Proposed “California Clean Water Act” (AB 377) Would Restrict Ability to Secure Schedules of Compliance in Water Quality Permits or Other Water Quality-Related Orders
March 5, 2021
AB 377, entitled the “California Clean Water Act,” introduced by Assemblymember Rivas in February 2021, includes provisions to eliminate all “impaired waterways” and make all waters in California suitable for drinking, swimming, and fishing by 2050. If adopted, this bill would have significant impacts on the ability to timely and cost-effectively comply with discharge requirements set forth in National Pollutant Discharge Elimination System (“NPDES”) permits, Waste Discharge Requirements (“WDRs”), and waivers of WDRs (collectively, “water quality permits”). The bill would also usher in an era of focus on enforcement, rather than good-faith compliance.
AB 377, as currently written, would prohibit water quality control plans from including schedules for entities to come into compliance with current water quality standards beginning on January 1, 2030. This makes January 1, 2030, a “drop dead” compliance date for compliance with existing water quality standards. This bill would also prohibit any schedules for compliance for new or more stringent water quality standards adopted after January 1, 2021, with limited exceptions based on time to physically construct facilities. In addition, the bill proposes to prevent water quality permits from being reissued, modified, or renewed to include less stringent effluent limitations than the prior permit. AB 377 would also prohibit enforcement orders from including timeframes to achieve compliance with deadlines beyond January 1, 2030.
While the bill only explicitly constrains the ability of the State Water Resources Control Board and the nine Regional Water Quality Control Boards (collectively, “Water Boards”) to include schedules in water quality control plans, the effects of this will largely prevent the Water Boards from including compliance schedules in water quality permits and time schedule orders (“TSOs”). As most permittees know, compliance schedules and TSOs are important means of ensuring that a permittee can meet new water quality standards over time given funding and technological limitations, without the threat of adverse enforcement. Removing this flexibility could have serious financial and legal impacts on permittees, especially in the municipal storm water arena.
In addition to the impacts on regulated entities, AB 377 requires, the Water Boards to form an Impaired Waterways Enforcement Program by January 1, 2030, which would be charged with enforcing remaining violations that cause or contribute to an exceedance of a water quality standard. Penalties assessed for violations would go to a special fund for the Water Boards to use, upon Legislative authorization, to further the program. The Water Boards would also be required to prepare a plan by January 1, 2040, to bring the remaining impaired waterways into attainment by the 2050 deadline.
Still early in the Legislative session, it is unclear whether and how AB 377 will change, or what its ultimate fate will be. However, due to the impact this bill would have on entities regulated by NPDES permits, WDRs, or waivers, AB 377 is one to watch closely.