BILL ANALYSIS �
AB 145
Page 1
Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis A. Alejo, Chair
AB 145 (Perea) - As Amended: April 24, 2013
SUBJECT : State Water Resources Control Board: drinking water.
SUMMARY : Transfers, during the 2014- 2015 fiscal year, the
duties and responsibilities related to the regulation and
oversight of drinking water, including the authority to
administer the Safe Drinking Water State Revolving Fund
(SDWSRF), from the Department of Public Health (DPH) to the
State Water Resources Control Board (SWRCB). Specifically, this
bill :
1)Makes findings about the public nature of, and human need for,
water that include:
a) California law provides that every human being has
the right to safe, clean, affordable, and accessible
water adequate for human consumption, cooking, and
sanitary purposes;
b) Providing safe drinking water is one of the most
fundamental duties of any government;
c) Water for drinking is a natural resource that is
inherently public; and,
d) Groundwater regulation is governed by many entities;
and,
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 attempts at addressing this
issue.
3)Asserts 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
SWRCB, the one state agency whose primary mission relates to
water quality, will yield numerous benefits.
5)States the Legislature's intent to use a process with broad
public participation from affected stakeholders and agencies
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in order to craft the most effective management structure for
achieving a comprehensive strategy for protecting drinking
water quality.
6)Makes codified findings and declarations, including:
a) It is the intent of the Legislature to make the most
effective use of California's limited water and financial
resources to ensure that all communities, regardless of
socioeconomic status, enjoy access to safe and clean
drinking water.
b) The objectives of this 2013 reorganization of the
state's drinking water program include the following:
i. Maximize the efficiency and effectiveness
of drinking water, groundwater, and water quality
programs in a single agency whose primary mission is
water quality, as described.
ii. Create a comprehensive water quality
program that addresses water quality at all stages
of the hydrologic cycle, as described.
7)Provides that the SWRCB succeeds to and is vested with all of
the authority, duties, powers, purposes, responsibilities, and
jurisdiction of DPH for the purposes of the drinking water
program specified in the provisions of the Health and Code.
8)Requires that the new Division of Drinking Water Quality of
the SRWCB to carry out the functions described in this
section.
9)Requires the SWRCB to accept responsibility for enforcing
provisions governing public water systems.
10)Requires the reorganization to be implemented during the
2014-15 fiscal year.
11)Provides that the SWRCB succeeds to and is vested with all of
the authority, duties, powers, purposes, responsibilities, and
jurisdiction of DPH for the purposes of the SDWSRF.
EXISTING LAW :
1)Pursuant to the federal Safe Drinking Water Act (SDWA),
authorizes the United States Environmental Protection Agency
(US EPA) to set standards for drinking water quality and to
oversee the states, localities, and water suppliers who
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implement those standards. Under the SDWA Amendments of 1996,
establishes the Safe Drinking Water State Revolving Fund
(SDWSRF) program, which authorizes the US EPA to award
capitalization grants to states and authorizes the states to,
in turn, provide low-cost loans and other types of assistance
to public water systems to finance the costs of infrastructure
projects needed to achieve or maintain compliance with federal
SDWA requirements.
2)Pursuant to the California SDWA, requires CDPH to regulate
drinking water and to enforce the federal SDWA and other
related regulations (Health and Safety Code (HSC) � 116275 et
seq.).
3)Pursuant to the SDWSRF Law of 1997 (HSC � 116760 et seq.):
a) Establishes the SDWSRF and continuously appropriates the
SDWSRF to CDPH to provide grants or revolving fund loans
for the design and construction of projects for public
water systems that will enable suppliers to meet safe
drinking water standards.
b) Requires CDPH to administer the SDWSRF and authorizes
CDPH to undertake specified actions to implement the SDWSRF
pursuant to the federal SDWA.
4)Pursuant to the federal Clean Water Act (CWA), administered by
the US EPA regulates discharges of pollutants into the waters
of the United States and regulates quality standards for
surface waters. Under the CWA Amendments of 1987, establishes
the Clean Water State Revolving Fund (CWSRF) program to fund
water quality projects, including nonpoint source, watershed
protection or restoration; estuary management projects; and
municipal wastewater treatment projects. Authorizes US EPA to
award capitalization grants to and authorizes states to, in
turn, make loans to communities, individuals, and others for
water quality activities to further the provisions and
requirements of the CWA.
