Amended  IN  Assembly  March 08, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 377

Introduced by Assembly Member Robert Rivas
(Principal coauthor: Senator Hertzberg)
(Coauthor: Assembly Member Lee)

February 01, 2021

An act to add Chapter Article 3.5 (commencing with Section 13150) to Chapter 3 of Division 7 of the Water Code, relating to water quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 377, as amended, Robert Rivas. Water quality: impaired waters.
(1) 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.
This bill would require all California surface waters to be fishable, swimmable, and drinkable by January 1, 2050, as prescribed. The bill would prohibit the state board and regional boards from authorizing an NPDES discharge, or a waste discharge requirement, requirement or waiver of a waste discharge requirement for a discharge, to surface water that causes or contributes to an exceedance of a an applicable water quality standard, standard in receiving waters, or from authorizing a best management practice permit term to authorize a discharge to surface water that causes or contributes to an exceedance of a an applicable water quality standard in receiving waters. The bill would prohibit, on or after January 1, 2030, a regional water quality control plan from including a schedule for implementation for achieving a water quality standard that was adopted as of January 1, 2021, and would prohibit a regional water quality control plan from including a schedule for implementation of a water quality standard that is adopted after January 1, 2021, unless specified conditions are met. The bill would prohibit an NPDES permit, waste discharge requirement, or waiver of a waste discharge requirement from being renewed, reissued, or modified to contain effluent limitations or conditions that are less stringent than those in the previous permit, requirement, or waiver. waiver, except as specified.
(2) Existing law authorizes the imposition of civil penalties for violations of certain waste discharge requirements and requires that penalties imposed pursuant to these provisions be deposited into the Waste Discharge Permit Fund, to be expended by the state board, upon appropriation by the Legislature, for specified purposes related to water quality. For violations of certain other waste discharge requirements, including the violation of a waste discharge requirement effluent limitation, existing law imposes specified civil penalties, the proceeds of which are deposited into the continuously appropriated State Water Pollution Cleanup and Abatement Account, which is established in the State Water Quality Control Fund.
This bill would require, by January 1, 2030, the state board and regional boards to develop an Impaired Waterways Enforcement Program to enforce all remaining water quality standard violations that are causing or contributing to an exceedance of a water quality standard. To ensure any water segments impaired by ongoing pollutants are brought into attainment with water quality standards, the bill would require the state board and regional boards, by January 1, 2040, to evaluate the state’s remaining impaired waters using a specified report. The bill would require, by January 1, 2040, the state board and regional boards to report to the Legislature a plan to bring the final impaired water segments into attainment by January 1, 2050. The bill would create the Waterway Attainment Account in the Waste Discharge Permit Fund and would make moneys in the Waterway Attainment Account available for the state board to expend, upon appropriation by the Legislature, to bring remaining impaired water segments into attainment in accordance with the plan. The bill would create in the Waterway Attainment Account the Waterway Attainment Penalty Subaccount, composed of penalties obtained pursuant to the Impaired Waterways Enforcement Program, and would make moneys in the subaccount available for the state board to expend, upon appropriation by the Legislature, for purposes of the program. The bill would require, by January 1, 2040, and subject to a future legislative act, 50% of the annual proceeds of the State Water Pollution Cleanup and Abatement Account to be annually transferred to the Waterway Attainment Account. The bill would require the state board, upon appropriation by the Legislature, to expend 5% of the annual proceeds of the State Water Pollution Cleanup and Abatement Account to fund a specified state board program.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) Water is a necessity of human life, and every Californian deserves access to clean and safe water. Yet climate change jeopardizes the quality and safety of our water. Climate change is impacting the state’s hydrology to create water resource vulnerabilities that include, but are not limited to, changes to water supplies, subsidence, increased amounts of water pollution, erosion, flooding, and related risks to water and wastewater infrastructure and operations, degradation of watersheds, alteration of aquatic ecosystems and loss of habitat, multiple impacts in coastal areas, and ocean acidification.
(2) Many aspects of climate change and associated impacts will continue for centuries, even if anthropogenic emissions of greenhouse gases are reduced or stopped. Given the magnitude of climate change impacts on California’s hydrology and water systems, the state’s climate change response should include attainment of water quality standards to allow the state’s watersheds to resiliently adapt to forthcoming and inevitable climate change stressors.
(3) The federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) was enacted on October 18, 1972, to establish the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The objective of the federal Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To achieve that objective, Congress declared a national goal that the discharge of pollutants into navigable waters be eliminated by 1985.
(4) California has long been a national and international leader on environmental stewardship efforts, including the areas of air quality protections, energy efficiency requirements, renewable energy standards, and greenhouse gas emission standards for passenger vehicles. The program established by this act will continue this tradition of environmental leadership by placing California at the forefront of achieving the nation’s goal of making all waterways swimmable, fishable, and drinkable.
(5) The State Water Resources Control Board, along with the nine California regional water quality control boards, protect and enhance the quality of California’s water resources through implementing the federal Clean Water Act, as amended, and California’s Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code).
(6) The State Water Resources Control Board’s mission 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.”
(7) 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 a list identifying water bodies not meeting water quality standards (303(d) list). California is required to include a priority ranking of those waters, taking into account the severity of the pollution and the uses to be made of those waters, including waters targeted for the development of total maximum daily loads (TMDLs).
(8) 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 TMDLs have 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.
(b) (1) In honor of the federal Clean Water Act’s 50-year anniversary, it is the intent of the Legislature in enacting this act to recommit California to achieve the national goal to restore and maintain the chemical, physical, and biological integrity of the state’s waters by eliminating the discharge of pollutants into impaired waterways.
(2) It is further the intent of the Legislature in enacting this act to require that the State Water Resources Control Board and the California regional water quality control boards meet the national goal of achieving swimmable, fishable, and drinkable waters by no later than January 1, 2050.
SEC. 2.Chapter 3.5 (commencing with Section 13150) is added to Chapter 3 of Division 7 of the Water Code, to read:
3.5.State Waters Impairment

