SB 900
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Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
SB 900 (Steinberg) – As Amended: May 9, 2011
SENATE VOTE: 34-0
SUBJECT: Regional Water Quality Control Boards (RWQCBs) membership.
SUMMARY: Modifies the conflict of interest requirements for appointees to the RWQCBs.
Specifically, this bill:
1) Allows a person to be appointed and serve as a member of a RWQCB if they receive a
significant income from a person subject to waste discharge requirements, or an applicant
for waste discharge requirements if the waste discharge is outside the jurisdiction of that
regional board.
2) Provides that the provisions of the bill shall be implemented only with the approval of the
United States Environmental Protection Agency (US EPA) pursuant to the Federal Clean
Water Act.
EXISTING LAW
Under the Porter-Cologne Water Quality Act:
1) Provides that the SWRCB and nine Regional Water Quality Control Boards
(RWQCBs) as the principal state agencies with the responsibility for controlling water
quality in California.
2) Provides that the SWRCB be comprised of five full-time salaried board members who
each fill a different specialized position based on expertise (representing the public,
engineering expertise, water quality expertise and water supply). The members are
appointed by the Governor and confirmed by the Senate.
3) Provides that the nine RWQCBs are semi-autonomous and are comprised of nine parttime Board members who each fill a different specialized position representing a
specific interest: (water supply, conservation, and production; irrigated agriculture;
industrial water use; municipal government; county government; recreation, fish and
wildlife; public; and two water quality members). The members are appointed by the
Governor and confirmed by the Senate.
4) Prohibits a person from being a member of SWRCB or a RWQCB if that person receives
or has received during the previous two years a significant portion of his or her income
directly from a person subject to waste discharge requirements or applicants for
prescribed waste discharge requirements.
FISCAL EFFECT: This bill is non-fiscal.
COMMENTS:
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Need for the bill. According to the sponsors of this bill, "This change in statute will expand the
pool of candidates eligible to serve on Regional Water Boards (RWQCB) by focusing the
application of the 10-percent rule to apply on a per-region basis. Currently, people who receive
more than 10 percent of their incomes from regulated interests are ineligible to serve which
makes the pool of qualified individuals small. This bill would apply the provision to income
from persons or entities that receive NPDES permits from the member’s regional water board but
would not apply the restriction to income that is from persons or entities subject to an NPDES
permit issued by other RWQCB."
Standards for appointment to the RWQCBs. California Water Code Section 13201 provides for
the Governor to appoint nine members to each of the nine RWQCBs. Each board member must
reside or have a principal place of business within the region. Appointments are subject to
confirmation by the state Senate.
Both federal and state law provides that to be eligible for appointment to a RWQCB, that
member must be free of conflicts of interest. The Federal Clean Water Act (Section 304 of the
Clean Water Act) provides that the US EPA Administrator shall promulgate guidelines
establishing the minimum procedural and other elements of any State program including a
requirement that no board or body which approves permit applications or portions thereof shall
include, as a member, any person who receives, or has during the previous two years received, a
significant portion of his income directly or indirectly from permit holders or applicants for a
permit.
California's Porter-Cologne Water Quality Control Act (Water Code section 13388) mirrors
federal law and provides that no person shall be a member of the SWRCB or a RWQCB if he or
she receives or has received during the previous two years a significant portion of his income
directly or indirectly from any person subject to waste discharge requirements or applicants for
waste discharge requirements.
Augments in support: A coalition of business and agricultural interests are supporting the
proposed change to RWQCB conflict of interest standards. Specifically, they have stated, "In
2008, the California Environmental Protection Agency developed the Water Quality
Improvement Initiative in an effort to improve the ability to identify, appoint and retain qualified
candidates to serve on Regional Water Quality Control Boards. The 10 percent rule was one
proposal that came out of that effort as it has been problematic finding qualified people to serve".
Augments in opposition: A coalition of environmental groups have opposed the proposed
changes to the conflict of interest standards as they have raised issues about the operational
effect of the change as well as the need for federal conformance under the Federal Clean Water
Act. Specifically they state, "This weakening effort raises significant legal concerns, as the
conflicts requirement is a federal Clean Water Act mandate, and state law cannot scale back on
federal CWA requirements. It has been our regular, direct experience over many years of
seeking to fill Regional Water Board seats with qualified members that this task can sometimes
be challenging – but for reasons other than a potential conflict outside of the region where the
appointee lives and works. In particular, statewide permit conflicts (changes to which are
extremely unlikely to pass federal U.S. EPA legal scrutiny) and low pay ($100/day) and are the
major difficulties with filling seats, not other-region business ties. Moreover, contrary to the
sponsor’s assertion, it is inaccurate to state that the federal 10% conflict provisions have caused a
“dramatic reduction” in the pool of farmers eligible to be appointed. In fact, because the “10%
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rule” only applies to CWA NPDES permit holders, and the Act exempts irrigated agriculture
return flows, irrigated agriculture appointees regulated only by waivers under the state’s PorterCologne Act are not bound by this federal CWA conflicts mandate."
REGISTERED SUPPORT / OPPOSITION:
Support
Alliance of Western Milk Producers
American Council of Engineering
Companies of California
California Agricultural Irrigation
Association
California Association of Sanitation
Agencies
California Business Properties Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners and Growers
Associations
California Farm Bureau Federation
California Forestry Association
California Grain and Feed Association
California Grape and Tree Fruit League
California League of Food Processors
California Manufacturers & Technology
Association
California Metals Coalition
California Pear Growers
California Rice Commission
California Rice Industry Association
California Seed Association
California State Floral Association
California Trucking Association
California Warehouse Association
California Wheat Growers Association
Chemical Industry Council of California
East San Joaquin Water Quality Coalition
El Dorado Irrigation District
Grower-Shipper Association of Central
California
Grower-Shipper Association of Santa
Barbara and San Luis Obispo Counties
Kings River Conservation District
Kings River Water Association
Monterey County Farm Bureau
Nisei Farmers League
Northern California Water Association
Pacific Egg and Poultry Association
Paso Robles Wine Country Alliance
Salinas Valley Chamber of Commerce
Santa Barbara County Farm Bureau
Southern San Joaquin Valley Water Quality
Coalition
Valley Ag Water Coalition
Western Agricultural Processors Association
Western Growers
Western Plant Health Association
Wine Institute
Opposition
California Coastkeeper Alliance
Heal the Bay
Clean Water Action
California Sportfishing Protection Alliance
Sierra Club California
Analysis Prepared by:
Bob Fredenburg / E.S. & T.M. / (916) 319-3965