BILL ANALYSIS �
AB 2117
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Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
AB 2117 (Gorell) - As Amended: April 11, 2012
SUBJECT : Stormwater discharge permits.
SUMMARY : Prohibits the State Water Resource Control Board
(SWRCB) from adopting stormwater effluent standards or
limitations more stringent than the provisions of the Federal
Water Pollution Control Act (Clean Water Act) until January 1,
2017. Specifically, this bill :
1. Makes a series of legislative findings related to
stormwater discharges and regulations identifying the high
cost of stormwater controls and limitations of end-of-pipe
regulations.
2. Prohibits the SWRCB or Regional Water Quality Control
Boards (RWQCBs) from implementing new stormwater effluent
standards or limitations more stringent than the provisions
of the Clean Water Act until January 1, 2017.
3. Requires the SWRCB, in consultation with affected
stakeholders, to prepare a comprehensive statewide
stormwater plan and submit it to the Legislature by January
1, 2016. The plan shall consider and include:
a. The full spectrum of stormwater constituents
and contain recommendations for necessary legislation
to ensure that individuals subject to stormwater waste
discharge requirements do not have responsibility to
remove constituents from their stormwater discharge
that they did not create and have no control over.
b. The costs and benefits of stormwater capture
and reuse compared to the costs and benefits of
stormwater discharge regulation.
4. Provides that the requirement to prepare a stormwater
plan is subject to an agreement by the United States
Environmental Protection Agency (USEPA) to provide funds to
cover the cost of preparing the plan.
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5. Allows ex-parte communication with staff and members of
the SWRCB or RWQCBs regarding pending storm water waste
discharge requirements by affected parties, provided that
the discussion is publicly disclosed.
EXISTING FEDERAL LAW:
1. Establishes, pursuant to the federal Clean Water Act,
the National Pollutant Discharge Elimination System (NPDES)
to regulate point source discharges of pollutants into U.S.
waters. An NPDES permit sets specific discharge limits for
point sources discharging pollutants into U.S. waters and
establishes monitoring and reporting requirements as well
as special conditions.
2. Authorizes individual states to implement the program
allowing states to impose more stringent requirements or
expand the scope of its program to meet State priorities.
EXSISITNG STATE LAW:
1. Under the Porter-Cologne Water Quality Control Act,
regulates discharges of pollutants in storm-water and urban
runoff by regulating, through the NPDES, industrial
discharges and discharges through the municipal storm drain
systems and from industrial activity.
2. Provides that if an adjudicative proceeding is pending
or impending before a RWQCB, ex parte communications with
that SWRCB or RWQCB members regarding an issue in that
proceeding are prohibited pursuant to the Administrative
Procedure Act.
FISCAL EFFECT : Not Known
COMMENTS :
Need for the Bill : According to the author, "This bill is
designed to provide the opportunity for a much-needed
comprehensive view of California's stormwater program.
California's program is focused on end-of-pipe regulation which
places overall burden on facility operators and municipalities
to control pollution sources they have no control over, such as
those from aerial deposition. These make up a substantial
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portion of stormwater pollution. The bill's purpose is to pause
the current program to federal requirements while such study
occurs and the legislature can consider potential program
revisions. The State and Regional Water Boards currently lacks
the clear direction and attention warranted for long-term
solutions, goals, and alternatives".
Regulation of stormwater discharge . Water runoff from cities,
highways, industrial facilities and construction sites can carry
pollutants that harm water quality and impair the beneficial
uses of California waters. The SWRCB and the US EPA regulate
the runoff and treatment of storm water in industrial, municipal
and residential areas of California.
Most stormwater discharges are considered point sources and
require coverage by an NPDES permit. The CWA, as amended,
relies primarily on a different approach for regulating storm
water discharges than for traditional point sources. Federal
regulations read, "Unlike NPDES industrial wastewater permits
which typically contain specific end-of-pipe effluent limits
based on ? available treatment technology, �municipal storm
water] permits usually include programmatic requirements
involving the implementation of best management practices (BMP)
in order to reduce pollutants discharged to the maximum extent
practicable (MEP)." (55 Fed.Reg. 47990, 48043 (Nov. 16, 1990.)
Cities and other jurisdictions that operate large, medium and
small storm water systems, as well as specific industrial
activity sites, including constructions sites that disturb more
than an acre of land, must apply for storm water permits. The
SWRCB provides policy and regulatory oversight, on behalf of the
federal government.
Status of California has Several Storm Water Regulatory
Programs.
1) Construction: Projects that disturb one or more acres
of soil or that disturb less than one acre but are part of
a larger common plan of development, are required to obtain
coverage under the General Permit for Discharges of Storm
Water Associated with Construction Activity. There have
been as many as 15,000 active permitted in this program
area in the past. (SWRCB Order No. 2009-0009-DWQ was
adopted in 2009 and became effective July 1, 2010).