SEC. 2.

 Article 3.5 (commencing with Section 13150) is added to Chapter 3 of Division 7 of the Water Code, to read:
Article  3.5. State Waters Impairment

13150.
 All California surface waters shall be fishable, swimmable, and drinkable by January 1, 2050. To bring all water segments into attainment with this requirement, the state board and regional boards shall comply with the requirements of this chapter. article.

13151.
 (a) (1) The state board and regional boards shall not do either of the following:

(1)

(A) Authorize an NPDES discharge to a surface water of the United States that causes or contributes to an exceedance of a an applicable water quality standard. standard in receiving waters.

(2)

(B) Authorize an NPDES permit that uses an alternative compliance determination, safe harbor “deemed in compliance” term, or any other best management practice permit term to authorize a discharge to a surface water of the United States that causes or contributes to an exceedance of a an applicable water quality standard in receiving waters.
(2) (A) Paragraph (1) does not prohibit enhanced watershed management programs or watershed management programs from being used as a planning tool for achieving compliance with applicable water quality standards in receiving waters.
(B) Paragraph (1) does not prevent NPDES permittees from using best management practices to meet applicable water quality standards in receiving waters.
(C) Paragraph (1) does not apply to salt and nutrient management plans approved as of January 1, 2021, that include alternative compliance options.
(b) The state board and regional boards shall not do either of the following:
(1) Authorize a permit that does not include monitoring sufficient to demonstrate compliance with water quality standards and, unless infeasible, that does not include end-of-discharge pipe monitoring.
(2) Authorize a permit unless it establishes criteria for, and requires, monitoring to evaluate compliance with water quality standards.
(c) (1) The state board and regional boards shall not do either of the following:

(1)

(A) Authorize a waste discharge requirement or waiver of a waste discharge requirement for a discharge to a surface water of the state that causes or contributes to an exceedance of a an applicable water quality standard. standard in receiving waters.

(2)

(B) Authorize a waste discharge requirement or waiver of a waste discharge requirement that uses an alternative compliance determination, safe harbor “deemed in compliance” term, or any other best management practice permit term to authorize a discharge to a surface water of the state that causes or contributes to an exceedance of a an applicable water quality standard in receiving waters.

(d)The state board and regional boards shall not issue an enforcement order pursuant to Chapter 12 (commencing with Section 1825) of Part 2 of Division 2 or Article 1 (commencing with Section 13300) of Chapter 5 that includes a compliance schedule deadline that extends beyond January 1, 2030, to a discharger for a discharge that is causing or contributing to an exceedance of a water quality standard.

(2) (A) Paragraph (1) does not prevent a waste discharge requirement or waiver of a waste discharge requirement from using best management practices to meet applicable water quality standards in receiving waters.
(B) Paragraph (1) does not apply to salt and nutrient management plans approved as of January 1, 2021, that include alternative compliance options.

