BILL ANALYSIS �
AB 145
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 145 (Perea) - As Introduced: January 18, 2013
SUBJECT : Drinking water program reorganization
SUMMARY : Consolidates the Drinking Water Program (DWP),
currently at the Department of Public Health (DPH), with water
supply and water quality programs at the State Water Resources
Control Board (State Water Board). Specifically, this bill :
1)Makes findings that include, but are not limited to:
a) The public nature of, and human need for, water;
b) California's reliance upon groundwater for a third of
its drinking water supplies in a normal year and up to half
of its supplies in a drought year;
c) The fragmentation of groundwater regulation over many
entities, including local entities; and,
d) The separation of water quality regulation in State
government between source water regulation, which is
performed by the State Water Board, and drinking water
treatment standards, which are enforced by the DPH.
2)Makes additional findings regarding the effects of groundwater
contamination, especially upon communities that lack the
financial resources to resolve their drinking water problems
and recognizes the Legislature's:
a) Efforts to evaluate and explore ways to remediate
nitrate contamination in the Tulare Lake Basin and Salinas
Valley;
b) Attempts to adjust the safe drinking water program to
maximize the use of federal stimulus funds; and,
c) Appropriation, in each Budget Act, of funding from a
variety of sources, including voter-approved general
obligation bonds, in order to fix public water systems that
do not provide safe drinking water.
3)Advises that the State needs a consolidated and comprehensive
system to ensure safe drinking water for all, including
protecting groundwater for drinking water.
4)Asserts that consolidating all water quality programs into the
State Water Board, the one state agency whose primary mission
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relates to water quality, will yield numerous benefits
including:
a) Greater focus of financial and staff support for the
drinking water program;
b) More coordination and less duplication among
programs;
c) Greater efficiencies of scale and shared resources;
d) A broader array of expertise concentrated on
drinking water quality, with agency experience in water
quality science and policy;
e) Coordination between water source protection and
drinking water treatment programs;
f) More accountability for drinking water programs,
with a unified agency that has responsibility for
oversight and funding and a five-member expert board that
makes public decisions;
g) Improved understanding and coordination between
water quality and water rights;
h) Consolidated funding programs for related water
resources, including both source water protection and
wastewater treatment.
5)States the Legislature's intent to use a process with broad
public participation from affected stakeholders and agencies
in order to craft the most effective management structure for
achieving a comprehensive strategy for protecting drinking
water quality.
6)Makes the State Water Board the successor to DPH with regard
to the DWP and vests the State Water Board with all of the
authority, duties, powers, purposes and responsibilities of
the DWP.
7)Moves the DPH Division of Drinking Water and Environmental
Management to the State Water Board where it becomes the
Division of Drinking Water Quality.
8)Specifies that the move of DWP to the State Water Board shall
not impair the authority of a local health officer to enforce,
or a county's election not to enforce, the California Safe
Drinking Water Act (CA SDWA) and that the State Water Board
shall accept responsibility for enforcing the CA SDWA pursuant
to contract.
9)Makes the State Water Board the successor to DPH with regard
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to the Drinking Water State Revolving Fund (DWSRF) and vests
the State Water Board with all of the authority, duties,
powers, purposes, responsibilities and jurisdiction of that
Revolving Fund.
EXISTING LAW :
1)Requires, by Constitutional amendment, that all water use be
"reasonable and beneficial."
2)Creates the State Water Board within the California
Environmental Protection Agency (Cal/EPA). The State Water
Board consists of five full-time salaried board members.
Requires the members of the State Water Board to include an
attorney, a registered civil engineer, and a registered
professional engineer who is experienced in sanitary
engineering and qualified in the field of water quality. Of
the five members, one is also required to be qualified in the
field of water supply and water quality relating to irrigated
agriculture. One member is not required to have specialized
experience. All members are appointed to four-year terms by
the Governor and confirmed by the Senate.
