BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: AB 1102 HEARING DATE: June 24, 2014
AUTHOR: Allen URGENCY: No
VERSION: June 10, 2014 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Beach burning: coastal development permit: South Coast
Air Quality Management District.
BACKGROUND AND EXISTING LAW
1) Pursuant to the Coastal Act:
a) Requires a person wishing to perform a development in the
coastal zone to first obtain a CDP from the Coastal Commission
(CCC or Commission) or a local government with a
Commission-certified local coastal program (LCP).
b) In carrying out the California Constitution's protection of
coastal access, the Coastal Act requires maximum access and
recreational opportunities to be provided for all the people
consistent with public safety needs and the need to protect
public rights, rights of private property owners, and natural
resource areas from over use.
c) The Coastal Act requires lower cost visitor and recreational
facilities to be protected, encouraged, and, where feasible,
provided. It also contains a preference for developments that
provide public recreational opportunities.
d) The Coastal Act, wherever appropriate and feasible, also
requires public facilities, including parking areas or
facilities, to be distributed throughout an area to mitigate
against the impacts, social and otherwise, of overcrowding or
overuse by the public of any single area.
e) No provision of the Coastal Act authorizes the Commission or
a local government to establish any ambient air quality standard
or emission standard, air pollution control program or facility,
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or to modify any ambient air quality standard, emission
standard, or air pollution control program or facility which has
been established by the state board or by an air pollution
control district.
2) Pursuant to SCAQMD's open burning regulations:
a) Effective March 1, 2014, an amended regulation imposes
various conditions on beach burning which include a 700 foot
buffer zone to the nearest residence, a 100 foot distance
between fire rings (or 50 feet where there are no more than 15
devices per beach area within a city), possible
no-burn days during unfavorable weather or air quality
conditions, as well as others. The rule also states that beach
burning devices may not be made available by a state or local
authority if a city or county has declared that designated beach
burning devices within its boundaries cause a nuisance, as
defined by existing law, due to wood smoke exposure.
In Newport Beach, the 60 fire rings on the beach that is the
chief subject of this legislation are all located within 700
feet of beachfront residences, and all are spaced less than 100
feet from each other. Some local residents have been seeking a
ban on beach fires for years.
3) Newport Beach, by ordinance, now requires the fire rings to
burn charcoal.
PROPOSED LAW
This bill has been significantly amended. Pursuant to amendments
adopted by the Senate Environmental Quality Committee at a
hearing on June 4, the bill does the following:
1. Requires public agencies located in the south coast air
district that has areas containing beach fire rings to comply
with both the south coast district rule that restricts the use
or location of a beach fire ring and with the provisions of the
Coastal Act.
2. States that an application for a coastal development permit
to remove or restrict the use of a beach fire ring shall include
an analysis of alternatives and mitigation measures that would
avoid or minimize the need to remove or restrict the use of a
beach fire ring.
3. Defines beach fire rings as devices used for recreational or
ceremonial burning on beaches in the coastal zone.
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ARGUMENTS IN SUPPORT
The California Coastal Commission asserts that beach fire rings
provide important low-cost visitor-serving recreational
opportunities that provide public access to the coast. Providing
such access is an affirmative duty of the CCC pursuant to the
Coastal Act.
The CCC does not object to the fire ring spacing requirements in
the air district rule, and it concurs that wood smoke can also
have negative impacts on public health.
It states, however, that removing, reducing, or restricting
access to fire rings on public beaches in order to improve air
quality would diminish their value as low-cost visitor-serving
recreational amenities. It proposes that the best way to analyze
and potentially mitigate this issue is in the context of a
coastal development permit.
The CCC believes that by spacing the rings 100 feet apart or
more than 700 feet from homes would allow some of the fire rings
to remain as wood-burning, and would not require removal of any
fire rings.
Under such an approach, the CCC concludes that there is no
reason to "pick" between the South Coast air district rule and
the Coastal Act since there would be no conflict between the two
bodies of law.
The CCC is also very concerned that the City of Newport Beach
does not have a certified local coastal plan several decades
after passage of the Coastal Act, and has, until very recently,
not agreed (or however one chooses to characterize the impasse)
that its ordinance prohibiting wood fires even beyond what is
required by the air district should be subject to a coastal
development permit.
Coastwalk California does not question the health effects of
wood smoke or the appropriate distances between fire rings or
proximity to residences. But it questions the motives of some in
Newport Beach. It contends that the city is the home to some
residents who are unhappy with the "general inconvenience" of
living adjacent to this popular beach area and who, it believes,
prevailed upon the air district to initiate the restrictions on
beach fires.
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Orange County, the City of Huntington Beach, the National
Federation of Independent Business, and others are in support of
the bill as a way to retain the economic impacts of this
particular method of coastal tourism and to retain a family
friendly activity on the beach. Supporters refer to the
"fellowship of the beach bonfire" as a key tradition of the
California beach culture.
