BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 1318
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|Author: |Wolk |
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|Version: |4/12/2016 |Hearing | 4/20/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Local government: drinking water infrastructure or
services: wastewater infrastructure or services
ANALYSIS:
Existing law and this bill:
1) The Cortese-Knox-Hertzberg Local Government Reorganization Act
of 2000
a) Governs the procedures for the formation and change of
organization of cities and special districts through a local
agency formation commission (LAFCO).
b) Prohibits a LAFCO from approving an annexation to a city
of any territory greater than 10 acres, or as determined by
commission policy, where there exists a disadvantaged
unincorporated community, as specified, unless an
application to annex the disadvantaged unincorporated
community to the subject city has been filed with the
executive officer.
2) This bill extends that prohibition to an annexation to a
qualified special district. The bill would define "qualified
special district" to mean a special district with more than 500
service connections that provides drinking water or wastewater
services.
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3) Existing law requires a LAFCO to develop and determine the
sphere of influence of each city and each special district
within the county and to enact policies designed to promote the
logical and orderly development of areas within the sphere.
4) This bill prohibits a LAFCO from approving a sphere of
influence update that removes a disadvantaged community from a
city's or special district's sphere of influence unless the
commission makes a finding that removal of the community will
result in improved service delivery to the community.
5) Existing law requires a LAFCO, in preparing and updating
spheres of influence, to conduct a service review of the
municipal services provided in the county or other area
designated by the commission. Existing law authorizes the
commission, in conducting the review, to assess various
alternatives for improving efficiency and affordability of
infrastructure and service delivery, as specified, and to
include a review of whether the agencies under review are in
compliance with the California Safe Drinking Water Act.
6) Where there exists a disadvantaged unincorporated community
that lacks adequate drinking water and wastewater services and
infrastructure within or contiguous with the subject sphere,
this bill instead requires the LAFCO to make the assessment of
alternatives and to include the safe drinking water review
described above if the information is available from the State
Water Resources Control Board (SWRCB) or other sources.
7) This bill, on or before January 1, 2022, and every 5 years
thereafter, requires the LAFCO to conduct service reviews
sufficient to have reviewed the entire territory of the county.
The bill would require the commission to file a map of the
county that identifies disadvantaged unincorporated communities
that lack safe drinking water or adequate wastewater with the
Office of Planning and Research (OPR), and requires OPR to post
the map on its Internet Web site.
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8) The bill additionally requires the LAFCO, within 2 years of
identifying a disadvantaged unincorporated community that lacks
safe drinking water or adequate wastewater services, to
recommend a plan based on the alternatives analyzed and adopt
any actions necessary to implement the plan, as specified.
9) Existing law establishes the Human Right to Water Act, which
declares it is 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."
Background
1) LAFCOs.
The Senate Governance and Finance Committee Analysis provided
the following background on LAFCOs.
The Cortese-Knox-Hertzberg Act creates a local agency formation
commission (LAFCO) in each county to control the boundaries of
cities, county service areas, and most special districts. The
courts repeatedly refer to LAFCOs as the Legislature's watchdog
over boundary changes. To plan for the future boundaries and
service areas of the cities and special districts, a LAFCO must
adopt a policy document for each city and district called a
sphere of influence. The LAFCOs' boundary decisions must be
consistent with the spheres of influence of the affected cities
or districts. Spheres must be updated at least every five
years.
In order to determine spheres of influence, LAFCOs must
periodically conduct a "municipal service review" (MSR) to
inform their decisions about spheres of influence. MSRs must
analyze and make determinations about seven topics:
Growth and population projections;
Present and planned capacity of public facilities and
adequacy of public services, including infrastructure needs
or deficiencies, including the water, sewer, and fire
protection needs of disadvantaged unincorporated
communities;
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Agencies' financial abilities to provide services;
Opportunities for sharing facilities;
Accountability for community service needs;
The location and characteristics of any disadvantaged
unincorporated communities; and
Other matters relating to effective or efficient
services.
Local governments can only exercise their powers and provide
services where LAFCO allows them to: within their boundaries
(which are set by LAFCO), within their spheres of influence
but outside their boundaries (with authorization by LAFCO),
and outside their spheres to address a major threat to public
health if the extension is consistent with LAFCO's policies.
The Legislature approved AB 402 (Dodd, Chapter 431, Statutes
of 2015), which established a pilot program in Napa County
and San Bernardino County that allowed the extension of
services outside a local agency's sphere of influence to
support existing or planned uses, so long as (1) an MSR has
identified a service deficiency, (2) the extension of service
will not result in growth inducing impacts or harm to
agricultural lands, and (3) a sphere of influence change is
not feasible.
