Bill Text: CA AB2106 | 2021-2022 | Regular Session | Enrolled

California Assembly Bill 2106 (Prior Session Legislation)

Bill Title: Water quality: permits.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Vetoed) 2022-09-28 - Vetoed by Governor. [AB2106 Detail]

Download: California-2021-AB2106-Enrolled.html

Enrolled September 01, 2022

Passed IN Senate August 29, 2022

Passed IN Assembly August 30, 2022

Amended IN Senate August 24, 2022

Amended IN Senate August 11, 2022

Amended IN Senate June 30, 2022

Amended IN Senate June 08, 2022

Amended IN Assembly May 19, 2022

Amended IN Assembly March 15, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 2106

Introduced by Assembly Members Robert Rivas and Cristina Garcia
(Coauthor: Assembly Member Eduardo Garcia)

February 14, 2022

An act to add Sections 13196.1 and 13383.1 to, and to add and repeal Section 13383.11 of, the Water Code, relating to water quality.

LEGISLATIVE COUNSEL'S DIGEST

AB 2106, Robert Rivas. Water quality: permits.

Under existing law, the State Water Resources Control Board and the 9 California regional water quality control boards regulate water quality and prescribe waste discharge requirements in accordance with the federal national pollutant discharge elimination system (NPDES) permit program established by the federal Clean Water Act and the Porter-Cologne Water Quality Control Act. Existing law requires each regional board to formulate and adopt water quality control plans for all areas within the region, as provided.

Existing law authorizes the state board to require a person submitting a report to the state board, a regional board, or a local agency to submit the report in electronic format.

This bill would require, on or before December 31, 2025, the state board to update its stormwater data collection systems and software through specified actions.

The bill would require the state board, after making the necessary findings, to establish a statewide commercial, industrial, and institutional NPDES order regulating stormwater and authorized nonstormwater discharges from facilities with impervious surfaces that are significant contributors of pollutants to federally protected surface waters, as determined by the state board. The bill would require the state board to publish a draft order of the statewide order for public comment on or before December 31, 2026, or 18 months after the reissuance of a specified statewide permit, as specified. The bill would require the state board to contemporaneously develop a model memorandum of understanding to issue with the publication of the draft statewide order for public comments that details the necessary components of an agreement between commercial, industrial, and institutional permittees and local municipalities for achieving offsite stormwater capture and use within the adopted final statewide commercial, industrial, and institutional NPDES order. The bill would require the NPDES order to include multiple options to achieve compliance with water quality standards, including, but not limited to, compliance options incentivizing onsite or offsite stormwater capture and use. The bill would make the operation of these provisions contingent upon an appropriation for its purposes by the Legislature in the annual Budget Act or another statute.

Existing law required the state board, no later than July 1, 2009, to develop a comprehensive guidance document for evaluating and measuring the effectiveness of municipal stormwater management programs and permits, as prescribed. Existing law requires the state board and regional boards to refer to the guidance document when establishing requirements in municipal stormwater programs and permits.

This bill would require, on or before January 31, 2025, the state board to initiate a series of board workshops to evaluate the California stormwater program and the state’s progress toward attainment of beneficial uses and compliance with water quality standards as they pertain to permits issued pursuant to the federal Clean Water Act. The bill would require, on or before December 31, 2026, and after holding public workshops and soliciting public comments, the state board to develop and submit to the Legislature a report, as prescribed, evaluating the state’s progress toward, and recommendations to achieve, attainment of beneficial uses and compliance with water quality standards as they pertain to permits issued pursuant to the federal Clean Water Act and the Porter-Cologne Water Quality Control Act. The bill would require the report to include recommendations for the state board, regional boards, other relevant state agencies, and the Legislature to act upon to ensure permitting of stormwater discharges protects and supports attainment of beneficial uses and results in compliance with water quality objectives.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

The Legislature finds and declares all of the following:

(a) Water is a necessity of human life, and every Californian deserves access to clean and safe water. Every Californian has a right to clean and safe water for swimming, fishing, and drinking and is encouraged to use and enjoy California’s waterways.

