Bill Text: CA SB413 | 2009-2010 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Waste discharge requirements: fees.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2010-02-01 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB413 Detail]
Download: California-2009-SB413-Introduced.html
Bill Title: Waste discharge requirements: fees.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2010-02-01 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB413 Detail]
Download: California-2009-SB413-Introduced.html
BILL NUMBER: SB 413 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Ducheny
FEBRUARY 26, 2009
An act to amend Sections 13201, 13205, and 13388 of, and to add
Section 13232 to, the Water Code, relating to water quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 413, as introduced, Ducheny. California regional water quality
control boards: membership and program withdrawal.
(1) Under existing law, the State Water Resources Control Board
and the California regional water quality control boards 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 (Porter-Cologne). Existing law designates
the state board as the state water pollution control agency for all
purposes stated in the Clean Water Act and any other federal act.
Federal regulations provide for program revision and withdrawal and
the voluntary transfer of program responsibilities when a state
program no longer complies with the requirements of the Clean Water
Act and the state fails to take corrective action.
This bill would make legislative findings and declarations related
to the regional boards and their responsibilities under the Clean
Water Act and Porter-Cologne.
The bill would authorize the state board to order the commencement
of withdrawal proceedings with regard to a regional board's program
authority on the state board's own initiative or in response to a
petition from an interested person. If the state board concludes that
a regional board has substantially and continually failed to
administer water quality programs in conformity with the appropriate
acts and regulations, the state board would be required to list the
deficiencies in the program, and provide the regional board a
reasonable time to take corrective action. If the regional board
fails to take the appropriate corrective action within the prescribed
timeframe, the state board would be required to either withdraw the
regional board's program authority or set a schedule for review of
program authority after a probationary period. The bill would require
any withdrawal order to state whether the state board or another
regional board would become the implementing agency within the
jurisdiction of the former regional board.
(2) The Porter-Cologne establishes 9 regions for the purposes of
the act, each governed by a California regional water quality control
board comprised of 9 members appointed by the Governor, with
prescribed experience or associations. The act requires that each
regional board member represent and act on behalf of all the people
and reside or have a principal place of business within the region.
Under the act, if an appointment cannot be made for the county
government member because of a restriction under existing law on
income directly or indirectly from any person subject to waste
discharge requirements or applicants for waste discharge
requirements, the act authorizes the appointment of persons not
specifically associated with any category.
This bill would revise those provisions to establish regional
boards of 7 members, to be appointed by the Governor. Each member
would be required to be appointed on the basis of his or her
demonstrated interest and proven ability in the field of water
quality, including water pollution prevention, water pollution
control, and understanding of water pollution and related water
resource management problems in his or her region, and his or her
ability to attend substantially all meetings of the regional board,
and to actively discharge all duties and responsibilities of a member
of the regional board.
(3) Existing law provides that each member of a regional board
receive $100 for each day that member is engaged in the performance
of official duties, except as specified, and that the total
compensation received by members of each regional board not exceed,
in any one fiscal year, the sum of $13,500.
This bill would provide that each regional board member may
receive $500 for each day that member is engaged in the performance
of official duties. The bill would provide that the total
compensation received by a regional board member in any fiscal year
may not exceed $30,000.
(4) Existing law prohibits a person from being a member of the
state board or a regional board if that person receives, or has
received, during the previous 2 years a significant portion of his or
her income directly or indirectly from any person subject to waste
discharge requirements or applicants for waste discharge
requirements.
This bill would revise this provision with regard to regional
boards by specifying that no person shall be a regional board member
if that person receives, or has received, during the previous 2 years
a significant portion of his or her income directly or indirectly
from any person subject to waste discharge requirements, or
applicants for waste discharge requirements, associated with
discharges in that region.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and declares all of the
following:
(a) The 1949 Dickey Water Pollution Act established nine regional
water boards located in each of the major California watersheds. The
regional boards have primary responsibility for overseeing and
enforcing the state's pollution abatement programs. The act
established five gubernatorial appointees, representing water supply,
irrigated agriculture, industry, and municipal and county government
in that region, to serve on each regional water board. This number
has since grown to nine members and includes a public member seat,
two members with special competence in water quality, and a seat for
a member associated with a recreation, fish, or wildlife
nongovernmental organization.
