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AB-2614 Water policy: California tribal communities.(2023-2024)

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Date Published: 03/22/2024 04:00 AM
AB2614:v98#DOCUMENT

Revised  April 10, 2024
Amended  IN  Assembly  March 21, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2614

Introduced by Assembly Member Ramos
(Principal coauthor: Assembly Member Garcia)
(Principal coauthor: Senator Alvarado-Gil)
(Coauthor: Assembly Member McKinnor)

February 14, 2024

An act to amend Section 100 of Sections 13000, 13050, 13144, 13181, and 13241 of, and to add Sections 13142.1, 13170.4, and 13243.5 to, the Water Code, relating to water.


LEGISLATIVE COUNSEL'S DIGEST


AB 2614, as amended, Ramos. Water. Water policy: California tribal communities.
(1) The Porter-Cologne Water Quality Control Act establishes a statewide program for the control of the quality of all the waters in the state and makes certain legislative findings and declarations. Existing law defines the term “beneficial uses” for the purposes of water quality as certain waters of the state that may be protected against quality degradation, to include, among others, domestic, municipal, agricultural, and industrial supplies.
This bill would add findings and declarations related to California tribal communities and the importance of protecting tribal water use, as those terms are defined. The bill would add tribal water uses as waters of the state that may be protected against quality degradation for purposes of the defined term “beneficial uses.” The bill would require any project or regulatory program subject to approval by the State Water Quality Control Board or a regional water quality control board, within a specified environmental review, and in any findings and declarations presented for state board or a regional board approval, to describe, with both quantitative and qualitative information, how the project or regulatory program will impact tribal water uses, and would require, on or before December 1, 2025, and every 2 years thereafter, the state board to publish a report on implementation of this provision on its internet website.
(2) Existing law requires the state board to consult with and carefully evaluate the recommendations of concerned federal, state, and local agencies during the process of formulating or revising state policy for water quality control.
This bill would additionally require the state board to consult and carefully evaluate the recommendations of concerned California tribal communities.
(3) Existing law requires the state board to formulate and adopt state policy for water quality control. Existing law requires each regional board to formulate and adopt water quality control plans for all areas within the region and prohibits a water quality control plan, or a revision of the plan, adopted by a regional board from becoming effective unless it is approved by the state board. Existing law authorizes the state board to adopt certain water quality control plans. Existing law requires a regional board to establish water quality objectives in water quality control plans that in its judgment will ensure reasonable protection of beneficial uses and the prevention of nuisance and requires each regional board to consider specified factors in establishing water quality objectives.
This bill would require, on or before January 1, 2026, the state board to incorporate water quality standards to achieve reasonable protection of tribal water uses into the water quality control plan for the San Francisco Bay and Sacramento-San Joaquin Delta watershed.
This bill would add consultations with California tribal communities and environmental justice considerations as factors for a regional board to consider in establishing water quality control objectives. The bill would exempt adoption of tribal water uses within water quality control plans from the California Environmental Quality Act, and would require, on or before January 1, 2028, each regional board to adopt water quality standards to achieve reasonable protection of tribal water uses into water quality control plans.
(4) Existing law requires the California Environmental Protection Agency and the Natural Resources Agency, on or before December 1, 2007, to enter into a memorandum of understanding for the purposes of establishing the California Water Quality Monitoring Council, which the state board is required to administer. Existing law requires the monitoring council to review existing water quality monitoring, assessment, and reporting efforts and to recommend specific actions and funding needs necessary to coordinate and enhance those efforts. Existing law requires the memorandum of understanding to describe the means by which the monitoring council shall formulate recommendations to reduce redundancies, inefficiencies, and inadequacies in existing water quality monitoring and data management programs and to ensure that water quality improvement projects financed by the state provide specific information necessary to track project effectiveness with regard to achieving clean water and healthy ecosystems.
This bill would require, on or before December 1, 2025, the California Environmental Protection Agency and the Natural Resources Agency to amend the memorandum of understanding to incorporate participation from California tribal communities in the actions of the monitoring council, and would describe these potential methods of participation. The bill would require the memorandum of understating to include recommendations on how to achieve and maintain tribal water uses through state board and regional board regulatory actions and other programs, as specified.
(5) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.

Existing law declares that, because of the conditions prevailing in this state, the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable, that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of the water is to be exercised with a view to the reasonable and beneficial use of the water in the interest of the people and for the public welfare.

