BILL NUMBER: AB 1095	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 12, 2012
	AMENDED IN SENATE  JUNE 22, 2011
	AMENDED IN ASSEMBLY  MAY 27, 2011
	AMENDED IN ASSEMBLY  MARCH 31, 2011

INTRODUCED BY   Assembly Members  Bill Berryhill, 
   Fuentes,   
 and Hill   Bill Berryhill   and
Buchanan 
    (   Coauthor:  
Assembly Member   Perea   )


                        FEBRUARY 18, 2011

   An act to  add Sections 38582 and 38583 to the Health and
Safety Code, relating to air pollution   amend Section
85057.5 of the Water Code, relating to the Sacramento-San Joaquin
Delta  .



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1095, as amended, Bill Berryhill.  Air pollution:
hearing board: State Air Resources Board.  
Sacramento-San Joaquin Delta Reform Act of 2009: covered actions.
 
   Existing law, the Sacramento-San Joaquin Delta Reform Act of 2009,
establishes the Delta Stewardship Council as an independent agency
of the state. Existing law requires a state or local public agency
that proposes to take a covered action that will occur within the
boundaries of the Delta or the Suisun Marsh to prepare, and submit to
the council, a specified written certification of consistency with
the Delta Plan prior to taking those actions. Existing law defines a
"covered action" to mean a plan, program, or project, as specified.
 
   Existing law, the Johnston-Baker-Andal-Boatwright Delta Protection
Act of 1992, requires the Delta Protection Commission to review and
maintain a comprehensive long-term resource management plan for land
uses within the primary zone, as defined, of the Delta. Existing law
defines the secondary zone as all the Delta land and water area
within the boundaries of the Delta not included within the primary
zone, subject to the land use authority of local government, as
prescribed.  
   This bill would exclude from the definition of "covered action"
any project or portion of a project that falls within an urban or
urbanizing area within the Delta's secondary zone and which is
covered by a general plan, sphere of influence, specific or master
plan, community plan, or development agreement adopted by the
relevant local land use authority.  
   Existing law, the California Environmental Quality Act (CEQA)
requires a lead agency to prepare and certify the completion of an
environmental impact report on a project, as defined, that it
proposes to carry out or approve that may have a significant impact
on the environment or to adopt a negative declaration if it finds
that the project will not have that effect. The National
Environmental Policy Act (NEPA) requires federal agencies to prepare
environmental assessments or environmental impact reports that
contain statements of the environmental effects of proposed federal
agency actions.  
   This bill would exclude from the definition of "covered action"
any upgrade to an existing drinking water, stormwater, or wastewater
treatment, storage, or conveyance facility within the existing
physical footprint of the facility, to meet a state or federal water
quality compliance order, as specified. This bill would also exclude
from the definition of "covered action" any flood control project
undertaken within the Delta's secondary zone that is consistent with
the Central Valley Flood Protection Act of 2008 and which would
provide protection to an urban or urbanizing area or existing public
infrastructure. These upgrades and projects would have to comply with
CEQA or NEPA, or both.  
   Existing law grants air pollution control districts and air
quality management districts the primary responsibility for the
control of air pollution from all sources other than vehicular
sources. Existing law establishes one or more hearing boards in each
district for the purposes of performing specified functions,
including issuing interim variances from specified provisions of law
relating to excess emissions. Existing law, the California Global
Warming Solutions Act of 2006, grants the State Air Resources Board
with authority over the regulation of emissions of greenhouse gases.
 
   This bill would require the creation of a hearing board within the
state board, based on the provisions applicable to district hearing
boards, for the resolution of disputes arising from the enforcement
of, and variance requests relating to, rules and regulations adopted
by the state board pursuant to the California Global Warming
Solutions Act of 2006. The bill would specify the scope of, and
limitations on, the hearing board's authority. The bill would
authorize specified persons to apply to the hearing board for
variances from specified rules and regulations, and resolution of
disputes regarding executive officer findings, decisions, orders, and
determinations, pursuant to the California Global Warming Solutions
Act of 2006. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    The Legislature finds and declares all
of the following:  
   (a) The Legislature passed and the Governor signed Senate Bill 1
of the Seventh Extraordinary Session of 2009 (Chapter 5 of the
Seventh Extraordinary Session of the Statutes of 2009), which
establishes the framework to achieve the coequal goals of providing a
more reliable water supply to California and restoring and enhancing
the Delta ecosystem.  
   (b) This statute created the Delta Stewardship Council (DSC), an
independent seven-member body that is tasked with developing a
long-term plan for the Delta that meets the coequal goals of
providing a more reliable water supply for California while
preserving, enhancing, and protecting the Delta ecosystem and
respecting the unique cultural, recreational, natural resource, and
agricultural values of the Delta as an evolving place.  
   (c) The DSC is tasked with drafting and implementing the Delta
Plan, and requires that actions in the primary and secondary zones be
consistent with the plan as determined by the council upon an
appeal.  
   (d) Inherent in Senate Bill 1 of the Seventh Extraordinary Session
of 2009 is the subjective standard of consistency of the coequal
goals as interpreted by the DSC. Local government decisions on
private and public development within the primary and secondary zones
of the Delta are subject to decisions where statutory ambiguity
related to their sovereign powers is the cause of unintended
consequences.  
   (e) Several projects in the secondary zone are located in areas
that will not cause any findings of inconsistency with the coequal
goals, but are currently under a significant cloud due to this
ambiguity.  
   (f) The ambiguity will have the significant impact of either
stalling or destroying years of actions and local government
approvals for municipal private development, and local governments'
authority to comply with state and federal law with respect to flood
control projects in the secondary zone consistent with the Bay Delta
Conservation Plan or levee improvements are also clouded,
jeopardizing public safety.  
   (g) It is the intent of this act to provide a very narrow
description of enumerated actions in order to relieve the necessity
of these actions from being reviewed by the DSC for consistency,
including specific exclusions from the statutory definition of
"covered actions" as defined in subdivision (b) of Section 85057.5 of
the Water Code for specific areas of private development and for a
limited and specific number of levee and flood control projects
within the secondary zone.  
   (h) It is the intent of this act to relieve these enumerated
projects from the cloud of ambiguity of the consistency standard that
could disrupt financing of private developments in the final stages.

