A COMPILATION OF STORMWATER AND OTHER RELATED WATER NEWS

By S. Wayne Rosenbaum & Aiko Osugi, Foley & Lardner LLP

NATIONAL NEWS

Daily Allocations for TMDLs – EPA Issues Clarification

(Water Quality News Flash) December 18, 2006 – Total maximum daily loads

(TMDLs) allocate “safe” or acceptable amounts of pollutant to those discharging

wastewater, including storm water, to pollutant impaired (303 (d) listed) waters.

Earlier this year, a Federal Appeals Court determined that “daily” in TMDL means

“every day.” This decision created a potential obstacle to the program since some

TMDLs have allocations set on longer intervals including annually or even 5-year

running averages. A daily allocation often would not be practical, especially for

intermittent discharges such as storm water.

EPA has now released a memo to resolve the issue. EPA states that all TMDLs need

daily limits, but should be flexible in how these limits are implemented. EPA has

also concluded that changes are not needed in existing policy and guidance. In

related news, EPA argued that the appeals court decision should not be reviewed by

the U.S. Supreme Court. The Washington DC Water and Sewer Authority is seeking

a review of the decision which they view as placing an unnecessary burden on

wastewater utilities. EPA reportedly believes it can work around the appeals court

decision and is concerned that Supreme Court involvement might result in a major

overhaul of the TMDL program. EPA:

http://www.epa.gov/owow/tmdl/dailyloadsguidance.html

GOP Misses Chance to Reshape Environmental Laws

(Calcoast Update) December 22, 2006 – If ever there was a Congress in which

Republicans were positioned to remake the nation's environmental laws, it was

A Foley & Lardner Information Bulletin December 29, 2006

For more information on the matters discussed in this issue of the Stormwater News please contact the following Foley & Lardner LLP professional, or the member of the firm who normally handles your legal matters.

P S. Wayne Rosenbaum

Foley & Lardner LLP 402 West Broadway Suite 2300 San Diego, CA 92101 Phone: 619.685.6413 Fax: 619.234.3510 srosenbaum@foley.com

P Aiko Osugi Foley & Lardner LLP 402 West Broadway Suite 2300 San Diego, CA 92101 Phone: 619.685.4622 Fax: 619.234.3510 aosugi@foley.com

To learn more about how Foley can help your company visit our website at Foley.com.

To receive other e-mail newsletters like this one that cover topics that are important to you and your business, please join the Foley & Lardner newsletter distribution list.

the 109th. But by the time the session ended last week, the GOP's environmental agenda had been largely thwarted.

http://www.calcoast.org/news/cpr0061215.html

Role Model - Boxer to Call State Leaders to Testify on Warming Law

(San Francisco Chronicle) Sen. Barbara Boxer, the soon-to-be chairwoman of the Senate Environment and Public Works

Committee, said Tuesday she will ask Gov. Arnold Schwarzenegger and two Democratic state lawmakers to testify about why

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Congress should pass federal legislation modeled on California's landmark law to combat global warming.

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2006/12/06/MNGQRMQ5K91.DTL&type=politics

Revisiting Miccosukee: Court Rules NPDES Permits Required for Water Transfers

(Marten Law Group) December 20, 2006 – Last week, in a Clean Water Act case with national implications, a federal district

court judge in Florida rejected EPA's Proposed Water Transfer Rule exempting such transfers from the NPDES program. The

court held in Friends of the Everglades v. South Florida Water Management District ("Miccosukee II") that the South Florida Water

Management District ("SFWMD") must obtain a National Pollution Discharge Elimination System ("NPDES") permit in order to

continue "back-pumping" water from canals into Lake Okeechobee for flood control and water supply augmentation. Full Article

Supreme Court Considering Whether to Review TMDL Case Imposing Daily Discharge Limits

(Marten Law Group) December 20, 2006 – The Environmental Protection Agency ("EPA") and Friends of the Earth have filed

separate briefs opposing a petition for certiorari to the U.S. Supreme Court of a controversial D.C. Circuit Court decision

requiring EPA to set Clean Water Act ("CWA") total pollutant discharge limits for impaired waterways on a daily, rather than

seasonal or annual, basis. EPA urged the Supreme Court to decline review in light of the decision's limited geographic scope

(the District of Columbia) and EPA's newly issued policy guidance addressing TMDLs. Full Article

Lawsuit Filed to Protect Sea Lion Habitat

(Calcoast Update) December 22, 2006 – The Center for Biological Diversity filed a lawsuit in federal district court in

Washington, D.C., challenging the Bush administration's refusal to designate critical habitat for Sea Otters in Alaska.

A copy of the complaint and more information on the sea otter is available on the Center for Biological Diversity's web site at

www.biologicaldiversity.org/swcbd/species/otter/.

Lawmaker Says He Doesn't See Major Changes for Endangered Species Act

(Calcoast Update) December 22, 2006, WASHINGTON — "It's not my plan to engage in any wholesale renovation or

reformulation of the ESA," Rep. Nick Rahall, D-W.Va., said Friday. "I don't envision that major effort will be made in the next

Congress." http://www.calcoast.org/news/cpr.htm

RECLAIM AND DESAL

Orange County Desal Lawsuit Thrown Out – Activists Alleged that City's Approval of Poseidon Resources Project Was

Improper

(OC Register) An Orange County judge has tossed out a lawsuit by environmental activists against the city of Huntington Beach,

alleging its approval of a proposed $250 million desalination plant was improper. Superior Court Judge David C. Velasquez

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ruled Monday that the city had conducted a proper review of the potential environmental effects of a proposal by Poseidon, Inc.,

to build a seawater desalination plant that would produce as much as 50 million gallons of drinking-water per day.

Long Beach Desal Patent Approved After Four Years – 'Long Beach Method' Offers Two-Step Filtration Process

(Long Beach Press) The city's desalination process, developed by engineers at the Water Department, received a patent number

on Wednesday from the U.S. Patent and Trademark Office. The news came sooner than expected and more than four years after

the department filed for a patent, which protects the technology from unlicensed users.

CALIFORNIA NEWS

303(d) List – 2006 List Partially Approved; Data Requested for 2008 List

(Water Quality News Flash) December 18, 2006 – The 2006 303(d) list of polluted waterways was adopted by the State Board

this past October and has now been partially approved by U.S. EPA. TMDLs must be prepared for the waters and pollutants on

the list (except for waterway segments already being addressed). EPA approved all the listings except for Walnut Creek Wash

toxicity, which they are still evaluating. EPA also continues to evaluate the State’s de-listings. In the past, EPA has added

waterway/pollutant combinations to the list and may do so again. The 2002 list is no longer in effect. 2006 list:

http://www.swrcb.ca.gov/tmdl/303d_lists2006.html

The State Board has now requested data for evaluation for the 2008 list. This data should be submitted to the Regional Boards

rather than to the State Board and is due by February 28, 2007. The Boards are requesting not only data showing that

standards are not met, but also data showing attainment of standards. All the data will be used in compiling a statewide water

quality assessment. Posted: http://www.waterboards.ca.gov/tmdl/integrated2008.html

Governor Schwarzenegger Announces Regional Water Quality Control Board Appointments

(December 21, 2006) Governor Arnold Schwarzenegger today announced the following appointments:

Fred Ameri, 66, of Newport Beach, has been appointed to the Santa Ana Regional Water Quality Control Board. He was first

appointed to the Board in 1999 and has served as senior vice president for the planning and civil engineering consulting firm

RBF Consulting since 1968. Ameri serves on the Board of Directors for the American Red Cross Orange County Chapter and

Board of Governors for the California Wetlands Recovery Project. He is also a member of the Governmental Affairs Committee

for the Building Industry Association and Orange County Transportation Authority Advisory Committee, and is past chair and

member of the World Affairs Council of Orange County. This position requires Senate confirmation and the compensation is

$100 per diem. Ameri is a Republican.

David King, 36, of San Diego, has been appointed to the San Diego Regional Water Quality Control Board. Since 2004, he has

owned the Law Office of David King where he serves as corporate counsel to local San Diego businesses. From 2002 to 2004,

© 2006 Foley & Lardner LLPPage 4 of 14

King was a deputy city attorney for the San Diego City Attorney’s Office. Previously, he was an associate for the law firms Wilson,

Sonsini, Goodrich and Roasti from 1999 to 2001 and Sidley, Austin, Brown and Wood from 1996 to 1999. This position requires

Senate confirmation and the compensation is $100 per diem. King is a Republican.

Terry Young, Ph.D., 55, of Oakland, has been appointed to the San Francisco Bay Regional Water Quality Control Board. She

has been an environmental science consultant since 1983, with her primary client being the national nonprofit organization

Environmental Defense. Young previously was acting executive director for the Aquatic Habitat Institute from 1985 to 1986 and

a research assistant for the department of plant and soil biology at the University of California, Berkeley from 1976 to 1983.

