AB 2605: Water quality: state certification.
- Session Year: 2021-2022
- House: Assembly
- Latest Version Date: 2022-04-18
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act. Under federal law, any applicant seeking a federal license or permit for an activity that may result in any discharge into the navigable waters of the United States is required to first seek a state water quality certification, as specified. The Porter-Cologne Water Quality Control Act authorizes the state board to certify or provide a statement to a federal agency, as required pursuant to federal law, that there is reasonable assurance that an activity of any person subject to the jurisdiction of the state board will not reduce water quality below applicable standards. The federal act provides that if a state fails or refuses to act on a request for this certification within a reasonable period of time, which shall not exceed one year after receipt of the request, then the state certification requirements are waived with respect to the federal application.
This bill would authorize the state board to delegate its authority regarding the above-described issuance of a certificate or statement to the regional boards. The bill would require a project proponent, as defined, to request a prefiling meeting with the state board, as specified. The bill would require the state board to act on the certification request within 60 days, except as specified, and would provide that a failure or refusal to act on a certification request within that period of time waives the certification requirement for a license or permit. specified. The bill would require a certification request to the state board for either an individual license or permit or a general license or permit to contain specified information. The bill would require the state board to take specified actions depending on whether it grants, grants with conditions, or denies the certification request.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act. Under federal law, any applicant seeking a federal license or permit for an activity that may result in any discharge into the navigable waters of the United States is required to first seek a state water quality certification, as specified. The Porter-Cologne Water Quality Control Act authorizes the state board to certify or provide a statement to a federal agency, as required pursuant to federal law, that there is reasonable assurance that an activity of any person subject to the jurisdiction of the state board will not reduce water quality below applicable standards. The federal act provides that if a state fails or refuses to act on a request for this certification within a reasonable period of time, which shall not exceed one year after receipt of the request, then the state certification requirements are waived with respect to the federal application.
This bill would authorize the state board to delegate its authority regarding the above-described issuance of a certificate or statement to the regional boards. The bill would require a project proponent, as defined, to request a prefiling meeting with the state board, as specified. The bill would require the state board to act on the certification within 60 days, except as specified, and would provide that a failure or refusal to act on a certification request within that period of time waives the certification requirement for a license or permit. The bill would require a certification request to the state board for either an individual license or permit or a general license or permit to contain specified information. The bill would require the state board to take specified actions depending on whether it grants, grants with conditions, or denies the certification request.
The Legislature finds and declares the following:
(a)California is experiencing a housing supply crisis, with housing demand far outstripping supply. In 2018, California ranked 49th out of the 50 states in housing units per capita.
(b)Costs for construction of new housing continue to increase. Lengthy permitting processes and times to obtain approvals of housing projects, fees, and other regulatory requirements further exacerbate the cost of residential construction.
(c)The housing supply crisis also harms the environment by increasing pressure to develop the states farmlands, open space, and rural interface areas to build affordable housing, increasing impacts on wildlife and habitat, as well as increasing greenhouse gas emissions from longer commutes to affordable homes far from growing job centers.
(d)It is the intent of the Legislature by the amendment of Section 13160 of the Water Code to streamline the administrative process for water quality certifications, eliminate unnecessary delays, and provide for completion of the administrative process for water quality certifications within a reasonable period of time.
(e)It is the intent of the Legislature to provide the State Water Resources Control Board and nine regional water quality control boards with sufficient resources to complete the administrative process for water quality certifications within a reasonable period of time.
(f)It is the policy of the state that Section 13160 of the Water Code be interpreted and implemented in a manner to afford the highest priority and fullest possible weight to the interest of, and the approval and provision of, housing.
SEC. 2.Section 13160 of the Water Code is amended to read:13160.(a)The state board is designated as the state water pollution control agency for all purposes stated in the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and any other existing or subsequently enacted federal water quality control law.
(b)(1)The state board is authorized to give any certificate or statement required by any federal agency pursuant to the Federal Water Pollution Control Act or any other federal water quality control law that there is reasonable assurance that an activity of any person subject to the jurisdiction of the state board will comply with applicable requirements of that federal law or any other appropriate requirements of state law.
(2)The state board may issue the certificate or statement under paragraph (1) before completion of the environmental review required under Division 13 (commencing with Section 21000) of the Public Resources Code if the state board determines that waiting until completion of that environmental review to issue the certificate or statement poses a substantial risk of waiver of the state boards certification authority under the Federal Water Pollution Control Act or any other federal water quality control law. To the extent authorized by federal law, the state board shall reserve authority to reopen and, after public notice, an opportunity for comment, and, when appropriate, an opportunity for a hearing, revise the certificate or statement as appropriate to incorporate feasible measures to avoid or reduce significant environmental impacts or to make any necessary findings based on the information provided in the environmental document prepared for the project.