(b) The complexity of water quality and water supply laws and
technologies in the intervening 58 years has grown exponentially,
while the expertise and low pay on the regional boards have remained
relatively constant. The significant complexity of problems and laws
brings an increased need for expertise on the regional board, yet the
substantive requirements for the regional board member position have
not similarly increased. The large number of appointments (81
regional board members) makes tracking the members' performance
difficult, heightening the need for the clear, strong expertise of
each board member.
(c) The federal Clean Water Act (33 U.S.C. Sec. 1252 et seq.)
envisions delegation of water pollution control responsibility to the
states. Federal regulations establish procedures for approving a
state program and the responsibilities of that program. Provisions
for withdrawal of that authority are found at Section 123.63 of Part
40 of the Code of Federal Regulations and state that the United
States Environmental Protection Agency may withdraw federal approval
when a state program no longer complies with the requirements of the
Clean Water Act and the state fails to take corrective action. These
circumstances include the state's failure to issue permits, act on
violations of permits or other program requirements, seek adequate
enforcement penalties or collect administrative fines when imposed,
inspect and monitor activities subject to regulation, or develop an
adequate regulatory program for developing water quality-based
effluent limits in national pollutant discharge elimination system
permits.
(d) The Porter-Cologne Water Quality Control Act (Division 7
(commencing with Section 13000) of the Water Code) designates the
state board as the state water pollution control agency for all
purposes stated in the Clean Water Act and any other federal act.
Section 13260 of the act places responsibility on the regional boards
for ensuring that waste discharge reports are filed by any person
discharging, or proposing to discharge, waste in any region that
could affect the quality of "waters of the state," and that
appropriate regulatory action is taken after the filing of the
reports. The act defines "waters of the state" as "any surface water
or groundwater, including saline waters, within the boundaries of the
state."
(e) California is the only state in the nation with autonomous
regional water boards that implement the Clean Water Act program
requirements.
(f) Numerous state and federal mandates are not being met in
California. They include the following:
(1) Section 305(b) of the Clean Water Act requires each state to
prepare a water quality report at least every two years; California
has not submitted a report to the United States Environmental
Protection Agency since 2002. Moreover, despite the mandate that all
waters are to be assessed, the 2002 document reports only on the
health of one-third of the state's lakes and reservoirs, 22 percent
of the state's coastal shoreline miles, and a mere 15 percent of
river and stream miles.
(2) Although Porter-Cologne requires the regional boards to
regulate all discharges to surface water or groundwater that "could
affect the quality of the waters of the state," every one of the
regional boards has failed to regulate one or more major sources of
polluted runoff into surface water, and there is virtually no such
regulation of discharges to groundwater. As a result, polluted runoff
is implicated in more than 76 percent of the waters identified as
"impaired" in California.
(3) The state has established approved cleanup plans for only a
handful of the water bodies listed as "impaired" for one or more
pollutants, and only a small fraction of those waters have since been
deemed "clean." Many of these listings will not have cleanup plans
before 2019, with no deadlines set for actual cleanup of the waters
listed.
(4) A February 2000 report by the Legislative Analyst's Office
identified numerous deficiencies in permit issuance, inspections,
inconsistencies in enforcement across the state, inadequate
enforcement followup, and other problems, most of which continue
today.
(5) An August 2006 state board enforcement report to the
Legislature concluded that the water board staff does not detect
violations for several months after they occur and showed
significantly variable numbers of enforcement actions and violation
rates across regional water boards.