This bill would make nonsubstantive changes to that declaration.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

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


SECTION 1.

 Section 13000 of the Water Code is amended to read:

13000.
 The Legislature finds and declares that the people all of the following:
(a) People of the state have a primary interest in the conservation, control, and utilization of the water resources of the state, and that the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state.

The Legislature further finds and declares that activities

(b) Activities and factors which that may affect the quality of the waters of the state shall be regulated to attain the highest water quality which that is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.

The Legislature further finds and declares that the

(c) The health, safety safety, and welfare of the people of the state requires that there be a statewide program for the control of the quality of all the waters of the state; that the state must be prepared to exercise its full power and jurisdiction to protect the quality of waters in the state from degradation originating inside or outside the boundaries of the state; that the waters of the state are increasingly influenced by interbasin water development projects and other statewide considerations; that factors of precipitation, topography, population, recreation, agriculture, industry and economic development vary from region to region within the state; and that the statewide program for water quality control can be most effectively administered regionally, within a framework of statewide coordination and policy.
(d) California tribal communities have special ties to the bodies of water that have sustained their people, who have suffered from genocide, disease, displacement, and discrimination dating back to European colonization, and therefore tribal water uses must be protected through the statewide program for the control of the quality of all the waters of the state.
(e) Furthermore, allowing for tribal water uses should be a primary factor in determining the highest water quality that is reasonable in all regulatory decisions.

SEC. 2.

 Section 13050 of the Water Code is amended to read:

13050.
 As used in this division:
(a) “State board” means the State Water Resources Control Board.
(b) “Regional board” means any California regional water quality control board for a region as specified in Section 13200.
(c) “Person” includes any city, county, district, the state, and the United States, to the extent authorized by federal law.
(d) “Waste” includes sewage and any and all other waste substances, liquid, solid, gaseous, or radioactive, associated with human habitation, or of human or animal origin, or from any producing, manufacturing, or processing operation, including waste placed within containers of whatever nature prior to, and for purposes of, disposal.
(e) “Waters of the state” means any surface water or groundwater, including saline waters, within the boundaries of the state.
(f) “Beneficial uses” of the waters of the state that may be protected against quality degradation include, but are not limited to, domestic, municipal, agricultural and industrial supply; tribal water uses; power generation; recreation; aesthetic enjoyment; navigation; and preservation and enhancement of fish, wildlife, and other aquatic resources or preserves.
(g) “Quality of the water” refers to chemical, physical, biological, bacteriological, radiological, and other properties and characteristics of water which that affect its use.
(h) “Water quality objectives” means the limits or levels of water quality constituents or characteristics which that are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area.
(i) “Water quality control” means the regulation of any activity or factor which that may affect the quality of the waters of the state and includes the prevention and correction of water pollution and nuisance.
(j) “Water quality control plan” consists of a designation or establishment for the waters within a specified area of all of the following:
(1) Beneficial uses to be protected.
(2) Water quality objectives.
(3) A program of implementation needed for achieving water quality objectives.
(k) “Contamination” means an impairment of the quality of the waters of the state by waste to a degree which that creates a hazard to the public health through poisoning or through the spread of disease. “Contamination” includes any equivalent effect resulting from the disposal of waste, whether or not waters of the state are affected.
(l) (1) “Pollution” means an alteration of the quality of the waters of the state by waste to a degree which that unreasonably affects either of the following:
(A) The waters for beneficial uses.
(B) Facilities which that serve these beneficial uses.
(2) “Pollution” may include “contamination.”
(m) “Nuisance” means anything which that meets all of the following requirements:
(1) Is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.
(2) Affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.
(3) Occurs during, or as a result of, the treatment or disposal of wastes.
(n) “Recycled water” means water which, that, as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur and is therefor considered a valuable resource.
(o) “Citizen or domiciliary” of the state includes a foreign corporation having substantial business contacts in the state or which that is subject to service of process in this state.
(p) (1) “Hazardous substance” means either of the following:
(A) For discharge to surface waters, any substance determined to be a hazardous substance pursuant to Section 311(b)(2) of the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.).
(B) For discharge to groundwater, any substance listed as a hazardous waste or hazardous material pursuant to Section 25140 of the Health and Safety Code, without regard to whether the substance is intended to be used, reused, or discarded, except that “hazardous substance” does not include any substance excluded from Section 311(b)(2) of the Federal Water Pollution Control Act because it is within the scope of Section 311(a)(1) of that act.
(2) “Hazardous substance” does not include any of the following:
(A) Nontoxic, nonflammable, and noncorrosive stormwater runoff drained from underground vaults, chambers, or manholes into gutters or storm sewers.
(B) Any pesticide which that is applied for agricultural purposes or is applied in accordance with a cooperative agreement authorized by Section 116180 of the Health and Safety Code, and is not discharged accidentally or for purposes of disposal, the application of which is in compliance with all applicable state and federal laws and regulations.
(C) Any discharge to surface water of a quantity less than a reportable quantity as determined by regulations issued pursuant to Section 311(b)(4) of the Federal Water Pollution Control Act.
(D) Any discharge to land which that results, or probably will result, in a discharge to groundwater if the amount of the discharge to land is less than a reportable quantity, as determined by regulations adopted pursuant to Section 13271, for substances listed as hazardous pursuant to Section 25140 of the Health and Safety Code. No discharge shall be deemed a discharge of a reportable quantity until regulations set a reportable quantity for the substance discharged.
(q) (1) “Mining waste” means all solid, semisolid, and liquid waste materials from the extraction, beneficiation, and processing of ores and minerals. Mining waste includes, but is not limited to, soil, waste rock, and overburden, as defined in Section 2732 of the Public Resources Code, and tailings, slag, and other processed waste materials, including cementitious materials that are managed at the cement manufacturing facility where the materials were generated.
(2) For the purposes of this subdivision, “cementitious material” means cement, cement kiln dust, clinker, and clinker dust.
(r) “Master recycling permit” means a permit issued to a supplier or a distributor, or both, of recycled water, that includes waste discharge requirements prescribed pursuant to Section 13263 and water recycling requirements prescribed pursuant to Section 13523.1.
(s) “California tribal community” has the same meaning as “tribal community” as defined in Section 13149.2.
(t) “Tribal water uses” means any tribal practice that involves contact with a body of water or use of animals, plants, or fungi that reside in, or are adjacent to, a body of water. A California tribal community that elects not to publicly disclose its tribal water uses may confidentially disclose them to the state board or a regional board pursuant to the consultation provisions of Section 65352.4 of the Government Code. This definition of tribal water uses shall be used exclusively and shall replace all definitions previously adopted by a state agency, including, but not limited to, definitions of “tribal traditional cultural uses” and “tribal subsistence uses.”

