BILL NUMBER: SB 413INTRODUCED 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 ofthe following nineseven 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 theregion: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 boardshall beare subject to Senate confirmation, butshallare notberequired 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 receiveonefive 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 theonefive 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 ofthirteenthirty thousandfive hundreddollars($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 boardor a regional board if heif 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.