SEC. 2. Section 13201 of the Water Code is amended to read:
13201. (a) There is a regional board for each of the regions
described in Section 13200. Each board shall consist of the
following nine seven members appointed by the
Governor, each of whom shall represent , and act on behalf
of , all the people , and shall reside or have
a principal place of business within the region:
region.
(1) One person associated with water supply, conservation, and
production.
(2) One person associated with irrigated agriculture.
(3) One person associated with industrial water use.
(4) One person associated with municipal government. Upon the next
vacancy occurring in this office on or after January 1, 2004, this
person shall be a city council member or mayor.
(5) One person associated with county government. Upon the next
vacancy occurring in this office on or after January 1, 2004, this
person shall be a county supervisor.
(6) One person from a responsible nongovernmental organization
associated with recreation, fish, or wildlife.
(7) Three persons not specifically associated with any of the
foregoing categories, two of whom shall have special competence in
areas related to water quality problems.
(b) Each member shall be appointed on the basis of his or her
demonstrated interest and proven ability in the field of water
quality, including water pollution prevention, water pollution
control, and understanding of the water pollution and related water
resource management problems in his or her region.
(c) Each member shall be appointed on the basis of his or her
ability to attend substantially all meetings of the regional board,
and to actively discharge all duties and responsibilities of a member
of the regional board.
(b)
(d) All persons appointed to a regional board
shall be are subject to Senate confirmation, but
shall are not be
required to appear before any committee of the Senate for purposes of
such confirmation , unless specifically requested to
appear by the Senate Committee on Rules.
(c)
(e) Insofar as practicable, appointments shall be made
in such manner as to result in representation on the board from all
parts of the region.
(d) Notwithstanding subdivision (a), if appointments cannot be
made pursuant to paragraph (5) of subdivision (a) because of the
requirements of Section 13388, those appointments may be made of
persons not specifically associated with any category.
SEC. 3. The reduction in the number of members on each regional
board required by subdivision (a) of Section 13201 of the Water Code,
as amended by Senate Bill ____ of the 2009-10 Regular Session of the
Legislature, shall be achieved according to the ordinary expiration
of terms of incumbents and other vacancies. After a regional board
consists of only seven members, an individual subsequently appointed
to fill a vacancy shall possess the qualifications specified in
Section 13201 of the Water Code.
SEC. 4. Section 13205 of the Water Code is amended to read:
13205. Each member of a regional board shall receive one
five hundred dollars ($100)
($500) for each day during which that member is engaged in
the performance of official duties , including preparation for
regional board meetings , except that no member shall be
entitled to receive the one five
hundred dollars ($100) ($500)
compensation if the member otherwise receives compensation from other
sources for performing those duties. The total compensation received
by members of each regional board shall not exceed, in any one
fiscal year, the sum of thirteen thirty
thousand five hundred dollars ($13,500)
($30,000) . A member may decline compensation.
The annual compensation provided by this section shall be
increased in any fiscal year in which a general salary increase is
provided for state employees. The amount of the increase provided by
this section shall be comparable to, but shall not exceed, the
percentage of the general salary increases provided for state
employees during that fiscal year. In addition to the
compensation, each member shall be reimbursed for necessary traveling
and other expenses incurred in the performance of official duties.
SEC. 5. Section 13232 is added to the Water Code, to read:
13232. (a) (1) The state board may order the commencement of
program withdrawal proceedings on its own initiative or in response
to a petition from an interested person alleging the substantial and
continuing failure of a regional board to comply with the
requirements of this division or the federal Clean Water Act. These
circumstances include, but are not limited to, the following:
(A) Substantial and continuing failure to exercise adequate
control over activities required to be regulated under applicable
state or federal law, including failure to issue permits, waste
discharge requirements, or waivers of waste discharge requirements.
(B) Repeated issuance of permits, waste discharge requirements, or
waivers of waste discharge requirements that do not conform to the
requirements of applicable state or federal law.