3)Divides the State into nine regions for the purposes of water
quality regulation: North Coast, San Francisco Bay, Central
Coast, Los Angeles, Santa Ana, San Diego, Central Valley,
Lahontan, and Colorado River.
4)Establishes nine Regional Water Quality Control Boards
(Regional Water Boards) comprised of nine members, appointed
by the Governor, which shall include: 1 person associated with
water supply, conservation, and production; 1 person
associated with irrigated agriculture; 1 person associated
with industrial water use; 1 city council member or mayor; 1
county supervisor; 1 person from a responsible nongovernmental
organization associated with recreation, fish, or wildlife;
and, 3 persons not specifically associated with any of the
other categories, two of whom shall have special competence in
areas related to water quality problems.
5)Empowers the five-member State Water Board to allocate water
rights, adjudicate water right disputes, develop statewide
water protection plans, establish water quality standards, and
guide the nine Regional Water Boards, including hearing
appeals of those Boards' decisions.
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6)Establishes, under California law, the Porter-Cologne Water
Quality Control Act (Porter-Cologne), which designates
beneficial uses of water. These beneficial uses include
municipal and industrial uses, irrigation, hydroelectric
generation, livestock watering, recreational uses, fish and
wildlife protection, and aesthetic enjoyment.
7)Enforces California's water quality standards through Water
Quality Control Plans adopted by the State Water Board and the
nine Regional Water Boards (collectively "California Water
Boards"). Requires Water Quality Control Plans to include
implementation programs to achieve and maintain compliance
with water quality objectives.
8)Requires the State Water Board to improve comprehensive
groundwater monitoring and increase the availability to the
public of information about groundwater contamination by
establishing and implementing a comprehensive monitoring
program capable of assessing each groundwater basin in the
state through direct and other statistically reliable sampling
approaches. This program is known as the Groundwater Ambient
Monitoring and Assessment (GAMA) Program.
9)Establishes the Clean Water Act (CWA), administered by the
United States Environmental Protection Agency (USEPA). The
CWA is the primary federal law in the United States governing
water pollution. The principal provisions of the modern CWA,
the Federal Water Pollution Control Amendments of 1972, are
modeled on California's Porter-Cologne. The CWA does not
directly address groundwater contamination. Groundwater
protection provisions are included in the Safe Drinking Water
Act, Resource Conservation and Recovery Act, and the
Comprehensive Environmental Response, Compensation, and
Liability Act (a.k.a. the Superfund Act).
10)Enforces the CWA by requiring a National Pollutant Discharge
Elimination System (NPDES) permit for each point source
(discrete conveyance such as a pipe or man-made ditch) that
discharges pollution into surface waters. Under the NPDES
system, the Total Maximum Daily Load (TMDL) is established for
each contaminant and numeric limits are imposed upon each
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discharger of that contaminant.
11)Delegates authority to the California Water Boards to issue
NPDES permits. While the State Water Board has issued a few
NPDES permits, the vast majority of NPDES permits are issued
by the Regional Water Boards.
12)Enforces Porter-Cologne through the issuance of waste
discharge requirements (WDRs), mostly by Regional Water
Boards. WDRs for discharges to surface waters also serve as
NPDES permits.
13)Authorizes USEPA, under the CWA, to provide funding through
the Clean Water State Revolving Fund (CWSRF) program,
administered by the State Water Board. The CWSRF Program
provides low-cost financing for construction of wastewater
treatment and water recycling facilities, implementation of
expanded use projects, and development and execution of
estuary comprehensive conservation and management plans.
14)Authorizes USEPA, under the federal Safe Drinking Water Act
(SDWA), to set national health-based standards for drinking
water to protect against both naturally-occurring and
anthropogenic contaminants.
15)Authorizes USEPA, under the SDWA, to provide funding through
the DWSRF program, administered by DPH. The program finances
infrastructure improvements and emphasizes providing funds to
small and disadvantaged communities and to programs that
encourage pollution prevention as a tool for ensuring safe
drinking water.