5)Pursuant to the Porter-Cologne Water Quality Control Act,
establishes the SWRCB and the regional water quality control
boards and provides that the SWRCB and the regional water
quality control boards are the principal state agencies with
authority over matters relating to water quality and
implementation of the CWA (Water Code (WC) � 13000, et seq.).
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a) Requires the SWRCB to formulate and adopt state policy
for water quality control (WC � 13140).
b) Requires the SRWCB to administer the CWSRF (WC � 13477).
FISCAL EFFECT : Unknown.
COMMENTS :
Need for the bill : According to the author, "The shift or
transfer of an environmental health program from a health based
agency to an environmental protection based agency is not a new
trend. At the federal level, both clean water and drinking
water SRF's are administered by the US Environmental Protection
Agency. In California there are several programs that are under
the California Environmental Protection Agency (CalEPA) that
protect the health of both humans and the environment
conjunctively such as the California Air Resources Board and the
Department of Pesticide Regulation. More closely related to
contaminant health standards in CalEPA is the Office of
Environmental Health Hazard Assessment, who sets the public
health goals for drinking water that CDPH then uses to create
the MCL level?
In addition to following current trends, the transfer of the
drinking water program to the Water Board would better
California to deal with future water issues. As drinking water
resources become more complex and limited, a holistic approach
at looking at water will be needed for the state to produce
comprehensive solutions. Placing the drinking water program
under the Water Board will strategically tie it together with
water quality and water rights programs which are needed to
address climate change, increases in population and recycled
water."
Recent state drinking water policy : Last year, the Legislature
and Governor Brown recognized the principle that all people have
a right to safe drinking water by enacting AB 685 (Eng). This
state policy declares that every human being has the right to
clean, affordable, and accessible water adequate for human
consumption, cooking and sanitary purposes. While in California
the majority of residents receive drinking water that meets
public health standards, recent studies have shown that many
disadvantaged and rural communities have not had, and continue
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not to have, access to safe, accessible and affordable drinking
water.
Prevalence of contaminated drinking water sources : The January
2013, SWRCB report "Communities that Rely on Contaminated
Groundwater," identified 682 community public water systems
(PWSs) that rely on contaminated groundwater as a primary source
of drinking water. (A PWS is a privately or publicly owned
water system that serves more than 15 service connections or 25
people.) These water systems serve nearly 21 milling people.
The SWRCB report also revealed that 265 community PWSs that rely
on contaminated groundwater and serve a little over two million
people had received at least one drinking water quality
violation within the last CDPH compliance cycle. According to
this report, most of the community PWSs with violations of
drinking water standards are located in the Southern California
Inland Empire, the east side of San Joaquin Valley, the Salinas
Valley and the Santa Maria Valley. The findings from this
report and a January 2012, University of California at Davis
study, "Addressing Nitrate in California's Drinking Water,"
suggest that drinking water contamination in California
disproportionally affects small, rural and low-income
communities that depend mostly on groundwater as their drinking
water source.
The State Drinking Water Program (DWP) : In 1974, the federal
Safe Drinking Water Act (SDWA) was passed by the U.S. Congress
to protect public health by regulating public drinking water
sources. The federal SDWA authorized the US EPA to establish
mandatory drinking water standards. In 1976, the California
SDWA was enacted to build on and strengthen the federal SDWA.
The CA SDWA requires CDPH to manage the state's DWP. The DWP's
mission includes the enforcement of the federal and state
safe-drinking water acts and the oversight of PWSs throughout
the state.
In California, several state entities have responsibility over
water quality; however, CDPH is the only entity responsible for
the oversight of the DWP and required to enforce the quality and
safety of the state's drinking water. CDPH's responsibility for
the quality of drinking water begins when water is pumped from a
drinking water well or surface-water intake point. The SWRCB
and the regional water quality control boards are responsible
for the quality of the water source before the water is pumped.
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The DWP, which is a component of the Division of Drinking Water
and Environmental Management within the Center for Environmental
Health, regulates over 8,000 PWSs by inspecting the systems,
issuing permits, taking enforcements actions, and implementing
new requirements due to changes in federal or state law or
regulations. The CDPH has delegated the DWP regulatory
authority for small PWS serving less than 200 service
connections to 34 counties in California. The delegated
counties (local primacy agencies) regulate approximately 4,600
small PWSs that are usually owned by schools, churches and small
businesses, like restaurants and hotels.
