BILL NUMBER: SB 1074 CHAPTERED 10/09/03 CHAPTER 742 FILED WITH SECRETARY OF STATE OCTOBER 9, 2003 APPROVED BY GOVERNOR OCTOBER 8, 2003 PASSED THE SENATE SEPTEMBER 12, 2003 PASSED THE ASSEMBLY SEPTEMBER 11, 2003 AMENDED IN ASSEMBLY SEPTEMBER 11, 2003 AMENDED IN ASSEMBLY SEPTEMBER 9, 2003 AMENDED IN ASSEMBLY JULY 2, 2003 AMENDED IN ASSEMBLY JUNE 26, 2003 INTRODUCED BY Committee on Environmental Quality (Senators Sher (Chair), Chesbro, Denham, Figueroa, Kuehl, McPherson, and Romero) MARCH 19, 2003 An act to amend Section 115840.5 of, and to amend and repeal Section 115825 of, the Health and Safety Code, and to amend Sections 21061.0.5, 21080.5, 21092, 21159.21, 48003, and 72410 of the Public Resources Code, relating to environmental health. LEGISLATIVE COUNSEL'S DIGEST SB 1074, Committee on Environmental Quality. Environmental quality. (1) Existing law, with certain exceptions, prohibits bodily contact with water in a reservoir in which water is stored for domestic use. Existing law authorizes, until January 1, 2004, recreational uses in the Modesto Reservoir if certain conditions are satisfied. This bill would revise these conditions and delete the January 1, 2004, repeal date, thereby extending this authorization indefinitely. This bill would also authorize the department to require the Modesto Irrigation District to file a report, as specified, and demonstrate that water quality will not be affected, under certain circumstances. The California Environmental Quality Act (CEQA) authorizes the plan or other written documentation of certain regulatory programs of state agencies to be submitted in support of certain activities in lieu of an otherwise required environmental impact report if the Secretary of the Resources Agency has certified the regulatory program in the specified manner. Existing law requires the secretary to develop, by July 1, 2003, a protocol for reviewing the prospective application of certified regulatory programs to evaluate the consistency of those programs with CEQA requirements. This bill would instead require the secretary to develop that protocol by July 1, 2004. Existing law, for purposes of CEQA, defines an infill site to mean a site in an urbanized area that meets certain criteria. This bill would revise these criteria. Existing law requires any lead agency that is preparing an environmental impact report or a negative declaration, or making a determination pursuant to a specified provision of law, to provide public notice within a reasonable period of time prior to certification of the environmental impact report or adoption of the negative declaration. This bill would change a cross-reference in this provision and make related changes. Under existing law, a housing project qualifies for an exemption from CEQA if certain criteria are met. This bill would revise that criteria. Existing law prohibits the California Integrated Waste Management Board from spending more than 1/2% of the total revenues deposited, or anticipated to be deposited, in the Integrated Waste Management Account during a fiscal year for the administration of certain provisions relating to the board's finances, during that fiscal year. This bill would delete an obsolete provision in existing law. (2) This bill would also amend Section 72410 of the Public Resources Code as proposed to be added by AB 121 to make clarifying changes, to be operative only if AB 121 is enacted and becomes effective on or before January 1, 2004. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 115825 of the Health and Safety Code, as amended by Section 1 of Chapter 968 of the Statutes of 2002, is amended to read: 115825. (a) It is hereby declared to be the policy of this state that multiple use should be made of all public water within the state, to the extent that multiple use is consistent with public health and public safety. (b) Except as provided in Sections 115840, 115840.5, 115841, and 115842, recreational uses shall not, with respect to a reservoir in which water is stored for domestic use, include recreation in which there is bodily contact with the water by any participant. SEC. 2. Section 115825 of the Health and Safety Code, as amended by Section 2 of Chapter 968 of the Statutes of 2002, is repealed. SEC. 3. Section 115840.5 of the Health and Safety Code is amended to read: 115840.5. (a) In the Modesto Reservoir, recreational uses shall not include recreation in which any participant has bodily contact with the water, unless both of the following conditions are satisfied: (1) The water subsequently receives complete water treatment, in compliance with all applicable department regulations, including coagulation, flocculation, sedimentation, filtration, and disinfection, before being used for domestic purposes. The disinfection shall include, but not be limited to, ozonation. (2) The reservoir is operated in compliance with regulations of the department. (b) The recreational use may be subject to additional conditions and restrictions adopted by the entity operating the water supply reservoir or required by the department, if those conditions and restrictions do not conflict with regulations of the department, and are required to further protect or enhance the public health and safety. The department shall, prior to requiring any additional conditions and restrictions, consult with the entity operating the water supply reservoir regarding the proposed conditions and restrictions at least 60 days prior to the effective date of those conditions or restrictions. (c) The Modesto Irrigation District shall file, on or before January 1, 2002, with the