(c)The state board is authorized to exercise any powers delegated to the state and carry out any program a state is authorized to administer under the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and any amendments to that act. The state board may delegate its authority under this section to the regional boards. Reference to the state board in this section includes the regional boards as the context warrants.
(d)(1)At least 30 days before submitting a certification request, the project proponent shall request a prefiling meeting with the state board.
(2)The state board is not required to grant or respond to a prefiling meeting request.
(3)If the state board grants the prefiling meeting request, the project proponent and the state board shall meet, either in person or by telephone or other electronic means, and may discuss information related to the certification request for the proposed project, such as the nature of the proposed project, potential water quality effects, environmental review and approvals, if any, by other agencies, and the anticipated timeline for construction and operation of the proposed project.
(e)(1)A certification request for an individual license or permit shall contain all of the following information:
(A)The project proponent and a point of contact.
(B)Description of the proposed project.
(C)The applicable federal license or permit.
(D)The location and nature of any potential discharge that may result from the proposed project and the location of receiving waters.
(E)A description of any methods and means proposed to monitor the discharge and the equipment or measures planned to treat, control, or manage the discharge.
(F)A list of all other federal, interstate, tribal, state, territorial, or local agency authorizations required for the proposed project, including all approvals or denials already received.
(G)Documentation that a prefiling meeting request was submitted to the certifying authority at least 30 days before submitting the certification request.
(H)The following statement: The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief.
(I)The following statement: The project proponent hereby requests that the state board or regional board review and take action on this water quality certification request within the applicable reasonable period of time.
(2)A certification request for issuance of a general license or permit shall contain all of the following information:
(A)The project proponent and a point of contact.
(B)The proposed categories of activities to be authorized by the general license or permit certification request.
(C)A draft general license or permit.
(D)An estimate of the number of discharges expected to be authorized by the proposed general license or permit each year.
(E)Documentation that a prefiling meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request.
(F)The following statement: The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief.
(G)The following statement: The project proponent hereby requests that the state board or regional board review and take action on this water quality certification request within the applicable reasonable period of time.
(f)The reasonable period of time that the state board may act on a certification request is 60 days from the receipt of the request, unless that time period is extended as provided by this section. Before expiration of the 60-day period, the state board may request from the federal agency to which the project proponent has applied for a license or permit that is subject to Section 1341 of Title 33 of the United States Code written determination that a longer period, not to exceed one year, is reasonable for the state board to act.
(g)Notwithstanding any other law, failure or refusal to act on a certification request within the reasonable period of time waives the certification requirement for a license or permit.(h)(g)Any action by the state board to grant, grant with conditions, or deny a certification request shall be within the scope of certification, shall be completed within the reasonable period of time, and shall otherwise be in accordance with Section 1341 of Title 33 of the United States Code. Alternatively, the state board may expressly waive certification.
(i)(h)If the state board determines that a discharge from a proposed project will comply with water quality requirements, it may issue or waive certification. If the state board cannot certify that the discharge from a proposed project will comply with water quality requirements, it may deny or waive certification.
(j)(i)Any grant of certification shall be in writing and shall include a statement that the discharge from the proposed project will comply with water quality requirements.
(k)(j)Any grant of certification with conditions shall be in writing and shall for each condition include, at a minimum, all of the following:
(1)For certification conditions on an individual license or permit, a statement explaining why the condition is necessary to assure that the discharge from the proposed project will comply with water quality requirements and a citation to federal, state, or tribal law that authorizes the condition.
(2)For certification conditions on issuance of a general license or permit, a statement explaining why the condition is necessary to assure that any discharge authorized under the general license or permit will comply with water quality requirements, and a citation to federal, state, or tribal law that authorizes the condition.
(l)(k)Any denial of certification shall be in writing and shall include all of the following:
(1)For denial of certification for an individual license or permit:
(A)The specific water quality requirements with which the discharge will not comply.
(B)A statement explaining why the discharge will not comply with the identified water quality requirements.
(C)If the denial is due to insufficient information, the denial shall describe the specific water quality data or information, if any, that would be needed to assure that the discharge from the proposed project will comply with water quality requirements.
(2)For denial of certification for issuance of a general license or permit:
(A)The specific water quality requirements with which discharges that could be authorized by the general license or permit will not comply.
(B)A statement explaining why discharges that could be authorized by the general license or permit will not comply with the identified water quality requirements.
(C)If the denial is due to insufficient information, the denial shall describe the types of water quality data or information, if any, that would be needed to assure that the range of discharges from potential projects will comply with water quality requirements.
(m)(l)A certification denial shall not preclude a project proponent from submitting a new certification request, in accordance with the substantive and procedural requirements of this section.
