STATE WATER RESOURCES CONTROL BOARD

RESOLUTION 98 - 028

RESOLUTION FINDING A CONDITION OF EMERGENCY

AND ADOPTING REGULATION ON EMERGENCY BASIS

WHEREAS:

1. Under existing regulations implemented by this Board, any person may apply for and receive a license to work as an underground storage tank tester, a certification to work as a wastewater treatment plant operator, or a loan through the Linked Deposit Loan Program, regardless of whether he/she is a citizen, qualified alien, or nonqualified alien under federal law;

2. Section 411 of Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) effective August 22, 1996, as amended by Division C, the Immigration Reform and Responsibility Act of 1996, of the Omnibus Consolidated Appropriations Act, 1997, eliminated the ability of ineligible aliens to qualify for certain public benefits including licenses, certifications, and loans;

3. An applicant for a tank tester license, treatment plant operator certification, or a linked deposit loan is not currently required under the Board's regulations to disclose citizenship or alien status;

4. Persons applying for such license, certification, or loan may not be eligible under the federal laws cited in Paragraph 2, above, in that they are not a citizen or a qualified alien;

5. It is necessary to amend Title 23, California Code of Regulations, to provide a provision that implements the requirements of the federal laws requiring disclosure of citizenship status and making persons not eligible under those laws unqualified to receive such a license, certification, or loan;

6. An emergency condition exists, requiring the immediate adoption of a regulation to preserve the public peace, health and safety, and the general welfare. By its actions, Congress has determined that there is "a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits." (Subsection (6) of section 400 of Title IV of PRWORA.) California must abide by that congressional determination in implementing the termination of benefits as required by federal law, effective immediately.

THEREFORE BE IT RESOLVED THAT:

1. A condition of emergency exists for the purposes of Government Code section 11346.1(b) justifying the immediate adoption of the proposed regulation;

2. The proposed regulation, Title 23, California Code of Regulations, Division 3, Chapter 1, Article 7, section 645 and the three forms incorporated by reference thereto, are adopted on an emergency basis, and the Executive Director is authorized to transmit the amendment to the Office of Administrative Law for filing with the Secretary of State.

CERTIFICATION

The undersigned, Administrative Assistant to the Board, does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the State Water Resources Control Board held on April 1, 1998.
/s/

Maureen Marche

Administrative Assistant to the Board

AMENDMENTS

TO

CALIFORNIA CODE OF REGULATIONS

TITLE 23. WATERS

DIVISION 3. STATE WATER RESOURCES CONTROL BOARD

CHAPTER 1. GENERAL PROVISIONS

ARTICLE 7

Adopt Chapter 1, Article 7:

Adopt Section 645 to Read:

§ 645. Limitations on Eligibility of Aliens for Certain Programs

(a) All eligibility requirements contained herein shall be applied without regard to the race, creed, color, gender, religion, or national origin of the individual applying for the public benefit.

(b) Pursuant to section 411 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, (Pub. L. No. 104-193 (PRWORA)), (8 U.S.C. § 1621), and notwithstanding any other provision of this division, aliens who are not qualified aliens, nonimmigrant aliens under the Immigration and Nationality Act (INA) (8 U.S.C. § 1101 et seq.), or aliens paroled into the United States under section 212(d)(5) of the INA (8 U.S.C. § 1182(d)(5)), for less than one year, are not eligible for the following:

(1) Licensing under the Tank Tester License Program (chapter 17 of this division),

(2) Certification as a Wastewater Treatment Plant Operator (chapter 26 of this division), and

(3) Loans under the Link Deposit Program for the Lake Tahoe basin as authorized by the Clean Water and Reclamation Bond Law of 1988 (Water Code 14050 et seq.).

(c) A qualified alien is an alien who, at the time he or she applies for, receives, or attempts to receive a public benefit, is, under section 431(b) of the PRWORA (8 U.S.C. § 1641(b)), any of the following:

(1) An alien lawfully admitted for permanent residence under the INA (8 U.S.C. § 1101 et seq.).