Legislature, a report on the recreational uses at Modesto Reservoir and the water treatment program. The report shall include, but not be limited to, all of the following information: (1) The estimated levels and types of recreational uses at the reservoir on a monthly basis. (2) Levels of methyl tertiary butyl ether at various reservoir locations on a monthly basis. (3) A summary of available monitoring in the Modesto Reservoir watershed for giardia and cryptosporidium. (4) The sanitary survey of the watershed and water quality monitoring plan. (5) An evaluation of recommendations relating to removal and inactivation of cryptosporidium and giardia as specified in the department water permit dated October 28, 1997. (6) Annual reports provided to the department, as required pursuant to Sections I and IV of the department water permit dated October 28, 1997. (7) An evaluation of the impact on source water quality due to recreational activities on the Modesto Reservoir, including any microbiological monitoring. (8) A summary of any activities between the district and the county for operation of recreational uses and facilities in a manner that optimizes the water quality. (9) The reservoir management plan and the operations plan. (10) The annual water quality reports submitted to consumers each year. (d) If there is a change in operation of the treatment facility or a change in the quantity of water to be treated at the treatment facility, the department may require the Modesto Irrigation District to file a report that includes, but is not limited to, the information required pursuant to subdivision (c), and the district shall demonstrate to the satisfaction of the department that water quality will not be adversely affected. SEC. 4. Section 21061.0.5 of the Public Resources Code is amended to read: 21061.0.5. "Infill site" means a site in an urbanized area that meets either of the following criteria: (a) The immediately adjacent parcels are developed with qualified urban uses or at least 75 percent of the perimeter of the site adjoins parcels that are developed with qualified urban uses and the remaining 25 percent of the site adjoins parcels that have previously been developed for qualified urban uses, and the site has not been developed for urban uses and no parcel within the site has been created within the past 10 years. (b) The site has been previously developed for qualified urban uses. SEC. 5. Section 21080.5 of the Public Resources Code is amended to read: 21080.5. (a) Except as provided in Section 21158.1, when the regulatory program of a state agency requires a plan or other written documentation containing environmental information and complying with paragraph (3) of subdivision (d) to be submitted in support of an activity listed in subdivision (b), the plan or other written documentation may be submitted in lieu of the environmental impact report required by this division if the Secretary of the Resources Agency has certified the regulatory program pursuant to this section. (b) This section applies only to regulatory programs or portions thereof that involve either of the following: (1) The issuance to a person of a lease, permit, license, certificate, or other entitlement for use. (2) The adoption or approval of standards, rules, regulations, or plans for use in the regulatory program. (c) A regulatory program certified pursuant to this section is exempt from Chapter 3 (commencing with Section 21100), Chapter 4 (commencing with Section 21150), and Section 21167, except as provided in Article 2 (commencing with Section 21157) of Chapter 4.5. (d) To qualify for certification pursuant to this section, a regulatory program shall require the utilization of an interdisciplinary approach that will ensure the integrated use of the natural and social sciences in decisionmaking and that shall meet all of the following criteria: (1) The enabling legislation of the regulatory program does both of the following: (A) Includes protection of the environment among its principal purposes. (B) Contains authority for the administering agency to adopt rules and regulations for the protection of the environment, guided by standards set forth in the enabling legislation. (2) The rules and regulations adopted by the administering agency for the regulatory program do all of the following: (A) Require that an activity will not be approved or adopted as proposed if there are feasible alternatives or feasible mitigation measures available that would substantially lessen a significant adverse effect that the activity may have on the environment. (B) Include guidelines for the orderly evaluation of proposed activities and the preparation of the plan or other written documentation in a manner consistent with the environmental protection purposes of the regulatory program. (C) Require the administering agency to consult with all public agencies that have jurisdiction, by law, with respect to the proposed activity. (D) Require that final action on the proposed activity include the written responses of the issuing authority to significant environmental points raised during the evaluation process. (E) Require the filing of a notice of the decision by the administering agency on the proposed activity with the Secretary of the Resources Agency. Those notices shall be available for public inspection, and a list of the notices shall be posted on a weekly basis in the Office of the Resources Agency. Each list shall remain posted for a period of 30 days. (F) Require notice of the filing of the plan or other written documentation to be made to the public and to a person