   SEC. 2.    Section 85057.5 of the   Water
Code   is amended to read: 
   85057.5.  (a) "Covered action" means a plan, program, or project
as defined pursuant to Section 21065 of the Public Resources Code
that meets all of the following conditions:
   (1) Will occur, in whole or in part, within the boundaries of the
Delta or Suisun Marsh.
   (2) Will be carried out, approved, or funded by the state or a
local public agency.
   (3) Is covered by one or more provisions of the Delta Plan.
   (4) Will have a significant impact on achievement of one or both
of the coequal goals or the implementation of government-sponsored
flood control programs to reduce risks to people, property, and state
interests in the Delta.
   (b) "Covered action" does not include any of the following:
   (1) A regulatory action of a state agency.
   (2) Routine maintenance and operation of the State Water Project
or the federal Central Valley Project.
   (3) Regional transportation plans prepared pursuant to Section
65080 of the Government Code.
   (4) Any plan, program, project, or activity within the secondary
zone of the Delta that the applicable metropolitan planning
organization under Section 65080 of the Government Code has
determined is consistent with either a sustainable communities
strategy or an alternative planning strategy that the State Air
Resources Board has determined would, if implemented, achieve the
greenhouse gas emission reduction targets established by that board
pursuant to subparagraph (A) of paragraph (2) of subdivision (b) of
Section 65080 of the Government Code. For purposes of this paragraph,
"consistent with" means consistent with the use designation,
density, building intensity, transportation plan, and applicable
policies specified for the area in the sustainable communities
strategy or the alternative planning strategy, as applicable, and any
infrastructure necessary to support the plan, program, project, or
activity.
   (5) Routine maintenance and operation of any facility located, in
whole or in part, in the Delta, that is owned or operated by a local
public agency.
   (6) Any plan, program, project, or activity that occurs, in whole
or in part, in the Delta, if both of the following conditions are
met:
   (A) The plan, program, project, or activity is undertaken by a
local public agency that is located, in whole or in part, in the
Delta.
   (B) Either a notice of determination is filed, pursuant to Section
21152 of the Public Resources Code, for the plan, program, project,
or activity by, or the plan, program, project, or activity is fully
permitted by, September 30, 2009.
   (7) (A) Any project within the secondary zone, as defined pursuant
to Section 29731 of Public Resources Code as of January 1, 2009, for
which a notice of approval or determination pursuant to Section
21152 of the Public Resources Code has been filed before the date on
which the Delta Plan becomes effective.
   (B) Any project for which a notice of approval or determination is
filed on or after the date on which the final Bay Delta Conservation
Plan becomes effective, and before the date on which the Delta Plan
becomes effective, is not a covered action but shall be consistent
with the Bay Delta Conservation Plan.
   (C) Subparagraphs (A) and (B) do not apply to either of the
following:
   (i) Any project that is within a Restoration Opportunity Area as
shown in Figure 3.1 of Chapter 3: Draft Conservation Strategy of the
Bay Delta Conservation Plan, August 3, 2009, or as shown in a final
Bay Delta Conservation Plan.
   (ii) Any project that is within the alignment of a conveyance
facility as shown in Figures 1 to 5, inclusive, of the Final Draft
Initial Assessment of Dual Delta Water Conveyance Report, April 23,
2008, and in future revisions of this document by the department.