The DWP has other functions, including responding to emergencies
by providing technical assistance to damaged water systems,
assessing drinking water contamination, and ensuring access to
safe drinking water; providing information on drought
preparedness and water conservation; overseeing water recycling
projects; certifying residential water treatment devices;
certifying drinking water treatment and distribution operators;
supporting and promoting water system security; providing
support for small water systems and for improving technical,
managerial, and financial capacity; overseeing the Drinking
Water Treatment and Research Fund; and providing funding
opportunities and financial assistance for water system
improvements, including funding under Proposition 50 (2002),
Proposition 84 (2006), and the Safe Drinking Water State
Revolving Fund.
CDPH and the SWRCB : There are two main federal environmental
regulatory statutes that govern water quality issues: the Safe
Drinking Water Act (SDWA) and the Clean Water Act (CWA). In
California, CDPH administers the SDWA (and the parallel state
statute) and SWRCB administers the CWA (and the parallel state
statute).
The CDPH is housed within the California Health and Human
Services Agency and has a mission of "optimizing the health and
well-being of the people in California." CDPH manages programs
involved in a broad range of health-related activities, such as
chronic disease prevention, communicable disease control, family
health and planning, health care quality (including the
regulation of health care facilities and professionals and
laboratories), and the regulation of environmental health
(including drinking water quality). The CDPH administers the
SDWSRF.
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The SWRCB, which is housed within the California Environmental
Protection Agency (CalEPA), has a mission, "to preserve, enhance
and restore the quality of California's water resources, and
ensure their proper allocation and efficient use for the benefit
of present and future generations." The SWRCB and the nine
regional water quality boards perform a variety of activities
related to the state's water resources, including regulating the
overall quality of the state's waters, including groundwater, to
protect the "beneficial uses" of water by permitting waste
discharges into the water and enforcing water quality standards;
administering the system of water rights; and, providing
financial assistance to fund wastewater system improvements,
underground storage tank cleanups, and other improvements to
water quality. According to the SWRCB, the joint authority of
water allocation and water quality protection enables the SWRCB
to provide comprehensive protection for California's waters.
The SWRCB administers the CWSRF.
ESTM Committee drinking water oversight hearings: Since
November 2012, the ESTM Committee has held a series of oversight
hearings on the provision of safe, affordable, accessible
drinking water to all Californians, especially to those in
disadvantaged communities. The first hearing, held on November
14, 2012, reviewed the actions that state agencies, including
the DPH, have taken to address the issue of contaminated
drinking water, especially in disadvantaged communities. The
second hearing, held on March 18, 2013, considered whether
efficiencies can be achieved and effectiveness can be improved
if the DWP is moved from DPH, which is housed in the California
Health and Human Services Agency, to the California
Environmental Protection Agency (CalEPA). The third hearing,
held on April 2, 2013, focused on California's groundwater
contamination and the steps needed to protect the State's
drinking water. At all of these hearings, Committee members
heard testimony from stakeholders and community members from
around the state suffering for the lack of reliable, affordable,
safe drinking water, and gathered information regarding the
state's management of its drinking water systems.
Analysis of the management of the DWP : At the end of 2012, the
ESTM Committee, under Chairman Luis Alejo, requested that the
Legislative Analyst's Office (LAO) complete two analyses
relating to the DWP: 1) a comparison of DPH's management of the
SDWSRF to the SWRCB's management of the CWSRF, and; 2) an
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evaluation of the transfer of the DWP from CDPH to the SWRCB.
In the first report to the Committee, submitted on December 20,
1012, the LAO found that while the performance of the SDWSRF on
some US EPA performance metrics has improved in recent years, it
still generally performs less well than the CWSRF and performs
significantly below the national average of the performance of
other states' SDWSRFs. For example, the LAO found that the
SDWSRF frequently fails to meet the federal requirement to make
binding commitments that are cumulatively greater than or equal
to grant payments, while the CWRF generally successfully meets
the binding commitment requirement; the SDWSRF's fund
utilization rate is below the national average, while the
CWSRF's fund utilization rate is above the national average;
and, the SDWSRF had the highest amount and rate of unliquidated
obligations (capitalization grant funds that the US EPA has
awarded to California but that the state has not yet drawn from
the U.S. Treasury) in the nation, while CWSRF's unliquidated
obligation rate of 20% was deemed appropriate by the US EPA.