Prior to that, she was a lecturer in the department of conservation and resources studies at the University of California, Berkeley

from 1978 to 1979 and worked for the Office of Toxic Substances in the U.S. Environmental Protection Agency from 1973 to

1976. This position requires Senate confirmation and the compensation is $100 per diem. Young is a Democrat.

Six Names Are Put in Coastal Panel's Hat

(Calcoast Update) December 22, 2006 – Six city council members in the county have been nominated to replace former Chula

Vista Mayor Steve Padilla on the California Coastal Commission. http://www.calcoast.org/news/coast.htm

Congress OKs Bill to Speed Lining of All-American Canal

(Calcoast Update) December 22, 2006 – A long-planned water conservation project in Imperial County that would boost San

Diego County's future supply but decrease that of Mexicali farmers has been ordered completed “without delay” by Congress.

http://www.calcoast.org/news/waterq.htm

Water War Along Mexico-California Border Sparked by Proposed Improvements to Canal

(Calcoast Update) December 22, 2006, SAN FRANCISCO — Government lawyers are urging a federal appeals court to allow a

section of a canal separating California and Mexico to be lined with cement to stop millions of gallons of water from seeping

south of the border each year. http://www.calcoast.org/news/waterq.htm

Watershed moment? – Water quality boards a test of governor's 'green' image

(San Diego Union-Tribune) Arnold Schwarzenegger's self-styled reputation as a “green” governor is under scrutiny again as he

selects leaders for water quality agencies statewide. The appointees are virtually invisible to most people, but the panels they

serve on are battlegrounds for regulations, penalties and permits that affect California's waterways.

Big Storm Could Fizzle into Drizzle

(Calcoast Update) December 22, 2006 – The larger question is whether a wet El Niño winter is in store. Experts' opinions vary.

http://www.calcoast.org/news/coast.htm

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Emerging Issue – Pharmaceuticals and Personal Care Products in the Environment

Detection of pharmaceuticals and personal care products in the environment is an issue of emerging concern across the nation

and around the world. It's a complex issue that is compounded by the fact that there are very diverse sources for these

chemicals. We use pharmaceuticals every day in so many ways...from prescription and over-the-counter drugs to diagnostic

agents, nutritional supplements, and other consumer products such as fragrances, cosmetics, and sun-screen agents. We

swallow them, rub them on our skin, have them injected or administer them to our pets. And finally, many of these chemicals

are ending up in the environment from various routes, including sewage and from past and present disposal practices.

So why is this a problem? The U.S. Geological Survey has reported that pharmaceutical wastes (such as prescription and

nonprescription drugs, antibiotics, and hormones) have been detected in water samples downstream from urban areas and

livestock holding areas. This is a concern for several reasons. One is the potential risk to fish and other aquatic organisms from

continual exposure to low concentrations of these chemicals. Another concern is the potential impact on human health from

consumption of water containing trace concentrations of these compounds. Right now there are many unknowns regarding the

impacts of these chemicals at the concentrations detected.

DTSC intends to explore the many levels of this very complex problem...from potential environmental and human health

impacts...to pollution prevention and disposal considerations...to how to regulate and oversee management of these wastes.

And we invite you to join us in this effort. For more information on Pharmaceutical Waste and DTSC`s activities in this area,

please visit the DTSC website at http://www.dtsc.ca.gov/HazardousWaste/Pharmaceutical.cfm.

DTSC is planning to hold a full-day Pharmaceuticals and Personal Care Products (PPCPs) Symposium in June 2007 at the

Cal/EPA building in Sacramento. Please check the DTSC Pharmaceutical Waste webpage in the coming months for more

information.

California Needs Plan for Spending Flood Money, Official Says

(CBIA News Summary) December 13 2006 – California should create a long-term plan to spend the nearly $5 billion in flood-

control bonds approved in November so it doesn't squander the money, Department of Water Resources Director Lester Snow

said Tuesday. "The point is, we can waste this money," Snow said during the first in a series of meetings designed to determine

how best to spend the voter-approved windfall. "We need to implement programs right now, but we need to be mindful of

developing a long-term plan." The money comes from two water bonds on the Nov. 7 ballot. Proposition 1E was sponsored by

the Legislature and governor and is intended to strengthen the state's fragile levee system. Proposition 84 was a water bond

promoted by conservation groups that will provide $800 million for flood control, along with billions more for programs to

improve water quality. In writing Proposition 1E, lawmakers gave very little direction on when and how the $4.1 billion levee

bond should be spent, according to an examination last summer by The Associated Press. That could lead to a politicized

atmosphere in which lawmakers seek money for projects in their own districts, regardless of need. Housing developers also

© 2006 Foley & Lardner LLPPage 6 of 14

might profit by selling land to the state – paid through bond money – in return for not building in floodplains.

http://www.modbee.com/state_wire/story/13105812p-13755143c.html

Environmental Justice Land-Use Rules Proposed for Sacramento

(Monday Morning Report) December 18, 2006 – The Sacramento Air Quality Management District (SAQMD) will be the first local

jurisdiction in the state to move forward with plans to implement a state-backed land-use and development protocol – designed

to promote "environmental justice" – which will mean, for example, no new housing within 500 feet of major roadways. The

proposed action by the SAQMD, stems from an environmental justice handbook published in April of 2005 by the California Air

Resources Board (CARB). The CARB handbook was designed, fundamentally, to direct land-use decision-making on the basis of

its impact on "sensitive" populations. CBIA opposed the CARB handbook when it was published. The North State BIA is

preparing to challenge the SAQMD plan. A hearing before the SAQMD Board is expected sometime in mid-January.

Brake Pads and Copper – Caltrans Supporting Watershed Modeling

(Water Quality News Flash) December 8, 2006 – The Brake Pad Partnership is investigating the possible impacts on water

quality of copper used in brake pads. The BPP has completed eight scientific reports to support interlinked air and watershed

modeling of the environmental fate of copper from brake pad wear debris. (Some effort has also gone into analyzing other

constituents of brake pads including iron, which is a critical concern in runoff in the Lake Tahoe basin.) Caltrans has stepped in

to support the next phase which is watershed modeling to better define how the copper residues make their way into receiving

waters. This modeling will look at all sources including brake pads, “architectural” copper, disinfectants, etc. A draft modeling

report is due next summer and a final by year end.

Air deposition modeling indicates that brake pad copper spreads in urban watersheds due to aerial dispersion and re-

suspension of the fine particles that wear off brake pads during use. Aerial deposition of brake pad copper is primarily a

localized phenomenon related to traffic levels in a watershed and is not readily captured by traditional air quality monitoring

methods. Copper from brake pads dissolves relatively easily in the environment and appears to be the largest source of copper

in urban runoff. Copper is one of the constituents of urban runoff that most consistently exceeds water quality objectives at the

point of discharge, however, it is less certain that these exceedances translate into water quality impacts at least in some waters

(see NewsFlash 06-49). Several California TMDLs target copper together with other metals.

Brake pad manufacturers working with the BPP have agreed to voluntarily introduce new products within five years if brake pad

wear debris is found to be a significant cause of surface water impairment. Unfortunately, copper use in brake pads on new

cars increased about 60 percent from 1998 to 2004 due to formulation changes to meet new vehicle safety standards.

Currently, all manufacturers participating in the BPP have research programs to develop pads with low or no copper. At least

one manufacturer makes heavy metal-free replacement brake pads; however, it is not known (due to trade secret protections) if

any low/no-copper pads are used in new cars. BPP Fall Update with summary of studies and future plans:

© 2006 Foley & Lardner LLPPage 7 of 14

http://www.suscon.org/brakepad/pdfs/UpdateFall2006.pdf Additional BPP information and reports:

http://www.suscon.org/brakepad/; Similar studies are being done in Europe due to water quality concerns as well as concerns

that roadside copper may build up to levels affecting soil biota: www.mai.liu.se/ties2006/tb/BergbackTIES2006.ppt

Caltrans District Stormwater Contacts – Listed on Website

(Water Quality News Flash) December 8, 2006 – The Caltrans site lists the District storm water contacts as well as HQ staff

involved in production of the SWMP, public outreach, and other management functions:

http://www.dot.ca.gov/hq/env/stormwater/contact/index.htm

Pesticides Sprayed on Waterways – EPA Issues Final Regulations: CA Policy Not Finalized

(Water Quality News Flash) December 26, 2006 – In 2001, a federal appeals court decision (Headwaters, Inc. v. Talent Irrigation

District) determined that NPDES permits are needed whenever herbicides or other pesticides are applied directly to waterways

that may contact “waters of the U.S.” Storm water system managers sometimes need to apply chemicals to waterways to

control mosquitoes or to clear clogged drainage ditches. The SWRCB responded to the court decision with a statewide general

permit which was subsequently replaced by two statewide NPDES permits: Discharges of Aquatic Pesticides for Vector Control (WQ

Order 2004-0008-DWQ) and Discharge of Aquatic Pesticides for Aquatic Weed Control (WQ Order 2004-0009-DWQ). Both permits

are currently in effect.

U.S.EPA has taken a different approach and has previously issued guidance concluding that application of a pesticide to U.S.

waters, consistent with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), does not constitute a discharge of a

pollutant under the Clean Water Act in specified circumstances and therefore does not require a permit. EPA has now issued

final regulations stating that pesticide use in compliance with FIFRA does not require an NPDES permit in two specific

circumstances:

1. the pesticide is applied directly to waters of the U.S. to control pests present in the water.

2. the pesticide is applied to control pests that are over, including near, waters of the U.S.