(n)(m)As used in this section, the following definitions apply:
(1)Certification means a water quality certification issued in accordance with Section 1341 of Title 33 of the United States Code and this section.
(2)Certification request means a written, signed, and dated communication that satisfies the requirements of this section.
(3)Discharge means a discharge from a point source into a water of the United States.
(4)License or permit means any license or permit granted by an agency of the federal government to conduct any activity that may result in a discharge.
(5)Project proponent means the applicant for a license or permit or the entity seeking water quality certification.
(6)Proposed project means the activity or facility for which the project proponent has applied for a license or permit.
(7)Reasonable period of time means the time period during which the state board may act on a certification request, established in accordance with this section.
(8)Receipt means the date that a certification request is documented as received by the state board or regional board in accordance with applicable submission procedures set forth in this section.
(9)Water quality requirements means any applicable provisions of Sections 1311, 1312, 1313, 1316, and 1317 of Title 33 of the United States Code, and state or tribal regulatory requirements for point source discharges into waters of the United States.
The Legislature finds and declares the following:
(a)California is experiencing a housing supply crisis, with housing demand far outstripping supply. In 2018, California ranked 49th out of the 50 states in housing units per capita.
(b)Costs for construction of new housing continue to increase. Lengthy permitting processes and times to obtain approvals of housing projects, fees, and other regulatory requirements further exacerbate the cost of residential construction.
(c)The housing supply crisis also harms the environment by increasing pressure to develop the states farmlands, open space, and rural interface areas to build affordable housing, increasing impacts on wildlife and habitat, as well as increasing greenhouse gas emissions from longer commutes to affordable homes far from growing job centers.
(d)It is the intent of the Legislature by the amendment of Section 13160 of the Water Code to streamline the administrative process for water quality certifications, eliminate unnecessary delays, and provide for completion of the administrative process for water quality certifications within a reasonable period of time.
(e)It is the intent of the Legislature to provide the State Water Resources Control Board and nine regional water quality control boards with sufficient resources to complete the administrative process for water quality certifications within a reasonable period of time.
(f)It is the policy of the state that Section 13160 of the Water Code be interpreted and implemented in a manner to afford the highest priority and fullest possible weight to the interest of, and the approval and provision of, housing.
SEC. 2.Section 13160 of the Water Code is amended to read:13160.(a)The state board is designated as the state water pollution control agency for all purposes stated in the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and any other existing or subsequently enacted federal water quality control law.
(b)(1)The state board is authorized to give any certificate or statement required by any federal agency pursuant to the Federal Water Pollution Control Act or any other federal water quality control law that there is reasonable assurance that an activity of any person subject to the jurisdiction of the state board will comply with applicable requirements of that federal law or any other appropriate requirements of state law.
(2)The state board may issue the certificate or statement under paragraph (1) before completion of the environmental review required under Division 13 (commencing with Section 21000) of the Public Resources Code if the state board determines that waiting until completion of that environmental review to issue the certificate or statement poses a substantial risk of waiver of the state boards certification authority under the Federal Water Pollution Control Act or any other federal water quality control law. To the extent authorized by federal law, the state board shall reserve authority to reopen and, after public notice, an opportunity for comment, and, when appropriate, an opportunity for a hearing, revise the certificate or statement as appropriate to incorporate feasible measures to avoid or reduce significant environmental impacts or to make any necessary findings based on the information provided in the environmental document prepared for the project.
(c)The state board is authorized to exercise any powers delegated to the state and carry out any program a state is authorized to administer under the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and any amendments to that act. The state board may delegate its authority under this section to the regional boards. Reference to the state board in this section includes the regional boards as the context warrants.
(d)(1)At least 30 days before submitting a certification request, the project proponent shall request a prefiling meeting with the state board.
(2)The state board is not required to grant or respond to a prefiling meeting request.
(3)If the state board grants the prefiling meeting request, the project proponent and the state board shall meet, either in person or by telephone or other electronic means, and may discuss information related to the certification request for the proposed project, such as the nature of the proposed project, potential water quality effects, environmental review and approvals, if any, by other agencies, and the anticipated timeline for construction and operation of the proposed project.
(e)(1)A certification request for an individual license or permit shall contain all of the following information:
(A)The project proponent and a point of contact.
(B)Description of the proposed project.
(C)The applicable federal license or permit.
(D)The location and nature of any potential discharge that may result from the proposed project and the location of receiving waters.
(E)A description of any methods and means proposed to monitor the discharge and the equipment or measures planned to treat, control, or manage the discharge.
(F)A list of all other federal, interstate, tribal, state, territorial, or local agency authorizations required for the proposed project, including all approvals or denials already received.
(G)Documentation that a prefiling meeting request was submitted to the certifying authority at least 30 days before submitting the certification request.
(H)The following statement: The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief.