who requests, in writing, notification. The notification shall be made in a manner that will provide the public or a person requesting notification with sufficient time to review and comment on the filing. (3) The plan or other written documentation required by the regulatory program does both of the following: (A) Includes a description of the proposed activity with alternatives to the activity, and mitigation measures to minimize any significant adverse effect on the environment of the activity. (B) Is available for a reasonable time for review and comment by other public agencies and the general public. (e) (1) The Secretary of the Resources Agency shall certify a regulatory program that the secretary determines meets all the qualifications for certification set forth in this section, and withdraw certification on determination that the regulatory program has been altered so that it no longer meets those qualifications. Certification and withdrawal of certification shall occur only after compliance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. (2) In determining whether or not a regulatory program meets the qualifications for certification set forth in this section, the inquiry of the secretary shall extend only to the question of whether the regulatory program meets the generic requirements of subdivision (d). The inquiry may not extend to individual decisions to be reached under the regulatory program, including the nature of specific alternatives or mitigation measures that might be proposed to lessen any significant adverse effect on the environment of the activity. (3) If the secretary determines that the regulatory program submitted for certification does not meet the qualifications for certification set forth in this section, the secretary shall adopt findings setting forth the reasons for the determination. (f) After a regulatory program has been certified pursuant to this section, a proposed change in the program that could affect compliance with the qualifications for certification specified in subdivision (d) may be submitted to the Secretary of the Resources Agency for review and comment. The scope of the secretary's review shall extend only to the question of whether the regulatory program meets the generic requirements of subdivision (d). The review may not extend to individual decisions to be reached under the regulatory program, including specific alternatives or mitigation measures that might be proposed to lessen any significant adverse effect on the environment of the activity. The secretary shall have 30 days from the date of receipt of the proposed change to notify the state agency whether the proposed change will alter the regulatory program so that it no longer meets the qualification for certification established in this section and will result in a withdrawal of certification as provided in this section. (g) An action or proceeding to attack, review, set aside, void, or annul a determination or decision of a state agency approving or adopting a proposed activity under a regulatory program that has been certified pursuant to this section on the basis that the plan or other written documentation prepared pursuant to paragraph (3) of subdivision (d) does not comply with this section shall be commenced not later than 30 days from the date of the filing of notice of the approval or adoption of the activity. (h) (1) An action or proceeding to attack, review, set aside, void, or annul a determination of the Secretary of the Resources Agency to certify a regulatory program pursuant to this section on the basis that the regulatory program does not comply with this section shall be commenced within 30 days from the date of certification by the secretary. (2) In an action brought pursuant to paragraph (1), the inquiry shall extend only to whether there was a prejudicial abuse of discretion by the secretary. Abuse of discretion is established if the secretary has not proceeded in a manner required by law or if the determination is not supported by substantial evidence. (i) For purposes of this section, a county agricultural commissioner is a state agency. (j) For purposes of this section, an air quality management district or air pollution control district is a state agency, except that the approval, if any, by a district of a nonattainment area plan is subject to this section only if, and to the extent that, the approval adopts or amends rules or regulations. (k) (1) The secretary, by July 1, 2004, shall develop a protocol for reviewing the prospective application of certified regulatory programs to evaluate the consistency of those programs with the requirements of this division. Following the completion of the development of the protocol, the secretary shall provide a report to the Senate Committee on Environmental Quality and the Assembly Committee on Natural Resources regarding the need for a grant of additional statutory authority authorizing the secretary to undertake a review of the certified regulatory programs. (2) The secretary shall provide a significant opportunity for public participation in developing the protocol described in paragraph (1) including, but not limited to, at least two public meetings with interested parties. A notice of each meeting shall be provided at least 10 days prior to the meeting to a person who files a written request for a notice with the agency. SEC. 6. Section 21092 of the Public Resources Code is amended to read: 21092. (a) Any lead agency that is preparing an environmental impact report or a negative declaration or making a determination pursuant to subdivision (c) of