Bill Text: CA AB805 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Sewer service: disadvantaged communities.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Engrossed) 2024-06-24 - In committee: Referred to suspense file. [AB805 Detail]

Download: California-2023-AB805-Amended.html

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Amended  IN  Senate  May 15, 2024

Amended  IN  Assembly  January 22, 2024

Amended  IN  Assembly  March 09, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 805

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Introduced by Assembly Member Arambula

February 13, 2023

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An act to amend Sections 13288 and 13442 of, and to add Section 13289.5 to, the Water Code, relating to water quality, making an appropriation therefor, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL'S DIGEST

AB 805, as amended, Arambula. Sewer service: disadvantaged communities.

Under existing law, the State Water Resources Control Board and the 9 California regional water quality control boards regulate water quality in accordance with the Porter-Cologne Water Quality Control Act and the federal Clean Water Act. Existing law authorizes a regional board to order the provision of sewer service by a receiving sewer system, as defined, to a disadvantaged community served by an inadequate onsite sewage treatment system, as defined.

This bill would authorize the state board board, until January 1, 2029, and after it makes specified findings by resolution or a prescribed process, to require a sewer service provider to contract with an administrator designated or approved by the state board for administrative, technical, operational, legal, or managerial services to assist a designated sewer system with the provision of adequate sewer service, as defined. The bill would also authorize the state board to order a designated sewer system to accept those services, including full management and control of all aspects of the designated sewer system, from an administrator. The bill would define “designated sewer system” for these purposes as a sewer system that serves a disadvantaged community and that the state board finds to be that is either an inadequate sewage treatment inadequate sewer system or a sewer system that has demonstrated difficulty in maintaining a failure to maintain technical, managerial, and financial capacity to prevent fraud and mismanagement, or a sewer system that voluntarily accepts financial assistance for the provision of adequate sewer service. waste, fraud, and abuse.

The bill would require the state board to take specified actions before determining that a sewer service provider is a designated sewer system, including providing the sewer service provider an opportunity to show that it has taken steps to timely address its failure to provide be an adequate sewer service, system or to timely address its failure to maintain technical, managerial, and financial capacity, conducting a public meeting, and providing an opportunity for public comment. The bill would authorize the state board to grant specified authority over the designated sewer system to the administrator, including the authority to expend money for various purposes and to set and collect sewer rates and fees, subject to approval by the state board. fees. The bill would require the state board to work with the administrator and the communities served by the designated sewer system to develop, within the shortest practicable time, adequate technical, managerial, and financial capacity to deliver adequate sewer service so that the services of the administrator are no longer necessary.

Existing law creates the State Water Pollution Cleanup and Abatement Account in the State Water Quality Control Fund and continuously appropriates moneys in the account to the state board for specified purposes, including providing grants for cleaning up a waste, abating the effects of a waste on waters of the state, or addressing an urgent drinking water need, as provided.

This bill would authorize the state board to also use moneys in the account to provide grants to administrators for specified purposes, including, among others, to provide administrative, technical, operational, legal, or managerial services to a sewer service provider. By expanding the purposes for which moneys in a continuously appropriated account may be spent, the bill would make an appropriation.

This bill would declare that it is to take effect immediately as an urgency statute.

Digest Key

Vote: 2/3   Appropriation: YES   Fiscal Committee: YES   Local Program: NO  

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Bill Text

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

SECTION 1.

 Section 13288 of the Water Code is amended to read:

13288.

 For purposes of this chapter, the following definitions apply:

(a) “Adequate sewer service” means sanitary sewer service provided by a sewer service provider that does not have the potential to cause a violation of water quality objectives, impair present or future beneficial uses of water, cause pollution, nuisance, or contamination of waters of the state, or unreasonably degrade the waters of the state. meets public health and environmental standards.

(b) “Administrator” means a person whom the state board has determined is competent and willing to perform the administrative, technical, operational, legal, or managerial services required for purposes of this chapter, pursuant to criteria set forth in the handbook described in subdivision (h) (i) of Section 13289.5. An administrator may be any qualified individual, firm, or another sewer service provider.

(c) “Affected residence” means a residence within a disadvantaged community that may be subject to provision of sewer service pursuant to this chapter.

(d) “Affected resident” means a resident or a property owner of an affected residence.

(e) “Annexation” has the same meaning as set forth in Section 56017 of the Government Code.