13152.
 (a) (1) Notwithstanding Section 13242, on and after January 1, 2030, a regional water quality control plan, including the program of implementation, shall not include a schedule for implementation for achieving a water quality standard that was adopted in an approved regional water quality control plan as of January 1, 2021. It is the intent of the Legislature in enacting this requirement to ensure that all water quality standards in effect as of January 1, 2021, are fully implemented and achieved by January 1, 2030.
(2) Paragraph (1) does not apply to salt and nutrient management plans approved as of January 1, 2021, that include a time schedule for compliance.
(b) The state board and regional boards shall only include in a regional water quality control plan a schedule for implementation of a water quality standard that is adopted after January 1, 2021, if all of the following conditions are met:
(1) The schedule for implementation of the water quality standard is the shortest time necessary, and in no instance exceeds five years.
(2) The schedule for implementation is necessary for the permittee to undertake physical construction that is necessary to achieve compliance with the water quality standard.
(3) The water quality standard is not substantially similar to a water quality standard that was in effect as of January 1, 2021.
(c) (1) An NPDES permit, waste discharge requirement, or waiver of a waste discharge requirement shall not be renewed, reissued, or modified to contain effluent limitations or conditions that are less stringent than the comparable effluent limitations or conditions in the previous permit, requirement, or waiver. waiver, including, but not limited to, if the implementation of the less stringent effluent limitation or condition would result in a violation of an applicable water quality standard in receiving waters.
(2) Notwithstanding paragraph (1), an NPDES permit, waste discharge requirement, or waiver of a waste discharge requirement may be renewed, reissued, or modified to contain a less stringent effluent limitation or condition applicable to a pollutant if any of the following apply:
(A) Material and substantial alterations or additions to the permitted facility occurred after permit issuance that justify the application of the less stringent effluent limitation or condition.
(B) Information, other than revised regulations, guidance, or test methods, is available that was not available at the time of permit issuance that would have justified the application of the less stringent effluent limitation or condition at the time of permit issuance.
(C) The permit issuer determines that technical mistakes or mistaken interpretations of law were made in issuing the permit in accordance with Section 402(a)(1)(B) of the federal Clean Water Act (33 U.S.C. Sec. 1342(a)(1)(B)).
(D) The less stringent effluent limitation or condition is necessary because of events over which the permittee has no control and for which there is no reasonably available remedy.
(E) The permittee has received a permit modification pursuant to Section 301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a) of the federal Clean Water Act (33 U.S.C. Secs. 1311(c), 1311(g), 1311(h), 1311(i), 1311(k), 1311(n), and 1326(a)).
(F) The permittee has installed the treatment facilities required to meet the effluent limitations or conditions in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations or conditions, in which case the limitations or conditions in the renewed, reissued, or modified permit may reflect the level of pollutant control actually achieved, but shall not be less stringent than required by effluent limitation guidelines promulgated under Section 304(b) of the federal Clean Water Act (33 U.S.C. Sec. 1314(b)) in effect at the time of permit renewal, reissuance, or modification.
(3) Subparagraphs (B) and (C) of paragraph (2) do not apply to a revised waste load allocation or an alternative grounds for translating water quality standards into effluent limitations or conditions unless both of the following are satisfied:
(A) The cumulative effect of the revised allocation or alternative grounds results in a decrease in the amount of pollutants discharged into receiving waters.
(B) The revised allocation or alternative grounds is not the result of a discharger eliminating or substantially reducing its discharge of pollutants due to complying with the requirements of the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) or for reasons otherwise unrelated to water quality.
(d) The state board and regional boards shall not authorize an NPDES permit, waste discharge requirement, or waiver of a waste discharge requirement that does not include a complete antidegradation analysis as set out in State Water Resources Control Board Resolution No. 68-16 and Administrative Procedures Update 90-004.