16)Enacts the CA SDWA to build on and strengthen the federal
SDWA. The CA SDWA protects the public from contaminants in
drinking water by establishing maximum contaminants levels
(MCLs) that are at least as stringent as those developed by
the USEPA, as required by the federal SDWA.
17)Under the CA SDWA:
a) Requires every public water system (PWS) to notify users
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when certain monitoring or other requirements have not been
complied with; to notify customers when failure to comply
with a primary drinking water standard represents an
imminent danger; to notify customers that they should avoid
consumption of the water supply due to a chemical
contamination that may pose a health risk and to instead
use bottled water; to notify consumers of confirmation of
detected contaminants; and to annually deliver a copy of
the consumer confidence report to each customer.
b) Requires a person operating a PWS to notify the
governing body of the local agency in which the users of a
drinking water supply reside, within 30 days of the closure
of a well or upon discovery of a contaminant exceeding an
MCL or an action level set for drinking water.
c) Requires PWSs to be permitted by the DPH and demonstrate
that they provide a reliable and adequate supply of water
at all times that is pure, wholesome, potable, and does not
endanger the health of consumers.
18)Establishes the Office of Environmental Health Hazard
Assessment (OEHHA) within Cal/EPA. OEHHA's stated mission is
to protect human health and the environment through scientific
evaluation of risks posed by hazardous substances.
19)Charges OEHHA to develop health-protective exposure levels
for contaminants in air, water, and soil as guidance for
regulatory agencies and the public, including the DPH DWP.
OEHHA also implements the Safe Drinking Water and Toxic
Enforcement Act of 1986, commonly known as Proposition 65, and
compiles the state's list of substances that cause cancer or
reproductive harm.
FISCAL EFFECT : Unknown
COMMENTS : All water is in continuous movement on, above, and
below the surface of the Earth. In many instances, the
wastewater we discharge into our rivers and streams becomes part
of the drinking water supply for municipalities farther
downriver. The water that percolates through municipal and
agricultural soils becomes the groundwater for communities
within the same basin. In many, if not most, instances issues
of water quality are matters of water supply and vice versa.
For this reason, California acted more than 30 years ago to
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create the State Water Board and give it the broad authority and
immense responsibility to not only protect water quality but to
balance competing demands on the State's water resources and
attempt to resolve decades-long water disputes.
The State Water Board
This bill's proposal to move the DWP to the State Water Board is
not the Legislature's first attempt to streamline regulation of
our water resources. There were previously two boards: the
State Water Rights Board and the State Water Quality Control
Board. A water rights commission, which preceded the Water
Rights Board, was created in the early 1900s to arbitrate and
resolve the state's water battles, which began during the 1849
Gold Rush. And the former State Water Quality Control Board had
its roots in the late 1940s, when legislators created a more
streamlined regulatory body to address the rising water quality
problems associated with the state's explosive industrial and
population growth.
In 1967, the Legislature created the State Water Board by
merging the functions of the Water Rights Board and the Water
Quality Control Board. The mission of the State Water Board is
to "ensure the highest reasonable quality for waters of the
State, while allocating those waters to achieve the optimum
balance of beneficial uses." The merging of the two boards gave
the State Water Board joint authority over water allocation and
water quality protection, which the State Water Board maintains
enables it to "provide comprehensive protection for California's
waters."
The State Water Board advises that in order to better understand
the breadth of its charter "it is important to grasp the
evolution of water rights and water protection as it evolved
from gold mining days, through the 20th century and the birth of
the environmental movement in the late 1960s, to the new
millennium with its increasingly complex, interrelated water
issues."
Today the five-member State Water Board allocates water rights,
adjudicates water right disputes, develops statewide water
protection plans, establishes water quality standards, and
guides the nine Regional Water Boards located in the major
watersheds of the state. The State Water Board also implements
GAMA, a comprehensive water quality monitoring program for
groundwater basins, including private domestic wells.
