BILL ANALYSIS �
AB 145
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 145
AUTHOR: Perea, Rendon
AMENDED: April 24, 2013
FISCAL: Yes HEARING DATE: June 12, 2013
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : STATE WATER RESOURCES CONTROL BOARD
SUMMARY :
Existing law :
1) Under the federal Safe Drinking Water Act (SDWA),
a) 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 implement those standards.
b) Establishes the Drinking Water State Revolving Fund
(DWSRF) 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) Under the California SDWA,
a) Requires the Department of Public Health (DPH) to
regulate drinking water and to enforce the federal SDWA and
other related regulations.
b) Establishes the Safe Drinking Water State Revolving Fund
(SDWSRF) and continuously appropriates the SDWSRF to DPH 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.
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c) Requires DPH to administer the SDWSRF and authorizes DPH
to undertake specified actions to implement SDWSRF pursuant
to the federal SDWA.
3) Under the federal Clean Water Act (CWA),
a) Establishes the structure for regulating discharges of
pollutants into the waters of the United States and
regulating quality standards for surface waters.
b) Establishes the Clean Water State Revolving Fund (CWSRF)
program:
i) To fund water quality projects, including
nonpoint source, watershed protection or restoration,
estuary management projects and municipal wastewater
treatment projects.
ii) Authorizes US EPA to award capitalization grants
to states and authorizes states to, in turn, make
loans to communities, individuals and others for water
quality activities to further provisions of the CWA.
4) Under the California Porter-Cologne Water Quality Control Act
(Porter-Cologne), the State Water Resources Control Board
(SWRCB) has authority over state water rights and water
quality policy. Porter-Cologne also establishes eight
Regional Water Quality Control Boards (regional boards) to
oversee water quality at the local/regional level. Under the
auspices of the US EPA, SWRCB and regional boards also have
responsibility for granting National Pollutant Discharge
Elimination System (NPDES) permits, for certain point-source
discharges.
a) Requires SWRCB to formulate and adopt state policy for
water quality control.
b) Requires SWRCB to administer the CWSRF.
This bill transfers, during the 2014-15 fiscal year, the duties
and responsibilities related to the regulation and oversight of
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drinking water, including the authority to administer SDWSRF from
DPH to 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.
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
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 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
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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 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 Safety
Code.
8)Requires the new Division of Drinking Water Quality of SRWCB to
carry out the functions described in this section.
9)Requires 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 SWRCB succeeds to and is vested with all of the
authority, duties, powers, purposes, responsibilities, and
jurisdiction of DPH for the purposes of SDWSRF.
COMMENTS :
1)Purpose of 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
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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 DPH 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."
2)The State Drinking Water Program (DWP) . In 1974, the federal
SDWA was passed by the United States 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
California SDWA requires DPH to manage California's DWP. DWP's
mission includes the enforcement of the federal and state SDWAs
and the oversight of public water systems (PWSs) throughout the
state.
In California, several state entities have responsibility over
water quality; however, DPH 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. DPH's responsibility
for the quality of drinking water begins when water is pumped
from a drinking water well or surface-water intake point.
SWRCB and the regional boards are responsible for the quality
of the water source before the water is pumped.
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,
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issuing permits, taking enforcement actions and implementing
new requirements due to changes in federal or state law or
regulations. DPH has delegated DWP regulatory authority for
small PWSs servicing 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.
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) and
Proposition 84 (2006), and SDWSRF.
3)The History of DPH . DPH was established by Senate Bill 162
(Ortiz), Chapter 241, Statutes of 2006, within the existing
Health and Human Services Agency. The goals of the California
Department of Public Health are to improve health outcomes and
to reduce health care costs through prevention with services
such as disease screenings and vaccinations, and patient safety
initiatives.
According to the author of SB 162, "public health programs and
goals are constantly overlooked and overshadowed by the
Medi-Cal program. Furthermore, several independent studies
have concluded that California suffers from a severe lack of
strong and effective state public health leadership. A new
department would create the opportunity to build strong
leadership, resulting in increased protection of the public
health and safety of Californians."
In April 2003, the Little Hoover Commission released a report
that found that California's public health leadership and
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organizational structure is ill-prepared to fulfill the primary
obligation of reducing injury and death from threats to public
health such as environmental hazards, bioterrorism and emerging
infectious diseases. The report recommended that a public
health department, separate from Medi-Cal and other public
health insurance programs, be created to focus on emerging
threats, with physician and science-based leadership and an
advisory board that links California's health assets and
experts.