The State Board is currently formulating a response to the new EPA regulations. In comments sent in 2005 to EPA, the State

said: “The Clean Water Act’s mandate to ‘restore and maintain the chemical, physical, and biological integrity of the nation’s

waters’ is not qualified by the suffix: ‘unless the impaired integrity was caused by properly applied product.’” In addition, on

Dec. 12, Baykeeper, along with five other groups, filed suit in the U.S. Court of Appeals, Ninth Circuit, to overturn the new

regulations. Caltrans staff with questions should contact their District Division of Maintenance Landscape Specialist. Issues

requiring further inquiry should be directed to the Headquarters Division of Maintenance Landscape Program Administrator.

EPA regulation: http://www.epa.gov/fedrgstr/EPA-PEST/2006/November/Day-27/p20002.htm . Those applying pesticides to

waterways should check the State website for updates: http://www.swrcb.ca.gov/npdes/aquatic.html

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Los Angeles Storm Water Permit – Appeals Court Reverses Itself: Environmental Documentation Not Required

(Water Quality News Flash) December 26, 2006 – NewsFlash 06-42 noted the long-running litigation by 32 LA area cities, the

county, and others against the 2001 MS4 storm water permit issued by the Los Angeles Regional Board. In October, 2006, a

California Appeals Court ruled against the challengers on most points but did require the Regional Board to set aside the 2001

permit and conduct a limited California Environmental Quality Act review. In November, the Appeals Court modified its opinion

and determined that an environmental review is not needed. A requirement to assess environmental impacts of municipal storm

water permits (as well as other NPDES permits) could have led to significant delays in issuing permits. Original opinion:

http://www.courtinfo.ca.gov/opinions/documents/B184034.PDF Order modifying original opinion:

http://www.courtinfo.ca.gov/opinions/documents/B184034M.PDF

SOUTHERN CALIFORNIA

Water Battle – Congress OKs Bill to Speed Lining of All-American Canal

(San Diego Union-Tribune) A long-planned water conservation project in Imperial County that would boost San Diego County's

future supply but decrease that of Mexicali farmers has been ordered completed “without delay” by Congress.

ALSO: Congress jumps into canal-lining controversy

International water rights case along border heats up

Pollution Shield – Penalty Waivers Allow the Military to Skirt Hefty Fines

(San Diego Union-Tribune) When Navy officials announced in mid-November that they inadvertently piped 14.2 million gallons of

sewage into a tributary of San Diego Bay, water-quality regulators were aghast. … [But] thanks to an age-old legal theory and

inaction by Congress, the military and other federal agencies can sidestep fines for violating the Clean Water Act of 1972.

Surf Test – Beach Water Study Supports Warnings

(San Diego Union-Tribune) New research shows that surfers and other beachgoers should take beach contamination warnings

seriously, especially if they're anywhere near the U.S.-Mexico border.

Tribes Get Seat on SANDAG

(Calcoast Update) December 22, 2006, SAN DIEGO – San Diego County Indian tribes are going to get a voice next year, although

not a vote, on a regional board that plans for future growth and builds urban highways. http://www.calcoast.org/news/cpr.htm

State's Role in O.C. Project is Challenged

(Calcoast Update) December 22, 2006 – A state Coastal Commission decision to classify two Laguna Beach drainage ditches as

waterways subject to environmental protection is being challenged in a lawsuit by a Catholic school that wants to build a bigger

school on its campus. http://www.calcoast.org/news/coast.htm

© 2006 Foley & Lardner LLPPage 9 of 14

Agency Explores Quality-of-Life Tax

(Calcoast Update) December 22, 2006, SAN DIEGO – Regional planners are polling San Diego County residents to see if they

would support a special "quality of life" tax to fund beach-sand replenishment, open-space purchases, habitat restoration and

water-quality programs, an agency official said Thursday. http://www.calcoast.org/news/coast.htm

Tidy Up, or Else – Complaints Spur Cleanup at Oceanside Industrial Park

(North County Times) Spurred on by a relentless neighborhood activist, the city has warned several businesses on and around

Industry Street that they need to clean up their operations, especially those that could threaten nearby Loma Alta Creek, or face

citations.

Pollution Paradox – Imperial Beach Can't Shake Its Dirty-Water Image

(Voice of San Diego) The Tijuana Estuary spreads into the milky, moonlit distance like waves of crushed velvet. … The sewage-

and pesticide-tainted water pollution that plagues Imperial Beach didn’t keep Scott Ketcham from buying a home, but it keeps

him wary.

Foul Bloom – Cluster of Decomposing Algae Stinks up Lake Hodges

(San Diego Union-Tribune) An unseasonally large algae bloom is causing fish to die at Lake Hodges and putting out a foul odor.

The algae cluster has caused the Santa Fe Irrigation District to stop drawing until the bloom dissipates and the water returns to

its more natural condition.

Residents Question Corps' River-Clearing Plan

(Cal Coast Update) December 7, 2006, OCEANSIDE – Timing and the possibility of debris on the city's beaches were the top

concerns for a handful of homeowners who attended a downtown Oceanside meeting Thursday night to hear about the Army

Corps of Engineers' plans for the San Luis Rey riverbed. http://www.calcoast.org/news/waterq.htm

Habitat Board OKs Preserving 4,000 Acres

(CBIA News Summary) December 5, 2006 – Western Riverside County leaders on Monday voted to preserve 4,000 acres of open

space in and around Murrieta for endangered species but to allow for possible development on the reserve's edges, despite

objections from conservationists. The 15-2 vote by the Western Riverside County Regional Conservation Authority came after

Mike Allen, director of UC Riverside's Center for Conservation Biology, explained that patches of protected habitat should be

carved out between any development that may be approved on the borders. The number and location of the so-called

steppingstones should allow wildlife to live in them and to travel from the preserved area known as Core 2 to established

reserves around Lake Skinner east of Temecula and Diamond Valley Lake near Hemet, Allen said.

http://www.pe.com/localnews/inland/stories/PE_News_Local_D_habitat05.3a60f33.html

© 2006 Foley & Lardner LLPPage 10 of 14

ANNOUNCEMENTS

25th Annual Water Law Conference: Changing Values, Changing Conflicts

February 22-23, 2007, San Diego, CA – Hotel del Coronado

Click Here to Register

The 25th Anniversary Water Law Conference will focus on the changing values for water use and the resulting changes in legal

conflicts over water. The conference includes speakers and panels reflecting the broad diversity of issues and perspectives on

the most challenging issues now facing the water law community. Speakers will discuss past, present and anticipated future

changes and trends in water law, and how those changes will affect your practice.

The conference will open with perspectives on the changing nature of water conflicts and the most significant trends over the

last 25 years, from water law luminaries of the last quarter century. After a rousing debate about changes in how courts defer to

agency determinations, particularly in light of the 2006 Rapanos decision, panels will examine more closely certain critical

issues now facing the water law community – from instream use and conflicting sovereigns to international conflicts and

conservation. Friday morning will address emerging issues that will change the nature of water law practice in the next quarter

century, including water quality issues arising out of inter-basin transfers, resolution of water rights conflicts, and the dynamic

relationship between water law and science. The conference will close with a special “Hot Topics” lunch on climate change and

how it may affect water law practice, including a presentation on California’s recent efforts to assess how its water policy may

need to change to address global warming.

This year’s conference also offers two early morning panels – one on water law fundamentals to help those new to the water law

field, and one on the ethics of ex parte contacts in a world where water conflicts are now often resolved outside formal

adjudications.

In Case You Missed It…

Foley & Lardner's Environmental Regulation Practice recently hosted its December 14, 2006 session in the 2006 Environmental

Law Update Web Conference Series. Topics covered in this session included:

g New Democratic Congress – Old Republican Administration

New committee chairs in both houses are promising a vigorous commitment to climate change legislation and greatly

increased oversight over EPA programs. What to expect from the new Congress on climate change and other key

environmental issues.

g Waste Electronics

Update on state regulation of waste electronics disposal and recycling.

© 2006 Foley & Lardner LLPPage 11 of 14

g 2007 Hot Topics – Redevelopment and Remediation

Recent trends and success stories.

If you missed the Web Conference and are interested in reviewing the PowerPoint, a PDF version can be found on Foley's

website. Once on the event site, click on "Presentation Materials" located in the right column under Event Materials to download

a copy.

If you have questions on the content of the December 14 Web Conference or would like to suggest a topic to be covered in the

next session, please contact any of the speakers (contact information provided in the event materials).

Please mark your calendar and watch for additional information to reach you regarding our 2007 Environmental Web Conference

Series. The dates are April 19, July 19 and October 18, 2007. The sessions are scheduled to begin at 11:30 a.m. Central and

last approximately one hour. If you would like to pre-register for these sessions to ensure your participation, please email your

registration information, including your name, company name, job title, company address, phone number and email address to

eharris@foley.com. As a reminder, Foley will apply for CLE credit after the session.

For more information on the group and each attorney's specific areas of practice, please visit Foley.com/environmental.

Paying for Sustainable Water Infrastructure Conference

This will be the first national conference to address the challenge of integrating the diverse tools and strategies to pay for

sustainable water infrastructure. Conference will be held on March 21-23, 2007 at the Hilton Atlanta in Atlanta, Georgia.

http://www.payingforwater.com/

The International Erosion Control Association (IECA) Invites You to Their Annual Conference & Expo, EC07, in Reno, Nevada,

February 12 – 15, 2007. Click here to register.

