Amended  IN  Senate  June 18, 2019
Amended  IN  Assembly  March 05, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 402

Introduced by Assembly Member Quirk

February 06, 2019

An act to amend Section 116330 Sections 116330 and 116565 of the Health and Safety Code, relating to drinking water.


LEGISLATIVE COUNSEL'S DIGEST


AB 402, as amended, Quirk. State Water Resources Control Board: local primacy delegation: funding stabilization program.
Existing law, the California Safe Drinking Water Act, requires the State Water Resources Control Board to administer provisions relating to the regulation of drinking water to protect public health, including, but not limited to, conducting research, studies, and demonstration programs relating to the provision of a dependable, safe supply of drinking water, enforcing the federal Safe Drinking Water Act, adopting implementing regulations, and conducting studies and investigations to assess the quality of water in private domestic water supplies. The act authorizes the state board to delegate, through a local primacy delegation agreement, primary responsibility for the act’s administration and enforcement within a county to a local health officer, as specified. The act requires that a local primacy delegation remain in effect until specified conditions occur. The
This bill would authorize the state board to delegate partial responsibility for the act’s administration and enforcement by means of a local primacy delegation agreement. The bill would authorize the state board, for counties that have not been delegated primary responsibility as of January 1, 2020, to offer an opportunity for the county to apply for partial or primary responsibility if the state board determines that it needs assistance in performing administrative and enforcement activities, as specified. The bill would authorize the state board to approve the application for delegation if the state board determines that the local health officer is able to sufficiently perform the administrative and enforcement activities and would specify that a local primacy agency has all of the authority over designated public water systems as is granted to the state board by the act.
The act requires the state board to provide the local primacy agency, to the extent funds are available from the Safe Drinking Water Account, with an annual drinking water surveillance program grant to cover the costs of conducting inspection, monitoring, surveillance, and water quality evaluation activities specified in the local primacy agreement. The
This bill would eliminate the annual drinking water surveillance program grant.
The act requires the state board to evaluate the drinking water program of each local primacy agency at least annually and to prepare a report of the evaluation and list any program improvements needed. The act requires a copy of the report to be provided to the local primacy agency and the county board of supervisors. The act requires a local primacy agency to be granted a reasonable amount of time to make any needed program improvements before the initiation of any local primacy revocation actions.
This bill would instead require the state board to evaluate each local primacy agency’s oversight program at least annually and the report prepared by the state board to list any deficiencies of each local primacy agency and to be made available on the state board’s internet website. The bill would require the reasonable amount of time granted to a local primacy agency to make any needed program improvements to not exceed 2 years.
The act requires the state board to adopt a schedule of fees and requires a public water system under the jurisdiction of a local primacy agency to pay these fees to the local primacy agency in lieu of the state board. Existing law makes it a crime for any person to knowingly commit certain acts, including making a false statement or representation in any record submitted, maintained, or used for the purposes of compliance with the act, possessing a record required to be maintained by the act that has been altered or concealed, and destroying, altering, or concealing any record required to be maintained by the act.
This bill would include enforcement costs as costs covered by an annual drinking water surveillance program grant. The This bill would authorize any local primacy agency, with approval of the state board, to elect to participate in a funding stabilization program effective for the 2020–21 2021–22 fiscal year and fiscal years thereafter, as specified. The bill would require the state board, during any fiscal year for which a local primacy agency participates participating in the funding stabilization program, to establish and collect all fees payable by public water systems for the local primacy agency activities and program to pay the fees to the state board, and would require the state board to provide funding to the local primacy agency each year in accordance with an annual workscope, prepared as prescribed by the local primacy agency that is submitted to for the reasonable costs incurred for the implementation of activities set forth in the work plan submitted by the local primacy agency to and approved by the state board. The bill would prohibit a participating local primacy agency from charging a public water system any fee in addition to the fees established and collected by the funding stabilization program for the activities in the local primacy agency and would require all fines and penalties fines, penalties, and reimbursement of costs collected by such a local primacy agency for the local primacy agency’s activities to be remitted to the state board for deposit in the Safe Drinking Water account. Account. The bill would require a participating local primacy agency to establish and maintain accurate accounting records of all costs it incurs and periodically to make these records available to the state board. By requiring new records for the purpose of complying with the act, this bill would expand the scope of a crime and thereby impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 116330 of the Health and Safety Code is amended to read:

116330.
 (a) The state board may delegate primary or partial responsibility for the administration and enforcement of this chapter within a county to a local health officer authorized by the board of supervisors to assume these duties, by means of a local primacy delegation agreement if the local health officer demonstrates that it has the capability to meet the local primacy program requirements established by the state board pursuant to subdivision (h) of Section 116375. This delegation shall not include the regulation of community water systems serving 200 or more service connections. The local primacy agreement may contain terms and conditions that the state board deems necessary to carry out this chapter. The local primacy agreement shall provide that, although the local primacy agency shall be primarily responsible for administration and enforcement of this chapter for the designated water systems, the state board does not thereby relinquish its authority, but rather shall retain jurisdiction to administer and enforce this chapter for the designated water systems to the extent determined necessary by the state board.