The NAACP argues that the bill is necessary to avoid losses of
beach access, harm to local economies, and to ensure that any
environmental issues are addressed prior to a local government
removing fire rings from California beaches.
A local group, Friends of the Fire Rings, points out that the
Health and Safety Code protects the use of fires used
recreationally, and states that Rule 444 does not apparently
apply to fire rings in back yards, public inland campgrounds, or
private beaches.
ARGUMENTS IN OPPOSITION
The South Coast Air Quality Management District opposes the bill
and defends its Rule 444 that imposed restrictions on beach
fires within its jurisdiction. It considers Rule 444 to be
balanced, based on sound science, and extensive public input. It
is also concerned about the precedent of a law that could be
construed as undercutting its statutory mission to protect and
improve air quality.
The American Lung Association considers the bill an intrusion
into the air district's authority to regulate air pollution and
considers wood smoke a significant public health risk. The
California Air Pollution Control Officers Association made
similar arguments.
COMMENTS
Much of the testimony at the recent Senate Environmental Quality
Committee hearing clearly did not satisfy its membership, three
of whom are also members of this Committee. Staff of this
Committee got the distinct impression that the members do not
want a repeat performance of that hearing and that the members
are frustrated that some sort of compromise is not possible
between two important agencies and this coastal city.
On Wednesday, June 18, Committee and author staff, CCC, air
district, and the City of Newport Beach representatives had a
productive meeting that has the possibility of contributing to a
negotiated settlement. The discussion was focused on a draft
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amendment to AB 1102 prepared by the Committee that would do all
of the following:
1. Retain the Environmental Quality Committee outcome that the
City of Newport Beach (and other local governments in the South
Coast air district) must follow both the Coastal Act and the
applicable regulations of the air district. This section was
proposed for inclusion only in the Public Resources Code,
thereby excluding the Health and Safety Code (and any direct
effect on the South Coast air district) from the bill. At the
moment, the remaining dispute is between the City and the CCC.
All parties and the relevant Senate policy committee agree that
the air district rule shall be adhered to, which basically means
that the remaining legislation is only a matter for a possible
amendment to the Coastal Act. As proposed to be amended, this
provision would also be limited to local governments, not state
agencies, and would not allow local governments to avoid the
need for a permit by claiming an action was a public nuisance.
The rationale is that the bill should be narrowly focused in an
effort to resolve the dispute between Newport Beach and the
Coastal Commission and not to include language that could
generate concerns or opposition from others.
2. Retain the Environmental Quality Committee provision that an
application for a coastal development permit shall include an
analysis of alternatives and mitigation measures by the CCC. As
proposed to be amended, language would be added to this
provision that any such application shall not be unreasonably
denied by the commission at a public hearing and a decision on
the application shall be expedited to the maximum extent
feasible. The rationale is that a reasonable proposal that is
lawful under the Coastal Act should be approved on an expedited
schedule. Of course, the details of any such proposal would be
negotiated by and between the City and the CCC.
3. Defines "beach rings" identically to the Senate Environmental
Quality Committee language.
4. As proposed to be amended, the bill would include a new
provision that states that Newport Beach is not prohibited by
the bill from distributing charcoal free of charge for use in
beach fire rings within 700 feet of a private residence. This
provision directly adopts the desire of Newport Beach and the
air district for a different fuel type near residences, which
was also a preferred outcome by the Environmental Quality
Committee. The rationale here is that the discussion in
Environmental Quality clearly recognized that residents near
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fire rings should not be burdened with continuous exposure to
wood smoke. However, this amendment leaves to the future
negotiations the questions of whether the Newport Beach ban on
all wood fires (even those beyond 700 feet) complies with the
Coastal Act, or whether Newport Beach's ordinance requires a
coastal development permit or any additional conditions. Some
clarification on these questions, especially the second
question, is included in Comment 5.
Also at that meeting, two additional very constructive
suggestions were made. The first, made by the CCC, is that the
CCC's jurisdiction over removing or restricting the use of beach
fire rings may be satisfied not only by a permit application,
but also through a permit that the CCC could handle through a
waiver procedure.
The second, made by the air district, is that the staff draft
should specifically cross-reference Public Resources Code Sec.
30414 which prohibits the Commission from modifying any ambient
air quality standard, emission standard, or air pollution
control program or facility which has been established by the
state board or by an air pollution control district. The CCC
does not believe it is affecting the air district's program, but
the cross-reference to an existing section of law in the Coastal
Act seems reasonable. Both of those suggestions are therefore
incorporated in the proposed amendments.
