May 21, 2017 - From the May, 2017 issue

Senate Chair of Natural Resources & Water Hopes to Enact Creative Solutions to Water Scarcity

California State Senator Robert Hertzberg is unique among legislators for his commitment to working in service of a long-term, overarching policy vision. Thus, it should come as no surprise that his recent legislation—a seemingly procedural proposal to reclassify stormwater infrastructure as a “sewer service” under state law—is in fact but one strategic component of a larger plan to help California save water, reduce costs, and build climate resiliency. TPR spoke to Senator Hertzberg about how facilitating stormwater capture fits into his six-pronged water policy framework for the state: a multi-year plan that tackles rate structures, groundwater recharge, aging infrastructure, new financing models, ecosystem cleanup, and more. Hertzberg also comments on the “creative defensive thinking” adopted in the state Legislature to preempt potentially damaging actions by the Trump administration.

Senator Bob Hertzberg

"We need to recycle water, recharge our groundwater basins, desalinate brackish water, and capture stormwater—and we have real opportunities to do that in LA County." - Senator Bob Hertzberg

When the Chairman of the California Senate’s Committee on Natural Resources and Water introduces a bill, SB 231, to reclassify stormwater infrastructure as “sewer service” under state law; attention must be paid. What motivated this legislation, and what are the challenges you face in passing it?

Senator Bob Hertzberg: I’ve been involved with the water world for many years, starting with my undergraduate dissertation. As always, my approach to problem-solving is strategic and comprehensive. I looked at the big picture of water policy and asked, “What do we need to do?” I came up with six areas in total, and I’m trying to methodically move forward each of these six prongs through the legislative process.

First, we need to look at recycling. I introduced a bill that said you can’t dump water in the ocean. Then we need to look at desalination, at water markets, at conservation, at water quality, and at stormwater.

There’s nothing more maddening than, during a big storm, seeing the Los Angeles River get full of water that rushes into the ocean, while I’m out here telling people that the drought is a problem. Part of a comprehensive, modern, sustainable approach to water is to capture that stormwater. Another argument for doing so has to do with water quality and cleanliness: When stormwater flows into the ocean, it washes a lot of bad stuff in with it.

So why aren’t we doing a better job of capturing stormwater? Because there is confusion in the law, and some believe, due to a single misguided court ruling, that an election must be held and two-thirds majority approval must be given before a local government can charge property owners a fee to finance a stormwater facility. To me, that requirement, which has created a huge hurdle essentially blocking these types of projects, makes no sense. That’s because for other similar fees that benefit property owners – water bills, trash collection, sewer service — no vote is needed.

To solve this problem, I looked deeper into our existing laws pertaining to stormwater. It turns out that Prop 218, passed in 1996, clearly exempted fees that relate to people’s properties from the election requirements contained in Prop 13.

The ballot doesn’t use the word “stormwater,” but it specifically talks about runoff, drainage, and things like that. It’s common sense that this includes stormwater infrastructure development, as long as it related to property. I think that was the original intent of the law.

Stormwater directly relates to your property. Just this year, we saw the floods up in San Jose; floods like that have all sorts of consequences. I’ve talked to a number of advocates in the area, and they also believe that when water is captured to repopulate our groundwater, that benefits the property.

A lower court heard this issue and said that, of course, stormwater should be exempted. But then another court said no, and no one’s challenged that decision since. So with this bill, we are clarifying what’s written. We are not changing the law.

I’m trying to come up with an intelligent, thoughtful approach to recapturing stormwater, repopulating groundwater, and creating new water sources – and make sure government can do its job.

Reportedly, only about 15 percent of stormwater that flows into the Los Angeles River watershed is captured and used for water supply. To improved the rate of capture, what should the target be if Southern California jurisdictions are to become more self reliant?

I don’t know what a reasonable target is, but 15 percent certainly isn’t it.

There’s no question that we can enhance spreading grounds to capture water and recharge the groundwater basin. Let’s stop sticking our straw in the Colorado River and Northern California, and come up with a sustainable approach.

An enormous amount of the water that LA uses every year goes into the ocean. Capturing that water will be smarter, more sustainable, and less costly in the long run, and it will make us less reliant on water from the north or the Colorado River.

