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VARNER & BRANDT LLP LAWYERS A REGISTERED LIMITED LIABILITY PARTNERSHIP REPORT TO THE BOARD OF THE SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT
LEGISLATIVE REPORT AND KEY TOPICS December 19, 2017 Summary of Key California Legislative Issues AB 560: •
Summary: This law authorizes, to the extent permitted by federal law, the State Water Resources Control Board to provide grant funding, and principal forgiveness, and 0% financing on loans, from the Safe Drinking Water State Revolving Fund to a project for a water system with a service area that qualifies as a severely disadvantaged community if the water system demonstrates that repaying a Safe Drinking Water State Revolving Fund loan with interest would result in unaffordable water rates.
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Status: Approved by the Governor and filed with the Secretary of State on October 7, 2017.
AB 746: •
Summary: This law requires California water providers to test for lead in local schools’ drinking water on or before July 1, 2019, and imposes certain requirements on both water providers and school districts. This law requires water providers to prepare a sampling plan, conduct sampling, notify school officials of the results, and conduct follow-up sampling. Schools districts must provide access to water providers to conduct sampling. If lead levels exceed certain limits (15 parts per billion), schools must shut down any fountains or faucets with excess lead, notify parents and guardians of the excessive lead levels, and take measures to provide potable water for students. This law applies to school sites operated by a local school district, county office of education, or a charter school located in a public facility. This law does not, however, apply to school sites constructed or modernized after January 1, 2010, or to schools where testing was completed since 2009 and the tests results were publicly posted online.
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Status: Approved by the Governor and filed with the Secretary of State on October 13, 2017.
SB 231: •
Summary: This law gives the State Courts guidance on how to interpret Proposition 218, which requires that a majority of landowners or a two-thirds majority of all local voters approve new stormwater drainage fees. Critics of Proposition 218 claim that its requirements makes it difficult for agencies to pay for needed improvements to their systems. This law defines stormwater as part of the sewer system. This definition puts stormwater services on par with water, sewer, and trash collection, none of which are subject to direct voter approval of new fees. As such, this law is designed to give stormwater agencies more flexibility to raise funds.
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Status: Approved by the Governor and filed with the Secretary of State on October 6, 2017. Page 1 of 2
Key Water Topics 1. Congress Passes Defense Spending Bill That Includes Perfluorinated Chemicals Health Study. In November, the United States Congress approved a five-year, $7-million study of the human health consequences of perfluorinated compounds, a class of chemicals that came to national prominence in the last two years amid detection in the water of hundreds of communities, households, and military bases. The study could provide a foundation for future regulatory action against the nonstick, heatresistant chemicals that have been used in a range of consumer and industrial products, from nonstick cookware and waterproof jackets to fabrics that cover stadium roofs and foams that extinguish oil fires. [See http://www.circleofblue.org/2017/ world/congress-passes-defense-spending-bill-includesperfluorinated-chemicals-health-study/.] 2. Ninth Circuit Affirms Justice Kennedy’s “significant nexus” Test As Proper Standard to Determine Clean Water Act Jurisdiction. On November 27, 2017, in United States v. Robertson, No. 16-30178, 2017 WL 5662532 (9th Cir. Nov. 27, 2017), the Ninth Circuit upheld the conviction of Mr. Joseph Robertson for violations of the Clean Water Act (CWA) in Montana. In upholding a jury’s conviction, the Ninth Circuit reaffirmed its reliance on U.S. Supreme Court Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006). Mr. Robertson excavated and constructed a series of ponds on National Forest lands and on a private mining claim in 2013 and 2014. While constructing the ponds, Mr. Robertson discharged dredge and fill material into surrounding wetlands and a tributary to Cataract Creek without appropriate permitting. Cataract Creek is a tributary to Boulder River, a tributary to the traditionally navigable Jefferson River. Based on these discharges, Mr. Robertson was convicted of CWA violations after a second trial. Id. at 5. The first trial resulted in a hung jury, but in the second trial, the jury returned a guilty verdict. Id. On appeal, Mr. Robertson contended that the United States did not sufficiently establish CWA jurisdiction, based upon the meaning and the U.S. Army Corps of Engineers’ interpretation of navigable waters under the CWA. Id. [See http://somachlaw.com/policy-alert/criminal-convictionupheld-for-failure-to-properly-permit-ponds-built-in-federally-protected-wetlands-as-ninth-circuitaffirms-justice-kennedys-significant-nexus-test-as-pro/.] 3. Supreme Court Upholds Lower Court Ruling and Will Not Hear Water Agencies’ Appeal on Groundwater Rights. A plea by two desert water agencies, the Desert Water Agency (DWA) and the Coachella Valley Water District (CVWD), for the United States Supreme Court to hear an appeal regarding an earlier decision by the Ninth Circuit Court of Appeals regarding a lawsuit by the Agua Caliente Band of Cahuilla Indians has been denied. The two water agencies had taken issue with the lower court’s decision, which stated that the Agua Caliente Indians had groundwater rights from the time of the reservation’s creation in the late 1800s by the federal government. The tribe asserted in 2013 that they had unprecedented rights to groundwater underneath the tribe’s reservation, superseding all other water users. [See http://californiawaternewsdaily.com/ drought/supreme-courtupholds-lower-court-ruling-wont-hear-water-agencies-appeal-on-groundwater-rights/.]
