new public water system to
the costs associated with providing water to the proposed
new public water system's service area through annexation
by, consolidation with, or connection to an existing
public water system;
g. A discussion of all actions taken by the applicant to
pursue a contract for managerial or operational oversight
from an existing public water system; and,
h. An analysis of whether a new proposed public water
system's total projected water supplies available during
normal, single dry, or multiple dry water years during a
20-year projection will meet the projected water demand
for the service area.
6)Authorizes an applicant for a new proposed public water system
to submit documents to the State Water Board, prepared to
comply with the California Environmental Quality Act (CEQA),
or any other application for public agency approval concerning
providing drinking water to the new proposed public water
system's service area, if those documents include the
information required by the preliminary technical report, in
lieu of the preliminary technical report and provides that
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these documents shall be considered the functional equivalent
of the preliminary technical report.
7)Authorizes an applicant for a new proposed public water system
to submit the preliminary technical report and documents to
the State Water Board, prepared to comply with the CEQA, or
any other application for public agency approval concerning
providing drinking water to the new proposed public water
system's service area, if those documents include some, but
not necessarily all, of the information required by the
preliminary technical report, provides that together those
documents and the preliminary technical report shall be
considered the functional equivalent of the preliminary
technical report. Provides that a preliminary technical
report submitted via this process shall only be required to
include information that is not otherwise addressed by the
other submitted documents.
8)Upon review of a preliminary technical report submitted, the
State Water Board may do all of the following:
a. Direct, if the applicant has not already sought
annexation or an extension of services agreement from the
local agency formation commission, the applicant to
undertake additional discussion and negotiation with any
existing public water system that is within three miles of
the boundaries of the proposed public water system and
that the State Water Board determines has 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. Prohibits the
State Water Board from directing the applicant to
undertake additional discussion and negotiation if
documentation submitted to the State Water Board
demonstrates that additional discussion and negotiation is
unlikely to be successful, including, but not limited to,
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documentation that a local agency formation commission has
already denied the application for an extension or
annexation;
b. Direct the applicant to report on the results of
discussion and negotiations to the State Water Board; and,
c. Establish a time schedule for the applicant's
performance of directives issued by the State Water Board.
9)Requires an applicant for a proposed new public water system
to comply with the State Water Board's directives before
submitting an application for a permit for a proposed new
public water system.
10)Provides that an application for a permit for a new public
water system from being deemed complete unless the applicant
has submitted the preliminary technical report and complied
with the State Water Board's directives.
11)Provides that the State Water Board's review of a preliminary
technical report shall not be deemed to be an approval of a
project or approval of a permit application submitted to the
State Water Board.
12)Provides that the requirements for the submittal of a
preliminary technical report do not apply to an application
for a permit for a new public water system that was deemed
complete prior to January 1, 2017.
13)Provides that the requirements for the submittal of a
preliminary technical report do not apply to a service area
where an applicant certifies in writing to the State Water
Board that the applicant will not rely on the establishment of
a new public water system for its water supply. Requires the
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State Water Board to acknowledge receipt of the applicant's
certification in a timely manner.
14)Requires an applicant for a new proposed public water system,
who certifies that the service area will not rely on the
establishment of a new public water system, and later seeks a
permit for a new public water system, to comply with the
preliminary technical report requirements and directives of
the State Water Board as required by this bill and to assume
all risk of delay or rejection related to the permit
application.
15)Requires applicants of a proposed new public water system
that a) consolidates two or more existing public water
systems, existing state small water systems, or other existing
water systems which results in the creation of a new public
water system; and/or, b) provides water service in lieu of
individual domestic wells, to comply with each of the
following:
a. Requires at least six months before the construction
of any water-related improvements, an applicant for a new
public water system to provide a written notice to the
State Water Board that clearly describes the proposed new
public water system including how it meets the criteria of
either a) or b) and requests an exemption from the
requirements of submitting a preliminary technical report.
b. Requires the State Water Board to promptly acknowledge
receipt of the written notice provided by the applicant.
