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California Governor Brown Signs Bill Authorizing Regional Water Boards to Order the Provision of Sewer Service to Disadvantaged Communities

California Governor Jerry Brown Jr. recently approved Senate Bill 1215 (SB 1215), to add Chapter 4.3 (commencing with § 13288) to Division 7 of the Water Code. SB 1215 authorizes Regional Water Quality Control Boards (RWQCBs) to order the provision of sewer service by a special district, city, or county to a disadvantaged community (as defined), under specified circumstances.

 

Background

Wastewater treatment in California centers on the collection, conveyance, treatment, reuse and disposal of the roughly 4 billion gallons of wastewater generated in the state each day. This process is conducted largely by public agencies, with the exception of a few privatized systems in places where a treatment plant is not feasible.

However, there remain parts of California that do not have access to a centralized wastewater system where, instead, septic systems treat and dispose of wastewater from residential, commercial or industrial facilities in primarily rural areas not served by community sewers.

 

Senate Bill 1215

SB 1215 expands the authority of the RWQCBs to include the authority to order a special district, city or county the provision of sewer serviceto all or a portion of a disadvantaged communitylocated within three miles of the public agency’s sewer system served by an inadequate onsite sewage treatment system, following making certain findings. The property owner of an affected residence may, under certain conditions, opt out of an order for the provision of sewer service for a maximum of five years by demonstrating to the RWQCB that the affected residence is served by an onsite sewage treatment system that has been installed no more than 10 years prior to the issuance of the order andthat the onsite sewage treatment system is not an inadequate onsite sewage treatment system pursuant to this bill.

 

 

Defining ‘Disadvantaged Community’, ‘Provision of Sewer Service’, and ‘Inadequate Onsite Sewage Treatment System’

The definition of these key terms helps determine the scope of the authority granted under this bill. These terms are defined as follows:

 

  • •‘Disadvantage community’ defines a disadvantaged community as ‘a community with an annual median household income that is less than 80 percent of the statewide annual median household income,’ the same as under Section 79505.5 of the Water Code.

 

  • ‘Provision of sewer service’ is specifically defined under SB 1215 to mean the provision of sanitary sewer service, including the collection or treatment of sewage, to a disadvantaged community by any of the following processes: (1) annexation (if the receiving sewer system is a special district); (2) extension of service (if the receiving sewer system is a city, county, or special district); or (3) additional sewer service provided within city, county, or special district boundaries.

 

  • An ‘inadequate onsite sewage treatment system’ is defined under the bill as an onsite sewage treatment system, including but not limited to ‘a septic tank, cesspool, leach field, and seepage pit’ that is ‘not operated by a local agency’ and that has the ‘reasonable potential’ to cause ‘a violation of water quality objectives, to impair present or future beneficial uses of water, or to cause pollution, nuisance, or contamination of waters of the state.’

 

SB 1215 does not require the RWQCB to determine whether all or a portion of the onsite sewage system in the disadvantaged community are inadequate onsite sewage treatment systems.

 

 

Procedures Required Prior to Ordering the Provision of Sewer Service

There are a number of actions that must be taken by a RWQCB before ordering the provision of sewer service, including holding at least one public meeting at the onset of the process, encouraging voluntary provision of sewer service and considering alternative enforcement remedies specified in the bill. Additionally, the RWQCB must consult with the appropriate Local Agency Formation Commission (LAFCO), the State Water Resources Control Board (SWRCB), and local public agencies with land use planning authority and environmental health oversight over the affected area.

Further, the RWQCB must provide the potential receiving sewer system and affected residents within the disadvantaged community, a notice giving them at least six months (unless a shorter period is justified) to negotiate annexation, extension of service, or another means of providing sewage service. The RWQCB must provide technical assistance during that time period and develop a financing package. Upon expiration of the deadline set in the notice, the RWQCB must again consult with the potential receiving sewer system and the affected residents, and review all comments received during the process, then make all the findings below before ordering the provision of sewer service.

 

 

Findings Required Following Completion of Procedures Prior to Ordering the Provision of Sewer Service

The RWQCB must make all of the following findings before ordering the provision of sewer service:

 

  • (i) One or more affected residences are served by an inadequate onsite sewage treatment system.

(ii) Reasonable efforts to negotiate voluntary provision of sewer service were made.

(iii) The provision of sewer service is appropriate and technically and economically feasible.

(iv) There is no pending local agency formation commission process that is likely to resolve the problem in a reasonable amount of time.

(v) The provision of sewer service is an effective and cost-effective means to address the inadequate onsite sewage treatment system.

(vi) The capacity of the proposed interconnection needed to accomplish the provision of sewer service designed to serve the disadvantaged community, as determined by the RWQCB.

 

The RWQCB will then have to hold a new public meeting, following notice, if six months or more have passed since the date of the public meeting held at the onset of the process.

 

 

Required Funding From the SWRCB; Limitations

Once the RWQCB issues an order requiring provision of sewer service, the SWRCB is required to make funds available, as necessary and appropriate and upon appropriation by the Legislature, to the receiving sewer system to cover specified costs and fees related to the provision of sewer service, including legal fees.

In addition, the SWRCB must ensure payment of standard LAFCO costs caused by the RWQCB’s order. The bill also provides that additional costs or fees related to provision of sewer service, including but not limited to other public works costs or upgrades, shall not be used to delay the provision of sewer service required by the order.

However, reimbursement under this bill is not required where the local agency has the authority to levy service charges, fees, or assessments sufficient to pay for the service mandated by this act, unless the Commission on State Mandates determines that other costs mandated by this bill are reimbursable. Any such determination must be made pursuant to the provisions of the state-mandated local costs as set forth in Part 7 (commencing with § 17500) of Division 4 of Title 2 of the Government Code.

 

 

Limitations on Sewer Charges by the Receiving Sewer System

One of the key provisions of SB 1215 is the limitation it imposes on the local agency that owns and operates the receiving sewer system in terms of its ability to impose or increase charges on existing customers and on the newly absorbed customers. Consistent with the requirements of Proposition 218, the local agency may not increase charges on existing customers solely as a consequence of the provision of sewer service, unless a corresponding benefit is received.

With regards to the newly absorbed customers, charges for sewer service imposed by the local agency may not exceed those necessary to provide the sewage service.

 

Conclusion and Implications

Senate Bill 1215 aims to assist underserved communities with essential and adequate sanitary sewer service. The bill, to a limited extent, mirrors the authority granted to the SWRCB to extend drinking water service to areas that do not have adequate safe water supply. However, many unanticipated practical complications in implementing this bill, including the limited capacity of existing and aging sewer systems, will undoubtedly come to light as the Regional

Water Quality Control Boards begin this process.

(Steve Anderson)