(b)Any local health officer seeking a local primacy delegation shall submit an application to the state board. The application shall be submitted by January 1 of the fiscal year immediately preceding the commencement of the fiscal year for which the local primacy delegation is sought. The application shall be in the format, and shall contain information, required by the state board. The state board shall approve the application for primacy if the state board determines that the local health officer is capable of meeting the primacy program requirements established by the state board.

(b) For counties that have not been delegated primary responsibility as of January 1, 2020, the state board may offer the opportunity for the county to have partial or primary responsibility for the administration and enforcement of this chapter within the county if the state board determines that it needs assistance in performing the activities described in subdivision (c). If the state board offers the county the opportunity to apply for partial or primary responsibility, the county may submit an application within six months of the state board providing the opportunity to apply. The application shall be in a format and contain information as required by the state board. The state board may approve an application for delegation if the state board determines that the local health officer is able to sufficiently perform the activities described in subdivision (c). If an application is approved, the state board and the county shall sign a local primacy delegation agreement and the participation in the drinking water oversight program shall begin on the first day of the following fiscal year and continue until terminated in accordance with subdivision (d).
(c) A local primacy agency shall act for the state board as the primary agency responsible for the administration and enforcement of this chapter for the designated public water systems, including permitting, inspections, water quality monitoring and evaluation, database maintenance, data reporting, and program management activities. A local primacy agency shall have all of the authority over designated public water systems as is granted to the state board by this chapter.

(c)

(d) A local primacy delegation approved by the state board shall remain in effect until any of the following conditions occur:
(1) The delegation is withdrawn by mutual agreement.
(2) The local primacy agency provides 120-day advance written notice to the state board that it no longer wishes to retain local primacy.
(3) The state board determines that the local primacy agency no longer complies with the state board’s local primacy program requirements. The state board shall provide written notice to the local primacy agency and the board of supervisors and shall provide an opportunity for a public hearing prior to initiation of any local primacy revocation action by the state board.

(d)

(e) The state board shall evaluate the drinking water program of each local primacy agency agency’s oversight program at least annually. The state board shall prepare a report of the evaluation and list any deficiencies or program improvements needed to conform to the state board’s local primacy program requirements. A copy of the evaluation report shall be provided to the local primacy agency and the county board of supervisors. supervisors, and made available on the state board’s internet website. The local primacy agency shall be granted a reasonable amount of time time, not to exceed two years, to make any needed program improvements prior to the initiation of any local primacy revocation actions.

(e)In addition to any funding provided under subdivision (g), to the extent funds are available in the Safe Drinking Water Account, the state board shall provide the local primacy agency with an annual drinking water surveillance program grant to cover the cost of conducting the inspection, monitoring, surveillance, enforcement, and water quality evaluation activities specified in the local primacy agreement. The annual program grant pursuant to this subdivision shall not exceed the amount that the state board determines would be necessary for the state board to conduct inspection, monitoring, surveillance, enforcement, and water quality evaluation activities in the absence of a local primacy agreement for those systems in that county.

(f)The local primacy agency shall act for the state board as the primary agency responsible for the administration and enforcement of this chapter for the specified public water systems and shall be empowered with all of the authority granted to the state board by this chapter over those water systems.

(g)

(f) (1) With approval of the state board, any local primacy agency may elect to participate in the funding stabilization program effective for the 2020–21 2021–22 fiscal year and thereafter set forth in this subdivision.

(2)A local primacy agency shall submit a resolution of intention to participate, approved by the county board of supervisors, to the state board by January 1 of the fiscal year immediately preceding the commencement of the fiscal year for which participation in the funding stabilization program is sought. If approved by the state board, the local primacy agency’s participation in the funding stabilization program shall continue until terminated in accordance with this paragraph. Either the local primacy agency or the board may terminate the local primacy agency’s participation by serving notice on the other party by January 1 of any year, and termination shall become effective July 1 of the immediately succeeding fiscal year.

(3)During any fiscal year for which a local primacy agency participates in the funding stabilization program, all of the following shall apply:

(A)Notwithstanding Section 101325 and subdivision (f) of Section 116565, the state board shall establish and collect all fees payable by public water systems for the local primacy agency activities set forth in this section.

(i)Fees established and collected pursuant to this subparagraph shall not be higher than the fees charged by the state board for regulatory oversight of equivalent small public water systems by the state board.

(ii)A local primacy agency shall not charge a public water system any fee in addition to the fees established and collected pursuant to this subparagraph for the activities set forth in this section.