(b) Five decades ago, pollution and destruction of our nation’s waters had reached crisis levels. Major lakes, such as Lake Erie, were choked with pollution, killing off fish and aquatic vegetation. Rivers and streams across the country were little more than open sewers. The Cuyahoga River had caught fire. Wetlands were being destroyed at an increasing rate, depriving coastal areas and river valleys of critically important flood control protection and ecological benefits.

(c) To address the water quality crisis, the California State Legislature passed the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code) in 1969 to entrust the State Water Resources Control Board (state board) and nine California regional water quality control boards (regional boards) with broad duties and powers to preserve and enhance all beneficial uses of waters of the state.

(d) Additionally, Congress passed the Federal Water Pollution Control Act Amendments of 1972 (Public Law 92-500), commonly known as the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.), with the objective to restore and maintain the biological, chemical, and physical integrity of the nation’s waters.

(e) The shared mission of the state board and regional boards is to preserve, enhance, and restore the quality of California’s water resources and drinking water for the protection of the environment, public health, and all beneficial uses, and to ensure proper water resource allocation and efficient use for the benefit of present and future generations.

(f) Federal and state clean water laws have facilitated dramatic improvements in controlling pollution from end of pipe industrial and municipal treatment work pipes, but continued efforts are needed to address distributed pollution from urban stormwater runoff, agricultural runoff, and other threats to the health of waters of the state.

(g) Under Section 303(d) of the federal Clean Water Act (33 U.S.C. Sec. 1313(d)), California is required to review, make changes as necessary, and submit to the United States Environmental Protection Agency (EPA) a list identifying water bodies not meeting water quality standards (303(d) list).

(h) As of the most recent 2018 303(d) list, nearly 95 percent of all fresh waters assessed in California, and over 1,400 water bodies, are listed as impaired, with only 114 total maximum daily loads having been approved since 2009 in California. Of 164,741 assessed miles of rivers and streams, 82 percent were impaired. Of 929,318 assessed acres of lakes, reservoirs, and ponds, 93 percent were impaired. Of 575,000 assessed acres of bays, harbors, and estuaries, 99 percent were impaired. Of 2,180 assessed miles of coastal shoreline, 93 percent were impaired. Of 130,084 assessed acres of wetlands, 99 percent were impaired.

(i) According to the EPA, stormwater runoff is a contributor to water quality impairments across the country, particularly in developing and urbanized areas. Such runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients (phosphorous and nitrogen), heavy metals and other toxic pollutants, pathogens, toxins, oxygen-demanding substances (organic material), and floatable materials. Individually and combined, these pollutants impair water quality, threatening designated beneficial uses and causing habitat alteration or destruction. Over 250 studies have shown that an impervious surface associated with urban development is a “collection site for pollutants,” and increases in impervious surfaces generate greater quantities of contaminants.

(j) Sections 122.26(a)(9)(i)(C) and 122.26(a)(9)(i)(D) of Title 40 of the Code of Federal Regulations contain a catch-all provision requiring national pollutant discharge elimination system (NPDES) permits for any stormwater discharge or category of discharges within a geographic area that the EPA regional administrator, or in states with approved NPDES programs either the state director or the EPA regional administrator, determines contributes to a violation of a water quality standard or determines to be a significant contributor of pollutants to waters of the United States. Categories of sources designated under the state’s residual designation authority may be geographically broad, and the term “within a geographic area” allows “statewide” or “watershedwide” designation within the meaning of the terms. The Ninth Circuit Court of Appeals found that the designation of broad regional categories of sources is a reasonable exercise of statutory authority.

(k) Once a finding or determination has been made that a category of discharges meets the statutory criterion of contributing to a violation of a water quality standard, it must designate that category for regulation, and those operators shall be required to obtain a NPDES permit. The EPA’s residual designation authority is not optional; designation is appropriate as soon as the adverse impacts from stormwater are recognized. The EPA has advised states with approved NPDES programs that it would be reasonable to require permits for discharges that contribute more than de minimis amounts of pollutants identified as the cause of impairment to a water body.