(f) “Designated sewer system” means a sewer system that serves a disadvantaged community and that the state board finds to be that is either an inadequate sewage treatment sewer system or a sewer system that has demonstrated difficulty in maintaining a failure to maintain technical, managerial, and financial capacity to prevent fraud and mismanagement. ”Designated sewer system” also includes a voluntary participant. waste, fraud, and abuse.

(g) “Disadvantaged community” means a disadvantaged community community, as defined in Section 79505.5. 79505.5, or a low-income community, as defined in Section 39713 of the Health and Safety Code.

(h) “Extension of service” has the same meaning as set forth in Section 56133 of the Government Code.

(i) “Inadequate onsite sewage treatment system” means an onsite sewage treatment system that has the reasonable potential to cause a violation of water quality objectives, to impair present or future beneficial uses of water, or to cause pollution, nuisance, or contamination of waters of the state.

(j) “Inadequate sewage treatment sewer system” means a sewer system that has the reasonable potential to cause a violation of water quality objectives, to impair present or future beneficial uses of water, or to cause pollution, nuisance, or contamination of waters of the state. service that fails to meet regulatory standards for proper wastewater collection, treatment, and disposal, and may exhibit deficiencies, such as infrastructure failure, insufficient capacity, or ineffective treatment of wastewater.

(k) (1) “Onsite sewage treatment system” means an onsite sewage treatment system, as defined in Section 13290, that is not operated by a local agency, as defined in Section 56054 of the Government Code, or a utility regulated by the Public Utilities Commission.

(2) “Onsite sewage treatment system” includes, but is not limited to, a septic tank, cesspool, leach field, and seepage pit.

(l) “Provision of sewer service” means the provision of sanitary sewer service, including the collection or treatment of sewage, to a disadvantaged community by any of the following processes:

(1) Annexation where the receiving sewer system is a special district.

(2) Extension of service where the receiving sewer system is a city, county, or special district.

(3) Additional sewer service provided within city, county, or special district boundaries.

(m) “Receiving sewer system” means the sewer system that provides service to a disadvantaged community pursuant to this chapter.

(n) “Sewer service provider” means any local agency that provides sanitary sewer service. service, including wastewater collection, treatment, disposal, or any combination thereof.

(o) “Special district” means a special district as defined in Section 56036 of the Government Code.

(p)“Voluntary participant” means the owner of an onsite sewage treatment system or sewer service provider who has agreed to accept financial assistance for the provision of adequate sewer service.

SEC. 2.

 Section 13289.5 is added to the Water Code, immediately following Section 13289, to read:

13289.5.

 (a) The state board may, by resolution or through the process described in the guidelines authorized pursuant to subdivision (e) of Section 13442, make findings that a sewer service provider has an inadequate sewer system, as defined in Section 13288, and that it is in the best interest of the customers of the inadequate sewer system and the State of California that an administrator be appointed to assist a sewer service provider with making improvements necessary to develop an adequate sewer system. When those findings are made, the sewer service provider shall be referred to as a “designated sewer system.”

(a)(1) For

(b) Following adoption of a resolution based on the findings required by subdivision (a) for a designated sewer system, the state board may do any of the following:

(A)(i)

(1) (A) Require a sewer service provider to contract with an administrator designated or approved by the state board for administrative, technical, operational, legal, or managerial services, or any combination of those services, to assist the designated sewer system with the provision of adequate sewer service.

(ii)

(B) To fulfill the requirements of this section, a sewer service provider may contract with administrators. Where administrator services are comprehensive, the sewer service provider may contract with no more than one administrator, but only one administrator may be used to provide services to a given designated sewer system. administrator at a time. Where administrator services are limited in scope, a sewer service provider may contract with more than one limited scope provider at a time, provided that in no instance will the scopes overlap. An administrator that is not designated or approved by the state board shall not be used for purposes of this section.

(iii)

(C) An administrator may provide services to more than one designated sewer system.

(D) If a designated sewer system is also a water system that has been ordered to consolidate or has been ordered to accept assistance from an administrator, the state board shall consider designating the same administrator for the designated sewer system that was designated to the water system, and requiring that administrator to consult with the management of both the designated water and the designated sewer system in carrying out their duties.

(B)

(2) Order a designated sewer system to accept administrative, technical, operational, legal, or managerial services, including full management and control of all aspects of the designated sewer system, from an administrator selected by the state board.

