Legislation by Sen. Hertzberg to Boost Stormwater Capture awaits Gov. Brown’s signature

By on September 11, 2017

Senate Bill 231 by Sen. Bob Hertzberg (D-District 18-Van Nuys) has passed both the state Assembly and the Senate and now awaits signature by Gov. Jerry Brown. The bill seeks to clarify the definition of stormwater so that projects designed to capture and clean stormwater can be more easily financed and built by local agencies versus letting the water run off and go to waste.

Hertzberg contends that the legislation provides legal clarity on the interpretation of Proposition 218 while maintaining the proposition’s transparency and accountability guidelines. Voters approved the proposition in 1996.

SB 231 adds a missing definition of “sewer service” to state law to include stormwater, which was long considered to be part of that definition until a court decision cast doubt on that interpretation 15 years ago. The measure allows local governments to finance and build projects that capture and clean stormwater just as easily as they can finance and build needed sewer facilities. Proposition 218 required the approval of two-thirds of voters, except fees for water, trash and sewer services. Those can be imposed without a vote and can only be stopped if a majority of affected residents file a written protest by a set deadline.

But, Hertzberg contends that, “This legislation is basic common sense. It clarifies that local agencies should have the same authority to capture and treat all dirty water, no matter what its source. We must do a better job of capturing stormwater, and California must manage its water more wisely. SB 231 will help do that.”

Although the state experienced heavy rainfall over the winter, much of the water flowed into the ocean. Only about 15 percent of the stormwater flowing into the Los Angeles River watershed is captured and used for water supply while the rest is dumped into the ocean, a loss of billions of gallons of water each year.  Water Year 2016/17 produced flooding and extensive damage in many parts of the state with no infrastructure in place to capture or redirect the water.

One reason local agencies don’t have more infrastructure in place to control flooding and capture stormwater is because of legal confusion over the definition of stormwater. The legislation provides legal clarity on the interpretation of Proposition 218 while maintaining the proposition’s transparency and accountability guidelines.

The legislation is also supported by more than 100 organizations and local governments, including the Bay Area Council, California Building Industry Association, California State Association of Counties, Environmental Defense Fund, Heal the Bay, League of California Cities, League of Women Voters of California, Los Angeles County, Metropolitan Water District of Southern California, Monterey Bay Aquarium, Save the Bay, Service Employees International Union California, Sierra Club California and State Building and Construction Trades Council of California. The bill is also sponsored by the Water Foundation.

“State lawmakers are doing their part to protect communities across California by passing SB 231, which enables local infrastructure investment that captures stormwater,” said Wade Crowfoot, CEO of the Water Foundation. “These investments will protect homes from local flooding, reduce water pollution in our streams and beaches, and increase local groundwater supplies. It is a common sense step that will create jobs and spur local investment in these important improvements.”

But not everyone is in favor of SB 231. The editorial board of the Pasadena Star-News came out in opposition of the bill on Sept. 5. They joined the Howard Jarvis Taxpayers Association (HJTA) and the California Association of Realtors (CAR) in casting doubt on SB 231 as undermining Proposition 218.

Geoff McIntosh, president of the California Association of Realtors, said CAR doesn’t oppose funding stormwater projects, “we just believe voters should have the vote that the Constitution and Prop. 218 guarantee them.”

“SB231 undermines Proposition 218 by removing an individual’s right to vote on stormwater benefit assessments,” said David Wolfe, legislative director for HJTA. “To attempt to change this in statute violates the constitution and unsettles a precedent-setting appellate court case.”

According to the Pasadena Star-News, HJTA has vowed to sue the first government entity that imposes a stormwater fee through the “sewer fee” method.