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Drinking water regulation, however, remains somewhat isolated
from California's comprehensive source water regulation. As
stated above, the State Water Board, which is part of Cal/EPA,
permits and enforces water rights and also water quality for
discharges to surface waters and groundwater. However, it is
DPH, which is found within the California Health and Human
Services Agency (CHHSA), that administers the DWP.
The Department of Public Health
DPH's stated mission is "optimizing the health and well-being of
the people in California." Most of DPH's programs are housed
within five centers: the Center for Chronic Disease Prevention
and Health Promotion, Center for Infectious Diseases, Center for
Family Health, the Center for Health Care Quality, and the
Center for Environmental Health.
The Center for Chronic Disease Prevention and Health Promotion
administers programs that address the prevention and control of
chronic diseases including cancer, cardiovascular diseases, and
diabetes; the prevention and control of injuries; and, the
prevention and control of environmental and occupational
diseases. The Center comprises the Division of Chronic Disease
and Injury Control and the Division of Environmental and
Occupational Disease Control.
The Center for Infectious Diseases (CID) aims to protect the
public from the threat of preventable infectious diseases and
assists those living with an infectious disease in securing
prompt and appropriate access to healthcare, medications and
associated support services. CID does this through an Office of
Infectious Diseases and Emergency Preparedness, Office of AIDS,
and Division of Communicable Disease Control.
The Center for Family Health is comprised of four Divisions,
including the Genetic Disease Screening Program, the Office of
Family Planning, the Maternal, Child and Adolescent Health
Program and the Women, Infants and Children Supplemental
Nutrition Program. These divisions oversee a multiplicity of
programs that impact the health and birth outcomes for
Californians and reduce health disparities.
The Center for Health Care Quality is responsible for regulatory
oversight of health facilities, health professionals, and
clinical and public health laboratories, and executes this
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oversight through the Center's Licensing and Certification
program and Laboratory Field Services Program.
The Center for Environmental Health comprises the Division of
Food Drug and Radiation Safety and the Division of Drinking
Water and Environmental Management. The Center for
Environmental Health does all of the following: protects the
public from unsafe drinking water; oversees the disposal of
low-level radioactive waste; regulates the generation, handling,
and disposal of medical waste; and protects and manages food,
drug, medical device, and radiation sources. It is within this
Center and Division that the DWP is found.
The DWP regulates public water systems; oversees water recycling
projects; permits water treatment devices; certifies drinking
water treatment and distribution operators; supports and
promotes water system security; provides support for small water
systems and for improving technical, managerial, and financial
capacity; and, provides funding opportunities for water system
improvements. Private domestic wells are not regulated by DWP.
As noted above, it is the State Water Board that has information
pertinent to private domestic well water quality.
Assembly Hearings on the DWP
On November 14, 2012 the Assembly Environmental Safety and Toxic
Materials Committee (ESTM) held an oversight hearing on
Contaminated Drinking Water in California's Disadvantaged
Communities. That hearing explored the risks to California's
drinking water sources, primarily from nitrate contamination in
groundwater, and the frustrations of economically disadvantaged
communities who had attempted to receive funding and assistance
from the DWP in order to get access to safe drinking water.
In follow up, ESTM held another oversight hearing on March 18,
2013 entitled Drinking Water Program Organization: Improving
State Assistance and Regulation of Public Drinking Water Systems
which asked whether the DWP was working and if the
administration of that program could be made "more efficient,
effective, and responsive to the needs of the poorest
neighborhoods" by moving it to the State Water Board where the
majority of the rest of the State's water programs are housed.
During that hearing stakeholders from disadvantaged communities
spoke of the difficulty and expense of accessing substitute
water supplies in areas where groundwater is contaminated. They
also raised problems of communication and clarity in working
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with DPH.