(C)

(3) Order a designated sewer system to accept administrative, technical, operational, legal, or managerial services from an administrator appointed by the state board for full oversight of construction or development projects related to an annexation or extension of service, projects, including, but not limited to, accepting loans and grants issued by the state board and entering into contracts on behalf of the designated sewer system.

(2)In performing its duties pursuant to paragraph (1), the state board may use criteria from the handbook adopted pursuant to subdivision (g) of Section 116686 of the Health and Safety Code.

(b)

(c) The state board shall do all of the following before determining that a sewer service provider is a designated sewer system: system pursuant to subdivision (a).

(1) Provide the sewer service provider with notice and an opportunity to show that the sewer service provider has taken steps to timely address its failure to provide be an adequate sewer service. system or has taken steps to timely address its failure to maintain technical, managerial, and financial capacity.

(2) (A) Conduct a public meeting in a location as close as feasible to the affected community.

(B) The state board shall make reasonable efforts to provide a 30-day notice of the public meeting to affected ratepayers, renters, and property owners.

(C) The state board shall provide representatives of the sewer service provider, affected ratepayers, renters, and property owners with an opportunity to present oral and written comments at the public meeting.

(D) The state board shall provide an opportunity for public comment at the meeting.

(3) Provide the public with an opportunity to submit comments by mail or electronically during the 30-day notice period and for at least one week after the public meeting described in paragraph (2).

(4) Consider whether designating a sewer system and ordering a designated sewer system to contract with an administrator is feasible, and not in conflict with any federal or state laws, regulations, or permit requirements.

(c)

(d) The state board shall make financial assistance available to an administrator of a designated sewer system, as appropriate and to the extent that funding is available.

(e) The state board shall not make findings that a sewer service provider has an inadequate sewer system or require a sewer service provider to contract with an administrator pursuant to this section on or after January 1, 2029. All other authorizations and requirements pursuant to this section shall remain in effect on and after January 1, 2029.

(d)

(f) The authority granted to an administrator by the state board pursuant to subdivision (a) (b) may include, but is not limited to, the authority to do all of the following:

(1) Expend available money for capital infrastructure improvements that the designated sewer system needs to provide adequate sewer service.

(2) Set and collect user sewer rates and fees, subject to approval by the state board. The state board shall consider affordability when approving sewer rates and fees. The provisions of this section are subject to all applicable constitutional requirements, including Article XIII D of the California Constitution.

(3) Expend available money for operation and maintenance costs of the designated sewer system. system, including conducting feasibility or planning studies, or addressing outstanding technical or legal issues.

(4)Expend available money necessary for an annexation or extension of service, including conducting feasibility or planning studies, or addressing outstanding technical or legal issues.

(e)

(g) The state board shall work with the administrator of a designated sewer system and the communities served by that designated sewer system to develop, within the shortest practicable time, adequate technical, managerial, and financial capacity to deliver adequate sewer service so that the services of the administrator are no longer necessary.

(f)

(h) A designated sewer system shall not be responsible for any costs associated with an administrator that are higher than the costs necessary to maintain the designated sewer system and provide adequate sewer service.

(g)A designated sewer system shall be responsible for funding the activities of an administrator to provide administrative, technical, operational, legal, or managerial services, or any combination of those services, to the designated sewer system. The state board shall not be responsible for providing funding for those activities.

(h)

(i) Before ordering a designated sewer system to accept administrative, technical, operational, legal, or managerial services from an administrator pursuant to subdivision (a), (b), the state board shall develop standards, terms, and procedures, to be incorporated in the handbook adopted pursuant to subdivision (g) of Section 116686 of the Health and Safety Code, consistent with the process provided in subdivision (a) of Section 116760.43 of the Health and Safety Code, for all of the following:

(1) The process and criteria for the state board to designate a sewer service provider as a designated sewer system, and the evidence required to support findings by the state board in a resolution pursuant to subdivision (a).

(1)

(2) Ensuring compliance with subdivision (f). (h).

(2)

(3) Providing opportunity for public comment on the selection of an administrator and the services to be provided.

(3)

(4) Providing public access to budgets, ownership and financial information, and other documents and records related to the provision of sewer service to affected residences and to the management of the designated sewer system by the administrator.

(4)

(5) Providing regular public meetings, notifications, opportunities for public comment, and other forms of engagement with customers of the designated sewer system for significant decisions or actions made on behalf of the designated sewer system, including, but not limited to, establishing operating budgets, altering sewer rates, adopting system policies, entering into long-term contracts or financing commitments, and developing system projects or plans.