13153.
 (a) (1) By January 1, 2030, the state board and regional boards shall develop an Impaired Waterways Enforcement Program to enforce all remaining water quality standard violations pursuant to Chapter 12 (commencing with Section 1825) of Part 2 of Division 2 and Article 1 (commencing with Section 13300) of Chapter 5 that are causing or contributing to an exceedance of a water quality standard.
(2) An enforcement action taken pursuant to the program shall result in sufficient penalties, conditions, and orders to ensure the person subject to the enforcement action is no longer causing or contributing to an exceedance of a water quality standard.
(3) A discharger shall remain liable for a violation of a water quality standard until sampling at the point of discharge demonstrates that the discharge is no longer causing or contributing to the exceedance.
(4) Penalties obtained pursuant to the program shall be deposited into the Waterway Attainment Penalty Subaccount, which is hereby created in the Waterway Attainment Account. Moneys in the subaccount shall be available for the state board to expend, upon appropriation by the Legislature, for purposes of the program.
(5) The state board and regional boards may issue an enforcement order pursuant to Chapter 12 (commencing with Section 1825) of Part 2 of Division 2 or Article 1 (commencing with Section 13300) of Chapter 5 that includes a compliance schedule deadline that extends beyond January 1, 2030, to a discharger for a discharge that is causing or contributing to an exceedance of a water quality standard.
(b) (1) By January 1, 2040, to ensure any water segments impaired by ongoing legacy pollutants and nonpoint source pollution are brought into attainment with water quality standards, the state board and regional boards shall evaluate the state’s remaining impaired waters using the most current integrated report.
(2) The state board and regional boards shall, by January 1, 2040, report to the Legislature in compliance with Section 9795 of the Government Code a plan to bring the final impaired water segments into attainment by January 1, 2050.
(3) The requirement for submitting a report imposed under paragraph (2) is inoperative on January 1, 2044, pursuant to Section 10231.5 of the Government Code.
(c) (1) The Waterway Attainment Account is hereby created in the Waste Discharge Permit Fund. Moneys in the Waterway Attainment Account shall be available for the state board to expend, upon appropriation by the Legislature, to bring remaining impaired water segments into attainment in accordance with the plan submitted pursuant to paragraph (2) of subdivision (b), subject to subdivision (d).
(2) (A) By January 1, 2040, subject to a future legislative act, 50 percent of the annual proceeds of the State Water Pollution Cleanup and Abatement Account shall be annually transferred to the Waterway Attainment Account.
(B) This paragraph shall become inoperative January 1, 2051, or when all water segments are in attainment with water quality standards, whichever comes first.
(d) Moneys in the Waterway Attainment Account shall be expended by the state board, upon appropriation by the Legislature, to bring impaired waterways into attainment with water quality standards to the maximum extent possible. Moneys expended from the account shall address or prevent water quality impairments or address total maximum daily loads under the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.). Moneys in the account shall only be expended on the following:
(1) Restoration projects, including supplemental environmental projects, that improve water quality.
(2) Best management practice research innovation and incentives to encourage innovative best management practice implementation.
(3) Source control programs.
(4) Identifying nonfilers.
(5) Source identification of unknown sources of impairment.
(6) Enforcement actions that recover at least the amount of funding originally expended, which shall be deposited into the Waterway Attainment Account.
(7) Competitive grants to fund projects and programs for municipal separate storm sewer system permit compliance requirements that would prevent or remediate pollutants, including zinc, caused by tires in the state. Priority shall be given to applicants that discharge to receiving waters with zinc levels that exceed the established total maximum daily loads and to projects that provide multiple benefits.
(e) The state board shall, upon appropriation by the Legislature, expend 5 percent of the annual proceeds of the State Water Pollution Cleanup and Abatement Account to fund the state board’s SWAMP - Clean Water Team Citizen Monitoring Program in order to inform the integrated report.

13154.

This chapter does not affect the process by which voluntary agreements are entered into to assist in the implementation of new water quality standards lawfully adopted by the state board.

13155.13154.
 For purposes of this chapter, article, the following definitions apply:
(a) “Best management practice” means a practice or set of practices determined by the state board or a regional board for a designated area to be the most effective feasible means of preventing or reducing the generation of a specific type of nonpoint source pollution, given technological, institutional, environmental, and economic constraints.
(b) “Drinkable” applies to waters subject to a regional water quality control plan and means that the waters are drinkable to the extent required by the regional water quality control plan.
(c) “Integrated report” means the state report that includes the list of impaired waters required pursuant to Section 303(d) of the federal Clean Water Act (33 U.S.C. Sec. 1313(d)) and the water quality assessment required pursuant to Section 305(b) of the federal Clean Water Act (33 U.S.C. Sec. 1315(b)).
(d) “NPDES” means the national pollutant discharge elimination system established in the federal Clean Water Act (33 U.S.C.A. U.S.C. Sec. 1251 et seq.).
(e) “Regional board” means a California regional water quality control board.
(f) “Regional water quality control plan” means a water quality control plan developed pursuant to Section 13240.
(g) “State board” means the State Water Resources Control Board.
(h) “State Water Pollution Cleanup and Abatement Account” means the State Water Pollution Cleanup and Abatement Account created pursuant to Section 13440.
(i) “Supplemental environmental project” means an environmentally beneficial project that a person subject to an enforcement action voluntarily agrees to undertake in settlement of the action and to offset a portion of a civil penalty.
(j) “Waste Discharge Permit Fund” means the Waste Discharge Permit Fund created pursuant to Section 13260.
(k) “Waterway Attainment Account” means the Waterway Attainment Account created pursuant to paragraph (1) of subdivision (c) of Section 13153.
(l) “Waterway Attainment Penalty Subaccount” means the Waterway Attainment Penalty Subaccount created pursuant to paragraph (4) of subdivision (a) of Section 13153.