Requires the State Water Board, within 30 days of
acknowledging receipt of the written notice, to issue a
written notice to the applicant that compliance with the
requirements of the preliminary technical report and
directives of the State Water Board is necessary and that
an application for a permit of a new public water system
is not complete until the applicant has complied with the
requirements for a preliminary technical report and
directives by the State Water Board. States that a
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determination by the State Water Board regarding
compliance with the preliminary technical report and
directives by the State Water Board are final and not
subject to review. This determination by the State Water
Board is not considered a project subject to CEQA.
c. Provides that the project described in the written
notice to the State Water Board is exempt from complying
with the requirements of the preliminary technical report
and directives by the State Water Board on the 35th day
following the date of the State Water Board's
acknowledgement of receipt of the written notice, unless
the State Water Board has issued a notice to comply with
the preliminary technical report and directives by the
State Water Board.
16)Authorizes the State Water Board to impose technical,
financial or managerial requirements as part of a permit for a
proposed public water system.
17)Prohibits a local primacy agency from issuing a permit for a
new proposed public water system without the concurrence of
the State Water Board.
18)Requires the State Water Board, in consideration of whether
to approve a proposed new public water system, to consider the
sustainability of the proposed new public water system and its
water supply in the reasonably foreseeable future, in view of
global climate change, potential migration of groundwater
contamination and other potential treatment needs, and other
factors that can significantly erode a system's capacity.
19)Authorizes the State Water Board to deny a permit for a
proposed new public water system if it determines either of
the following:
a. That it is feasible for the service area of the
proposed new public water system addressed by an
application to be served by one or more currently
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permitted public water systems; or,
b. That the proposed new public water system may lack the
technical, managerial, or financial capacity to
sustainably provide affordable, safe drinking water in the
reasonably foreseeable future based on the State Water
Board's assessment of the preliminary technical report,
the permit application, relevant substantial evidence, or
other factors considered.
20)Authorizes an applicant to appeal decisions and actions of
the deputy director taken when issuing or denying a permit for
a new proposed public water system to the State Water Board.
21)Prohibits 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 water supply is
water transported by water hauler, bottled water, a
water-vending machine or a retail water facility.
EXISTING LAW:
1)Vests the State Water Board with all of the authority, duties,
powers, purposes, functions, responsibilities, and
jurisdiction of the State Department of Public Health and its
predecessor to enforce the State Drinking Water Act (SDWA).
(Health and Safety Code (HSC) § 116271)
2)Prohibits any person from operating a public water system
unless he or she first submits an application to the State
Water Board and receives a permit. Requires the submittal of
a new application when there is a change in ownership of a
public water system. (HSC § 116525)
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3)Requires a public water system to submit a technical report to
the State Water Board as part of the permit application for a
new water system or when otherwise required by the State Water
Board. Authorizes the report to include, but not be limited
to, detailed plans and specifications, water quality
information, and physical descriptions of the existing or
proposed system, and financial assurance information. (HSC §
116530)
4)Requires the State Water Board, upon determination that an
application for a public water system is complete, to make a
thorough investigation of the proposed or existing plant,
works, system, or water supply, and all other circumstances
and conditions that it deems material, including any financial
assurance information. (HSC § 116535)
5)Requires the State Water Board, following completion of its
required investigation, to issue or deny the permit for a
public water system. Authorizes the State Water Board to
impose permit conditions, requirements for system
improvements, and time schedules as it deems necessary to
ensure a reliable and adequate supply of water at all times
that is pure, wholesome, potable, and does not endanger the
health of consumers. (HSC § 116540)
6)Authorizes the State Water Board, prior to the issuance of any
new, revised, renewed or amended permit, or the denial of a
permit, to conduct a public hearing to obtain additional
public comment. (HSC § 116545)
7)Requires any person who owns a public water system to ensure
that the system does all of the following:
a) Complies with primary and secondary drinking
water standards;
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b) Will not be subject to backflow under normal
operating conditions;
c) Provides a reliable and adequate supply of
pure, wholesome, healthful, and potable water;
d) Employs or utilizes only water treatment
operators or water treatment operators-in-training
that have been certified by the State Water Board at
the appropriate grade; and,
e) Complies with the operator certification
program. (HSC § 116555 (a))
1)Requires the State Water Board to appoint a deputy director
who reports to the executive director to oversee the issuance
and enforcement of the public water system permits. Requires
the deputy director to have public health expertise (HSC §
116271 (k)(1))
2)Delegates to the deputy director, who oversees the issuance
and enforcement of public water system permits, the State
Water Board's authority to provide notice, approve notice
content, approve emergency notification plans, and take other
action, to issue, renew, reissue, revise, amend or deny any
public water system permits, to suspend or revoke any public
water system permit, and to issue citations, assess penalties,
or issue order. (HSC § 116271 (k)(2))
3)Defines a "public water system" as a system for the provision
of water for human consumption through pipes or other
constructed conveyances that has 15 or more service
connections or regularly serves at least 25 individuals daily
at least 60 days out of the year. (HSC § 116275)
4)Defines a "local primacy agency" as a local health officer
that has applied for and received primacy delegation from the
State Water Board. (HSC § 116275 (r))
5)Declares to be 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
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sanitary purposes. (Water Code § 106.3)
FISCAL EFFECT: Unknown
COMMENTS:
Need for the bill: According to the author: "When Californians
turn on their water at the kitchen sink, they assume that it's
safe, quality drinking water that meets all the government
standards. But in many communities, especially those connected
to the small public water systems, the high quality of drinking
water should not be taken for granted.