LAFCOs, along with the planning agencies of cities and
counties, are supposed to ensure that services are
effectively and efficiently delivered to all communities
throughout the state. Nevertheless, some communities
continue to lack adequate public services, including safe
drinking water and functioning wastewater systems. These
communities are often poor and are located in the
unincorporated area of a county. In some cases these
"disadvantaged unincorporated communities" (DUCs) are remote
and far from other communities with better public services;
in others, a city may share a border with a DUC that has been
excluded from its boundaries.
In recent years, the Legislature has taken several steps to
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try to address some of the service problems experienced by
DUCs. SB 244 (Wolk, Chapter 513, Statutes of 2011) aimed to
prevent cities from carving out DUCs by prohibiting
annexations to a city of territory greater than 10 acres if a
DUC is contiguous with the territory proposed for annexation,
unless there is an application with the commission to annex
the unincorporated area or if the residents of the affected
territory oppose annexation. SB 244 also required LAFCOs to
include in the MSR a description of the location and
characteristics of any DUCs within or contiguous to the
sphere of influence and to consider the water, sewer, or fire
protection needs of DUCs within the sphere when considering
updates. When conducting an MSR, LAFCOs can also assess
options for governmental reorganizations or consolidations
that improve the efficiency and affordability of service
delivery and can review whether water systems in the area are
in compliance with the Safe Drinking Water Act. Finally, SB
244 required cities and counties to review the water and fire
service needs of DUCs in their general plans.
SB 244 made it easier for LAFCOs to identify boundary changes
and governmental reorganizations necessary to fix water
service problems faced by DUCs. Subsequent legislation-SB 88
(Committee on Budget and Fiscal Review, 2015)-took this
effort a step further by authorizing the State Water
Resources Control Board (SWRCB) to order a consolidation of
neighboring water systems where it is economically feasible
in order to address public health threats. To date, SWRCB
has begun the consolidation process with two water systems in
communities that border the city of Tulare.
Some advocates for disadvantaged unincorporated communities
want to provide additional incentives for local governments
to serve DUCs that lack safe drinking water or adequate
wastewater service.
1) Water Quality Risks in Disadvantaged Communities.
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
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least 60 days per year (e.g., restaurants & campgrounds).
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 any
community where the median household income is below 80% of the
statewide median household income. This problem with small
water systems experiencing the bulk of violations extends
across water system categories.
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, there were 472
out-of-compliance drinking water systems serving more than
275,000 people. The Drinking Water Division believes that
systems with ongoing issues are located predominantly in
disadvantaged communities.
2) Example of What SB 1318 Aims to Address.
The Coachella Valley Water District (CVWD) has scores of
communities within its boundaries that rely on groundwater
contaminated with arsenic, Chrom 6, likely 123-TCP, and which
are at risk of contamination from inadequately treated human
waste. Most of these communities lack access to adequate
wastewater services, relying instead on failing septic systems
or even modified cesspools. Recently a new developer released a
Notice of Preparation (NOP) a Draft Environmental Impact Report
(DEIR) for a new community that will include thousands of
residential units, golf courses, parks, commercial land uses
and other amenities. The NOP notes that CVWD will expand to
annex the community into its service area and will serve the
community with wastewater and drinking water service.
The City of Tulare agreed to expand drinking water and
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wastewater service to the neighboring community of Matheny
Tract. Matheny Tract relies on drinking water contaminated
with Arsenic, likely 123-TCP, and is at risk from contamination
from contaminants from human waste. The City, since agreeing
to extend services has attempted to absolve its
responsibilities stating now that it has no intention of
extending wastewater service to the community and that there
may be inadequate water capacity to serve the 330 unit
community. The City has stated that its priority is securing
water for current city residents and anticipated city growth as
opposed to extending water service to Matheny Tract (a 70 year
old community). Since the City started claiming lack of water
capacity for Matheny Tract, it has connected or approved
connection for almost 1000 new single family homes.