U.S. EPA Watershed Planning Workshop

Watershed Planning: A Workshop on Developing and Implementing Plans To Improve Water Quality – January 24-25, 2007

Doubletree Hotel & Conference Center, Berkeley Marina, 200 Marina Boulevard Berkeley, California 94710

The U.S. Environmental Protection Agency Region 9 office in San Francisco is sponsoring a workshop for federal, state, tribal,

and local representatives to promote the development and implementation of watershed plans that improve water quality and

meet federal and state requirements.

This workshop will examine the watershed planning process, focusing on how to achieve more significant water quality

improvements through quantification of pollutant loads and provide for ongoing implementation. The workshop will also address

how watershed planning can integrate related water quality efforts such as TMDLs and source water protection, along with other

natural resource and community needs.

© 2006 Foley & Lardner LLPPage 12 of 14

This workshop is intended for watershed managers and representatives, public agency staff, local planners, and others active in

the water resource planning field.

For registration information and complete workshop details, please view the workshop brochure at

http://www.waterboards.ca.gov/watershed/docs/wtrshed_plan_wkshp_sf_jan07.pdf. For you convenience, one is also attached

to this email in PDF format.

Water Board's Water Quality Monitoring Program (SWAMP) Publishes Fact Sheets & Assessment Report

The State Water Board's water quality monitoring program, SWAMP, the Surface Water Ambient Monitoring Program, has

published two water quality fact sheets on streams and coastal estuary waters. SWAMP has also published the Clean Water Act

(CWA) assessment of the quality of the State's coastal waters and wadeable streams (CWA Section 305(b)) report.

The two fact sheets summarize some of the information in the assessment or 305(b) report. The first fact sheet summarizes

monitoring results which suggest that nearly 70 to 80% of our perennial wadeable streams are in good condition. The second

fact sheet summarizes monitoring which indicates most of our coastal estuaries are in fair to good condition.

These fact sheets can be viewed on our website at: http://www.waterboards.ca.gov/swamp/factsheets.html.

The water quality assessment or 305(b) report can be viewed on our website at:

http://www.waterboards.ca.gov/swamp/reports.html.

SWAMP provides a statewide framework to coordinate high quality and consistent scientific methods and design strategies to

improve surface water monitoring, assessment, and reporting. SWAMP provides partnerships to foster collaboration, advance

scientific methods, and improve management within all elements of the water quality monitoring community.

SWAMP also heightens public awareness and understanding, as well as increasing public involvement and stewardship of our

water resources.

For more information on the SWAMP program, please visit our website at: http://www.waterboards.ca.gov/swamp/index.html.

For more information on our/your Citizen (Volunteer) Monitoring Program, or Clean Water Team, please visit this website at:

http://www.waterboards.ca.gov/nps/volunteer.html.

LEGISLATION

CA AB 19

Author: DeVore (R)

Title: Water Quality: Santa Ana Region

Introduced: 12/04/2006

© 2006 Foley & Lardner LLPPage 13 of 14

Location: ASSEMBLY

Summary: Establishes the Santa Ana Regional Water Quality Improvement Project and the Santa Ana Regional Water

Quality Improvement Board. Authorizes a city or county to allow a discharger within its jurisdiction, upon the request of the

discharger, to become subject to regulation by the Santa Ana Regional Water Quality Improvement Board. Authorizes the

developer of a development project to agree to pay a fee to the appropriate city or county, based on the acreage and density of

the proposed development project.

STATUS: 12/04/2006 INTRODUCED.

ab19.pdf (153 KB)

CA SB 8

Author: Kuehl (D)

Title: California Bay-Delta Authority Act

Introduced: 12/04/2006

Location: SENATE

Summary: Requires the California Bay-Delta Authority to carry out programs and commitments that address the goals and

objectives of the CALFED Bay-Delta Programmatic Record of Decision. Provides that environmental justice is among the

prescribed program elements.

Status: 12/04/2006 INTRODUCED.

sb8.pdf (144 KB)

CA SB 27

Author: Simitian (D)

Title: Clean Drinking Water: Water Supply Security

Introduced: 12/04/2006

Location: SENATE

© 2006 Foley & Lardner LLPPage 14 of 14

Summary: Enacts the Clean Drinking Water, Water Supply Security, and Environmental Improvement Bond Act of 2007

which, if approved by the voters would authorize, for purposes of financing a water conveyance and environmental

improvement program, the issuance, pursuant to General Obligation Bond Law, of bonds.

Status: 12/04/2006 INTRODUCED.

sb27.pdf (267 KB)

Foley & Lardner LLP bulletins are intended to provide information (not advice) about important new legislation or legal developments in

the Stormwater area. The great number of legal developments does not permit the issuing of an update for each one, nor does it allow

the issuing of a follow-up on all subsequent developments. This newsletter is not legal advice and should not be construed as legal

advice. If you need legal advice please contact your attorney.

Internal Revenue Service regulations generally require that, for purposes of avoiding United States federal tax penalties, a taxpayer may

only rely on formal written opinions meeting specific requirements described in those regulations. This newsletter does not meet those

requirements. To the extent this newsletter contains written information relating to United States federal tax issues, the written

information is not intended or written to be used, and a taxpayer cannot use it, for the purpose of avoiding United States federal tax

penalties, and it was not written to support the promotion or marketing of any transaction or matter discussed in the newsletter.

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WASHINGTON DC

california legislature—2007–08 regular session

ASSEMBLY BILL No. 19

Introduced by Assembly Member DeVore

December 4, 2006

An act to add and repeal Section 13228.5 of the Water Code, relatingto water quality.

legislative counsel’s digest

AB 19, as introduced, DeVore. Water quality: Santa Ana region.Under existing law, the State Water Resources Control Board and

the nine California regional water quality control boards, including theSanta Ana Regional Water Quality Control Board (regional board),regulate water quality in accordance with the Porter-Cologne WaterQuality Control Act (the act) and the federal Clean Water Act.

This bill would establish the Santa Ana Regional Water QualityImprovement Project and the Santa Ana Regional Water QualityImprovement Board, which would be comprised of specified members,for the purposes of carrying out the act. The bill would authorize a cityor county to allow a discharger within its jurisdiction, upon the requestof the discharger, to become subject to regulation by the Santa AnaRegional Water Quality Improvement Board in lieu of the regionalboard for purposes of the act.

The bill would establish the Santa Ana Regional Water QualityImprovement Fund and would authorize the developer of a developmentproject, if the developer has become subject to regulation by the SantaAna Regional Water Quality Improvement Board, to agree to pay a feeto the appropriate city or county, based on the acreage and density ofthe proposed development project, for deposit in the fund. The billwould authorize the Santa Ana Regional Water Quality Improvement

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Board, upon appropriation by the Legislature, to expend funds in thefund for research relating to urban runoff to be conducted by certaineducational institutions, as specified, for formulation of mitigationmeasures for proposed development projects, and for mitigation projectsthat are approved by that board for the purposes of improving waterquality within the region, including projects to mitigate the impacts ofurban runoff.

The bill would require the Santa Ana Regional Water QualityImprovement Board to prepare and submit to the Legislature, not laterthan December 31, 2010, a report that describes the implementation ofthese provisions and the extent to which dischargers have becomesubject to the jurisdiction of that board, and that includes relatedrecommendations.

The provisions of the bill would be repealed on January 1, 2013.Vote: majority. Appropriation: no. Fiscal committee: yes.

State-mandated local program: no.

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

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SECTION 1. (a)  For the purposes of this section, “regionalboard” means the Santa Ana Regional Water Quality ControlBoard.

(b)  The Legislature finds and declares all of the following:(1)  The primary duty of the regional board is to protect the

quality of the waters within its jurisdiction for all beneficial usesin accordance with the Porter-Cologne Water Quality Control Act(Division 7 (commencing with Section 13000) of the Water Code)and the Clean Water Act (33 U.S.C. Sec. 1251 et seq.).

(2)  This duty is implemented by, among other actions,formulating and adopting water quality control plans on behalf ofsurface water and groundwater within the regional board’sjurisdiction and by prescribing and enforcing waste dischargerequirements.

(3)  Experience has shown that the permitting requirementsestablished by the regional board unintentionally cause delays andadd significant costs to housing and commercial developmentwithin the region and these requirements are frequently notformulated in a consistent manner using sound science andengineering principles to improve outcomes so as to justify theseadditional delays and costs.

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(c)  It is the intent of the Legislature to implement the Santa AnaRegional Water Quality Improvement Project pursuant to whichan alternative governing board would be established within theregion for the purposes of carrying out, under appropriatecircumstances, the Porter-Cologne Water Quality Control Act(Division 7 (commencing with Section 13000) of the Water Code).

SEC. 2. Section 13228.5 is added to the Water Code, to read:13228.5. (a)  The definitions set forth in this subdivision govern

the construction of this section.(1)  “Fund” means the Santa Ana Regional Water Quality Fund

established by subdivision (e).(2)  “Region” means the Santa Ana region described in

subdivision (e) of Section 13200.(3)  “Regional board” means the Santa Ana Regional Water

Quality Control Board.(b)  The Santa Ana Regional Water Quality Improvement Project

is hereby established.(c)  (1)  The Santa Ana Regional Water Quality Improvement

Board is hereby established for the purposes of carrying out thisdivision.