According to the Legislative Analyst's Office (LAO) the main
advantage of centralizing public health activities would be
greater focus on improving health through public health
activities.
4)The history of the California Environmental Protection Agency
(CalEPA) .
Shortly after taking office, Governor Pete Wilson confirmed the
need for a Cabinet environmental quality secretary by issuing
Executive Order W-5-91, ordering continued coordination of the
programs formerly under the Environmental Affairs Agency, but
changed the name of the post to Secretary of Environmental
Protection. In July 1991, CalEPA was created by Governor
Wilson's Governor Reorganization Plan 1 composed of the
following programs, several of which were formerly public
health responsibilities from the Department of Health Services
(DHS): Office of the Secretary for Environmental Protection,
the Air Resources Board, the Integrated Waste Management Board,
SWRCB and regional boards, the Department of Toxic Substances
Control that was created by transferring the former division
from the DHS, the Department of Pesticide Regulation, and the
Office of Environmental Health Hazard Assessment that was
created by transferring the environmental components of the
Health Hazard Assessment Division of DHS.
The purposes of the new Agency were spelled out in six primary
objectives:
Most urgent attention must be turned toward those
activities, processes and substances presenting the
greatest risk to public health and the environment.
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Decisions to set risk-based priorities must be based
on rigorous and internally consistent science, at the
level widely recognized to be the best available.
Act to prevent the creation of pollution in the first
instance.
Environmental protection and economic progress should
not be viewed as competing goals, but, to the greatest
possible extent, as complementary.
Vigorous, predictable enforcement must underscore all
of our efforts.
The regulatory decision making process must be opened
as far as possible to the public as a whole.
1)DPH and SWRCB : There are two main federal environmental
regulatory statutes that govern water quality issues: SDWA and
CWA. In California, DPH administers the federal and SDWA (and
SWRCB administers CWA and Porter-Cologne).
DPH 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." DPH 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). DPH administers the
SDWSRF.
The SWRCB, which is housed within CalEPA, has a mission, "to
preserve, enhance and restore the quality of California's water
resources, and ensure their proper allocation and efficient use
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for the benefit of present and future generations." SWRCB and
the eight 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
CWSRF.
2)CDPH non-compliance with the federal SDWA : In a document dated
April 19, 2013, US EPA issued a notice to DPH for
non-compliance with the requirements of the SDWA, its
implementing regulations, and the terms and conditions of
SDWSRF grant agreements funded by US EPA for fiscal years
2009-11. US EPA determined that DPH has not timely and
efficiently committed and expended the funds in SDWSRF, nor
employed adequate financial resources to operate 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 upon 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.
The letter of non-compliance from US EPA was a result of
multiple communications by US EPA notifying DPH that DPH's
administration of SDWSRF did not meet the federal SDWA
requirements. In US EPA's annual Program Evaluation Report,
conducted in April 2012, US EPA concluded that California was
out of compliance in the following areas:
Annual report-missing program detail and
information.
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Timely and Expeditious Use of Funds -
Insufficient information to determine accurate fund
utilization values, and untimely and insufficient
expenditure of federal funds.
Financial Management - Unable to verify and
reconcile set aside draws.
Binding Commitments - Inconsistent tracking and
achievement of binding commitment requirement.
According to US EPA, DPH has until June 24, 2013 to submit a
Corrective Action Plan addressing the letter of non-compliance.
Upon receipt, the US EPA Regional Administrator will review
the Corrective Action Plan. If the state fails to meet US
EPA's requirements, 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.
1)Senate Environmental Quality Committee Hearing . On May 15,
2013, the Senate Environmental Quality Committee conducted a
hearing to evaluate the administration of SDWSRF, the
non-compliance letter issued by US EPA to DPH, review SWRCB's
administration of the CWSRF and discuss whether moving part or
all of the DWP from DPH to SWRCB would be a prudent and viable
option for increasing the success of that program.
During that hearing, the committee heard from the Director and
Staff of DPH regarding the steps DPH is taking to address the
non-compliance letter from US EPA; the Executive Director of
SWRCB about what tools the board has used for successful
administration of the CWSRF, the LAO review of the two SRFs,
and what efficiencies could be gained by moving the drinking
water program to SWRCB and stakeholders who testified to their
experience in working with the two agencies.
