BILL ANALYSIS �
SB 900
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 900
AUTHOR: Steinberg
AMENDED: April 6, 2011
FISCAL: Yes HEARING DATE: May 2, 2011
URGENCY: No CONSULTANT:
Rachel Machi Wagoner
SUBJECT : California Regional Water Quality
Control Boards
SUMMARY :
Existing federal law , under the Clean Water Act:
1) Establishes a national objective, in conjunction with
numerous implementing provisions, to restore and maintain
the chemical, physical, and biological integrity of the
Nation's waters.
2) Authorizes the U.S. Environmental Protection Agency (US
EPA) to delegate water pollution control responsibility to
the states; establishes procedures for US EPA approval of a
state program and the assignment of responsibilities; and
establishes procedures for the withdrawal of program
approval, including a failure to comply with requirements.
Existing state law:
1) Under the Porter-Cologne Water Quality Act :
a) Provides for: 1) the establishment of water quality
policy; 2) the enforcement of water quality standards
for both surface and ground water; and 3) the regulation
of discharges of pollutants from point and non-point
sources.
b) Provides that the State Water Resources Control Board
(SWRCB) and nine Regional Water Quality Control Boards
(RWQCBs) as the principal state agencies with the
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responsibility for controlling water quality in
California.
c) Provides that the SWRCB be comprised of five
full-time salaried board members who each fill a
different specialized position based on expertise
(representing the public, engineering expertise, water
quality expertise and water supply). The members are
appointed by the Governor and confirmed by the Senate.
d) Provides that the nine RWQCBs are semi-autonomous and
are comprised of nine part-time Board members who each
fill a different specialized position representing a
specific interest: ( water supply, conservation, and
production; irrigated agriculture; industrial water use;
municipal government; county government; recreation,
fish and wildlife; public; and two water quality
members). The members are appointed by the Governor and
confirmed by the Senate.
e) Prohibits a person from being a member of SWRCB or a
RWQCB if that person receives or has received during the
previous two years a significant portion of his or her
income directly from a person subject to waste discharge
requirements or applicants for prescribed waste
discharge requirements.
f) Prohibits a SWRCB or RWQCB member from participating
in specified board actions that involve the member or
any waste discharger with which the member is connected
or in which the board member has a financial interest.
2) Under the Political Reform Act (PRA) , prohibits a public
official at any level of state or local government from
making, participate in making or in any way use or attempt
to use his/her official position to influence a
governmental decision in which he/she knows or has reason
to know he/she has a disqualifying conflict of interest. A
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public official has a conflict of interest if the decision
will have a reasonably foreseeable material financial
effect on one or more of his/her economic interests, unless
the public official can establish either: (a) that the
effect is indistinguishable from the effect on the public
generally, or (b) a public official's participation is
legally required.
This bill :
1) Deletes the provisions of the water code prohibiting a
board member from participating in actions that involve the
member or a waste discharger with which the member is
connected, and specifies that the limitation on a board
member's financial interest applies only to a disqualifying
financial interest within the meaning of the Political
Reform Act of 1974.
2) Provides that a person would not be disqualified from being
a member of a RWQCB because that person receives, or has
received during the previous two years, a significant
portion of his or her income directly or indirectly from a
person subject to waste discharge requirements, or an
applicant for waste discharge requirements, that govern
discharges not within the jurisdiction of that RWQCB. Also
provides that this revised eligibility provision relating
to members of a RWQCB must shall be implemented only if the
USEPA determines the provision complies with the federal
Clean Water Act.
COMMENTS :
1) Purpose of Bill . According to the sponsor and supporters:
The primary impact this would have pertains to the "public
generally" exception where a board member may be a
discharger, but the impact of an order on the board member
is no different than the orders' impact on the "public
generally." Under Porter-Cologne's conflict rules, the
Board member is prohibited from voting on such an order
that would affect them, even if it is a broad order that
affects a whole class of dischargers, of which the board
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member is only one.
The PRA recognizes that these types of decisions will be
made affecting a members' economic interests, but that the
impact will be no different than the impact on the public
generally. The act and its implementing regulations
establish a test for determining this impact. If the
decision passes the test, then a board member may
participate.
Porter/Cologne conflict of interest requirements have
caused a tremendous amount of concern to the regulated
community as it is increasingly difficult to find qualified
people to serve. Every RWQCB has a designated seat for a
member from "irrigated agriculture." Clearly, the
Legislature in creating these entities sought to ensure
that farmers would be appointed to and serve as fully
voting members of these boards. Yet over time, the effects
of stringent application of the conflict provisions in the
state water code have caused a dramatic reduction in the
pool of farmers eligible to be appointed, and have forced
non-participation of the few who are appointed when
regulatory proposals affecting agriculture are decided.