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2) Industrial: Specific industrial activities must use the
best technology available to reduce pollutants in their
discharges. In addition, they are required to develop both
a stormwater pollution prevention plan and a way to monitor
their progress. There is an average of 10,000 active
permittees in this program area. (SWRCB Order No.
97-03-DWQ is expired and its replacement is undergoing
public review in 2012).
3) Municipal: Large and small municipal sewer system
operators must comply with permits that regulate stormwater
entering their systems under a two phase system. Phase 1
regulates storm water permits for medium (serving between
100,000 and 250,000 people) and large (serving 250,000
people) municipalities. The largest, single municipal
discharger in California is the California Department of
Transportation (Caltrans) and their network of highways and
road facilities. (Caltrans Status: Pending Public Review).
(Phase II Status: SWRCB Order No. 2003-0005-DWQ is expired
and its replacement will undergo public review).
What does it mean to prohibit a new stormwater effluent standard
or limitation more stringent than the Federal CWA? The issue
of whether a SWRCB stormwater permit is more stringent than
federal law requires has been heavily litigated, and the
creation of any new phrase such as "stormwater effluent
standards or limitations more stringent than the provisions of
the Federal Water Pollution Control Act" would raise questions
about the results of that litigation. It would also result in
additional litigation over whether the phrase was being complied
with for any new stormwater permits, including the three pending
permits currently being developed by the SWRCB (the Caltrans
municipal storm water permit, the Phase II municipal storm water
general permit, and the industrial general storm water permit).
In the municipal storm water context, the Los Angeles Superior
Court ruled on August 15, 2011, that the Los Angeles Regional
Water Board's Los Angeles County municipal storm water permit
was not more stringent than the applicable "maximum extent
practicable" federal standard. The Court stated that the search
for a comparable federal regulation for each permit requirement
"utterly ignores and misapplies the flexible regulatory standard
inherent in the Clean Water Act." This case is now on appeal.
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In the industrial storm water context, the Sacramento Superior
Court ruled on December 27, 2011, that the SWRCB's general
construction storm water permit did not contain more stringent
requirements than federal law. The Court in this case similarly
explained that "�t]he lack of a numeric �effluent limitation
guideline adopted by US EPA] for pH or turbidity does not
indicate that the pH and turbidity �numeric effluent limitations
in the construction general permit] are more stringent than
�Clean Water Act] requirements."
Ex-parte Communications . Rules regarding ex parte
communications have their roots in constitutional principles of
due process and fundamental fairness. With public agencies, ex
parte communications rules also serve an important function in
providing transparency.
According to the SWRCB, the ex parte communications rules
reflect the SWRCB and RWQCBs hybrid powers. Unlike the
Legislature, the SWRCB and RWQCBs have attributes of both
legislative power and judicial power. The ex parte
communications prohibition arises when the water boards are
exercising their judicial power
Argument in Support . According to a coalition of business
organizations, "the proposed stormwater discharge requirements
currently pending before the State Board have extremely high
implementation costs for very minimal water quality
improvements. The wide range of individuals and entities
subject to the storm water waste discharge requirements are
already suffering from the down economy. A five year moratorium
on exceeding federal standards will allow the regulated
community and the State Board an opportunity to assess current
discharges and devise a holistic and long-term solution which is
based on sound science."
Augments in Opposition . According to the Natural Resources
Defense Council and Clean Water Action, "this bill represents a
misguided, unnecessary, and inconsistent with the federal Clean
Water Act. Its passage would result in more pollution and
direct interference with administration of the Clean Water Act,
resulting in California losing authority to issue pollution
control permits under the Act, contrary to the long-standing
intent of the Legislature."
"AB 2117 would compromise Clean Water and Violates the Federal
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Clean Water Act. Under the Clean Water Act, the U.S. EPA
administers the National Pollutant Discharge Elimination System
("NPDES") permit program to control water pollution from
sources, including stormwater runoff, that discharge pollutants
to waters of the United States. The Legislature has directed
that California assume responsibility for administering the
federal program, as provided for by EPA regulations."
REGISTERED SUPPORT / OPPOSITION :
Support
California Building Industry Association
California Chamber of Commerce
California League of Food Processors
California League of Food Processors
California Manufacturers & Technology Association
California Metals Coalition
California Precast Concrete Association
Chemical Industry Council of California
City of Atascadero
City of Ceres
City of Pismo Beach
City of Vacaville
Department of the Navy
Lumber Association of California & Nevada
National Federation of Independent Business
Southwest California Legislative Council
Suisun City
Western Wood Preservers' Institute
Opposition
Clean Water Action
Heal the Bay
Natural Resources Defense Council
Sierra Club California
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965
AB 2117
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