2)LAO Review . In its review, LAO found that while the
performance of SDWSRF on some US EPA performance metrics has
improved in recent years, it still generally performs less well
than CWSRF and performs significantly below the national
average of the performance of other states' SDWSRFs. For
example, LAO found that SDWSRF frequently fails to meet the
federal requirement to make binding commitments that are
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cumulatively greater than or equal to grant payments, while
CWRF generally successfully meets the binding commitment
requirement; SDWSRF's fund utilization rate is below the
national average, while CWSRF's fund utilization rate is above
the national average; and, SDWSRF had the highest amount and
rate of unliquidated obligations (capitalization grant funds
that US EPA has awarded to California but that the state has
not yet drawn from the US Treasury) in the nation, while
CWSRF's unliquidated obligation rate of 20% was deemed
appropriate by the US EPA.
LAO concluded that 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. 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, potentially increased, mainly short-term,
costs to relocate staff, reclassify positions, and integrate
information technology systems. However, ultimately, LAO's
recommendation is that the benefits of transferring DWP from
DPH to SWRCB are greater than the disadvantages.
3)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 CDPH. DPH's inability to help these
communities has made it clear that the current administration
of DWP by the DPH 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 DPH. SWRCB has
expertise in water quality and could quickly and efficiently
take on the additional responsibility. SWRCB already oversees
several funding programs under Prop 84 as well as the CWSRF."
4)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
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are regulated by CDPH 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.
5)Why Transfer DWP Now ? In February, 2013, SWRCB released a
report, "Communities that Rely on A Contaminated Groundwater
Source for Drinking Water." The report states that from 2002
to 2010, 680 (out of 3,032) community water systems serving
nearly 21 million residents, relied on a contaminated
groundwater source affected by one or more 'principal
contaminants.' A principal contaminant is a chemical detected
above a public drinking water standard on two or more occasions
during that cycle. 31 principal contaminants were identified:
arsenic was the most detected naturally occurring principal
contaminant (287 community water systems), and nitrate was the
most detected human caused principal contaminant (205 community
water systems). Of the 680 community water systems, 507 (75%)
rely entirely on groundwater. Community water systems that are
entirely reliant on groundwater may be highly vulnerable to
groundwater contamination, since these systems may not have
alternative, uncontaminated sources of water. Some community
water systems cannot afford treatment or they lack alternative
water sources and have served water that exceeds a public
drinking water standard.
More than 95% of California's 38 million residents get their
drinking water from a PWS and, of that number, 98% are served
safe drinking water, according to DPH. Although many water
suppliers draw from contaminated groundwater sources, most
suppliers are able to treat the water or blend it with cleaner
supplies before serving it to the public.
However, that leaves more than 3 million people in California
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that are either receiving contaminated drinking water or that
are not served by a PWS water supply, and it is unknown if they
are receiving contaminated drinking water.
The report outlines three broad solutions to address this
public health concern, including pollution prevention or source
protection, cleanup of contaminated groundwater, or providing
safe drinking water through treatment or alternative supplies.
The report also notes that public funding sources to address
groundwater supply and contamination issues are limited.
US EPA estimates California will need $40 billion during the
next 20 years for infrastructure development and improvements
to ensure the delivery of safe drinking water.
If California is going to successfully address this burgeoning
threat and prevent greater exposure to the serious risks
associated with the growing problem of groundwater
contamination then the state is going to need to be efficient
and effective in protecting and supplying clean water.
EFFICIENCY : It no longer makes sense for California to have
two agencies that are responsible for water quality policy
for the state. This leads to miscommunication and
duplicative, or even worse, contrary policies on how best to
address water quality problems in California.
EFFECTIVENESS : When DWP was created, the main concern was
to prevent contamination and treat for biologic pathogens,
which is much more a traditional, public health,
epidemiological type of responsibility. Today, California
is primarily and urgently struggling with environmental
contamination in source water where comprehensive, regional
solutions need to be employed that incorporate prevention,
remediation and treatment as part of one plan. DPH does not
have the staff or expertise to develop and implement policy
related to remediation of contamination. As such, DPH is
not equipped to adequately implement comprehensive policy to
address environmental contaminants from source to tap.
To this end, California's water quality programs need to evolve
into one comprehensive policy for the state. To date, this has
not happened with the responsibilities for water quality being
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split between a department and a board in two different
agencies.
