Emerging Environmental Policies: Key California Legislative Proposals to Watch in 2024 – Atkinson, Andelson, Loya, Ruud & Romo

The California Legislature is considering the adoption of several significant environmental policies, each aimed at addressing various aspects of public health and environmental protection.  These proposed bills, which are still subject to change, target issues ranging from lead contamination in school drinking water to fossil fuel accountability for climate damage.  If these legislative efforts are adopted there could be substantial changes in environmental regulations and public health safeguards across the state. 
Assembly Bill 1851 – Lead-Free Learning: Safer Water for California Schools
Under the existing California Safe Drinking Water Act, the State Water Resources Control Board (“Board”) is tasked with overseeing drinking water regulations to safeguard public health.  This act mandates the establishment of a grant program, in collaboration with the State Department of Education, to enhance access to and the quality of drinking water in public schools, covering kindergarten through 12th grade, as well as preschools and child daycare facilities on public school properties. 
Building upon this foundation, Assembly Bill 1851 (Holden) (“AB 1851”) proposes the creation of a pilot program led by the Superintendent of Public Instruction (“SPI”), contingent upon funding availability, aimed at testing and mitigating lead contamination in drinking water at facilities with plumbing that was installed prior to January 1, 2010.  If passed, AB 1851 would require the SPI to select between six (6) and ten (10) Local Educational Agencies (“LEAs”), defined as a school district, county office of education, or charter school, of varying enrollment sizes to participate.  Selected LEAs would be notified of their selection by July 1, 2025, and would receive grants to cover testing and remediation costs.  The selected LEAs would be required to notify parents if lead levels exceed 5 parts per million, immediately shut down all affected outlets, and provide alternative lead-free drinking water sources. 
If adopted, AB 1851 would mandate a public higher education institution selected by the SPI to provide technical assistance to participating LEAs, who would have to report pilot program information to the technical assistance provider by January 1, 2028.  The technical assistance provider must then submit a detailed analysis of the program’s results to the SPI by July 1, 2028.  The SPI would be required to deliver such report to the Department of Finance and relevant legislative committees by July 15, 2028, and make the report publicly available on the State Department of Education’s website. 
Senate Bill 1178 – Clean Waters, Healthy Futures: Corporate Reporting and Mitigation Measures
The Board and California’s nine regional water quality control boards currently regulate water quality and prescribe waste discharge requirements under the federal Clean Water Act and the Porter-Cologne Water Quality Control Act.  Senate Bill 1178 (Padilla) (“SB 1178”) seeks to introduce additional measures aimed at enhancing water quality protection. 
If passed, SB 1178 would require that by August 1, 2025, the Board establish regulations for annual reporting by compliance entities, defined as any business with over 2,500 employees operating in California, regarding waste discharges potentially impacting the state’s water quality and public health.  These regulations would include establishing boundaries for reporting discharge locations within 50 miles of the California border.  Compliance entities would be required to submit their first report to the Board by June 1, 2026, with annual submissions thereafter.  The Board would then quantify the cost of mitigating any reported contamination and notify the compliance entities, which can then choose to mitigate the contamination themselves or pay a surcharge to cover mitigation costs. 
Under the proposed bill the surcharge would be deposited into a newly created California Water Quality and Public Health Impact Fund, dedicated exclusively to addressing waste contamination impacts.  Additionally, the Board would be able to charge compliance entities reasonable fees for administrative costs and impose noncompliance penalties up to $1,000,000, taking into account good faith efforts to comply. 
Senate Bill 1390 – Proactive Flood Management
The right to use the water in California can be acquired through appropriation for beneficial purposes.  However, the diversion of floodflows for groundwater recharge is exempt from requiring an appropriative water right if certain conditions are met.  These conditions include notification of imminent flooding by a local or regional agency that has a local flood control plan or has considered flood risks in its most recent general plan.  Currently, entities making such diversions must file a final report with the Board within 15 days of cessation.  These regulations are applicable to diversions initiated before January 1, 2029. 