SEC. 3.

 Section 13142.1 is added to the Water Code, to read:

13142.1.
 (a) In addition to any other policies regarding water quality established pursuant to this division, the policies of the state with respect to water quality as it relates to California tribal communities consist of both of the following:
(1) Tribal ecological knowledge should be valued and incorporated into regulatory and management programs.
(2) State agencies should make resources available for tribal comanagement of aquatic resources within traditional and current tribal lands.
(b) Any project or regulatory program subject to approval by the state board or a regional board, shall, within an environmental review pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code, and in any findings and declarations presented for state board or a regional board approval, describe, with both quantitative and qualitative information, how the project or regulatory program will impact tribal water uses.
(c) On or before December 1, 2025, and every two years thereafter, the state board shall publish a report on implementation of this section on its internet website.

SEC. 4.

 Section 13144 of the Water Code is amended to read:

13144.
 During the process of formulating or revising state policy for water quality control control, the state board shall consult with and carefully evaluate the recommendations of concerned federal, state, and local agencies. agencies, and California tribal communities.

SEC. 5.

 Section 13170.4 is added to the Water Code, to read:

13170.4.
 On or before January 1, 2026, the state board shall incorporate water quality standards to achieve reasonable protection of tribal water uses into the water quality control plan for the San Francisco Bay and Sacramento-San Joaquin Delta watershed.

SEC. 6.