(5)

(6) Formal requests to the state board to reverse or modify a decision of an administrator or to request substitution of an administrator.

(6)

(7) Ensuring an administrator acts in the best interests of the community served.

(7)

(8) Development and approval of a post-administrator sewer service plan to ensure compliance with subdivision (e). (g). Development of the plan shall include, but is not limited to, an evaluation of long-term public governance or community ownership options.

(i)

(j) An administrator appointed pursuant to this section for a designated sewer system shall not be liable for claims by past or current ratepayers, or by those affected by the sewer service provided by the designated sewer system, in either any of the following circumstances:

(1) If good faith, reasonable effort, and ordinary care were used by the administrator to assume possession of, or to operate, the sewer service provider.

(2) For any injury or damages that occurred before the commencement of the operation period.

(3) For injury, violations, or damages after the administrator has assumed control of the designated system until the necessary upgrades to the infrastructure or managerial responsibilities have been completed to become an adequate sewer system.

(j)

(k) This section does not limit or supersede any other law authorizing claims against the state board or providing a defense to liability, and shall not be construed to create any new or expanded basis for liability.

(k)

(l) Nothing in this section shall be construed to do any of the following:

(1) Relieve a sewer service provider or any other entity from complying with any provision of federal or state law, including those pertaining to water quality.

(2) Impair any cause of action by the Attorney General, a district attorney, a city attorney, or other public prosecutor, or impair any other action or proceeding brought by, or on behalf of, a regulatory agency.

(3) Impair any claim alleging the taking of property without compensation within the meaning of either the Fifth Amendment to the United States Constitution or Section 19 of Article I of the California Constitution.

(4) Relieve any person or entity from liability for action or inaction in bad faith, or without reasonable effort or ordinary care.

(l)

(m) Nothing in this section shall absolve, indemnify, or protect a prior operator, designated sewer system, or individual from liability based on an act or failure to act prior to the operation period.

(m)

(n) Administrative and managerial contracts pursuant to this section shall be exempt from Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of the Public Contract Code and may be awarded on a noncompetitive bid basis as necessary to implement the purposes of this section.

(n)

(o) This section does not apply to a charter city, charter county, or charter city and county.

(o)For purposes of this section, an administrator is authorized to act on behalf of an affected residence to the same extent, and in the same manner, as a designated sewer system with the consent of the affected residence.

SEC. 3.

 Section 13442 of the Water Code is amended to read:

13442.

 (a) Upon application by an eligible entity, as described in subdivision (b), the state board may approve the payment of grant moneys from the account to that entity to assist in cleaning up a waste, abating the effects of a waste on waters of the state, addressing actions required pursuant to Section 13289.5, or addressing an urgent drinking water need without regard to whether the need for drinking water is a result of the discharge of waste.

(b) An entity is eligible to apply for funding pursuant to this section if that entity has authority to undertake the activity described in subdivision (a) for which it seeks moneys and the entity is any of the following:

(1) A public agency.

(2) A tribal government that is on the California Tribal Consultation List maintained by the Native American Heritage Commission and is a disadvantaged community, as defined in Section 79505.5, that agrees to waive tribal sovereign immunity for the explicit purpose of regulation by the state board pursuant to this division.

(3) A not-for-profit organization serving a disadvantaged community, as defined in Section 79505.5.

(4) A community water system, as defined in Section 116275 of the Health and Safety Code, that serves a disadvantaged community, as defined in Section 79505.5.

(5) An administrator, as defined in Section 13288.

(c) An eligible entity shall not become liable to the state board for repayment of moneys paid to the entity under this section and expended in accordance with the state board’s approval of payment, but this shall not be a defense to an action brought pursuant to subdivision (c) of Section 13304 for the recovery of moneys paid under this section.

(d) Projects using moneys that are paid to an eligible entity pursuant to this section shall be exempt from state contracting and procurement requirements set forth in the Government Code and the Public Contract Code to the extent necessary to take immediate action to protect public health and safety.

(e) The state board may adopt guidelines for the allocation and administration of these moneys that shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

SEC. 4.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to authorize the State Water Resources Control Board to take appropriate action as soon as possible to ensure that adequate, sanitary sewer service is provided to communities, it is necessary for this act to take effect immediately.