(2)  The Santa Ana Regional Water Quality Improvement Boardconsists of all of the following members:

(A)  One member appointed by the regional board.(B)  One member appointed by the Governor who is an elected

official of a water or sanitation district that is located within thecoastal area of the region.

(C)  One member appointed by the Governor who is an electedofficial of a water or sanitation district that is located within theinland area of the region.

(D)  One member appointed by the Governor who is a memberof the faculty of the University of California at Irvine.

(E)  One member appointed by the Governor who is a memberof the faculty of the University of California at Riverside.

(F)  One member appointed by the Governor who is a memberof the faculty of the California State University at Fullerton.

(G)  One member appointed by the Governor who is a memberof the faculty of the California State University at San Bernardino.

(H)  Four nonvoting members appointed by the Governor, twoof whom are selected from environmental groups, one of whom

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is selected from an association of developers or builders, and oneof whom is selected from a housing advocacy group.

(d)  (1)  A city or county may allow a discharger within itsjurisdiction, upon request of the discharger, to become subject toregulation by the Santa Ana Regional Water Quality ImprovementBoard in lieu of the regional board for purposes of this division.

(2)  For the purposes of paragraph (1), “discharger” includes thecity or county.

(e)  (1)  The Santa Ana Regional Water Quality ImprovementFund is hereby established.

(2)  If the developer of a development project that is subject tothe requirements of a permit issued pursuant to this division agreesto become subject to regulation by the Santa Ana Regional WaterQuality Improvement Board in accordance with subdivision (c),the developer may agree to pay a fee to the appropriate city orcounty, based on the acreage and density of the proposeddevelopment project, for deposit in the fund.

(f)  The Santa Ana Regional Water Quality Improvement Board,upon appropriation by the Legislature, shall expend moneys in thefund for all of the following purposes:

(1)  For research relating to urban runoff to be conducted by theUniversity of California at Irvine, University of California atRiverside, California State University at Fullerton, or CaliforniaState University at San Bernardino.

(2)  For the formulation of mitigation measures for proposeddevelopment projects.

(3)  For mitigation projects approved by the Santa Ana RegionalWater Quality Improvement Board for the purposes of improvingwater quality within the region, including projects to mitigate theimpacts of urban runoff.

(g)  The Santa Ana Regional Water Quality Improvement Boardshall allocate moneys from the fund for the purposes of paragraph(1) of subdivision (f) as follows:

(1)  Not more than one million dollars ($1,000,000) may beexpended during the 2008 calendar year, and not more than fivehundred thousand dollars ($500,000) may be allocated to any singleinstitution described in paragraph (1) of subdivision (f).

(2)  Not more than one million five hundred thousand dollars($1,500,000) may be expended during the 2009 calendar year, andnot more than seven hundred fifty thousand dollars ($750,000)

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may be allocated to any single institution described in paragraph(1) of subdivision (f).

(3)  Not more than two million dollars ($2,000,000) may beexpended during each of the calendar years 2010, 2011, and 2012,and not more than one million dollars ($1,000,000) may beallocated to any single institution described in paragraph (1) ofsubdivision (f) during any of those calendar years.

(h)  Not later than December 31, 2010, the Santa Ana RegionalWater Quality Improvement Board shall prepare and submit to theLegislature a report that describes the implementation of thissection and the extent to which dischargers have become subjectto the jurisdiction of that board in lieu of the regional board. Thereport shall include recommendations concerning the continuingimplementation of this section.

(i)  This section shall remain in effect only until January 1, 2013,and as of that date is repealed, unless a later enacted statute thatis enacted before January 1, 2013, deletes or extends that date.

O

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SENATE BILL No. 27

Introduced by Senator Simitian

December 4, 2006

An act to add Division 26.6 (commencing with Section 79600) tothe Water Code, relating to financing a water conveyance andenvironmental improvement program, by providing the funds necessarytherefor through the issuance and sale of bonds of the State of Californiaand by providing for the handling and disposition of those funds, anddeclaring the urgency thereof, to take effect immediately.

legislative counsel’s digest

SB 27, as introduced, Simitian. Clean Drinking Water, Water SupplySecurity, and Environmental Improvement Bond Act of 2007.

Under existing law, various bond acts have been approved by thevoters to provide funds for water projects, facilities, and programs.

This bill would enact the Clean Drinking Water, Water SupplySecurity, and Environmental Improvement Bond Act of 2007 which,if approved by the voters would authorize, for purposes of financing awater conveyance and environmental improvement program, theissuance, pursuant to the State General Obligation Bond Law, of bondsin the amount of $5,000,000,000. The bill would require the Secretaryof State to submit the bond act to the voters at the ____, statewideelection.

This bill would declare that it is to take effect immediately as anurgency statute.

Vote: 2⁄3. Appropriation: no. Fiscal committee: yes.

State-mandated local program: no.

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

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SECTION 1. Division 26.6 (commencing with Section 79600)is added to the Water Code, to read:

DIVISION 26.6. CLEAN DRINKING WATER, WATERSUPPLY SECURITY, AND ENVIRONMENTAL

IMPROVEMENT BOND ACT OF 2007

Chapter 1. General Provisions

79600. This division shall be known and may be cited as theClean Drinking Water, Water Supply Security, and EnvironmentalImprovement Bond Act of 2007.

79601. The Legislature finds and declares all of the following:(a)  The Sacramento-San Joaquin Delta provides all or part of

the drinking water supply for 23 million Californians and forhundreds of thousands of acres of agricultural land.

(b)  Many years ago, decisions were made to locate major watersupply intakes in the southwestern part of the delta. The largevolume of water taken in by these water supply intakes has reversedthe flow direction of many delta water channels, thereby disruptingthe ability of anadromous fish to find their rearing and spawningareas, and pulling into the pumps fish that live in thefreshwater-saltwater zone and are now endangered.

(c)  The central delta lands are more than 25 feet below sea level,sinking about two inches per year as a result of soil subsidenceand protected by increasingly vulnerable levees.

(d)  Scientists have determined that a significant number of deltalevees could collapse in an earthquake or flood, thereby drawingsalty San Francisco Bay water into the delta and making deltawaters unusable for several years and possibly permanently.

(e)  The loss of the delta water supply would substantially reduceavailable water supplies for homes, commercial and industrialuses, and agriculture in the San Francisco Bay Area, the SanJoaquin Valley, and southern California.

(f)  The state’s economy and the state’s budget would besignificantly impaired if there were a levee collapse and watersupplies were not protected in advance, with that impairment of

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the economy very likely being more severe than that caused byHurricane Katrina.

(g)  Because of the potential for disruption of the state’s watersupplies and to help in restoring salmon and other fish species, itis critical that the existing major water intakes in the delta berelocated.

(h)  Relocating the intakes will allow for the use of more efficient“bypass” fish screens because only a portion of the river waterwill be diverted through the fish screens, whereas the existing fishscreens divert all of the water.

(i)  Global warming will result in rising sea levels and strongerwinter storms resulting in greater flooding. Combined withexpected earthquake activity, there is a substantial risk to statewater supplies from the delta due to massive levee collapse.

(j)  Exposed peat soils in the delta are rapidly oxidizing and area major source of California global warming gas emissions.

79602. (a)  It is the intent of the Legislature that theimplementation of this division accomplish all of the following:

(1)  Provide significant improvements to the quality of thedrinking water derived from the delta and used as a part of thedrinking water supply of 23 million Californians.

(2)  Ensure that urban and agricultural water supplies derivedfrom the delta are not disrupted because of catastrophic failuresof delta levees resulting from earthquakes, floods, land sinking,rising ocean levels, or other forces.

(3)  Provide a safe, clean, high quality, secure, affordable, andsufficient water supply to meet the needs of California residents,farms, and businesses.

(4)  Improve and increase aquatic and terrestrial habitats andimprove ecological functions in the San Francisco Bay-Delta andTrinity River watersheds to support sustainable populations ofplant, fish, and animal species.

(5)  Improve water quality and reduce pollution within thewatersheds of the bay-delta, Klamath River, and Trinity River.

(6)  Reduce the reliance of water users on the delta on a percapita basis through conservation, reclamation, reuse, and othermeans.

(b)  Programs funded by this act shall maximize where feasiblescientifically based procedures to reduce global warming gasesemitted by exposed delta soils.

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79604. Unless the context requires otherwise, the definitionsset forth in this section govern the construction of this division:

(a)  “Acquisition” means the acquisition of a fee interest or anyother interest, including easements, leases, and development rights.

(b)  “Agency” means the Water Quality and EnvironmentalImprovement Agency created by Section 79610.

(c)  “Bay area counties” means those counties that are membersof the Association of Bay Area Governments.

(d)  “Bay-delta” means the San Francisco Bay/Sacramento-SanJoaquin Delta Estuary.

(e)  “Board” means the State Water Resources Control Board.(f)  “Board of directors” means the board of directors of the

agency.(g)  “CALFED” means the consortium of state and federal

agencies with management and regulatory responsibilities in thebay-delta estuary.