(I)The following statement: The project proponent hereby requests that the state board or regional board review and take action on this water quality certification request within the applicable reasonable period of time.
(2)A certification request for issuance of a general license or permit shall contain all of the following information:
(A)The project proponent and a point of contact.
(B)The proposed categories of activities to be authorized by the general license or permit certification request.
(C)A draft general license or permit.
(D)An estimate of the number of discharges expected to be authorized by the proposed general license or permit each year.
(E)Documentation that a prefiling meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request.
(F)The following statement: The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief.
(G)The following statement: The project proponent hereby requests that the state board or regional board review and take action on this water quality certification request within the applicable reasonable period of time.
(f)The reasonable period of time that the state board may act on a certification request is 60 days from the receipt of the request, unless that time period is extended as provided by this section. Before expiration of the 60-day period, the state board may request from the federal agency to which the project proponent has applied for a license or permit that is subject to Section 1341 of Title 33 of the United States Code written determination that a longer period, not to exceed one year, is reasonable for the state board to act.
(g)Notwithstanding any other law, failure or refusal to act on a certification request within the reasonable period of time waives the certification requirement for a license or permit.
(h)Any action by the state board to grant, grant with conditions, or deny a certification request shall be within the scope of certification, shall be completed within the reasonable period of time, and shall otherwise be in accordance with Section 1341 of Title 33 of the United States Code. Alternatively, the state board may expressly waive certification.
(i)If the state board determines that a discharge from a proposed project will comply with water quality requirements, it may issue or waive certification. If the state board cannot certify that the discharge from a proposed project will comply with water quality requirements, it may deny or waive certification.
(j)Any grant of certification shall be in writing and shall include a statement that the discharge from the proposed project will comply with water quality requirements.
(k)Any grant of certification with conditions shall be in writing and shall for each condition include, at a minimum, all of the following:
(1)For certification conditions on an individual license or permit, a statement explaining why the condition is necessary to assure that the discharge from the proposed project will comply with water quality requirements and a citation to federal, state, or tribal law that authorizes the condition.
(2)For certification conditions on issuance of a general license or permit, a statement explaining why the condition is necessary to assure that any discharge authorized under the general license or permit will comply with water quality requirements, and a citation to federal, state, or tribal law that authorizes the condition.
(l)Any denial of certification shall be in writing and shall include all of the following:
(1)For denial of certification for an individual license or permit:
(A)The specific water quality requirements with which the discharge will not comply.
(B)A statement explaining why the discharge will not comply with the identified water quality requirements.
(C)If the denial is due to insufficient information, the denial shall describe the specific water quality data or information, if any, that would be needed to assure that the discharge from the proposed project will comply with water quality requirements.
(2)For denial of certification for issuance of a general license or permit:
(A)The specific water quality requirements with which discharges that could be authorized by the general license or permit will not comply.
(B)A statement explaining why discharges that could be authorized by the general license or permit will not comply with the identified water quality requirements.
(C)If the denial is due to insufficient information, the denial shall describe the types of water quality data or information, if any, that would be needed to assure that the range of discharges from potential projects will comply with water quality requirements.
(m)A certification denial shall not preclude a project proponent from submitting a new certification request, in accordance with the substantive and procedural requirements of this section.
(n)As used in this section, the following definitions apply:
(1)Certification means a water quality certification issued in accordance with Section 1341 of Title 33 of the United States Code and this section.
(2)Certification request means a written, signed, and dated communication that satisfies the requirements of this section.
(3)Discharge means a discharge from a point source into a water of the United States.
(4)License or permit means any license or permit granted by an agency of the federal government to conduct any activity that may result in a discharge.
(5)Project proponent means the applicant for a license or permit or the entity seeking water quality certification.
(6)Proposed project means the activity or facility for which the project proponent has applied for a license or permit.
(7)Reasonable period of time means the time period during which the state board may act on a certification request, established in accordance with this section.
(8)Receipt means the date that a certification request is documented as received by the state board or regional board in accordance with applicable submission procedures set forth in this section.
(9)Water quality requirements means any applicable provisions of Sections 1311, 1312, 1313, 1316, and 1317 of Title 33 of the United States Code, and state or tribal regulatory requirements for point source discharges into waters of the United States.
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Date
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Status
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|---|---|
| Apr 26, 2022 | In committee: Set, second hearing. Hearing canceled at the request of author. |
| Apr 19, 2022 | Re-referred to Com. on E.S. & T.M. |
| Apr 18, 2022 | From committee chair, with author's amendments: Amend, and re-refer to Com. on E.S. & T.M. Read second time and amended. |
| Apr 6, 2022 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 10, 2022 | Referred to Com. on E.S. & T.M. |
| Feb 19, 2022 | From printer. May be heard in committee March 21. |
| Feb 18, 2022 | Introduced. To print. |
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