Part 3: California Laws Impacting Public Agencies for 2020
How do the laws passed last year by California lawmakers impact how public agencies do business in the new year? In this annual Legal Alert series, Best Best & Krieger LLP brings you summaries of some of the most critical legislation that agencies need to know about to stay in compliance and best serve their communities. All laws went into effect Jan. 1, unless otherwise noted.
Telecommunications
AB 1699 Telecommunications: mobile Internet service providers: first response agencies: emergencies
Fire officials experienced a significant data transmission slowdown of their mobile emergency communications while battling the 2018 Mendocino Complex Fire. Although their data plan was “unlimited,” it included a data usage allotment and the data speeds were slowed once the allotment was exceeded. This measure addresses the attendant public safety concerns of such practices, building on the net neutrality provisions enacted in 2018. The new law requires mobile Internet service providers to lift data speed restrictions on mobile accounts of first response agencies upon request in an emergency. The request must provide the proper account number and lines to the provider, and the first response agency must notify the provider when the agency’s emergency response is complete. For purposes of this measure, emergency means the existence of conditions of disaster or of extreme peril to the safety of persons and property caused by fire, flood, earthquake, cyberterrorism, Governor’s warning of an earthquake or volcanic prediction, and similar conditions.
SB 670 Telecommunications: community isolation outage: notification
Under federal law, phone service providers that provide access to 911 service must report outages lasting 30 minutes and potentially affecting 900,000 user minutes to the Federal Communications Commission. The result of this high threshold is that isolated outages affecting smaller, often rural, communities go unreported. The new law requires the state Office of Emergency Services to adopt regulations by July 1 that establish thresholds for whether a phone service outage qualifies as a “community isolation outage” based on health and safety considerations. The law was adopted as an urgency statute effective Oct. 2, 2019, and requires OES to issue a notice of the proposed regulation by Jan. 1. Under the law, telecommunication providers that provide 911 services will be required to notify the OES when an community isolation outage limits a customer’s ability to make 911 calls within 60 minutes of discovering the outage and include an estimated time to repair and restore service.
Environment
Water
AB 658 Water rights: water management
In the Legal Alert, Groundwater Recharge Projects Get Boost Under AB 658, we explore how AB 658 helps local agencies achieve groundwater sustainability requirements under the Sustainable Groundwater Management Act, known as SGMA.
SB 205 Business licenses: stormwater discharge compliance
The Legal Alert Cities Issuing Business Licenses Will Need to Verify NPDES Permits First discusses what Californians need to know about SB 205.
AB 65 Coastal protection: climate adaption: project prioritization: natural infrastructure: local general plans
In 2018, voters approved Proposition 68 to provide funding for water, climate and coastal protection. It allocated more than $20 million to the California State Coastal Conservancy’s Climate Ready Program for protection and improvement of coastal resources. The new measure details the types of projects the SCC must prioritize with those funds in its jurisdiction, including projects that use natural infrastructure to adapt to climate change, projects that provide multiple benefits to the public and diverse projects along the coast that protect estuaries and lagoons. The new law also revises the definition of natural infrastructure in the Public Resources Code and Government Code to mean using natural ecological processes to reduce vulnerability to climate change while increasing the adaptability of coastal and inland areas by restoring or improving ecosystem services. This includes conservation, sustainable management and preservation of beaches, dunes, tidal marshes, lagoons, parks, rain gardens and the like, as well as practices that mimic natural processes, such as permeable pavements and bioswales. The new law also authorizes SCC to provide technical assistance to coastal communities that use natural infrastructure, and requires SCC to provide information to the Office of Planning and Research’s clearinghouse on climate change.
AB 508 Drinking water: consolidation and extension of service: domestic wells
In 2018, California passed AB 2501, which increased access to clean drinking water to disadvantaged communities. AB 508 strengthens those provisions by giving the State Water Resources Control Board until July 1 to adopt a policy that allows members of a disadvantaged community to petition the Board for consolidation of drinking water systems. The measure provides a new process and public notice requirements for consolidating systems within 6 months following a petition. It also revises the provision pertaining to water service for disadvantaged communities served by a failing domestic well. Previously, a disadvantaged community qualified for consolidation if it relied on a domestic well that consistently failed. The new law requires that a disadvantaged community must be, in whole or part, substantially reliant on the domestic well.
AB 834 Freshwater and Estuarine Harmful Algal Bloom Program
When clusters of algae grow out of control and become algal blooms, a small percentage can become harmful. Harmful algal blooms, known as HABS, can produce life-threatening toxins to humans, marine mammals, fish and birds. The increased frequency and intensity of HABS have become a nationwide concern, and a growing threat to California’s coastal waters. This measure requires the State Water Resources Control Board to establish the Freshwater and Estuarine Harmful Algal Bloom Program to protect water quality, life and public health. Through this program, the Board is required to notify the public, as well as state and local agencies, about the location, risk and threats posed by HABS. The measure also requires field assessment, monitoring, applied research, education and outreach, and mandates that the Board post information about HABS on its website by July 1, 2021, including the incidence, response and actions taken by the Board during the prior 3 years.