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LEGISLATIVE REPORT AND KEY TOPICS December 19, 2017 Summary of Key California Legislative Issues AB 560: •
Summary: This law authorizes, to the extent permitted by federal law, the State Water Resources Control Board to provide grant funding, and principal forgiveness, and 0% financing on loans, from the Safe Drinking Water State Revolving Fund to a project for a water system with a service area that qualifies as a severely disadvantaged community if the water system demonstrates that repaying a Safe Drinking Water State Revolving Fund loan with interest would result in unaffordable water rates.
•
Status: Approved by the Governor and filed with the Secretary of State on October 7, 2017.
AB 746: •
Summary: This law requires California water providers to test for lead in local schools’ drinking water on or before July 1, 2019, and imposes certain requirements on both water providers and school districts. This law requires water providers to prepare a sampling plan, conduct sampling, notify school officials of the results, and conduct follow-up sampling. Schools districts must provide access to water providers to conduct sampling. If lead levels exceed certain limits (15 parts per billion), schools must shut down any fountains or faucets with excess lead, notify parents and guardians of the excessive lead levels, and take measures to provide potable water for students. This law applies to school sites operated by a local school district, county office of education, or a charter school located in a public facility. This law does not, however, apply to school sites constructed or modernized after January 1, 2010, or to schools where testing was completed since 2009 and the tests results were publicly posted online.
•
Status: Approved by the Governor and filed with the Secretary of State on October 13, 2017.
SB 231: •
Summary: This law gives the State Courts guidance on how to interpret Proposition 218, which requires that a majority of landowners or a two-thirds majority of all local voters approve new stormwater drainage fees. Critics of Proposition 218 claim that its requirements makes it difficult for agencies to pay for needed improvements to their systems. This law defines stormwater as part of the sewer system. This definition puts stormwater services on par with water, sewer, and trash collection, none of which are subject to direct voter approval of new fees. As such, this law is designed to give stormwater agencies more flexibility to raise funds.
•
Status: Approved by the Governor and filed with the Secretary of State on October 6, 2017. Page 1 of 2
Key Water Topics 1. Congress Passes Defense Spending Bill That Includes Perfluorinated Chemicals Health Study. In November, the United States Congress approved a five-year, $7-million study of the human health consequences of perfluorinated compounds, a class of chemicals that came to national prominence in the last two years amid detection in the water of hundreds of communities, households, and military bases. The study could provide a foundation for future regulatory action against the nonstick, heatresistant chemicals that have been used in a range of consumer and industrial products, from nonstick cookware and waterproof jackets to fabrics that cover stadium roofs and foams that extinguish oil fires. [See http://www.circleofblue.org/2017/ world/congress-passes-defense-spending-bill-includesperfluorinated-chemicals-health-study/.] 2. Ninth Circuit Affirms Justice Kennedy’s “significant nexus” Test As Proper Standard to Determine Clean Water Act Jurisdiction. On November 27, 2017, in United States v. Robertson, No. 16-30178, 2017 WL 5662532 (9th Cir. Nov. 27, 2017), the Ninth Circuit upheld the conviction of Mr. Joseph Robertson for violations of the Clean Water Act (CWA) in Montana. In upholding a jury’s conviction, the Ninth Circuit reaffirmed its reliance on U.S. Supreme Court Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006). Mr. Robertson excavated and constructed a series of ponds on National Forest lands and on a private mining claim in 2013 and 2014. While constructing the ponds, Mr. Robertson discharged dredge and fill material into surrounding wetlands and a tributary to Cataract Creek without appropriate permitting. Cataract Creek is a tributary to Boulder River, a tributary to the traditionally navigable Jefferson River. Based on these discharges, Mr. Robertson was convicted of CWA violations after a second trial. Id. at 5. The first trial resulted in a hung jury, but in the second trial, the jury returned a guilty verdict. Id. On appeal, Mr. Robertson contended that the United States did not sufficiently establish CWA jurisdiction, based upon the meaning and the U.S. Army Corps of Engineers’ interpretation of navigable waters under the CWA. Id. [See http://somachlaw.com/policy-alert/criminal-convictionupheld-for-failure-to-properly-permit-ponds-built-in-federally-protected-wetlands-as-ninth-circuitaffirms-justice-kennedys-significant-nexus-test-as-pro/.] 3. Supreme Court Upholds Lower Court Ruling and Will Not Hear Water Agencies’ Appeal on Groundwater Rights. A plea by two desert water agencies, the Desert Water Agency (DWA) and the Coachella Valley Water District (CVWD), for the United States Supreme Court to hear an appeal regarding an earlier decision by the Ninth Circuit Court of Appeals regarding a lawsuit by the Agua Caliente Band of Cahuilla Indians has been denied. The two water agencies had taken issue with the lower court’s decision, which stated that the Agua Caliente Indians had groundwater rights from the time of the reservation’s creation in the late 1800s by the federal government. The tribe asserted in 2013 that they had unprecedented rights to groundwater underneath the tribe’s reservation, superseding all other water users. [See http://californiawaternewsdaily.com/ drought/supreme-courtupholds-lower-court-ruling-wont-hear-water-agencies-appeal-on-groundwater-rights/.]
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