Los Angeles County Supervisor Sheila Kuehl announced at VerdeXchange 2017 in January that she is going to seek a ballot measure to raise funds for stormwater projects, and County Public Works Director Mark Pestrella said in a recent TPR interview that he would look to P3s to help finance the infrastructure projects necessary to meet our water needs. What are your thoughts about financing the projects we need in Southern California and Los Angeles? 

If SB 231 passes, putting something on the ballot for stormwater won’t be necessary. The bill says that a vote would not be needed to finance a stormwater project.

What I’m trying to do is solve the problem on a statewide basis. With SB 231, any local jurisdiction—whether it’s the county of Los Angeles or the county of Alpine—would have the authority to impose a fee to build those systems. Some of those projects may also be funded partially through P3s, fees, and long-term financing. This is just another tool in the toolbox for local governments to use however they choose so they can build the projects they need to effectively capture and manage water. 

You have also proposed legislation that would create a “Safe Drinking Water Fund” and to establish access-to-adequate-water as a human right under SB 778. Address the purpose of this legislation.

There are many towns around California that literally have to truck in water—not because they have a lack of water, but because of its quality. We have Flint, Michigan-level problems all across California. In fact, I’m told by the experts that in certain of our jurisdictions, the water is worse than it is in Flint.

I’m in the early stages of working with Senator Monning to figure out how to deal with this larger water quality problem. It’s part of the comprehensive view I’m taking to a new, improved water policy for California.

How does your work in the Legislature align with that of work of the State Water Board and other water agencies under the executive branch? Is water legislation a coordinated effort? 

Yes, in large measure. I meet with Felicia Marcus a lot; she is a rock star. If we had a California Hall of Fame, she’d be No. 1.

One of the policies I’m focused on is conservation, and we just saw a huge effort on conservation in the governor’s May budget revision. He’s also working with Felicia on addressing water quality in the permits for stormwater infrastructure in a number of different areas.

This newsletter issue includes an interview with LA Sanitation’s Traci Minamide about what the city is doing to treat recycled water for potable reuse, as well a remarks by San Diego Mayor Kevin Faulconer who has now authorized an initiative to do just that. Has the tide turned, in terms of the attitudes of the public and leadership, on the need and value of converting wastewater to drinking water? 

Yes, dramatically—but not enough. I give the mayor of San Diego credit, because it’s a very difficult challenge.

Orange County has been the absolute leader on this. They’ve cleaned up wastewater to the highest level, and they’ve done a fantastic job replenishing the groundwater supply.

I appreciate the 60,000-acre-foot projects LA County is doing, but I still think it’s not enough. They want to build a new pipe into the ocean, and unless they have a really compelling case for it, I want to stop that pipe. I don’t want to make it easier to put water back in the ocean; I think it’s wrong. We need to change up the game. We need to recycle water, recharge our groundwater basins, desalinate brackish water, and capture stormwater—and we have real opportunities to do that in LA County.

Continuing with your legislative work, you also have proposed a constitutional amendment that would allow water agencies to charge bigger-users higher rates, and charge low-income users lower rates. Address the merits and practicality of such a policy change.

The constitutional amendment that I put before the Legislature would allow water agencies to charge lifeline rates, just like phone companies or other utilities do, so that people of lesser means can get water without a huge water bill.


The flip side of that, of course, are conservation rates—charging higher rates for the biggest users. Under current law, agencies can’t do that.

The amendment is going to be hard to do because it requires a two-thirds vote. But I’ve talked to the governor, and I know he’s interested in this as a policy idea. It’s part of fleshing out the big picture of a new, comprehensive, sustainable, localized water policy. 

Your colleague in the legislature, Senator Wieckowski has been focused on moving the state from “mitigation” to “adaptation” strategies for dealing with climate change and sea-level rise. Address how such a change would impact your water policy legislative agenda. 

It’s huge. Climate change and sea-level rise are the biggest challenges we’re going to face. They also make it even more important to replenish our groundwater, because as the sea level rises, we’ll get more seawater intrusion into our basins, and we’ll have to build wells and other barriers to stop it from invading our water supply.

Sea-level rise is a critical element of water policy, not to mention all its other consequences. I don’t think there is going to be a costlier issue—especially as the property values start to go down on all those fancy houses in Malibu.

You recently traveled with Natural Resources Secretary John Laird and fellow legislators to examine the damage to the Oroville Dam when it was threatened in February by floods emanating from the mountains. What did you observe about the safety of the State’s water infrastructure, and what new plans for addressing our state’s new normal for water infrastructure might result?