California has more than 7,600 public water systems and these
smaller systems can be challenged over the long term by their
lack of technical, financial and managerial abilities.
The author introduced the bill to give the State Water Board a
stronger role in ensuring such systems are not approved if they
are unnecessary.
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
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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.
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."
California's drinking water program: Senate Bill 861 (Committee
on Budget and Fiscal Review, Chapter 35, Statutes of 2014)
transferred the Drinking Water Program from the Department of
Public Health (DPH) to the State Water Board effective July 1,
2014 creating the new Division of Drinking Water within the
State Water Board and made other statutory changes to create
efficiencies and adoption and administration of the Drinking
Water Program.
The State Water Board directly enforces the federal 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.
Human right to water: In 2012, California became the first state
to enact a Human Right to Water law, AB 685 (Chapter 524,
Statutes of 2012). Public policy continues to be focused on the
right of every human being to have safe, clean, affordable, and
accessible water adequate for human consumption, cooking, and
sanitation. Water supply, contaminants, costs of treatment and
distribution systems, the number and nature of small public
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water systems, especially in disadvantaged communities, and many
other factors will continue to challenge progress in addressing
the Human Right to Water.
Framework for affordable, safe drinking water: Governor Jerry
Brown's Administration has a framework for resilient,
affordable, safe drinking water for disadvantaged communities.
The goal of this framework is to ensure that every Californian
has access to an adequate supply of safe water for daily human
needs. According to the Governor's Office, this goal will be
achieved by:
"Making more strategic use of existing funding
resources;
Improving technical, managerial, and financial
capacity where possible, consolidating as a second
option, and if neither of those work, contracting with a
third party to manage the system with a commitment to
transitioning the system to a sustainable condition; and,
Easing the burden on local governments by limiting
the proliferation of new, unsustainable systems."
There are several bills moving through the Legislature that
address aspects of the Administration's framework. SB 552
(Wolk), which is being heard in the Assembly Environmental
Safety and Toxic Materials Committee on June 14, 2016, addresses
one aspect, by proposing to improve the technical, managerial
and financial capacity of water systems by authorizing the State
Water Board to appoint an administrator to a non-compliant water
system.
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SB 1263 addresses an another element meant to deal with limiting
the proliferation of new, unsustainable systems. Governor
Brown's Administration's framework describes this element
further:
"Ease the burden on local governments with new tools to limit
the proliferation of new, unsustainable systems by:
Requiring hookup to existing public water systems if
feasible, rather than creation of new systems;
Adding a requirement that the State Water Board must
concur in permits issued by Local Primacy Agencies for
the creation of a new water system;
Reducing the threshold size of proposed residential
development subject to Government Code 66473.7 from 500
to 15 dwelling units/service connections, to match the
threshold for community public water systems; and ,
Barring approval of new communities that would rely
on hauled water for a permanent water supply."
Policy questions: The main policy question before the Committee
is how to balance the needs of new development, which require
either a new water system or a hookup to an existing water
system, while restructuring the current system for new public
water systems in order to encourage the interconnection of new
developments with existing systems first and the creation of a
new public water system as the last option.