Section 21157.1 shall provide public notice of that fact within a reasonable period of time prior to certification of the environmental impact report, adoption of the negative declaration, or making the determination pursuant to subdivision (c) of Section 21157.1. (b) (1) The notice shall specify the period during which comments will be received on the draft environmental report or negative declaration, and shall include the date, time, and place of any public meetings or hearings on the proposed project, a brief description of the proposed project and its location, the significant effects on the environment, if any, anticipated as a result of the project, and the address where copies of the draft environmental impact report or negative declaration, and all documents referenced in the draft environmental impact report or negative declaration, are available for review. (2) This section shall not be construed in any manner that results in the invalidation of an action because of the alleged inadequacy of the notice content, provided that there has been substantial compliance with the notice content requirements of this section. (3) The notice required by this section shall be given to the last known name and address of all organizations and individuals who have previously requested notice and shall also be given by at least one of the following procedures: (A) Publication, no fewer times than required by Section 6061 of the Government Code, by the public agency in a newspaper of general circulation in the area affected by the proposed project. If more than one area will be affected, the notice shall be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas. (B) Posting of notice by the lead agency on- and off-site in the area where the project is to be located. (C) Direct mailing to the owners and occupants of contiguous property shown on the latest equalized assessment roll. (c) For any project involving the burning of municipal wastes, hazardous waste, or refuse-derived fuel, including, but not limited to, tires, meeting the qualifications of subdivision (d), notice shall be given to all organizations and individuals who have previously requested notice and shall also be given by at least the procedures specified in subparagraphs (A), (B), and (C) of paragraph (3) of subdivision (b). In addition, notification shall be given by direct mailing to the owners and occupants of property within one-fourth of a mile of any parcel or parcels on which is located a project subject to this subdivision. This subdivision does not apply to any project for which notice has already been provided as of July 14, 1989, in compliance with this section as it existed prior to July 14, 1989. (d) The notice requirements of subdivision (c) apply to both of the following: (1) The construction of a new facility. (2) The expansion of an existing facility which burns hazardous waste which would increase its permitted capacity by more than 10 percent. For purposes of this paragraph, the amount of expansion of an existing facility shall be calculated by comparing the proposed facility capacity with whichever of the following is applicable: (A) The facility capacity approved in the facility's hazardous waste facilities permit pursuant to Section 25200 of the Health and Safety Code or its grant of interim status pursuant to Section 25200.5 of the Health and Safety Code, or the facility capacity authorized in any state or local agency permit allowing the construction or operation of a facility for the burning of hazardous waste, granted before January 1, 1990. (B) The facility capacity authorized in the facility's original hazardous waste facilities permit, grant of interim status, or any state or local agency permit allowing the construction or operation of a facility for the burning of hazardous waste, granted on or after January 1, 1990. (e) The notice requirements specified in subdivision (b) or (c) shall not preclude a public agency from providing additional notice by other means if the agency so desires, or from providing the public notice required by this section at the same time and in the same manner as public notice otherwise required by law for the project. SEC. 7. Section 21159.21 of the Public Resources Code is amended to read: 21159.21. A housing project qualifies for an exemption from this division pursuant to Section 21159.22, 21159.23, or 21159.24 if it meets the criteria in the applicable section and all of the following criteria: (a) The project is consistent with any applicable general plan, specific plan, and local coastal program, including any mitigation measures required by a plan or program, as that plan or program existed on the date that the application was deemed complete and with any applicable zoning ordinance, as that zoning ordinance existed on the date that the application was deemed complete, except that a project shall not be deemed to be inconsistent with the zoning designation for the site if that zoning designation is inconsistent with the general plan only because the project site has not been rezoned to conform with a more recently adopted general plan. (b) Community-level environmental review has been adopted or certified. (c) The project and other projects approved prior to the approval of the project can be adequately served by existing utilities, and the project applicant has paid, or has committed to pay, all applicable in-lieu or development fees. (d) The site of the project does not contain wetlands, does not have any value as a wildlife habitat, and the project does not harm any species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) or