(h)  “CALFED Bay-Delta Program” means the undertaking byCALFED to develop and implement, by means of the finalprogrammatic environmental impact statement/environmentalimpact report, the preferred programs, actions, projects, and relatedactivities that will provide solutions to identified problem areasrelated to the bay-delta estuary ecosystem, including, but notlimited to, the bay-delta and its tributary watersheds.

(i)  “Delta” means the area of the Sacramento-San Joaquin Deltaas defined in Section 12220.

(j)  “Department” means the Department of Water Resources.(k)  “Environmental fund” means the Water Quality and

Environmental Improvement Fund created by Section 79607.(l)  “Facility” means intake facilities and related facilities

necessary to implement the clean water project, as described inChapter 5 (commencing with Section 79620).

(m)  “Facility fund” means the Clean Drinking Water, WaterQuality Improvement, Environmental Enhancement, and WaterSupply Disaster Prevention Fund created by Section 79605.

(n)  “Nonprofit organization” means any nonprofit corporationformed pursuant to the Nonprofit Public Benefit Corporation Law(Division 2 (commencing with Section 5000) of Title 1 of theCorporations Code) and qualified under Section 501 (c)(3) of theUnited States Internal Revenue Code.

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(o)  “Public water agency” means any public entity, as definedin Section 514, that provides water service, as defined in Section515.

Chapter 2. Clean Drinking Water, Water Quality

Improvement, Environmental Enhancement, and Water

Supply Disaster Prevention Fund

79605. (a)  The proceeds of bonds issued and sold pursuant tothis division shall be deposited in the Clean Drinking Water, WaterQuality Improvement, Environmental Enhancement, and WaterSupply Disaster Prevention Fund, which is hereby created.

(b)  Notwithstanding Section 13340 of the Government Code,the moneys in the fund are hereby continuously appropriated,without regard to fiscal years, to the agency in accordance withChapter 5 (commencing with Section 79620).

(c)  All moneys in the fund shall be expended only for thepurposes of, and in accordance with, this division.

(d)  The agency shall expend moneys in the facility fund toimplement the clean water project. If moneys in the facility fundexceed that amount necessary to complete the planning andconstruction of the clean water project, the remaining funds shallbe expended by the agency for projects in accordance with Sections79626 and 79627. If the moneys in the facility fund are less thanthe amount necessary to complete the clean water project, theagency shall contract with the department for the issuance ofrevenue bonds in accordance with Part 3 (commencing with Section11100) of Division 6 to complete the clean water project.

Chapter 3. Water Quality and Environmental

Improvement Fund

79607. (a)  All revenue received by the agency from thetransmission of water through facilities constructed pursuant tosubdivision (a) of Section 79620 shall be deposited in theEnvironmental Fund, which is hereby created.

(b)  Notwithstanding Section 13340 of the Government Code,the moneys in the Environmental fund are hereby continuouslyappropriated, without regard to fiscal years, to the agency for thepurposes of Section 79640.

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(c)  All moneys in the Environmental fund shall be expendedonly for the purposes of, and in accordance with, this division.

Chapter 4. Water Quality and Environmental

Improvement Agency

79610. There is hereby created in state government the WaterQuality and Environmental Improvement Agency.

79611. The board of directors of the agency shall consist ofnine members, appointed as follows:

(a)  One representative selected by the Counties of Sacramento,San Joaquin, Contra Costa, Yolo, and Solano.

(b)  One representative from an industry-recognized commercialfishing organization with a majority of its members residing innorthern California, appointed by the Governor and confirmed bythe Senate.

(c)  One representative from a recognized sport fishingorganization with a majority of its members residing in thebay-delta watershed, appointed by the Governor and confirmedby the Senate.

(d)  One representative from a recognized environmental andconservation organization with a record of involvement inenvironmental protection and conservation in the bay-deltawatershed, appointed by the Governor and confirmed by the Senate.

(e)  One representative of bay area counties, appointed by theAssociation of Bay Area Governments.

(f)  One fishery biologist appointed by the Governor andconfirmed by the Senate.

(g)  One wildlife biologist appointed by the Governor andconfirmed by the Senate.

(h)  One person who resides in the watershed of the SacramentoRiver for at least the past 10 years prior to appointment and whois recognized as having substantial experience in water resourcesin the bay-delta watershed, appointed by the Governor andconfirmed by the Senate.

(i)  The chairperson of the agency who resides within a bay areacounty and who is recognized as having substantial experience inenvironmental protection related to water, appointed by theGovernor and confirmed by the Senate.

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79611.5. (a)  Except as provided in subdivision (b), themembers of the board of directors shall serve four year terms, withterms beginning on January 1, ____.

(b)  The term for a member of the board of directors describedin subdivision (a), (c), (e), (g), or (i) of Section 79611 whose termcommences on January 1, ____, shall be two years.

(c)  A member of the board of directors shall serve until his orher successor is selected and qualified.

79612. The board of directors may select a vice chairpersonand other officers determined to be necessary.

79613. (a)  A member of the board of directors shall receiveone hundred dollars ($100) for each meeting of the agency,including committee meetings, attended by that member. Thisamount shall be revised annually based on the change in theCalifornia Consumer Price Index.

(b)  The members of the board of directors shall be reimbursedfor expenses necessarily incurred in the performance of officialduties.

(c)  The chairperson of the board of directors shall serve fulltime.

79614. (a)  The board of directors shall appoint an executivedirector.

(b)  The agency shall hire employees necessary to carry out thefunctions of the agency.

(c)  The number of employees needed and qualifications of thoseemployees shall be determined by the agency, subject to theavailability of funds.

(d)  The salary of each agency employee shall be determined bythe State Personnel Board, and shall reflect the duties andresponsibilities of the position.

79616. All persons employed by the agency are stateemployees, subject to the duties, responsibilities, limitations, andbenefits thereof.

79617. The headquarters of the agency shall be located inSacramento.

Chapter 5. California Clean Water Project

79620. (a)  Consistent with subdivision (g), the agency shallcontract with the department, and as necessary the federal

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government, to construct a clean water project to relocate theexisting delta intake facilities of the State Water ResourcesDevelopment System and the Central Valley Project to theSacramento River, in accordance with the requirements of thisdivision.

(b)  The agency shall carry out the clean water project toaccomplish all of the following objectives:

(1)  Provide significant improvements to drinking water quality.(2)  Ensure that urban and agricultural water supplies derived

from the delta are not disrupted due to catastrophic failures of deltalevees because of earthquakes, floods, land sinking, rising oceanlevels, or other forces.

(3)  Provide a clean, high quality, secure, affordable, andsufficient water supply.

(4)  Improve and increase aquatic and terrestrial habitats andimprove ecological functions in the bay-delta and Trinity Riverwatersheds to support sustainable populations of plant, fish, andanimal species.

(5)  Protect the fish and wildlife resources of the bay-delta.(6)  Include fish screens subject to the approval of the

Department of Fish and Game.(c)  The clean water project shall consist of one or more pipelines

and other facilities sufficient to transport the amount of watercontracted for conveyance in accordance with this division.

(d)  The agency shall be the lead agency for the purposes of theCalifornia Environmental Quality Act (Division 13 (commencingwith Section 21000) of the Public Resource Code) and, on behalfof the state, for the purposes of the National Environmental PolicyAct of 1969 (42 U.S.C. Sec. 4321 et seq.).

(e)  The department shall use its powers of eminent domain andland acquisition on behalf of the agency as necessary to obtain aright-of-way for the implementation of the clean water project.

(f)  The facilities constructed pursuant to subdivision (a) shallbe located downstream of the intake facility jointly operated bythe County of Sacramento and East Bay Municipal Utility. Ifchanges are required to be made to the Freeport plant of theSacramento Regional County Sanitation District because of theoperation of the facilities constructed pursuant to subdivision (a),the costs shall be included as costs of the clean water project andshall not be the responsibility of that district.

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(g)  The facilities constructed pursuant to subdivision (a) maybe used in conjunction with the existing delta intake facilitiesdescribed in that subdivision in order to permit operationalflexibility and to protect fish and wildlife resources.

(h)  (1)  The agency shall implement the clean water project onlyafter a plan of operation is prepared by the agency and all necessaryapprovals and authorizations are secured, including any necessaryapproval or authorization from the federal government.

(2)  The agency may not construct facilities under this divisionbefore entering into contracts for the use of those facilities.

(i)  The agency may contract with any public agency to transportwater through the facilities, subject to the requirements of thisdivision.

79621. (a)  The facilities constructed pursuant to subdivision(a) of Section 79620 shall not be constructed to convey water forthe State Water Resources Development System unless thesefacilities have the physical capability to do all of the following:

(1)  Reduce the bromides in the water at the Harvey O. BanksPumping Plant by at least __ percent.

(2)  Reduce the trihalomethane formation potential in the waterat the Harvey O. Banks Pumping Plant by at least __ percent.

(3)  Reduce salts in the water at the Harvey O. Banks PumpingPlant by at least __ percent.

(4)  Reduce the risk of disruption of the conveyance of the waterthrough the delta by at least __ percent.

(5)  Improve pelagic fish populations pursuant to state and federalendangered species laws pursuant to studies conducted by theUnited States Fish and Wildlife Service and the Department ofFish and Game.

(b)  The facilities shall not be constructed to convey water forthe Central Valley Project to the Contra Costa Water District unlessthe facilities have the physical capacity to reduce bromides in thewater by at least __ percent, salts by __ percent, trihalomethaneformation potential by __ percent, and the risk of disruption of theconveyance of the water through the delta by at least __ percent.