5. Subsequent to the meeting, the city manager of Newport Beach
communicated to the Committee and the other stakeholders some
other conceptual proposals that could contribute to a settlement
of this dispute, although those discussions are continuing.
Pertinent provisions include:
1. A trial or pilot period through mid-2016 to test in the
field changes in density/intensity of use of the 60 fire
rings if all are fueled only by charcoal. By that time,
Newport Beach hopes that its local coastal plan will be
approved and it will have primary jurisdiction over the
fire rings, subject to an appeals process to the CCC.
2. The City and CCC would develop a monitoring plan for the
city to follow to field test any changes described in the
first item above.
3. The City would agree to not remove, move, or otherwise
restrict access to any of the 60 rings (except for routine
maintenance) through the pilot period - however, the fire
rings would still be subject to an existing 10:00
p.m.--6:00 a.m. curfew.
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4. The City would apply for a permit to the CCC, which
shall not be unreasonably denied, and which could be
converted into a de minimus permit or a conditional waiver,
under a process that is still being discussed. The City's
application shall include:
a. The basics of its monitoring plan, which would
include AQMD and an air quality component.
b. An alternatives analysis and the reasons for
choosing certain alternatives.
5. The City would provide charcoal either for free or at a
reduced/subsidized cost at the beach.
This approach by the City in conjunction with the statutory
approach recommended by staff, would, during this trial period,
if not beyond, do the following:
1. Require implementation of the South Coast Rule 444.
2. Protect the jurisdiction of the CCC under the Coastal Act.
3. Acknowledge that at Newport Beach, charcoal would remain
the dominant fuel type. (Whether wood remains a viable option
at fire rings that meet the spacing and residential distance
requirements of Rule 444 needs to be resolved.)
4. Reduce the bill to one new section in the Coastal Act, that
requires compliance with Rule 444 as well as Section 30414 and
with no further direction to the air district or amendments to
the Health and Safety Code, both of which are outcomes desired
by the air district.
Possible Amendments: Although the final language of a compromise
may not be finished at the time of the hearing, the Committee
may wish to keep the bill moving as proposed below so that the
terms of a subsequent compromise can be included as a future
amendment, possibly in Senate Appropriations. It is important to
note that the latest communication from the City to the CCC does
not resolve all open issues but could become a framework for
resolving one or more of the remaining open issues.
The language below makes the amendments discussed in Comment 5
above, which is the staff draft plus the two additions from the
CCC and the air district. Future amendments to memorialize the
agreement between the CCC and the City of Newport Beach may be
added.
SUGGESTED AMENDMENTS
AMENDMENT 1
Add new section: The Legislature finds that Sec 2(a) and (b) is
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declaratory of existing law and clarifies potential conflicting
interpretations.
AMENDMENT 2
Page 4, line 4--Renumber as Sec. 2 and re-write as follows:
Sec. 2. Amend PRC 30607.9.
(a) Notwithstanding Section 30005 (b), removing or restricting
the use of a beach fire ring by a city or county shall be
subject to the requirements of this division and any other
applicable regulatory requirements.
(b) An application for a coastal development permit to remove or
restrict the use of a beach fire ring shall include an analysis
of alternatives and mitigation measures that would avoid or
minimize the need to remove or restrict the use of a beach fire
ring. Any such application or approval determined through a
waiver procedure shall not be unreasonably denied by the
commission at a public hearing and a decision on the application
shall be expedited to the maximum extent feasible.
(c) "Beach fire ring" means a device in which recreational or
ceremonial burning occurs that is located on a beach in the
coastal zone.
(d) Nothing in this section prohibits the City of Newport Beach
from distributing charcoal free of charge for use in beach fire
rings within 700 feet of a private residence.
(e) Nothing in this section affects the applicability of Public
Resources Code section 30414.
AMENDMENT 3
Page 4, lines 12-14. Delete.
AMENDMENT 4
The Legislature finds and declares that a special law is
necessary and that a general law cannot be made applicable
within the meaning of Section 16 of Article IV of the California
Constitution because of the unique circumstances involving the
City of Newport Beach and a potential conflicting interpretation
between the Coastal Act and a rule of the South Coast Air
Quality Management District.
SUPPORT
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AZUL
Banning Ranch Conservancy
California Association of RV Parks and Campgrounds
California Coastal Commission
California Coastal Protection Network
California NAACP
California Small Business Association
California Travel Association
City of Los Alimitos
Friends of Harbors, Beaches, and Parks
Friends of the Fire Rings
Huntington Beach Chamber of Commerce
Michelle Steele, Board of Equalization
National Federation of Independent Business
North County Watch
Orange County
Surfrider Foundation
Many individuals
OPPOSITION
American Lung Association in California
Breathe California
California Air Pollution Control Officers Association
Coalition for Clean Air
Sierra Club California
South Coast Air Quality Management District
Many individuals
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