by the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), and the project does not cause the destruction or removal of any species protected by a local ordinance in effect at the time the application for the project was deemed complete. For the purposes of this subdivision, "wetlands" has the same meaning as in Section 328.3 of Title 33 of the Code of Federal Regulations and "wildlife habitat" means the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection. (e) The site of the project is not included on any list of facilities and sites compiled pursuant to Section 65962.5 of the Government Code. (f) The site of the project is subject to a preliminary endangerment assessment prepared by a registered environmental assessor to determine the existence of any release of a hazardous substance on the site and to determine the potential for exposure of future occupants to significant health hazards from any nearby property or activity. (1) If a release of a hazardous substance is found to exist on the site, the release shall be removed, or any significant effects of the release shall be mitigated to a level of insignificance in compliance with state and federal requirements. (2) If a potential for exposure to significant hazards from surrounding properties or activities is found to exist, the effects of the potential exposure shall be mitigated to a level of insignificance in compliance with state and federal requirements. (g) The project does not have a significant effect on historical resources pursuant to Section 21084.1. (h) The project site is not subject to any of the following: (1) A wildland fire hazard, as determined by the Department of Forestry and Fire Protection, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a wildland fire hazard. (2) An unusually high risk of fire or explosion from materials stored or used on nearby properties. (3) Risk of a public health exposure at a level that would exceed the standards established by any state or federal agency. (4) Within a delineated earthquake fault zone, as determined pursuant to Section 2622, or a seismic hazard zone, as determined pursuant to Section 2696, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of an earthquake fault or seismic hazard zone. (5) Landslide hazard, flood plain, flood way, or restriction zone, unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a landslide or flood. (i) (1) The project site is not located on developed open space. (2) For the purposes of this subdivision, "developed open space" means land that meets all of the following criteria: (A) Is publicly owned, or financed in whole or in part by public funds. (B) Is generally open to, and available for use by, the public. (C) Is predominantly lacking in structural development other than structures associated with open spaces, including, but not limited to, playgrounds, swimming pools, ballfields, enclosed child play areas, and picnic facilities. (3) For the purposes of this subdivision, "developed open space" includes land that has been designated for acquisition by a public agency for developed open space, but does not include lands acquired by public funds dedicated to the acquisition of land for housing purposes. (j) The project site is not located within the boundaries of a state conservancy. SEC. 8. Section 48003 of the Public Resources Code is amended to read: 48003. The state board may not spend more than 1/2 percent of the total revenues deposited, or anticipated to be deposited, in the account during a fiscal year for the administration of this chapter during that fiscal year. SEC. 9. Section 72410 of the Public Resources Code, as added by Section 1 of Assembly Bill 121 of the 2003-04 Regular Session, is amended to read: CHAPTER 2. DEFINITIONS 72410. (a) Unless the context otherwise requires, the definitions set forth in this section govern this division. (b) "Board" means the State Water Resources Control Board. (c) "Large passenger vessel" or "vessel" means a vessel of 300 gross registered tons or greater that is engaged in the carrying of passengers for hire, excluding all of the following vessels: (1) Vessels without berths or overnight accommodations for passengers. (2) Noncommercial vessels, warships, vessels operated by nonprofit entities as determined by the Internal Revenue Service, and vessels operated by the state, the United States, or a foreign government. (d) "Marine waters of the state" means "coastal waters" as defined in Section 13181 of the Water Code. (e) "Marine sanctuary" means marine waters of the state in the Channel Islands National Marine Sanctuary, Cordell Bank National Marine Sanctuary, Gulf of the Farallones National Marine Sanctuary, or Monterey Bay National Marine Sanctuary. (f) "Oil" has the meaning set forth in Section 8750. (g) "Oily bilgewater" includes bilgewater that contains used lubrication oils, oil sludge and slops, fuel and oil sludge, used oil, used fuel and fuel filters, and oily waste. (h) "Operator" has the meaning set forth in Section 651 of the Harbors and Navigation Code. (i) "Owner" has the meaning set forth in Section 651 of the Harbors and Navigation Code. (j) "Release" means discharging or disposing of wastes into the environment. (k) "Sewage sludge" has the meaning set forth in Section 122.2 of Title 40 of the Code of Federal Regulations. SEC. 10. Section 9 of this act shall become operative only if Section 72410 is added to the Public Resources Code by the enactment of AB 121 and becomes effective on or before January 1, 2004, and in that case, Section 9 of this act shall become operative January 1, 2004.