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In SB 1263 there are several new requirements for those seeking
to submit an application for a new public water system. These
include items that need to happen months before submittal of an
application for a new public water system, including the
drafting and submittal of a preliminary technical report, the
review by the State Water Board of the preliminary technical
report and directives issued by the State Water Board that the
applicant is required to comply with. The bill states that an
application for a permit for a new public water system is not
deemed complete until it complies with the requirements of
submitting the preliminary technical report and complying with
the directives of the State Water Board. This is important
because until these requirements are met, the application will
not move forward. How long will it take for the State Water
Board to review the preliminary technical permit? The bill does
not specify a timeframe. While it does not seem to be the
intent to hold up a permit application for a new proposed public
water system without some certainty in the process, this could
happen.
The Committee may wish to consider options for providing
finality to the State Water Board's process of reviewing the
preliminary technical report. One option would be to provide a
date certain whereby if the applicant has not received
directives from the State Water Board, it could appeal to the
State Water Board for a response and a schedule by which the
State Water Board would provide a response.
The bill has provided some options for applicants to speed up
this process by allowing documents submitted for compliance with
the CEQA to be used in whole or in part for compliance with the
preliminary technical report. Additionally, SB 1263 allows a
development to be exempt from the requirements of submitting the
preliminary technical report if the development is going to
connect to an existing system. Therefore, the major impacts of
SB 1263 would be on those developments that seek a permit for a
new public water system and would not connect to an existing
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system.
While the author has been working with stakeholders, however,
one key issue remains: should the State Water Board be granted
the authority to deny a permit to a new public water system if
the new public water system cannot be sustainable on its own or
if the system is able to connect to an existing system? In
essence this means that a proposed public water system that is
shown to be sustainable could still be denied a permit if it's
feasible to connect to an existing system.
Arguments in support: According to the Natural Resources Defense
Council, "SB 1263 enhances permitting procedures to require
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.
SB 1263 will help to strengthen the permitting process for new
drinking water systems to better limit the proliferation of
small, unsustainable systems. Such small systems sometimes end
up without adequate water supply or fall out of compliance for
contaminants and therefore threaten 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."
Arguments in opposition: According to the Association of
California Water Agencies (ACWA), "Our concern is that the bill
would authorize the SWRCB to deny the permit for the system even
when the new local system would be sustainable.
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ACWA has been working with and continues to work with the
Senate Environmental Quality Committee's and SWRCB's staff on
amendments. The new version of the bill is not in print as of
this writing, but based on a June 3, mockup, the following
critical amendments are needed in addition to other minor
amendments: 1) the new authority for the SWRCB to deny a
permit for a new public water system should be limited to
situations where the new public water system will not or may
not be sustainable in the reasonably forseeable future; 2) the
bill should be clear that it applies to proposed new public
water systems and does not apply to any extension of or
annexation to an existing public water system; and 3) the
appeal provision should be clear that the appeal is to the
SWRCB as opposed to SWRCB staff.
The discussions on this bill have been constructive and are
continuing?."
Double- referral: Should this bill pass out of the Assembly
Environmental Safety and Toxic Materials Committee, it will be
referred to the Assembly Water Parks and Wildlife Committee.
Related legislation: SB 88 (Budget Committee, Chapter 27
Statutes of 2015) authorizes the State Water Board to require
water systems that are serving disadvantaged communities with
unreliable and unsafe drinking water to consolidate with or
receive service from public water systems with safe, reliable,
and adequate drinking water.
SB 552 (Wolk) would authorize the State Water Board to contract
with an administrator to provide administrative and managerial
services to a designated public water system, as defined, to
assist with the provision of an adequate and affordable supply
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of safe drinking water. This bill is scheduled to be heard in
the Assembly Environmental Safety and Toxic Materials Committee
on June 14, 2016.
REGISTERED SUPPORT / OPPOSITION:
Support
California League of Conservation Voters
Clean Water Action
Community Water Center
Environment California
Environmental Working Group
Food and Water Watch
Leadership Counsel for Justice and Accountability
Lutheran Office of Public Policy - California
Mono Lake Committee
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Natural Resources Defense Council
Sierra Club
Tri-City Ecology Center
Opposition
Association of California Water Agencies
California Apartment Association
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Municipal Utilities Association
Analysis Prepared by:Josh Tooker / E.S. & T.M. / (916)
319-3965
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