   (8) Any project, as defined by Section 21065 of the Public
Resources Code, or part of a project, including, but not limited to,
subsequent entitlements and supporting infrastructure improvements
required for implementation of a project, that is both within an
urban area or urbanizing area, as shown in Figure 5-1 in the Final
Staff Draft Delta Plan (dated May 14, 2012), and in the secondary
zone, as defined by Section 29731 of the Public Resources Code, and
is contained within, covered by, and substantially conforms with a
general plan, sphere of influence, specific or master plan, community
plan, or a development agreement adopted by the applicable local
land use authority within the urban or urbanizing area.  
   (9) Any upgrade to an existing drinking water, stormwater, or
wastewater treatment, storage, or conveyance facility, within the
existing physical footprint of that facility, to meet a state or
federal water quality compliance order, or both, consistent with
state standards or federal standards, or both, and which complies
with the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code) or the
National Environmental Protection Act (42 U.S.C. Sec. 4321 et seq.),
or both.  
   (10) Any flood control project in the secondary zone of the Delta
that is consistent with the applicable provisions of the Central
Valley Flood Protection Act of 2008 (Part 6 of Division 5 (commencing
with Section 9600)), which would provide protection to an urban or
urbanizing area, as shown by Figure 5-1 in the Final Staff Draft
Delta Plan (dated May 14, 2012), and as defined by Section 65007 of
the Government Code, or existing public infrastructure, and which has
complied with the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code) or the
National Environmental Quality Act (42 U.S.C. Sec. 4321 et seq.), or
both. 
   (c) Nothing in the application of this section shall be
interpreted to authorize the abrogation of any vested right whether
created by statute or by common law. 
  SECTION 1.    Section 38582 is added to the Health
and Safety Code, to read:
   38582.  (a) It is the intent of the Legislature that the hearing
board created by this section shall not have any authority over rules
adopted by local or regional authorities, including districts, and
shall not have any authority over decisions of district hearing
boards in cases where the district has an agreement with the state
board to implement or enforce a rule adopted by the state board
pursuant to this division.
   (b) There shall be a hearing board within the state board for the
resolution of disputes arising from the enforcement of rules and
regulations adopted by the state board pursuant to this division.
   (c) The provisions of Chapter 8 (commencing with Section 40800) of
Part 3 of Division 26 shall apply to the hearing board created
pursuant to this section, to the extent those provisions can be made
applicable. For purposes of this subdivision, all references in
Chapter 8 (commencing with Section 40800) of Part 3 of Division 26 to
a "district board" shall mean the state board, and all references to
a "hearing board" shall mean the hearing board created pursuant to
this section.
   (d) The hearing board created pursuant to this section shall have
authority to do all of the following:
   (1) Resolve disputes that compliance entities and facilities may
have with state board executive officer findings, decisions, orders,
or determinations adopted pursuant to this division, except for
disputes regarding penalties.
   (2) Make variance decisions on variance requests due to
unavoidable noncompliance with a state permit or regulation adopted
pursuant to this division, except for decisions regarding penalties.
   (3) (A) Exercise the powers set forth in Section 42309, Article 2
(commencing with Section 42350) of Chapter 4 of Part 4 of Division
26, Article 2.5 (commencing with Section 42365) of Chapter 4 of Part
4 of Division 26, and Article 4 (commencing with Section 42450) of
Chapter 4 of Part 4 of Division 26, with respect to rules adopted by
the state board pursuant to this division, except where there is an
existing agreement between the state board and an air district for
the air district to implement or enforce a permit or rule adopted by
the state board to implement this division.
   (B) Notwithstanding subparagraph (A), where there is an agreement
between the state board and a district board for the district to
implement or enforce a permit or rule adopted by the state board in
implementation of this division, the hearing board of the district in
which the regulated entity is operating shall have jurisdiction to
exercise the authorities listed in this paragraph.
   (e) The hearing board created pursuant to this section shall not
have any authority over rules adopted by local or regional
authorities, including districts, and shall not have any authority
over decisions of district hearing boards.
   (f) The hearing board created pursuant to this section shall not
have authority to change the terms of any rule adopted by the state
board or any district.
   (g) Nothing in this section shall be construed to supersede the
authority of a district hearing board to exercise the powers set
forth in Section 42309, Article 2 (commencing with Section 42350) of
Chapter 4 of Part 4 of Division 26, Article 2.5 (commencing with
Section 42365) of Chapter 4 of Part 4 of Division 26, or Article 4
(commencing with Section 42450) of Chapter 4 of Part 4 of Division
26, with respect to any rule adopted by the district to implement
greenhouse gas emission requirements, including rules implementing
requirements adopted pursuant to this division. The district hearing
board with jurisdiction shall be the hearing board for the air
district within which the affected facility is located. 

  SEC. 2.    Section 38583 is added to the Health
and Safety Code, to read:
   38583.  Any person that is subject to a rule, regulation, order,
or decision of the state board pursuant to this division may apply to
the hearing board created pursuant to Section 38582 for any of the
following purposes:
   (a) (1) A variance from a rule or regulation of the state board
adopted pursuant to this division.
   (2) Notwithstanding paragraph (1), if there is an agreement
between the state board and a district for the district to implement
or enforce a permit or rule adopted by the state board to implement
this division, or if the district has adopted and is implementing a
rule to implement this division, a person shall apply to the
district, and the hearing board of the air district shall have
jurisdiction to issue variances pursuant to Article 2 (commencing
with Section 42350) and Article 2.5 (commencing with Section 42365)
of Chapter 4 of Part 4 of Division 26.
   (b) Resolution of disputes with state board executive officer
findings, decisions, orders, or determinations pursuant to this
division. An application to the hearing board for purposes of this
subdivision shall be made within 60 days after the adoption of the
finding, decision, order, or determination.