The Legislative History of Rainwater Capture in California

The Legislative History of Rainwater Capture in California Overview Water shortages are a recurring problem in California, where frequent droughts and low annual rainfall in much of the state leave residents habitually dependent on mountain snowmelt and the Colorado River. Patterns of precipitation are predicted to dramatically change; precipitation will increasingly fall in the form of rain rather than as snow in the mountains, which may cause significantly lower quantities of snowmelt runoff to be captured in California’s many reservoirs. Furthermore, the increasing volume of stormwater discharged from California’s growing cities continues to pollute the ocean and reduce groundwater infiltration, threatening the state’s water security. In the wake of statewide heavy rainfall and flooding from December 2010 to January 2011, State Assemblyman Jose Solorio (D-69) introduced the Rainwater Capture Act of 2011 (AB 275) on February 7, 2011. The measure would permit landowners to install rain barrel and rainwater capture systems for outdoor and indoor non-potable use that meet specific guidelines. The bill would also authorize specifically licensed landscape contractors to construct such systems when used for landscape irrigation. The current status of rainwater capture in California is legally ambiguous. There are no existing statutes that specifically address rainwater capture, nor has any court ruled that the practice is illegal. Furthermore, the long-term ramifications of rainwater harvesting are unknown and could have profound impacts on local hydrological cycles. However, a pilot study conducted in San Diego involving the placement of 24 rain barrels found that the flow of pollutants to storm drains was significantly reduced. The enactment of AB 275 will allow Californians to reduce their per capita water use and in the long run, determine if rainwater harvesting can be viable and low-impact solution to water shortage and stormwater pollution. Major Legislation/Regulations Porter-Cologne Water Quality Control Act of 1969 (CA Water Code, §13000) This act established the State Water Resources Control Board (SWRCB) and nine Regional Water Quality Control Boards, granting these agencies the responsibility for controlling water quality in California. This act created a water quality policy, enforced standards for water quality, and regulated the discharge of pollutants from point and non-point sources. The State Control Board was additionally authorized to establish water quality guidelines for long range resource planning concerning ground and surface water management and the use of recycled water. This act has become the cornerstone of water protection regulations in California and was used as the basis of several sections of the Federal Water Pollution Control Act Amendments of 1972. Federal Water Pollution Control Amendments of 1972 (P.L. 92-500) Commonly known as the Clean Water Act of 1972, this act amends the Federal Water Pollution Control Act of 1948, introducing the National Pollutant Discharge Elimination System (NPDES), which authorizes the US Environmental Protection Agency (EPA) to issue discharge permits. Under § 402, NPDES permits are required for discharge of pollutants to surface water from point sources. The state of California assumed responsibility for the Clean Water Act’s implementation, combining the new federal regulations with existing state regulations (especially as defined in the Porter-Cologne Water Quality Control Act of 1969) to establish water quality standards and issue NPDES permits through the SWRCB. Water Quality Act of 1987 (P.L. 100-4) Built upon the findings of the Nationwide Urban Runoff Program conducted by the EPA, this act empowered the EPA to regulate stormwater discharge from nonpoint sources. NPDES was expanded to explicitly require permitting for discharge from industrial activity and municipal separate storm sewers. Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act of 2006 (Proposition 84) This initiative bond act authorizes $5.4 billion in bonds to fund projects relating to safe drinking water, water quality and supply, waterway and natural resource conservation, and flood control. $90 million was specifically allocated to stormwater pollution prevention through the Proposition 84 Storm Water Grant Program (PRC § 75050), though applications for those funds are on hold due to the ongoing state budget crisis. Assembly Bill 739 (2007-2008 session) This legislation established guidelines for project eligibility, selection, and evaluation for the Proposition 84 Stormwater Grant Program. This act also created the Storm Water Advisory Task Force charged with advising SWRCB with regards to its stormwater management programs. Such advice may include program priorities, funding criteria, project selection, and interagency coordination of state programs. Stormwater Resource Planning Act of 2009 (SB 790) This act authorizes grants for low-impact development projects that aim to improve water quality, reduce stormwater discharge, or implement a specified stormwater resource plan. A city, county, or special district is permitted to develop a stormwater resource plan to maximize water supply, water quality, and other environmental benefits. Municipal agencies can apply for grants from funds remaining from the $3.4 billion Prop. 50 and $5.4 billion Prop. 84. 20x2020 Water Conservation Plan of 2010 Initiated by a letter to the California State Senate from Governor Arnold Schwarzenegger on February 28, 2008, the plan was developed by the 20x2020 Agency Team with the goal of achieving a 20% reduction in statewide per capita water use by 2020. The plan aims to promote existing legislative initiatives that incentivize water conservation and create evaluation and enforcement mechanisms to assure that local and statewide goals are met. Urban water suppliers must establish water conservation targets for the years 2015 and 2020. The plan does not address self-supplied water, but suggests that rainwater recapture and other alternative water sources may reduce per capita use. Rainwater Capture Act of 2010 (AB 1834) This bill would have permitted landowners to install rainwater capture systems that meet specific guidelines. A public agency would have been authorized to lead a statewide stakeholder process to address potential issues arising from the proliferation of rainwater capture systems. Licensed landscape contractors would also have been authorized to construct rainwater capture systems for landscape irrigation and design and install all exterior components of a rainwater capture system that is not attached to a structure. Though it was almost unanimously passed by the state legislature, then-Governor Arnold Schwarzenegger vetoed the bill, citing his opposition to the expansion of the Property Assessed Clean Energy Program as a financing option and his concerns about the long-term ramifications of rainwater harvesting. Sources: California Assembly Bill 275. “Rainwater Capture Act of 2011.” Online: Official California Legislative Information. Accessed February 10, 2011. California Assembly Bill 739. 2007-08 Session. Online: Official California Legislative Information. Accessed February 28, 2011 California Assembly Bill 1834. “Rainwater Capture Act of 2010.” Online: Official California Legislative Information. Accessed February 10, 2011. California Environmental Protection Agency. Porter-Cologne Water Quality Control Act (1969). Online: State Water Resource Control Board. Accessed February 28, 2011. California Environmental Protection Agency. “The History of the California Environmental Protection Agency.” Accessed February 28, 2011. California Senate Bill 790. “Stormwater Resource Planning Act of 2009.” Online: Official California Legislative Information. Accessed February 28, 2011. Carpenter, Susan. “California enacts law to encourage stormwater reuse.” Los Angeles Times. October 14, 2009. Accessed February 28, 2011. Leung, Lily. “Experts discuss ‘rain harvesting’ in San Diego.” San Diego Union Tribune. October 12, 2010. Accessed February 27, 2011. Proposition 84. “Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act of 2006.” Online: California State Parks. Accessed March 1, 2011. 20x2020 Agency Team. “20x2020 Water Conservation Plan.” Online: State Water Resources Control Board. Accessed March 1, 2011. U.S. Fish and Wildlife Service. “Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service.” Accessed February 28, 2011. U.S. House Resolution 1. “Water Quality Act of 1987.” Online: Global Legal Information Network. Accessed March 1, 2011. U.S. Senate Bill 2770. “Federal Water Pollution Control Amendments of 1972.” Online: State Water Resources Control Board. Accessed March 1, 2011.