BILL ANALYSIS �
SB 900
Page 1
Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
SB 900 (Steinberg) - As Amended: May 9, 2011
SENATE VOTE : 34-0
SUBJECT : Regional Water Quality Control Boards (RWQCBs)
membership.
SUMMARY : Modifies the conflict of interest requirements for
appointees to the RWQCBs.
Specifically, this bill :
1) Allows a person to be appointed and serve as a member of
a RWQCB if they receive a significant income from a person
subject to waste discharge requirements, or an applicant
for waste discharge requirements if the waste discharge is
outside the jurisdiction of that regional board.
2) Provides that the provisions of the bill shall be
implemented only with the approval of the United States
Environmental Protection Agency (US EPA) pursuant to the
Federal Clean Water Act.
EXISTING LAW
Under the Porter-Cologne Water Quality Act:
1) Provides that the SWRCB and nine Regional Water
Quality Control Boards (RWQCBs) as the principal state
agencies with the responsibility for controlling water
quality in California.
2) 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.
SB 900
Page 2
3) 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.
4) 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.
FISCAL EFFECT : This bill is non-fiscal.
COMMENTS :
Need for the bill . According to the sponsors of this bill,
"This change in statute will expand the pool of candidates
eligible to serve on Regional Water Boards (RWQCB) by focusing
the application of the 10-percent rule to apply on a per-region
basis. Currently, people who receive more than 10 percent of
their incomes from regulated interests are ineligible to serve
which makes the pool of qualified individuals small. This bill
would apply the provision to income from persons or entities
that receive NPDES permits from the member's regional water
board but would not apply the restriction to income that is from
persons or entities subject to an NPDES permit issued by other
RWQCB."
Standards for appointment to the RWQCBs . California Water Code
Section 13201 provides for the Governor to appoint nine members
to each of the nine RWQCBs. Each board member must reside or
have a principal place of business within the region.
Appointments are subject to confirmation by the state Senate.
Both federal and state law provides that to be eligible for
appointment to a RWQCB, that member must be free of conflicts of
interest. The Federal Clean Water Act (Section 304 of the Clean
Water Act) provides that the US EPA Administrator shall
promulgate guidelines establishing the minimum procedural and
other elements of any State program including a requirement that
SB 900
Page 3
no board or body which approves permit applications or portions
thereof shall include, as a member, any person who receives, or
has during the previous two years received, a significant
portion of his income directly or indirectly from permit holders
or applicants for a permit.
California's Porter-Cologne Water Quality Control Act (Water
Code section 13388) mirrors federal law and provides that no
person shall be a member of the SWRCB or a RWQCB if he or she
receives or has received during the previous two years a
significant portion of his income directly or indirectly from
any person subject to waste discharge requirements or applicants
for waste discharge requirements.
Augments in support: A coalition of business and agricultural
interests are supporting the proposed change to RWQCB conflict
of interest standards. Specifically, they have stated, "In
2008, the California Environmental Protection Agency developed
the Water Quality Improvement Initiative in an effort to improve
the ability to identify, appoint and retain qualified candidates
to serve on Regional Water Quality Control Boards. The 10
percent rule was one proposal that came out of that effort as it
has been problematic finding qualified people to serve".
Augments in opposition: A coalition of environmental groups
have opposed the proposed changes to the conflict of interest
standards as they have raised issues about the operational
effect of the change as well as the need for federal conformance
under the Federal Clean Water Act. Specifically they state,
"This weakening effort raises significant legal concerns, as the
conflicts requirement is a federal Clean Water Act mandate, and
state law cannot scale back on federal CWA requirements. It has
been our regular, 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 reasons other
than a potential conflict outside of the region where the
appointee lives and works. In particular, statewide permit
conflicts (changes to which are extremely unlikely to pass
federal U.S. EPA legal scrutiny) and low pay ($100/day) and 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 CWA NPDES permit holders, and the Act
SB 900
Page 4
exempts irrigated agriculture return flows, irrigated
agriculture appointees regulated only by waivers under the
state's Porter-Cologne Act are not bound by this federal CWA
conflicts mandate."
REGISTERED SUPPORT / OPPOSITION :
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
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners and Growers Associations
California Farm Bureau Federation
California Forestry Association
California Grain and Feed Association
California Grape and Tree Fruit League
California League of Food Processors
California Manufacturers & 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
SB 900
Page 5
Paso Robles Wine Country Alliance
Salinas Valley Chamber of Commerce
Santa Barbara County Farm Bureau
Southern San Joaquin Valley Water Quality Coalition
Valley Ag Water Coalition
Western Agricultural Processors Association
Western Growers
Western Plant Health Association
Wine Institute
Opposition
California Coastkeeper Alliance
Heal the Bay
Clean Water Action
California Sportfishing Protection Alliance
Sierra Club California
Analysis Prepared by: Bob Fredenburg / E.S. & T.M. / (916)
319-3965