(l) Stormwater discharges from impervious surfaces on commercial, industrial, and institutional sites consistently contain significant levels of pollutants, including lead, copper, zinc, sediments, turbidity, oxygen depletion, phosphorus, or nitrogen. The EPA’s National Urban Runoff Program study provides information regarding elevated levels of metals from commercial, industrial, and institutional sites. Consistent with elevated concentrations in pollutant discharges from commercial, industrial, and institutional sites, available information also demonstrates that the sites, in general, have large annual pollutant loadings. Impervious surfaces on commercial, industrial, and institutional sites, such as parking lots, shopping centers, industrial work areas, and onsite development for facility operations, discharge an annual pollutant load that consistently contains elevated levels of metals and sediment. The National Stormwater Quality Database and other available information provide discharge characterization of the runoff from commercial, industrial, and institutional sites – information available to determine that the discharges consistently contain high levels of chemical oxygen demand and biological oxygen demand, which are oxygen-demanding organic compounds and other pollutants of concern.

(m) Well-conceived stormwater management actions provide multiple benefits for California communities, including improved water quality, increased water supply, increased space for public recreation, increased tree canopy, and enhanced stream and riparian habitat area, as well as many other benefits.

(n) As California celebrates the 50th anniversary of the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.), the state board and regional boards have an opportunity to reevaluate the state’s stormwater program and reform stormwater permits to focus on the most effective practices to attain beneficial uses, sustainably manage and utilize stormwater as a resource to support water quality and water supply for human uses as well as the environment, promote source control, and identify sources of dedicated and supplemental stormwater funding.

SEC. 2.

Section 13196.1 is added to the Water Code, to read:

13196.1.

On or before December 31, 2025, the state board shall update its stormwater data collection systems and software to do the following:

(a) Reduce regulatory costs associated with permittee reporting requirements and data entry.

(b) Improve efficient state board enforcement and track permittee compliance through increased accessibility to permit requirements, compliance data, and permittee compliance status.

(c) Include permittee-level and site- and facility-level tracking and accounting of how best management practices reduce pollutant loading to receiving waters.

(d) Include geographic information system data to evaluate progress toward stormwater program compliance.

SEC. 3.

Section 13383.1 is added to the Water Code, to read:

13383.1.

(a) (1) The state board, after making the necessary findings, shall establish a statewide commercial, industrial, and institutional national pollutant discharge elimination system (NPDES) order pursuant to Section 402(p) of the federal Clean Water Act (33 U.S.C. Sec. 1342(p)) and Sections 122.26(a)(9)(i)(C) and 122.26(a)(9)(i)(D) of Title 40 of the Code of Federal Regulations regulating stormwater and authorized nonstormwater discharges from facilities with impervious surfaces that are significant contributors of pollutants to federally protected surface waters, as determined by the state board. The state board shall publish a draft order of the statewide order for public comment on or before December 31, 2026, or 18 months after the reissuance of the statewide General Permit for Stormwater Discharges Associated with Industrial Activities, Order 2014-0057-DWQ, as amended in 2015 and 2018, effective July 1, 2020, whichever is later.

(2) The state board shall contemporaneously develop a model memorandum of understanding to issue with the publication of the draft statewide order for public comments that details the necessary components of an agreement between commercial, industrial, and institutional permittees and local municipalities for achieving offsite stormwater capture and use within the adopted final statewide commercial, industrial, and institutional NPDES order.

(b) The NPDES order established pursuant to subdivision (a) shall include multiple options to achieve compliance with water quality standards, including, but not limited to, compliance options incentivizing onsite or offsite stormwater capture and use.

(c) Regulated stormwater permittees shall not be subject to more than one stormwater NPDES order for the same facility pursuant to Section 402(p) of the federal Clean Water Act (33 U.S.C. Sec. 1342(p)) and Sections 122.26(a)(9)(i)(C) and 122.26(a)(9)(i)(D) of Title 40 of the Code of Federal Regulations. All effluent limitations applicable to stormwater discharges associated with industrial activities shall be incorporated into the statewide commercial, industrial, and institutional order established pursuant to subdivision (a). This subdivision does not apply to stormwater discharges associated with construction activities.