 Section 13181 of the Water Code is amended to read:

13181.
 (a) (1) On or before December 1, 2007, the California Environmental Protection Agency and the Natural Resources Agency shall enter into a memorandum of understanding for the purposes of establishing the California Water Quality Monitoring Council, which shall be administered by the state board.
(2) As used in this section, “monitoring council” means the California Water Quality Monitoring Council established pursuant to this section.
(3) The monitoring council may include representatives from state entities and nonstate entities. The representatives from nonstate entities may include, but need not be limited to, representatives from federal and local government, California tribal communities, institutions of higher education, the regulated community, citizen monitoring groups, and other interested parties.
(4) The monitoring council shall review existing water quality monitoring, assessment, and reporting efforts, and shall recommend specific actions and funding needs necessary to coordinate and enhance those efforts.
(5) (A) The recommendations shall be prepared for the ultimate development of a cost-effective, coordinated, integrated, and comprehensive statewide network for collecting and disseminating water quality information and ongoing assessments of the health of the state’s waters and the effectiveness of programs to protect and improve the quality of those waters.
(B) For purposes of developing recommendations pursuant to this section, the monitoring council shall initially focus on the water quality monitoring efforts of state agencies, including, but not limited to, the state board, the regional boards, the department, the Department of Fish and Wildlife, the California Coastal Commission, the State Lands Commission, the Department of Parks and Recreation, the Department of Forestry and Fire Protection, and the Department of Pesticide Regulation.
(C) In developing the recommendations, the monitoring council shall seek to build upon existing programs, rather than create new programs.
(6) Among other things, the memorandum of understanding shall describe the means by which the monitoring council shall formulate recommendations to accomplish both all of the following:
(A) Reduce redundancies, inefficiencies, and inadequacies in existing water quality monitoring and data management programs in order to improve the effective delivery of sound, comprehensive water quality information to the public and decisionmakers.
(B) Ensure that water quality improvement projects financed by the state provide specific information necessary to track project effectiveness with regard to achieving clean water and healthy ecosystems.
(C) Achieve and maintain tribal water uses through state board and regional board regulatory action and other programs, including, but not limited to, comanagement of habitat restoration and management programs and consultations with California tribal communities.
(7) On or before December 1, 2025, the California Environmental Protection Agency and the Natural Resources Agency shall amend the memorandum of understanding to incorporate participation from California tribal communities in the actions of the monitoring council. The methods of participation may include membership on the monitoring council, creation of a tribal water quality council, and consultation with California tribal communities.
(b) The monitoring council shall report, on or before December 1, 2008, to the California Environmental Protection Agency and the Natural Resources Agency with regard to its recommendations for maximizing the efficiency and effectiveness of existing water quality data collection and dissemination, and for ensuring that collected data are maintained and available for use by decisionmakers and the public. The monitoring council shall consult with the United States Environmental Protection Agency in preparing these recommendations. The monitoring council’s recommendations, and any responses submitted by the California Environmental Protection Agency or the Natural Resources Agency to those recommendations, shall be made available to decisionmakers and the public by means of the Internet. an internet website.
(c) The monitoring council shall undertake and complete, on or before April 1, 2008, a survey of its members to develop an inventory of their existing water quality monitoring and data collection efforts statewide and shall make that information available to the public.
(d) All state agencies, including institutions of higher education to the extent permitted by law, that collect water quality data or information shall cooperate with the California Environmental Protection Agency and the Natural Resources Agency in achieving the goals of the monitoring council as described in this section.
(e) In accordance with the requirements of the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) and implementing guidance, the state board shall develop, in coordination with the monitoring council, all of the following:
(1) A comprehensive monitoring program strategy that utilizes and expands upon the state’s existing statewide, regional, and other monitoring capabilities and describes how the state will develop an integrated monitoring program that will serve all of the state’s water quality monitoring needs and address all of the state’s waters over time. The strategy shall include a timeline not to exceed 10 years to complete implementation. The strategy shall be comprehensive in scope and identify specific technical, integration, and resource needs, and shall recommend solutions for those needs so that the strategy may be implemented within the 10-year timeframe.
(2) Agreement, including agreement on a schedule, with regard to the comprehensive monitoring of statewide water quality protection indicators that provide a basic minimum understanding of the health of the state’s waters. Indicators already developed pursuant to environmental protection indicators for statewide initiatives shall be given high priority as core indicators for purposes of the network described in subdivision (a).
(3) Quality management plans and quality assurance plans that ensure the validity and utility of the data collected.
(4) Methodology for compiling, analyzing, and integrating readily available information, to the maximum extent feasible, including, but not limited to, data acquired from discharge reports, volunteer monitoring groups, local, state, and federal agencies, and recipients of state-funded or federally funded water quality improvement or restoration projects.
(5) An accessible and user-friendly electronic data system with timely data entry and ready public access via the Internet. To the maximum extent possible, the geographic location of the areas monitored shall be included in the data system.
(6) Production of timely and complete water quality reports and lists that are required under Sections 303(d), 305(b), 314, and 319 of the federal Clean Water Act and Section 406 of the federal Beaches Environmental Assessment and Coastal Health Act of 2000, that include all available information from discharge reports, volunteer monitoring groups, and local, state, and federal agencies.
(7) An update of the state board’s surface water ambient monitoring program needs assessment in light of the benefits of increased coordination and integration of information from other agencies and information sources. This update shall include identification of current and future resource needs required to fully implement the coordinated, comprehensive monitoring network, including, but not limited to, funding, staff, training, laboratory and other resources, and projected improvements in the network.
(f) The state board shall identify the full costs of implementation of the comprehensive monitoring program strategy developed pursuant to subdivision (e), and shall identify proposed sources of funding for the implementation of the strategy, including federal funds that may be expended for this purpose. Fees collected pursuant to paragraph (1) of subdivision (d) of Section 13260 may be used as a funding source for implementation of the strategy to the extent that the funding is consistent with subparagraph (B) of paragraph (1) of subdivision (d) of Section 13260.
(g) Data, summary information, and reports prepared pursuant to this section shall be made available to appropriate public agencies and the public by means of the Internet.
(h) (1) Commencing December 1, 2008, the Secretary of the California Environmental Protection Agency shall conduct a triennial audit of the effectiveness of the monitoring program strategy developed pursuant to subdivision (e). The audit shall include, but need not be limited to, an assessment of the following matters:
(A) The extent to which the strategy has been implemented.
(B) The effectiveness of the monitoring and assessment program and the monitoring council with regard to both of the following:
(i) Tracking improvements in water quality.
(ii) Evaluating the overall effectiveness of programs administered by the state board or a regional board and of state and federally funded water quality improvement projects.
(2) The Secretary of the California Environmental Protection Agency shall consult with the Secretary of the Natural Resources Agency in preparing the audit, consistent with the memorandum of understanding entered into pursuant to subdivision (a).
(i) The state board shall prioritize the use of federal funding that may be applied to monitoring, including, but not limited to, funding under Section 106 of the Federal Water Pollution Control Act, for the purpose of implementing this section.
(j) The state board shall not use more than 5 percent of the funds made available to implement this section for the administrative costs of any contracts entered into for the purpose of implementing this section.