Comments
1) Purpose of Bill. Many communities in California continue to
suffer from third-world level drinking water and wastewater
services. In many cases, these communities' border cities or
special districts with more than enough capacity to serve them,
but their boundaries have been drawn to specifically exclude
them. Despite recent legislative efforts, some cities continue
to look to serve new development outside of their current
boundaries before helping neighboring communities. While SB
244 helped highlight the disparity in services for DUCs,
stronger measures are needed to ensure that LAFCOs and local
governments faithfully carry out their responsibilities. SB
1318 is simply the next step. It incentivizes cities and
special districts that want to serve new development to help
meet the needs of existing communities with drinking water and
wastewater problems, and codifies best practices that
conscientious LAFCOs already follow. SB 1318 won't solve all
of the problems of DUCs, but it provides an important tool to
get the state closer to its goal of ensuring that all
Californians have access to safe, affordable drinking water.
According to the author, "It is unconscionable and frankly
inexcusable that some communities in California do not have
access to adequate potable drinking water supplies or wastewater
services. Most of these communities are predominantly rural and
agricultural, the residents of which supply the labor that
sustains California's world class agriculture. This bill
ensures that these disadvantaged communities are no longer left
behind as other cities around their homes further develop and
increase in population. All Californians, regardless of
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socioeconomic status have the right to safe drinking water and
wastewater services."
DOUBLE REFERRAL:
This measure was heard in Senate Governance and Finance Committee
on April 6, 2016, and passed out of committee with a vote of 5-1.
SOURCE: Leadership Counsel for Justice and Accountability
SUPPORT (pursuant to March 28, 2016 version of the
bill):
California Environmental Justice Alliance
California Food Policy Advocates
California League of Conservation Voters
California Rural Legal Assistance Foundation
Clean Water Action
Community Water Center
Environmental Justice Coalition for Water
Environmental Working Group
Natural Resources Defense Council
Policy Link
Pueblo Unido Community Development Coalition
San Joaquin Valley Sustainable Agriculture Collaborative
Sequoia Riverlands Trust
Sierra Club California
The Trust for Public Land
OPPOSITION (pursuant to March 28, 2016 version of the
bill):
California Apartment Association
California Association of Local Agency Formation Commissions
California Association of Realtors
California Building Industries Association
California Business Properties Association
California Chamber of Commerce
California Manufacturers and Technology Association
California Municipal Utilities Association
California Special Districts Association
Coachella Valley Water District
Contra Costa LAFCO
El Dorado LAFCO
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League of California Cities
Nevada County LAFCO
San Bernardino County LAFCO
San Diego LAFCO
San Mateo LAFCO
Santa Cruz County LAFCO
Sonoma LAFCO
ARGUMENTS IN
OPPOSITION: The Coachella Valley water district states that it
is "acutely aware of the need to provide safe and reliable
drinking water and wastewater services, including the accompanying
infrastructure to disadvantaged communities. The district works
diligently with other agencies, organizations and members of such
communities within its service area. ?."
The district continues that it "must oppose this proposed
legislation since it ignores the fiscal implications associated
with such a requirement when the drinking water/wastewater
infrastructure services are proposed for new development.
Currently, new developments are required to fund the drinking
water/wastewater infrastructure required to service the new
development through direct investment and or development/facility
impact fees. This long held policy of most utilities prevents
this burden from being placed on existing customers. In fact,
cities and districts are legally prevented from doing so due to
restrictions such as Proposition 218."
A coalition of opposition argues that:
"The bill prohibits new housing or employment centers that comply
with all existing requirements from receiving water service from
an existing provider unless and until various conditions are met
regarding disadvantaged unincorporated communities (DUCs) that are
unrelated to the housing or employment centers.
The bill will have three undesirable results:
1. It will foster the proliferation of new public water
systems;
2. It will block the production of new housing during a
housing crisis;
3. It won't help DUCs receive water from new sources.
Beyond the unintended and untenable outcomes inherent in the bill,
we strongly believe it would be unconstitutional to require the
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territory to pay for any fees or costs associated with an
annexation or an extension of services to a disadvantaged
community (paying for existing deficiencies is prohibited). SB
1318 does not provide any funding source for the LAFCO or the
water or wastewater provider to accomplish its intended goal. By
attaching DUCs to new housing or employment centers, those new
projects will garner more opposition and increase the likelihood
of denial. As a result, new projects will likely avoid seeking
annexation or extension of services from an existing provider and
instead, opt to form their own water system. Very likely, the
bill will result in the proliferation of smaller water systems and
existing disadvantaged communities will be left out in the cold.
This bill, intended or not, establishes walls between territories
that want water or wastewater services and the existing providers
of those services The intermeddling proposed by SB 1318 won't
help disadvantaged communities and could stifle new housing and
employment centers.
A better approach would be to establish a process for dialogue
between existing service providers and DUCs to see if annexation
or an extension of services is feasible."
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