(d) The operation of this section is contingent upon an appropriation for its purposes by the Legislature in the annual Budget Act or another statute.

SEC. 4.

Section 13383.11 is added to the Water Code, to read:

13383.11.

(a) On or before January 31, 2025, the state board shall initiate a series of board workshops to evaluate the California stormwater program and the state’s progress toward attainment of beneficial uses and compliance with water quality standards as they pertain to permits issued pursuant to Section 402(p) of the federal Clean Water Act (33 U.S.C. Sec. 1342(p)). On or before December 31, 2026, and after holding public workshops and soliciting public comments, the state board shall develop and submit to the Legislature in compliance with Section 9795 of the Government Code a report evaluating the state’s progress toward, and recommendations to achieve, attainment of beneficial uses and compliance with water quality standards as they pertain to permits issued pursuant to Section 402(p) of the federal Clean Water Act and this division. The report shall include recommendations for the state board, regional boards, other relevant state agencies, and the Legislature to act upon to ensure permitting of stormwater discharges protects and supports attainment of beneficial uses and results in compliance with water quality objectives.

(b) For the purpose of implementing subdivision (a), the state board shall use the state’s best available data to evaluate the impacts of stormwater discharges regulated by Section 402(p) of the federal Clean Water Act (33 U.S.C. Sec. 1342(p)) and the effectiveness of permits and stormwater management programs on attainment of beneficial uses and compliance with water quality objectives.

(c) For the purpose of developing recommendations pursuant to subdivision (a), the state board’s evaluation shall be limited to the following:

(1) Strategies to ensure stormwater permit requirements are simple and objective, focus on improving water quality, and determine permittee compliance.

(2) Mechanisms to ensure stormwater programs address environmental justice and racial inequities within the state’s water quality policies and permits to ensure disadvantaged and tribal communities are not disproportionately impacted by poorly managed stormwater.

(3) Source control measures the state could implement, including, but not limited to, a stakeholder working group to evaluate the potential for a statewide program to do the following:

(A) Identify stormwater pollutants generated by the commercial sale of products.

(B) Require the reduction or elimination of the pollutants in commercial products identified pursuant to subparagraph (A).

(C) Hold manufacturers that cannot eliminate their contribution of stormwater pollutants identified pursuant to subparagraph (A) financially responsible for contributing those stormwater pollutants.

(D) Allocate funding generated from the program to local municipalities responsible for preventing discharges of pollutants identified pursuant to subparagraph (A) into waters of the state.

(4) Strategies to reduce the compliance costs created by unnecessary permit requirements that do not result in improved water quality or are not necessary to demonstrate permit compliance.

(5) Policies to regulate or incentivize the one-water concept, defined as the recognition that all urban water supplies, including, but not limited to, surface water, groundwater, stormwater, and wastewater are valued and interconnected resources that need to be comprehensively managed in order to better address multisector water quality and water supply problems.

(6) A dedicated source of stormwater funding and increasing supplemental funding opportunities for local stormwater programs, including creative approaches to use the State Water Pollution Control Revolving Fund to fund stormwater programs in a manner that is similar to the approaches used to fund wastewater programs.

(7) The use of spatially based stormwater information management systems to manage, visualize, and report program compliance data.

(8) Opportunities to better identify and enroll nonfilers into the applicable stormwater national pollutant discharge elimination system (NPDES) order pursuant to Section 402(p) of the federal Clean Water Act (33 U.S.C. Sec. 1342(p)) and Sections 122.26(a)(9)(i)(C) and 122.26(a)(9)(i)(D) of Title 40 of the Code of Federal Regulations.

(9) Solutions to identify unknown sources of water quality impairments.

(d) Pursuant to Section 10231.5 of the Government Code, this section shall remain in effect only until January 1, 2031, and as of that date is repealed.