The Oroville Dam was built 50 years ago with an expected 50- to 100-year lifespan. One of the challenges we face in government is that we do all this spending on infrastructure upfront, and then allow its life expectancy to come to an end. Now we’re at the point in this cycle where we get hit by all the costs.

What I want to find out is: What did people know and when did they know it? Were there any early warnings that should have alerted the regulatory commission? Did they act appropriately? We need to know: Was our government doing what it was supposed to be doing?

Secondly, what’s the near-term cost to Oroville? What do we have to do, both to repair the dam and to give it a longer lifespan? It’s the largest dam in the United States; it needs to be repaired.

Thirdly, and most importantly, what is the larger infrastructure analysis we need to do across the state—of all the dams and waterways—in order to have the appropriate information for the governor and the legislators to make their determinations?

The problem with government is that it’s always in crisis management. If the dam hadn’t broken that day, but there was a fire, we’d have spent that money on the fire—and the next day, we wouldn’t have had the money to spend on a broken dam. We don’t plan in advance.

I’m a strategic thinker; I’m looking backwards, looking at the immediate, and looking at the long term. We need to think these things through—put all the options on the table and weigh them. So we’re going to have a series of hearings, and begin working on a bipartisan basis to figure out a solution.

Since you were Assembly Speaker, you’ve been focused like a laser on the need for new financial tools and incentives to finance future strategic investments to meet California’s needs. Do we have appropriate tools today? 

We’ve got them; they’re just different. We’ve got to be smarter now. The old models—slapping a fee on something, or adding a new tax—they worked yesterday, but will they work tomorrow?

For example, we’ve got a big problem at the Salton Sea, and the costs are going to be extraordinary to fix it. Now, a lot of the farmers down there buy water at bargain prices, through century-old water rights. I think there is opportunity there to work out new deals with farmers that are fair and create a revenue stream for repairing the Salton Sea.

We’ve got to think differently about finance now. It’s one of the most important areas I’ve been involved in since coming back to government.

As chair of the Natural Resources Committee, what else should we expect you and your state senate committee in the coming year?

The six areas of a new, strategic water policy are really important to me, and related to that is the Salton Sea. A third issue, which has been ongoing for 20 years, is cleaning up Santa Susana and turning it into a real park that’s usable to inner city kids. Fourth, California has an unbelievable problem of dead trees, and we’ve got to deal with the impacts of fire there.

Part of what we are working on now, unfortunately, is defensive action relating to fear of the Trump administration. For example, the Trump administration is trying to sell off federal lands; Senator Allen put a bill through that would require the sale of federal lands to meet new California standards, or else you won’t be able to transfer title. We’re also looking at standards for offshore oil drilling in Northern California.

The new administration has required some creative defensive thinking—quietly. I’m not a grandstander; I’m not going to make a lot of noise about it, but I want to protect against any actions Trump may take that could adversely affect the environment.

There are, unfortunately, resource limitations on what I can do, so I’m focusing on the big-picture issues that we’ve just got to move along on—the big unsolved problems of California. For instance, I worked on the Quantification Settlement Agreement almost two decades ago; today, the damn thing is still out there. I signed a pact in blood with Senator Garcia, who’s chair of the Water Committee, and Senator Hueso from San Diego, to cut it out, stop the noise, and get it done. That’s the kind of approach we’re taking.

Lastly, your district State Senate district includes most of the San Fernando Valley in Los Angeles County, where replenishing groundwater has been hampered for decades by the existence of pollutants from local defense work done decades ago. What the prospects of this underground pollution challenge being successfully addressed soon? 

To be very frank with you, I’m embarrassed. Our neighboring San Gabriel Valley has adjudicated their basin. They literally don’t import any water, because they replenish their groundwater through stormwater capture. They’ve been incredible.

In Los Angeles, 13 percent of our water is polluted from our activities decades ago. The Water Quality Control Board is talking about it, but it’s all about action and getting it done.

Will Mulholland understood the value of the San Fernando Valley. It’s a gigantic bathtub, and it was an unbelievable reservoir for underground water. Now, we’ve polluted so much of it.

I’m told by experts that there are still certain underground geological formations that would allow us to recharge groundwater there. And DWP has done a good job of cleaning up a number of spreading fields, making them work better.

But at the end of the day, we’re behind where we need to be, and we need to roll. This is an important issue for me; it has got to happen, and I’m working on it.


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