(c)  The facilities shall not be constructed to convey agriculturalwater for the Central Valley Project unless the facilities have thephysical capability to reduce the salt concentration in the water atthe Tracy Pumping Plant by at least __ percent.

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(d)  The facilities shall not be constructed unless the facilitieshave the capability to substantially reestablish the natural directionof flows of water through the delta.

79622. (a)  The agency shall not convey water through theclean water project for the State Water Resources DevelopmentSystem if that conveyance would result in more water beingexported from the delta by the State Water Resources DevelopmentSystem than the amount of water that would have been exportedbased on the 2006 level of water development and the water-yeartype, as determined by the agency.

(b)  The agency shall not convey water through the clean waterproject for export by the Central Valley Project if that conveyancewould result in more water being exported from the delta by theCentral Valley Project than the amount of water that would havebeen exported based on the 2006 level of water development andthe water-year type, as determined by the agency.

79624. (a)  Before a public water agency may enter into acontract with the agency for water conveyance by means of theclean water project, the public water agency, as applicable, shallsubmit to the agency a plan approved by the board for reducingthe per capita use of municipal and industrial water by the publicwater agency and any municipal and industrial water contractorsof the public water agency by 10 percent by 2015 and 25 percentby 2030 by means of increased water efficiency, improvedgroundwater management, recycling, and the use of other localwater supplies.

(b)  Before a public water agency may enter into a contract withthe agency for water conveyance by means of the clean waterproject, the public water agency, as applicable, shall submit to theagency a plan approved by the board that ensures that agriculturalwater delivered by the public water agency is used in aneconomically efficient manner and that water is not wasted. Theplan shall demonstrate financially efficient and technologicallyfeasible methods of water use reduction.

Chapter 6. Environmental Fund Purposes

79626. (a)  Not less than 30 percent of the funds in theEnvironmental fund shall be expended for both of the followingpurposes:

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(1)  (A)  A grant program to fund capital outlay projects thatinclude projects for water conservation, wastewater reclamation,desalination of brackish groundwater, and other projects that reducewater needs in areas that rely on water that originates in thewatershed of the bay-delta.

(B)  For the purposes of carrying out subparagraph (A), priorityshall be given to programs that benefit low-income households forthe purpose of reducing water bills.

(2)  (A)  The implementation of a program by the department inthe primary zone, as defined in Section 29728 of the PublicResources Code, to reduce or eliminate climate change gassesemitting from delta islands and farms in accordance with Division25.5 (commencing with Section 38500) of the Health and SafetyCode.

(B)  For the purposes of implementing the program describedin subparagraph (A), the department shall prepare plans to sequestercarbon where feasible by establishing or reconstructing deltawetlands, by agreement, on public or private lands.

79627. (a)  After allocating funds in accordance with Section79626, any remaining funds in the Environmental fund shall beexpended as follows:

(1)  ____ percent to the State Water Resources Control Boardfor projects that improve or protect water quality in the bay-deltaand Sacramento and San Joaquin watersheds.

(2)  ____ percent to the Sierra Nevada Conservancy forimprovements in water quality, public access to waterways, andwater-related recreation, including fishing.

(3)  ____ percent to the Department of Fish and Game forrestoration of the Klamath River and its tributaries in California.

(4)  ____ percent to the Wildlife Conservation Board forprotection of habitat in the Sacramento-San Joaquin Riverwatershed and San Francisco Bay.

(5)____ percent to the Secretary of the Resources Agency forcentral valley river parkways and river access.

(6)  ____ percent to the department for levees in the centralvalley, subject to 50/50 cost-sharing with local agencies.

(7)  ____ percent to the Department of Parks and Recreation forstate and local parks in the Sacramento-San Joaquin watershed.

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(8)  ____ percent to the Department of Fish and Game forprojects to improve or restore fish habitat and access to spawningareas in the Sacramento-San Joaquin River watershed.

(9)  ____ percent to restore habitat in the Sacramento-SanJoaquin watershed that has been classified as endangered underthe California Endangered Species Act (Chapter 1.5 (commencingwith Section 2050) of Division 3 of the Fish and Game Code) orthe federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531et seq.).

(10)  ____ percent for the restoration of anadromous fisheriesin the San Joaquin River watershed.

(b)  If funds are no longer needed for a purpose specified insubdivision (a), as determined by the administering agency, theagency shall reallocate the funds on behalf of the other purposesspecified in subdivision (a) in proportion to the percentagesspecified in subdivision (a).

Chapter 7. Miscellaneous provisions

79629. The clean water project may be constructed in phases.79630. The agency shall own and operate facilities constructed

to implement the clean water project. The agency shall maintainthe facilities in good operating condition.

79633. The contracts entered into by the agency to conveywater through the facilities constructed pursuant to subdivision (a)of Section 79620 shall produce annual revenue adjusted forinflation that is the sum of all of the following:

(a)  The operating costs of those facilities.(b)  An amount equivalent to the average annual principal and

interest payments on the general obligation bonds authorized underthis division and utilized to construct facilities to implement theclean water project, regardless of whether the bonds are stilloutstanding.

(c)  A watershed rehabilitation fee in the amount of ____ ($____) per year.

79640. The agency shall expend its revenues from contractsinvolving the use of the facilities constructed pursuant tosubdivision (a) of Section 79620 in the following order of priority:

(a)  Operation and maintenance of those facilities.

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(b)  Paying the salaries and other ongoing expenses of theagency.

(c)  Paying for the annual audits required by Section 79648.(d)  Paying for the costs of the board pursuant to this division.79642. The agency shall consult with CALFED and the

agencies that participate in CALFED to avoid duplication, andincrease the effectiveness of expenditures under this division. Theagency shall consider the objectives and functions of the CALFEDBay-Delta Program in developing its expenditure plan under thisdivision.

79643. The agency shall not, by itself, carry out constructionor ecosystem restoration programs financed by this division, butshall award grants and contracts to public agencies and nonprofitorganizations, including local conservation corps, to carry outthese programs.

79644. The agency may receive grants or gifts from publicagencies, private entities, or individuals for the purposes of Section79626 or 79627.

79645. The agency shall be represented by the Attorney Generalin any litigation, and shall reimburse the Attorney General for anycosts incurred.

79646. (a)  Subject to subdivision (b), the programs and projectsfinanced by this division are not subject to approval by any otherstate entity, including, but not limited to, the State Public WorksBoard or the Department of General Services.

(b)  The programs and projects financed by this division aresubject to regulation by, and the permitting authority of, theDepartment of Fish and Game, the State Water Resources ControlBoard, the Department of Toxic Substances Control, and otherentities responsible for pollution control.

79648. (a)  The Auditor General shall audit the agencyannually, and shall be reimbursed by the agency for the audit. TheAuditor General shall report the findings of the audit to theLegislature and the Governor, and shall make the results of theaudit available to the public by posting that information on itsInternet Web site.

(b)  The Legislature may appropriate funds for an independentaudit of the agency.

79662. If the operation of the clean water project increases theyield of usable water above amounts that would exist in the absence

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of the project, the agency shall have the right to use that water.Subject to regulatory approvals, the agency may assign any or allof that water for environmental purposes or for resolution of legacywater conflicts.

79665. It is the intent of the Legislature that facilitiesconstructed pursuant to subdivision (a) of Section 79620 shall bedesigned and constructed so as to improve the security and safetyof the state’s drinking water system.

79666. It is the intent of the Legislature that investments ofpublic funds pursuant to this division result in public benefits.

79670. Venue for any litigation brought concerning theconstruction or operation of the clean water project implementedpursuant to this division shall be the Superior Court of SacramentoCounty.

Chapter 8. Fiscal Provisions

79685. (a)  Bonds in the total amount of five billion dollars($5,000,000,000), not including the amount of any refunding bondsissued in accordance with Section 79696, or so much thereof as isnecessary, may be issued and sold to provide a fund to be used forcarrying out the purposes expressed in this division and toreimburse the General Obligation Bond Expense Revolving Fundpursuant to Section 16724.5 of the Government Code. The bonds,when sold, shall be and constitute valid and binding obligationsof the State of California, and the full faith and credit of the Stateof California is hereby pledged for the punctual payment of bothprincipal of, and interest on, the bonds as the principal and interestbecome due and payable.

(b)  The Treasurer shall sell the bonds authorized by thecommittee pursuant to this section. The bonds shall be sold uponthe terms and conditions specified in a resolution to be adoptedby the committee pursuant to Section 16731 of the GovernmentCode.

79686. The bonds authorized by this division shall be prepared,executed, issued, sold, paid, and redeemed as provided in the StateGeneral Obligation Bond Law, and all of the provisions of thatlaw apply to the bonds and to this division and are herebyincorporated in this division as though set forth in full in thisdivision.

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79687. (a)  Solely for the purpose of authorizing the issuanceand sale, pursuant to the State General Obligation Bond Law, ofthe bonds authorized by this division, the Clean Drinking Water,Water Supply Security, and Environmental Improvement BondFinance Committee is hereby created. For purposes of this division,the Clean Drinking Water, Water Supply Security, andEnvironmental Improvement Bond Finance Committee is “thecommittee” as that term is used in the State General ObligationBond Law. The committee consists of the Controller, the Directorof Finance, and the Treasurer, or their designated representatives.The Treasurer shall serve as chairperson of the committee. Amajority of the committee may act for the committee.