SEC. 7.

 Section 13241 of the Water Code is amended to read:

13241.
 Each regional board shall establish such water quality objectives in water quality control plans as in its judgment will ensure the reasonable protection of beneficial uses and the prevention of nuisance; however, it is recognized that it may be possible for the quality of water to be changed to some degree without unreasonably affecting beneficial uses. Factors to be considered by a regional board in establishing water quality objectives shall include, but not necessarily be limited to, all of the following:
(a) Past, present, and probable future beneficial uses of water.
(b) Environmental characteristics of the hydrographic unit under consideration, including the quality of water available thereto.
(c) Water quality conditions that could reasonably be achieved through the coordinated control of all factors which that affect water quality in the area.
(d) Economic considerations.
(e) The need for developing housing within the region.
(f) The need to develop and use recycled water.
(g) Consultations with California tribal communities.
(h) Environmental justice considerations.

SEC. 8.

 Section 13243.5 is added to the Water Code, to read:

13243.5.
 (a) Adoption of tribal water uses within a water quality control plan shall not be subject to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).
(b) On or before January 1, 2028, each regional board shall adopt water quality standards to achieve reasonable protection of tribal water uses into water quality control plans.

SEC. 9.

 The Legislature finds and declares that Section 2 of this act, which amends Section 13050 of the Water Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
This act protects from public disclosure the personal and historical information of California tribal communities and their tribal water uses disclosed to the State Water Resources Control Board or a regional water quality control board for the purposes of water quality standards.
SECTION 1.Section 100 of the Water Code is amended to read:
100.

It is hereby declared that, because of the conditions prevailing in this state, the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable, that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of that water is to be exercised with a view to the reasonable and beneficial use of the water in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or watercourse in this state is and shall be limited to that water as shall be reasonably required for the beneficial use to be served, and the right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.

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REVISIONS:
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