(2) An alien who is granted asylum under section 208 if the INA (8 U.S.C. § 1158).

(3) A refugee who is admitted to the United States under section 207 of the INA (8 U.S.C. § 1157).

(4) An alien who is paroled into the United States under section 212(d)(5) of the INA (8 U.S.C. § 1182(d)(5)) for a period of at least one year.

(5) An alien whose deportation is being withheld under section 243(h) of the INA (8 U.S.C. § 1253(h)) (as in effect immediately before the effective date of section 307 of division C of Public Law 104-208) or section 241 (b)(3) of such Act (as amended by section 305(a) of division C of Public Law 104-208).

(6) An alien who is granted conditional entry pursuant to section 203(a)(7) of the INA as in effect prior to April 1, 1980. (See editorial note under 8 U.S.C. § 1101, "Effective Date of 1980 Amendment.")

(7) An alien who is a Cuban or Haitian entrant (as defined in section 501(e) of the Refugee Education Assistance Act of 1980 (8 U.S.C. § 1522 note)).

(8) An alien who, under section 431(c)(1) of the PRWORA (8 U.S.C. § 1641(c)(1)), meets all of the conditions of subparagraphs (A), (B), (C), and (D) below:

(A) The alien has been battered or subjected to extreme cruelty in the United States by a spouse or a parent, or by a member of the spouse's or parent's family residing in the same household as the alien, and the spouse or parent of the alien consented to, or acquiesced in, such battery or cruelty.

(B) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided.

(C) The alien has a petition that has been approved or has a petition pending which sets forth a prima facie case for:

1. Status as a spouse or child of a United States citizen pursuant to clause (ii), (iii), or (iv) of section 204(a)(1)(A) of the INA (8 U.S.C. § 1154(a)(1)(A)(ii), (iii) or (iv)),

2. Classification pursuant to clause (ii) or (iii) of section 204(a)(1)(B) of the INA (8 U.S.C. § 1154(a)(1)(B)(ii) or (iii)),

3. Suspension of deportation and adjustment of status pursuant to section 244(a)(3) of the INA (8 U.S.C. § 1254) as in effect prior to April 1, 1997 [Pub.L. 104-208, § 501 (effective Sept. 30, 1996, pursuant to § 591); Pub.L. 104-208, § 304 (effective April 1, 1997, pursuant to § 3091; Pub.L. 105-33, § 5581 (effective pursuant to § 5582)] (incorrectly codified as "cancellation of removal under section 240A of such Act [8 U.S.C. § 1229b] (as in effect prior to April 1, 1997)."

4. Status as a spouse or child of a United States citizen pursuant to clause (i) of section 204(a)(1)(A) of the INA (8 U.S.C. § 1154(a)(1)(A)) or classification pursuant to clause (i) of section 204(a)(1)(B) of the INA (8 U.S.C. § 1154(a)(1)(B)).

5. Cancellation of removal pursuant to section 240A (b)(2) of the INA (8 U.S.C. § 1229b(b)(2)).

(D) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individual subjected to the battery or cruelty.

(9) An alien who, under section 431(c)(2) of the PRWORA (8 U.S.C. § 1641(c)(2)), meets all of the conditions of subparagraphs (A), (B), (C), (D) and (E) below:

(A) The alien has a child who has been battered or subjected to extreme cruelty in the United States by a spouse or a parent of the alien (without the active participation of the alien in the battery or cruelty), or by a member of the spouse's or parent's family residing in the same household as the alien, and the spouse or parent consented or acquiesced to such battery or cruelty.

(B) The alien did not actively participate in such battery or cruelty.

(C) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided.

(D) The alien meets the requirements of subsection (b)(8)(C) above.

(E) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individual subjected to the battery or cruelty.

(10) An alien child who meets all of the conditions of subparagraphs (A), (B), and (C) below:

(A) The alien child resides in the same household as a parent who has been battered or subjected to extreme cruelty in the United States by that parent's spouse or by a member of the spouse's family residing in the same household as the parent and the spouse consented or acquiesced to such battery or cruelty.