(C) Substantial and continuing failure to conduct adequate
oversight over discharges subject to memoranda of agreement or
understanding with other agencies.
(D) Substantial and continuing failure to comply with the public
participation requirements of applicable state or federal law.
(E) Substantial and continuing failure to meet the discharger
identification, inspection, penalty enforcement, and other
requirements of the regional board's enforcement program.
(F) Substantial and continuing failure to develop an adequate
regulatory program for developing water quality-based effluent limits
in National Pollution Discharge Elimination System permits.
(2) The state board shall respond in writing to any petition to
commence regional board program withdrawal proceedings, and may
conduct an informal investigation of the allegations in the petition
to determine whether cause exists to commence proceedings under this
section. The state board's order commencing proceedings under this
section shall fix a time and place for the commencement of the
hearing and shall specify the allegations against the regional board
that are to be considered at the hearing. Within 30 days the regional
board shall admit or deny these allegations in a written answer. The
party seeking withdrawal of the regional board's program shall have
the burden of producing the evidence in a hearing under this
paragraph.
(b) If the state board concludes that the regional board has
substantially and continually failed to administer mandated state and
federal water quality programs in conformity with the appropriate
acts and regulations, the state board shall list the deficiencies in
the program or programs and provide the regional board a reasonable
time, not to exceed 90 days, to take such appropriate corrective
action as the state board determines necessary.
(c) Corrective actions shall include specific requirements for
issuing permits, conducting more frequent inspections and
evaluations, and taking additional enforcement actions, in addition
to other actions necessary for improving regional board performance.
(d) Within the timeframe prescribed by the state board, the
regional board shall take such appropriate corrective action as
required by the state board, and shall file with the state board and
all parties a statement certified by the regional board that
appropriate corrective action has been taken and that funding has
been established to support continuation of each corrective action,
as needed. The state board may require a further showing in addition
to the certified statement.
(e) If the regional board fails to take the appropriate corrective
action and file a certified statement within the timeframe
prescribed by the state board, the state board shall issue a
supplementary order that either withdraws the regional board's
program authority, or sets a schedule for review of program authority
after a probationary period during which additional corrective
actions shall be required.
(f) During the probationary period, the state board or another
regional board shall assume partial or total responsibility for the
specified regional board's duties.
(g) If, at the conclusion of the probationary period, the regional
board has taken and certified appropriate corrective action, the
state board shall issue a supplementary order stating that the
regional board's authority to implement state and federal law is not
withdrawn.
(h) (1) If, at the end of the probationary period, or the end of
the state board's withdrawal proceedings if there is no probationary
period, the state board determines that the regional board has
substantially and continually failed to meet the applicable
requirements of state or federal law, the state board shall withdraw
authority from the regional board, notwithstanding any other
provision of this division. The withdrawal order shall state whether
the state board, or another regional board, or both, shall become the
implementing agency within the jurisdiction of the former regional
board.
(2) Withdrawal of authority shall continue until the regional
board makes, in a public hearing, certified demonstrations necessary
to ensure immediate and continued compliance with applicable state
and federal law.
(i) Withdrawal of authority under this section does not relieve
any person from complying with the requirements of state or federal
law, nor does it affect the validity of actions by the state prior to
withdrawal.
SEC. 6. Section 13388 of the Water Code is amended to read:
13388. (a) Notwithstanding any other
provision of this division or Section 175, a person shall be a member
of the state board or a regional board if he
if that person receives or has received during the previous
two years a significant portion of his or her income
directly or indirectly from any person subject to waste discharge
requirements or applicants for waste discharge requirements pursuant
to this chapter. This section shall become operative on
March 1, 1973.
(b) Notwithstanding any other provision of this division or
Section 175, no person shall not be a member of a regional board if
that person receives, or has received, during the previous two years,
a significant portion of his or her income directly or indirectly
from any person subject to waste discharge requirements, or
applicants for waste discharge requirements, associated with
discharges in that region pursuant to this chapter.