The result has been growing insulation of water regulators
from this important regulated community, and a concomitant
loss of confidence in, and support for, the actions of the
regional water boards relative to agriculture.
The simple modifications proposed in this measure would
restore the full participation of agriculture on these
boards as was originally intended and serve to restore the
credibility of their regulatory programs and encourage
greater cooperation in their implementation.
Additionally, the 10 percent rule provision has likewise
been problematic in finding qualified people to serve.
This bill would apply the 10 percent rule provision to
income from persons/entities that receive NPDES permits
from the member's regional water board, and would not apply
the restriction to income that is from persons/entities
subject to an NPDES permit issued by the other RWQCB. It
is our understanding this measure would address about 10-15
percent of the historical regional board 10 percent rule
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conflicts.
2) Arguments in Opposition . The opposition make the following
arguments against SB 900:
First, Sections 1 and 2 of the bill would roll back
conflicts checks on industry-held Water Board seats
required under the Porter-Cologne Water Quality Control Act
(Stats. 1969, Ch. 482) to the weaker Political Reform Act
(PRA) standard. These conflicts checks were specifically
enacted in the Porter-Cologne Act together with the
allocation of industry-specific Regional Water Board seats
in order to hold in check any potential actions by seat
holders that could be deemed a conflict of interest. SB
900 would roll back that Legislature's wise decision to set
meaningful conflicts provisions without evidence to show
that such provisions are no longer needed to protect
waterway health. Indeed, the contrary is true for the
issue most affecting the bill's sponsor - irrigated
agriculture pollution controls. For example, in the past
permit cycle on these controls in the Central Valley, the
state Attorney General issued a stinging rebuke to the
appointee in the irrigated agriculture seat, who had taken
action to prevent adequate controls on polluted
agricultural runoff in the region from being adopted.
Currently, the Central Coast and Central Valley irrigated
agriculture permits are in a protracted process of
reissuance, with hundreds of stakeholders providing
detailed input and comment for the Boards' consideration.
The contested and critical nature of these proceedings, and
the chronic, serious pollution of the surface and ground
waters affected, demands continued - rather than weakened -
adherence to the Legislatively selected conflict
requirements. The extremely high level of input from the
agricultural community on these permits (called "waivers of
waste discharge requirements") also contradicts the
argument that the irrigated agriculture appointee is needed
to provide one more voice of industry expertise to the
discussion. The authors of the Porter-Cologne Act wisely
chose to protect the public's paramount interest in healthy
waterways by requiring sound conflicts requirements and
reliance on the public process - rather than the industry
seat appointee - to provide needed input to the Board as a
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whole.
Use of the PRA conflicts test is an inappropriate
alternative to the current Porter-Cologne Act conflicts
protections. The Legislature specifically adopted the
Porter-Cologne Act conflicts requirements to reflect the
fact that they were placing the regulated industry in
positions of power over an essential and fundamental
element of a healthy population, economy and environment.
The views at the time Porter-Cologne was being adopted on
this issue are reflected in a 1969 Los Angeles Times
editorial, which correctly noted that allowing dischargers
to represent their industries on the Boards is a
"ridiculous, built-in conflict of interest," one which must
be reined in with strict requirements to avoid such
conflicts. This sound decision should be upheld.
Section 3 of the bill also would weaken other conflict of
interest requirements for no meaningful positive reason.
It has been our direct experience over many years of
seeking to fill Regional Water Board seats with qualified
members that this task can sometimes be challenging - but
for many reasons other than a potential business conflict
outside of the area where the appointee lives and works, as
described in SB 900. The low pay ($100/day) and conflicts
with statewide permits (changes to which are unlikely to
pass federal U.S. EPA legal scrutiny) are the major
difficulties with filling seats, not other-region business
ties. Moreover, contrary to the sponsor's assertion, it is
inaccurate to state that the federal 10% conflict
provisions have caused a "dramatic reduction" in the pool
of farmers eligible to be appointed. In fact, because the
"10% rule" only applies to Clean Water Act NPDES permit
holders and the Act exempts irrigated agriculture return
flows, irrigated agriculture waiver holders are not bound
by this federal conflicts mandate.
In addition to being unnecessary from a legal or a
practical perspective in solving issues with filling
Regional Water Board seats, Section 3 raises significant
concerns from a policy perspective, in light of the close
manner in which the Regional Water Boards interact. For
example, the Regional Boards pay close attention to and
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react in numerous ways to each other's decisions, with
their permits and policies evolving regional act by
regional act. Also, most Regional Water Board decisions
that are of any meaningful controversy are appealed to the
State Board, which can then act to create statewide
precedent. Accordingly, income obtained from one region
can influence a Board member's actions and decisions in
another. For such reasons, and in light of the fundamental
importance of water to the state's population, economy and
environment, we strongly urge that these proposed changes
be rejected.