Senate Bill 1390 (Caballero) (“SB 1390”) would extend the operation of these requirements to diversions commenced before June 1, 2032, and introduces several key modifications.  If passed, SB 1390 would permit local or regional agencies to use a county emergency operations plan, in addition to a local flood control plan or updated general plan, as the basis for justifying diversions.  It also broadens the definition of floodflows to include projected inundations, in addition to measured conditions.  Furthermore, SB 1390 specifies that imminent flood risks would include projections within the next 15 days, allowing for more proactive flood management. 
SB 1390 mandates that diversions must cease no later than 90 days after commencement unless renewed for an additional 30 days, with prior notification to the Board.  SB 1390 would require the final report to include the forecasting models used, public data references, methodologies for determining abatement of flood conditions, and any diversion renewals.  The proposed legislation ensures that temporary floodflow diversions would adhere to the most junior priority relative to existing water rights and prohibits harm to prior water rights holders.  
Senate Bill 1497 – Polluters Pay Climate Cost Recovery Act: Holding Fossil Fuel Entities Accountable
Senate Bill 1497 (Menjivar) (“SB 1497”) introduces the Polluters Pay Climate Cost Recovery Act of 2024 (“2024 Act”), which aims to hold fossil fuel polluters accountable for the environmental damage caused by their products during the period of time between 2000 to 2020, aiming to support California’s broader climate goal of achieving net-zero greenhouse gas emissions by 2045.  Administered by the California Environmental Protection Agency (“Agency”), the proposed legislation seeks to shift some of the financial burden from climate damages away from California taxpayers and onto the entities responsible for significant greenhouse gas emissions. 
Within 90 days of the effective date of the proposed 2024 Act’s enactment, the Agency would be required to compile and publish a list of “responsible parties,” defined as entities with a majority ownership interest in fossil fuel extraction or refining businesses that have cumulatively caused over 1 billion metric tons of emissions globally during the specified period. 
SB 1497 mandates a comprehensive climate cost study by the Agency within one year of its enactment to quantify the total climate damage, including past and projected future harms to the state up to December 31, 2045.  The study must be updated at least every two years through January 1, 2046.  Within 60 days of completion of the study, the Agency will determine each responsible party’s proportionate share of the total climate damage costs and issue cost recovery demands accordingly.  These demands represent the fair share of damages attributable to each responsible party’s emissions. 
Funds collected from these cost recovery demands will be deposited into a newly created Polluters Pay Climate Fund (“Fund”) in the State Treasury.  SB 1497 specifies that, upon appropriation by the California Legislature, the money in the Fund would be used for projects and programs aimed at mitigating, adapting to, or responding to climate change damages.  Additionally, the Agency would be tasked with determining the initial implementation costs of the act and allocating these costs equitably among responsible parties to ensure the program’s effective rollout. 
Senate Bill 1147 – Microplastic Monitoring in Drinking and Bottled Water  
Senate Bill 1147 (Portantino) (“SB 1147”) introduces stringent measures to address the presence of microplastics in bottles water, aiming to safeguard public health.  Under the existing Sherman Food, Drug, and Cosmetic Law, the State Department of Public Health regulates food, drugs, devices, and cosmetics, including bottled water, by enforcing quality and labeling standards and limiting contaminant levels.  The proposed legislation would mandate that water-bottling plants must include data on microplastics levels in their annual reports to the State Department of Public Health’s Food and Drug Branch, once the Board adopts a primary drinking water standard for microplastics.  This information would also need to be made available to consumers upon request, thereby expanding the regulatory framework and establishing stricter accountability for water-bottling plants. 
Furthermore, SB 1147 integrates provisions from the California Safe Drinking Water Act by requiring the Office of Environmental Health Hazard Assessment to conduct a comprehensive study on the health impacts of microplastics in drinking water, including bottled water.  The study aims to identify a safe level of microplastics that does not pose a significant health risk.  Following this, the Office of Environmental Health Hazard Assessment would be tasked with developing a public health goal for microplastics levels in drinking water, which the Board would review and use to adopt a primary drinking water standard for microplastics. 
Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors for clarification and guidance. 
Special thanks to Farrah Ghaffarirafi, our FCPPG law clerk, for her extensive work on this alert.
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