California needs to consolidate its water quality
responsibilities into one agency where there is concise policy
from prevention to treatment to ensure that all Californians
have access to clean, drinkable water.
6) Why Not Just Consolidate the Two Revolving Funds ? There are
similarities between SDWSRF and CWSRF which would lend to
administrative efficiencies by administering them together.
However, it does not make sense to remove the funding
mechanism set up to fix the problems from the agency that it
is responsible for enforcing and helping the PWSs come into
compliance. It would leave the program without any tools to
fix the problems. If SDWSRF is to be moved, then the whole
program should be moved.
7)Amendments needed . The bill, as currently drafted, takes the
key components of DWP and transfers them to SWRCB. However,
there are components missing. For instance, the statutes
related to regulation of recycled water are not included within
the bill. Amendments are needed to ensure that all components
of DWP are included.
8)Alternative Solution . Concerns have been raised about how DWP
and its various components would be integrated into SWRCB. The
Senate Environmental Quality Committee may wish to offer
amendments as an alternative to the provisions of this bill
that move DWP to CalEPA as an office under the Secretary of
CalEPA and require the Secretary to report back to the
Legislature by March, 2014 with a plan for the reorganization
of drinking water policy.
9) Double Referral to Senate Health Committee . If this measure is
approved by this committee, the do pass motion must include the
action to re-refer the bill to the Senate Health Committee.
SOURCE : California Rural Legal Assistance Foundation
(Sponsor)
Clean Water Action (Sponsor)
Community Water Center (Sponsor)
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SUPPORT : California Association of Environmental Health
Administrators
California Teamsters Public Affairs Council
City of San Joaquin
Environmental Justice Coalition for Water
Food and Water Watch
Inland Empire Utilities Agency
Natural Resources Defense Council
Pesticide Action Network, North America
PolicyLink
Sierra Club California
United Food & Commercial Workers Western States
Council
Wholly H2O
Physicians for Social Responsibility Los Angeles
Engineering Contractors' Association
OPPOSITION : Alameda County Water District
American Water Works Association California-Nevada
Section
Association of California Water Agencies
Bear Valley Community Services District
Bella Vista Water District
Browns Valley Irrigation District
California Association of Public Health Laboratory
Directors
California Conference of Local Health Officers
California Municipal Utilities Association
California Water Association
Calleguas Municipal Water District
Carmichael Water District
Castaic Lake Water Agency
Central Basin Water Association
Citrus Heights Water District
City of Arcadia
City of Azusa
City of Corona
City of Corona
City of Lakewood
City of Norwalk
City of Roseville
City of Roseville
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City of Sacramento
City of Sacramento
City of Santa Monica
City of Santa Rosa
Coachella Valley Water District
Contra Costa Water District
Crescenta Valley Water District
Cucamonga Valley Water District
Desert Water Agency
Dublin San Ramon Services District
East Bay Municipal Utility District
East Valley Water District
Eastern Municipal Water District
Elsinore Valley Municipal Water District
El Dorado County Water Agency
Foothill Municipal Water District
Friant Water Authority
Glendale Water and Power
Glenn-Colusa Irrigation District
Health Officers Association of California
Humboldt Bay Municipal Water District
Independent Special Districts of Orange County
Indio Water Authority
Lake County Special Districts
Lake Hemet Municipal Water District
Las Virgenes Municipal Water District
Long Beach Water Department
Los Angeles Department of Water and Power
Metropolitan Water District of Southern California
Mariposa Public Utility District
McKinleyville Community Services District
Monte Vista Water District
Municipal Water District of Orange County
Newhall County Water District
Olivenhain Municipal Water District
Orchard Dale Water District
Otay Water District
Park Water Company
Pasadena Water and Power
Placer County Water Agency
Public Water Agencies Group
Redwood Valley County Water District
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Rowland Water District
Sacramento Regional Water Alliance
Sacramento Suburban Water District
San Diego County Water Authority
San Gabriel Valley Water Association
San Juan Water District
Santa Clara Valley Water District
Southwest California Legislative Council
Stockton East Water District
Three Valleys Municipal Water District
United Water Conservation District
Valley Center Municipal Water District
Vista Irrigation District
Walnut Valley Water District
Weeks Drilling & Pump Company
Western Canal Water District
Western Municipal Water District
Zone 7 Water Agency
2 Individuals