In a report presented during that March 18, 2013 ESTM hearing
entitled Evaluating the Potential Transfer of Drinking Water
Activities from DPH to SWRCB, the Legislative Analyst's Office
(LAO) further documented stakeholders concerns with regard to
DPH including: its lack of integration with overall water
quality management; slow distribution of financial assistance;
slow rulemaking process; insufficient fee structure leading to
inadequate administrative resources; and, lack of transparent
decisionmaking. The LAO's report stated that 30 states have
consolidated drinking water and water quality programs in a
single state entity and that some have also consolidated their
revolving loan programs (CWSRF and DWSRF). The LAO concluded
transferring DWP to SWRCB could have several potential
advantages including greater policy integration on water issues;
accelerated rulemaking; increased efficiencies and
administrative capacity; and heightened transparency and greater
public participation by utilizing a board that meets in public.
The LAO's report also cautioned that there could be potential
disadvantages, including: loss of integration with public health
programs that monitor infectious diseases and incidences of
birth defects and cancer; temporary disruption in the program's
capacity to perform regulatory activities; and, potentially
increased, mainly short-term, costs to relocate staff,
reclassify positions, and integrate information technology
systems.
Supporting arguments : The author's office states that because
California has stretched its water quality agencies thin and
across different houses the DWP is not adequately providing
services to Californians. The author asserts that this bill
"will maximize the efficiency and effectiveness of drinking
water, groundwater, and water quality programs in a single
agency whose primary mission is water quality." Other
supporters state that CHHSA has enormous responsibilities for
protecting public health, which results in the DPH DWP
"competing among other urgent needs for attention and resources.
This has caused multi-year delays to needed regulatory changes
and other problems." In addition, supporters note that the
LAO's office concluded that the Revolving Fund managed by DPH
"generally performs less well" than the revolving fund managed
by the State Water Board and that former Governor
Schwarzenegger's California Performance Review "recommended
combining the two Revolving Funds as a way to save money and
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improve the operation of both programs," as this bill would do.
Opposing arguments : Opponents of this bill acknowledge that
more than "two million people in California do not have access
to safe drinking water" and that this "is a problem that must be
addressed." However, opponents assert that "the entire [DWP] is
not broken" and that "the focus needs to be on targeted
solutions that truly address the drinking water problems that
disadvantaged communities in unincorporated areas are facing."
Opponents are "concerned that moving the entire [DWP] could
negatively affect the parts of the program that work and not
solve the problems that do exist." Other opponents state they
are, in general, satisfied with how the DWP has performed its
functions and that, in contrast, the State Water Board is
already "close to overburdened and underfunded."
Issues for the Committee's Consideration
The focus of this bill is to move the DWP from DPH to the State
Water Board. The Committee staff recommends that the author
consider several measures that could reduce the potential
disruption of such a move:
1)Coordinate the policy process with the requisite budget
actions for planning and implementing a move. For example,
make the bill effective on January 1, 2014 but the transition
effective on July 1, 2014, which is the beginning of the next
fiscal year. This would allow the Governor to include
appropriate changes in his proposed State budget for fiscal
year 2014-2015 when it is released in January 2014 and revised
in May 2014.
2)Clarify how a move would be achieved. Would existing DWP
staff and expertise be relocated to the State Water Board?
What would be the role of local agencies that are currently
implementing DWP actions or related actions?
3)Identify what actions can aid or inhibit the move of programs
to Cal/EPA. Examples include the transfer of the beverage
container recycling program, which was under the Department of
Conservation in the Natural Resources Agency, to CalRecycle;
and, the relocation of the pesticide regulation program from
the Department of Food and Agriculture, a separate
Secretary-level agency, to its own stand-alone Department in
Cal/EPA.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Clean Water Action California
Community Water Center
Environmental Justice Coalition for Water
Food & Water Watch
PolicyLink
Sierra Club California
United Food & Commercial Workers Western States Council
Opposition
Association of California Water Agencies (unless amended)
California Municipal Utilities Association (unless amended)
Health Officers Association of California
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096