(b)  For purposes of the State General Obligation Bond Law, thedepartment is designated the “board.”

79688. The committee shall determine whether or not it isnecessary or desirable to issue bonds authorized pursuant to thisdivision to carry out this division and, if so, the amount of bondsto be issued and sold. Successive issues of bonds may be authorizedand sold to carry out those actions progressively, and it is notnecessary that all of the bonds authorized to be issued be sold atany one time.

79689. There shall be collected each year in the same mannerand at the same time as other state revenue is collected, in additionto the ordinary revenues of the state, a sum in an amount requiredto pay the principal of, and interest on, the bonds each year, andit is the duty of all officers charged by law with any duty in regardto the collection of the revenue to do and perform each and everyact which is necessary to collect that additional sum.

79690. Notwithstanding Section 13340 of the GovernmentCode, there is hereby appropriated from the General Fund in theState Treasury, for the purposes of this division, an amount thatwill equal the total of the following:

(a)  The sum annually necessary to pay the principal of, andinterest on, bonds issued and sold pursuant to this division, as theprincipal and interest become due and payable.

(b)  The sum that is necessary to carry out Section 79693,appropriated without regard to fiscal years.

79691. The department may request the Pooled MoneyInvestment Board to make a loan from the Pooled MoneyInvestment Account in accordance with Section 16312 of the

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Government Code, for the purpose of carrying out this division.The amount of the request shall not exceed the amount of theunsold bonds that the committee has, by resolution, authorized tobe sold for the purpose of carrying out this division. Thedepartment shall execute those documents required by the PooledMoney Investment Board to obtain and repay the loan. Anyamounts loaned shall be deposited in the fund to be allocated bythe department in accordance with this division.

79692. Notwithstanding any other provision of this division,or of the State General Obligation Bond Law, if the Treasurer sellsbonds that include a bond counsel opinion to the effect that theinterest on the bonds is excluded from gross income for federaltax purposes under designated conditions, the Treasurer maymaintain separate accounts for the bond proceeds invested and forthe investment earnings on those proceeds, and may use or directthe use of those proceeds or earnings to pay any rebate, penalty,or other payment required under federal law or take any otheraction with respect to the investment and use of those bondproceeds, as may be required or desirable under federal law inorder to maintain the tax-exempt status of those bonds and to obtainany other advantage under federal law on behalf of the funds ofthis state.

79693. For the purposes of carrying out this division, theDirector of Finance may authorize the withdrawal from the GeneralFund of an amount or amounts not to exceed the amount of theunsold bonds that have been authorized by the committee to besold for the purpose of carrying out this division. Any amountswithdrawn shall be deposited in the fund. Any money madeavailable under this section shall be returned to the General Fund,with interest at the rate earned by the money in the Pooled MoneyInvestment Account, from proceeds received from the sale of bondsfor the purpose of carrying out this division.

79694. All money deposited in the fund that is derived frompremium and accrued interest on bonds sold pursuant to thisdivision shall be reserved in the fund and shall be available fortransfer to the General Fund as a credit to expenditures for bondinterest.

79695. Pursuant to Chapter 4 (commencing with Section16720) of Part 3 of Division 4 of Title 2 of the Government Code,the cost of bond issuance shall be paid out of the bond proceeds.

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79696. The bonds issued and sold pursuant to this divisionmay be refunded in accordance with Article 6 (commencing withSection 16780) of Chapter 4 of Part 3 of Division 4 of Title 2 ofthe Government Code, which is a part of the State GeneralObligation Bond Law. Approval by the electors of the state for theissuance of the bonds under this division shall include approvalof the issuance of any bonds issued to refund any bonds originallyissued under this division or any previously issued refunding bonds.

79697. The Legislature hereby finds and declares that,inasmuch as the proceeds from the sale of bonds authorized bythis division are not “proceeds of taxes” as that term is used inArticle XIII B of the California Constitution, the disbursement ofthese proceeds is not subject to the limitations imposed by thatarticle.

SEC. 2. Section 1 of this act shall become operative only ifboth of the following occur:

(a)  SCA ____ of the 2007–08 Regular Session is submitted toand approved by the voters at the ____, statewide election.

(b)  The voters approve the Clean Drinking Water, Water SupplySecurity, and Environmental Improvement Bond Act of 2007, asset forth in Section 1 of this act.

SEC. 3. (a)  Notwithstanding any other provision of law, allballots of the election shall have printed thereon and in a squarethereof, the words: “Clean Drinking Water, Water Supply Security,and Environmental Improvement Bond Act of 2007” and in thesame square under those words, the following in 8-point type:

“This act provides for a bond issue of five billion dollars($5,000,000,000) to provide funds to substantially improve drinkingwater quality, enhance the environment, and prevent disasters frominterrupting California’s major water supply.”

(b)  Opposite the square, there shall be left spaces in which thevoters may mark the ballot in the manner required by law toindicate whether they vote for or against the act.

(c)  Where voting in the election is done by means of votingmachines used pursuant to law in a manner that carries out theintent of this section, the use of the voting machines and theexpression of the voters’ choice by means thereof are in compliancewith this section.

SEC. 4. Notwithstanding Sections 13247 and 13281 of theElections Code, the language in Section 3 shall be the only

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language included in the ballot label for the condensed statementof the ballot title, and the Attorney General shall not supplement,subtract from, or revise that language, except that the AttorneyGeneral may include the financial impact summary preparedpursuant to Section 9087 of the Elections Code and Section 88003of the Government Code. The ballot label is the condensedstatement of the ballot title and the financial impact summary.

SEC. 5. Notwithstanding the requirements of any otherprovision of law, the Secretary of State shall submit Section 1 ofthis act to the voters at the ____, statewide election.

SEC. 6. This act is an urgency statute necessary for theimmediate preservation of the public peace, health, or safety withinthe meaning of Article IV of the Constitution and shall go intoimmediate effect. The facts constituting the necessity are:

In order to enhance the security and reliability of the state’swater supplies, as soon as possible, thereby protecting public healthand safety and the environment, it is therefore necessary that thisact take effect immediately.

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SENATE BILL No. 8

Introduced by Senator Kuehl

December 4, 2006

An act to amend Section 79402 of the Water Code, relating to water.

legislative counsel’s digest

SB 8, as introduced, Kuehl. California Bay-Delta Authority Act.Existing law, the California Bay-Delta Authority Act, establishes in

the Resources Agency the California Bay-Delta Authority. The actrequires the authority and the implementing agencies, as defined, tocarry out programs, projects, and activities necessary to implement theBay-Delta Program, defined to mean those projects, programs,commitments, and other actions that address the goals and objectivesof the CALFED Bay-Delta Programmatic Record of Decision, datedAugust 28, 2000, or as it may be amended. The act requires the authorityto develop policies and make decisions at program milestones, and toprovide direction to achieve balanced implementation, integration, andcontinuous improvement in all program elements, as defined.

This bill would include environmental justice among the prescribedprogram elements.

Vote: majority. Appropriation: no. Fiscal committee: yes.

State-mandated local program: no.

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

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SECTION 1. Section 79402 of the Water Code is amended toread:

79402. Unless the context otherwise requires, the followingdefinitions set forth in this section govern the construction of thisdivision:

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(a)  “Authority” means the California Bay-Delta Authority.(b)  “Balance” or “balanced implementation” means the

implementation of projects, programs, or other actions in a mannerthat meets both of the following requirements:

(1)  Is consistent with the implementation schedule andmilestones described in the CALFED Bay-Delta Program Recordof Decision, dated August 28, 2000, or as it may be amended.

(2)  Results in concurrent improvement in all program elementsin a manner that ensures that improvements in some programelements are not made without corresponding improvements inother program elements.

(c)  “Bay-delta” means the San Francisco Bay/Sacramento-SanJoaquin Delta Estuary.

(d)  “Bay-Delta Public Advisory Committee” means theBay-Delta Public Advisory Committee established by charterissued by the United States Department of Interior, dated June 8,2001, and filed on July 2, 2002.

(e)  “California Bay-Delta Program” or “Bay-Delta Program”means those projects, programs, commitments, and other actionsthat address the goals and objectives of the CALFED Bay-DeltaProgram Record of Decision, dated August 28, 2000, or as it maybe amended.

(f)  “Category A programs” means those state and federal agencyprograms and funds that are to be managed and implementedconsistent with the California Bay-Delta Program’s goals andobjectives.

(g)  “Director” means the Director of the California Bay-DeltaAuthority.

(h)  “Implementing agencies” means those agencies with theprimary responsibility for implementing the program elements,subject to Sections 79440 and 79441.

(i)  “Program elements” means the following 11 12 programelements of the California Bay-Delta Program:

(1)  Levee system integrity.(2)  Water quality.(3)  Water supply reliability.(4)  Ecosystem restoration.(5)  Water use efficiency.(6)  Water transfer.(7)  Watershed.

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(8)  Storage.(9)  Conveyance.(10)  Science.(11)  Environmental water account.(12)  Environmental justice.(j)  “Projects” means both programs and capital projects.

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