(2) (A) Any local primacy agency electing to participate in the funding stabilization program shall submit an application to the state board either initially not less than one year after the effective date of the funding stabilization program or, if a local primacy agency elects to participate in the funding stabilization program after the initial period for submission, not less than six months after the beginning of a fiscal year.
(B) An application submitted by a local primacy agency to participate in the funding stabilization program shall be in a format and contain information as required by the state board, including a resolution of intention to participate, approved by the county board of supervisors.
(C) The state board may approve an application for the funding stabilization program if the state board determines that the local primacy agency oversight program is in good standing. If an application for the funding stabilization program is approved by the state board, the local primacy agency’s participation in the funding stabilization program shall continue until either the local primacy agency or the state board terminates participation in the funding stabilization program by serving notice to the other party by January 1 of any year and that termination shall become effective July 1.
(3) All fines, penalties, and reimbursement of costs for activities set forth in this section shall be payable to the state board and deposited in the Safe Drinking Water Account.

(B)

(4) The state board shall provide funding to the local primacy agency each year in accordance with a detailed annual workscope submitted by the local primacy agency and approved by the state board. The workscope shall set forth for the reasonable costs incurred for the implementation of activities set forth in the work plan submitted by the local primacy agency in inspection, and approved by the state board. The work plan shall set forth the activities to be performed by the local primacy agency each fiscal year, including inspections, monitoring, surveillance, water quality evaluation, and enforcement evaluations, enforcement, and any other activities described in the delegation agreement.
(5) The state board shall adopt regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) to establish policies, guidelines, and procedures for the preparation of the work plan of the local primacy agency and the terms of payment by the board for work performed by the local primacy agency that shall include, but not be limited to, all of the following:
(A) Guidelines for the work plan submitted to the state board by the local primacy agency.
(B) Approval of reimbursable direct and indirect costs.
(C) Quantifiable measures to evaluate the performance of the local primacy agency under this subdivision.

(C)

(6) A local primacy agency shall establish and maintain accurate accounting records of all costs it incurs pursuant to this subdivision and periodically shall make these records available to the state board.

(D)A local primacy agency shall remit all fines and penalties collected by the local primacy agency for the local primacy agency activities set forth in this section to the state board for deposit in the Safe Drinking Water Account established pursuant to Section 116590.

(4)The state board shall adopt regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) to establish policies, guidelines, and procedures for the preparation of the workscope of the local primacy agency and the terms of payment by the board for work performed by the local primacy agency that shall include, but not be limited to, all of the following:

(A)Guidelines for the workscope submitted to the state board by the local primacy agency.

(B)Approval of reimbursable direct and indirect costs.

(C)Quantifiable measures to evaluate the performance of the local primacy agency under this subdivision.

SEC. 2.

 Section 116565 of the Health and Safety Code is amended to read:

116565.
 (a) Each public water system shall submit an annual fee according to a fee schedule established by the state board pursuant to subdivision (c) for the purpose of reimbursing the state board for the costs incurred by the state board for conducting activities mandated by this chapter. The amount of reimbursement shall be sufficient to pay, but in no event shall exceed, the state board’s costs in conducting these activities, including a prudent reserve in the Safe Drinking Water Account.
(b) Payment of the annual fee shall be due 90 calendar days following the due date established in the schedule. Failure to pay the annual fee within 90 calendar days shall result in a 10-percent late penalty that shall be paid in addition to the fee.
(c) The state board shall adopt, by regulation, a schedule of fees, as authorized by this section. The regulations may include provisions concerning the administration and collection of the fees.
(d) The state board shall set the amount of total revenue collected each year through the fee schedule at an amount equal to the amount appropriated by the Legislature in the annual Budget Act from the Safe Drinking Water Account for expenditure for the administration of this chapter, taking into account the reserves in the Safe Drinking Water Account. The state board shall review and revise the fees each fiscal year as necessary to conform with the amounts appropriated by the Legislature. If the state board determines that the revenue collected during the preceding year was greater than, or less than, the amounts appropriated by the Legislature, the state board may further adjust the fees to compensate for the over or under collection of revenue.
(e) (1) Except as provided in subparagraph (A) of paragraph (2), the regulations adopted pursuant to this section, any amendment thereto, or subsequent adjustments to the annual fees, shall be adopted by the state board as emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The adoption of these regulations is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health, safety, and general welfare.
(2) Notwithstanding Section 116377, both of the following shall apply:
(A) The initial regulations adopted by the state board to implement this section shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, and may not rely on the statutory declaration of emergency in paragraph (1) or Section 116377.
(B) Any emergency regulations adopted by the state board, or adjustments to the annual fees made by the state board pursuant to this section, shall not be subject to review by the Office of Administrative Law and shall remain in effect until revised by the state board.
(f) (1) A public water system under the jurisdiction of a local primacy agency shall pay the fees specified in this section to the local primacy agency in lieu of the state board. board unless the local primacy agency with jurisdiction is participating in the funding stabilization program established by subdivision (f) of Section 116330. This section paragraph does not preclude a local health officer from imposing additional fees pursuant to Section 101325.
(2) A public water system under the jurisdiction of a local primacy agency that is participating in the funding stabilization program established by subdivision (f) of Section 116330 shall pay the fees specified in this section to the state board. Notwithstanding Section 101325, a local primacy agency shall not charge a designated public water system regulated by a local primacy agency any fee in addition to the fees established and collected pursuant to this section.

(g)This section shall become operative on July 1, 2016.

SEC. 2.SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.