(B) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided.

(C) The alien child meets the requirements of subsection (c)(8)(C) above.

(d) For purposes of this section, "nonimmigrant" is defined the same as in section 101(a)(15) of the INA (8 U.S.C. § 1101(a)(15)).

(e) For purposes of establishing eligibility for licensing under the Tank Tester Licensing Program, certification as a Wastewater Treatment Plant Operator, or a loan through the Link Deposit Program, all of the following must be met:

(1) The applicant must declare himself or herself to be a citizen of the United States or a qualified alien under subsection (c), a nonimmigrant alien under subsection (d), or an alien paroled into the United States for less than one year under section 212(d)(5) of the INA (8 U.S.C. § 1182(d)(5)). The applicant shall declare that status through use of the "Statement of Citizenship, Alienage, and Immigration Status for State Public Benefits," Form 645A, 645B, or 645C, April 1998 edition, whichever is applicable, and which are incorporated herein by reference.

(2) The applicant must present documents of a type acceptable to the Immigration and Naturalization Service (INS) which serve as reasonable evidence of the applicant's declared status. A fee receipt from the INS for replacement of a lost, stolen, or unreadable INS document is reasonable evidence of the alien's declared status.

(f)(1) Pursuant to section 434 of the PRWORA (8 U.S.C. § 1644), information regarding any applicant presenting the following documentation as reasonable evidence of the applicant's declared status under subsection (e)(2) shall be reported to the Immigration and Naturalization Service:

(A) The document presented indicates immigration status but does not include an alien registration or alien admission number.

(B) The document is suspected to be counterfeit or to have been altered.

(C) The document includes an alien registration number in the A60 000 000 (not yet issued) or A80 000 000 (illegal border crossing) series.

(D) The document is one of the following: an INS Form I-181b notification letter issued in connection with an INS Form I-181 Memorandum of Creation of Record of Permanent Residence, an Arrival-Departure Record (INS Form I-94) or a foreign passport stamped "PROCESSED FOR I-551, TEMPORARY EVIDENCE OF LAWFUL PERMANENT RESIDENCE" that INS issued more than one year before the date of application for licensing under the Tank Tester Licensing Program, certification as a Wastewater Treatment Plant Operator, or a loan through the Link Deposit Program.

(2) Pursuant to section 434 of the PRWORA (8 U.S.C. § 1644), where the State Water Resources Control Board reasonably believes that an alien is unlawfully in the state based on the failure of the alien to provide reasonable evidence of the alien's declared status, after an opportunity to do so, said alien shall be reported to the Immigration and Naturalization Service.

(g) Eligibility for licensing under the Tank Tester Licensing Program, certification as a Wastewater Treatment Plant Operator, or a loan under the Link Deposit Program is established where subsections (e)(1)-(2) are satisfied. Any alien who provides documentation specified under subsection (f)(1) shall be eligible for such licensing, certification, or loan until and unless the State Water Resources Control Board receives written confirmation from the Immigration and Naturalization Service that the alien is not eligible for such licensing, certification, or loan.

(h) Pursuant to section 432(d) of the PRWORA (8 U.S.C. § 1642(d)), a nonprofit charitable organization that provides federal, state, or local public benefits shall not be required to determine, verify, or otherwise require proof of eligibility of any applicant or beneficiary with respect to his or her immigration status or alienage.

(i) Any applicant who was made eligible for licensing under the Tank Tester Licensing Program, certification as a Wastewater Treatment Plant Operator, or a loan through the Link Deposit Program whose services are terminated, suspended, or reduced pursuant to subsections (b) and (e), is entitled to a hearing before the State Water Resources Control Board.

NOTE: Authority cited: Water Code §§ 1058, 13268. Health and Safety Code §25284.4. Reference: 8 U.S.C. §§ 1621, 1641 and 1642.