3) Previous Legislation . SB 1001 (Perata) of 2007: a)
restructured the membership of the nine RWQCB structure by
decreasing membership to 7 members, b) increased the
compensation of RWQCB membership and changed the
qualification criteria for appointment from specific
sectors to appointment based on his or her demonstrated
interest and proven ability in the field of water quality,
and c) established a process at the SWRCB to better ensure
RWQCBs are adequately carrying out the regulatory
requirements governing water quality in their respective
regions, and examined the adequacy of the SWRCB's fee-based
water quality programs. SB 1001 was vetoed by Governor
Schwarzenegger.
4) The Water Quality Improvement Initiative . In response to
the call for reform of the SWRCB and RWQCB's organizational
structure and operations, SWRCB released a Water Quality
Improvement Initiative in May 2008. The initiative
contained 6 key recommendations: a) decrease the membership
of RWQCBs from 9 to 7; b) delegate National Pollutant
Discharge Elimination System permitting decisions to the
RWQCB Executive Officers; c) require RWQCBs to set
performance targets for water quality improvements; d)
streamline Total Maximum Daily Loads adoption process; e)
conform conflict-of-interest rules; and f) make various
changes to enforcement. While this initiative received
wide opposition, it did incorporate some of the changes
that are proposed in this bill and acknowledged a need for
reform.
5) The Little Hoover Commission Report -- Clearer Structure,
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Cleaner Water: Improving Performance and Outcomes at the
State Water Boards . In 2009 the Little Hoover Commission
released a report finding that "the decentralized
governance structure, with nine regional water quality
boards operating with distinct policies and processes,
hinders accountability and transparency. The result is a
system that has lost the confidence of most stakeholders."
The Commission's report made 4 overarching recommendations:
a) change the makeup of both SWRCB and RWQCBs; b) increase
the use of data and scientific research; c) increase
collaboration among government agencies; d) increase
economic analysis and analysis in decisionmaking. This
report has not resulted in changes to the water boards to
date, however, its findings also point to a need for
changes to the boards' governance structure.
6) Is This the Right Approach for Reform? While there is a
wide ranging recognition for the need for reform to the
boards' organizational structure and operations, previous
efforts and recommendations have been for comprehensive
changes. By taking on just one aspect of reform, changing
the conflict of interest provisions of the Porter-Cologne
Water Quality Act, this bill may alter RWQCB
decision-making processes in a way that favors particular
interests. It may be more appropriate for the Legislature
to contemplate a more comprehensive reform package. The
author may wish to consider striking sections 1 and 2 and
work with stakeholders to develop more comprehensive
reforms.
There is agreement among stakeholders that reaching a
quorum for RWQCB board meetings is a challenge. Section 3
of the bill may increase the number of eligible appointees
for boards.
SOURCE : Western Growers
SUPPORT : Alliance of Western Milk Producers
American Council of Engineering Companies of
California
California Agricultural Irrigation Association
California Association of Sanitation Agencies
California Business Properties Association
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California Citrus Mutual
California Cotton Ginners and Growers
Associations
California Chamber of Commerce
California Grain and Feed Association
California Grape and Tree Fruit League
California Forestry Association
California League of Food Processors
California Manufacturers and Technology
Association
California Metals Coalition
California Pear Growers
California Rice Commission
California Rice Industry Association
California Seed Association
California State Floral Association
California Trucking Association
California Warehouse Association
California Wheat Growers Association
Chemical Industry Council of California
East San Joaquin Water Quality Coalition
El Dorado Irrigation District
Grower-Shipper Association of Central
California
Grower Shipper Association of Santa Barbara and
San Luis Obispo Counties
Kings River Conservation District
Kings River Water Association
Monterey County Farm Bureau
Nisei Farmers League
Northern California Water Association
Pacific Egg and Poultry Association
Partnership for Sound Science in Environmental
Policy
Paso Robles Wine Country Alliance
Regional Council of Rural Counties
Santa Barbara County Farm Bureau
Southern San Joaquin Valley Water Quality
Coalition
Valley Ag Water Coalition
Western Agricultural Processors Association
Western Plant Health Association
Wine Institute
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OPPOSITION : California Coastkeeper Alliance
California Sportfishing Protection Alliance
Heal the Bay
Natural Resources Defense Council
Sierra Club California