The second report, issued to the Committee on March 18, 2013,
noted that the federal Clean CWA and SDWA allow states
significant flexibility in how they structure their water
management agencies. For example, 30 states have consolidated
drinking water and water quality programs in a single state
entity. Some states have also consolidated their water
quality-related revolving loan programs in agencies that focus
solely on providing financial assistance.
The second report cited concerns with the DWP raised by
stakeholders and others, 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 decision making. It also concluded that
transferring the DWP to the 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 some 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,
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potentially increased, mainly short-term, costs to relocate
staff, reclassify positions, and integrate information
technology systems.
Ultimately, the LAO testified that it would recommend
transferring the DWP from CDPHto the SWRCB.
CDPH non-compliance with the federal SDWA : In a document
date-stamped April 19, 2013, the US EPA issued a notice to CDPH
for non-compliance with the requirements of the SDWA, it's
implementing regulations, and the terms and conditions of the
SDWSRF grant agreements funded by US EPA for fiscal years 2009 -
2011. The US EPA determined that CDPH has not timely and
efficiently committed and expended the funds in the SDWSRF, nor
employed adequate financial resources to operate the SDWSRF in a
sound financial manner, in violation of the terms and conditions
of the grant agreements, 40 C.F.R. � 35.3550(c) and (l) and 40
C.F.R. � 35.3560(d). The notice noted that California has the
largest unliquidated obligation in the nation.
The notice gave California 60 days of receipt of the
non-compliance notice to remedy the specific instances of
non-compliance or submit an acceptable corrective action plan.
If the state fails to do so, the US EPA may suspend payment to
the SDWSRF. Additionally, in accordance with 40 C.F.R. � 31.43,
the US EPA can take other enforcement actions such as
withholding further grant funds, wholly or partly suspending
current awards, or wholly or partly terminating current awards.
Double referral : This bill was double referred to the Assembly
Water, Parks and Wildlife Committee (WP&W) and the Assembly ESTM
Committee. It passed out of the WP & W Committee on a 9 - 2
vote.
Arguments in support : According to supporters, "We work in and
for, disadvantaged communities in California, many who have
lacked safe and reliable drinking water for numerous years and
are regulated by the California Department of Public Health
(CDPH). CDPH's inability to help these communities has made it
clear that the current administration of the Drinking Water
Program by the California Department of Public Health is a
barrier to achieving safe drinking water. SWRCB is the
appropriate unit of State government to oversee all the State's
activities regarding water quality, including those currently
performed by CDPH. SWRCB has expertise in water quality and
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could quickly and efficiently take on the additional
responsibility. SWRCB already oversees several funding programs
under Prop 84 as well as the Clean Water State Revolving Fund."
Arguments in opposition : The Association of California Water
Agencies (ACWA) argues, "ACWA's member agencies that provide
safe drinking water to millions of customers across the state
are regulated by CPDH and find that the State's Drinking Water
Program, including the permitting and inspection functions,
generally works well. We suggest that the focus needs to be on
targeted solutions that truly address the drinking water
problems that disadvantaged communities in unincorporated areas
are facing. ACWA's member agencies are concerned that moving
the entire drinking water program could negatively affect the
parts of the program that work and not solve the problems that
do exist." The California Municipal Utilities Association
argues that the transfer would create disruptions of vital
division functions; the transfer would inherently undermine
human health functions; and, the transfer could distract SWRCB
from existing high profile priorities.
REGISTERED SUPPORT / OPPOSITION :
Support:
California Rural Legal Assistance Foundation (Sponsor)
California Teamsters Public Affairs Council
Clean Water Action (Sponsor)
Community Water Center (Sponsor)
Engineering Contractors Association
Environmental Justice Coalition for Water
Food and Water Watch
Physicians for Social Responsibility
PolicyLink
Sierra Club California
United Food & Commercial Workers Western States Council
Wholly H2O
Opposition:
Alameda County Flood Control and Water Conservation District,
Zone 7
Association of California Water Agencies
California Conference of Local Health Officers
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California Municipal Utilities Association
California Water Association
Castaic Lake Water Agency
Coachella Valley Water District
Desert Water Agency
Friant Water Authority
Health Officers Association of California
Lake County Special Districts
Orchard Dale Water District
Redwood Valley County Water District
Rowland Water District
Three Valleys Municipal Water District
United Water Conservation District
Walnut Valley Water District
Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916)
319-3965