AB 912 Marine invasive species: ballast water and biofouling management requirements
California’s Marine Invasive Species Act requires the State Land Commission to regulate cargo ship ballast water. Ballast water discharge into a port can introduce nonindigenous species into the water and damage coastal habitats. This measure seeks to address the growing challenges associated with ballast discharge. Previously, an owner or operator was required to minimize ballast water impacts through certain management practices, but could invoke a safety exemption when necessary. Under the new law, an owner or operator must now log a description of how the intended management practice would be a safety risk, notify the SLC and provide a copy of the log description upon request. The new law sets deadlines for the SLC to adopt interim regulations implementing federal performance standards for discharged ballast water no later than Jan. 1, 2030, and final regulations no later than Jan. 1, 2040. It also changes the boundaries of the Pacific Coast Region, defines “land” under the Act and gives the SLC authority to sample ballast water for research purposes.
AB 1588 Drinking water and wastewater operator certification programs
Within the California State Water Resources Control Board, the Drinking Water Operator Certification Program manages the examination and certification of water treatment and distribution operators. The Board provides reciprocity to out-of-state applicants who have comparable certification from another state. Previously, the Program did not extend credit to individuals who received training and experience provided by the Department of Defense. The new law requires the Board to issue certification by reciprocity or examination waiver to qualifying individuals who received comparable education and experience while serving in the military. The law also requires the Board to add an active or former member of the military with qualifying experience to the Program’s advisory committee. By expanding the pool of potential operators, the new measure recognizes the experience and education of those who have served in the military, and increases the pool of eligible operators.
SB 200 Drinking water
As part of the California Safe Drinking Water Act, the State Water Resources Control Board regulates drinking water to ensure that everyone has safe, clean, affordable, accessible and adequate water supply. This measure establishes the Safe and Affordable Drinking Water Fund and authorizes the Board to provide grants, loans and other assistance to disadvantaged communities that lack access to safe drinking water. The Legislature has provided $130 million annually for the Fund through 2030, and the measure requires the Board and the Department of Finance to develop a plan for expenditures by July 1. The new law also requires that the Board coordinate with health officers and relevant participants to make public a map of aquifers at high risk of containing excessive contaminants for drinking water.
Fire
AB 836 Wildfire Smoke Clean Air Centers for Vulnerable Populations Incentive Pilot Program
The Air Resources Board controls emissions, oversees the State’s air quality and local government, and protects the public from the harmful effects of air pollution. A growing concern of the Board is the health impact of particulate matter from exposure to wildfire smoke. This measure creates the Wildfire Smoke Clean Air Centers for Vulnerable Incentive Pilot Program. The Program mitigates the harmful effects of smoke by providing grant monies to retrofit ventilation systems in community public buildings to establish a network of wild fire centers. The new law requires the Board to develop guidelines and criteria that identify vulnerable populations and strategic locations, and provide ventilation systems that enhance indoor air quality. Funding for the program is contingent upon appropriation by the Legislature, and the new law sunsets on Jan. 1, 2025.
SB 247 Wildland fire prevention: vegetation management
As part of vegetation management, state and federal laws require electric utility companies to trim or remove trees for public safety and fire prevention. In California, the Wildfire Safety Division of the Public Utilities Commission oversees vegetation management, and approves or denies wildfire mitigation plans annually submitted by electrical corporations. This measure makes several changes to the vegetation management requirements of an electrical corporation’s mitigation plan. Under the new law, the corporation must notify the WSD after completing a substantial portion of its vegetation management requirements. The WSD is required to audit the completed work, and give the corporation a reasonable time to correct any deficiencies. A year later, the WSD is authorized to hire an independent evaluator to issue a report describing any failure of the electrical corporation to substantially comply with the vegetation management provisions of its plan. The report is available to the public. The law requires that tree trimmers satisfying the corporation’s vegetation management requirements are qualified and paid a prevailing wage rate.
CEQA
AB 782 California Environmental Quality Act: exemption: public agencies: land transfers
This measure adds section 21080.28 to the Public Resources Code, codifying a CEQA exemption for the acquisition, sale or other transfer of interest in land by a public agency for
- the preservation of natural conditions existing at the time of transfer, including plant and animal habitats,
- restoration of natural conditions, including plant and animal habitats,
- continuing agricultural land use,
- prevention of development encroachment into flood plains,
- preservation of historical resources and
- preservation of open space or lands for park purposes.
The granting or acceptance of funding by a public agency for those purposes is also exempt.
AB 1197 California Environmental Quality Act: exemption: City of Los Angeles: supportive housing and emergency shelters
Generally, CEQA requires a lead agency to complete an environmental impact report, a negative declaration or a mitigated negative declaration — depending on the project’s impact on the environment. In 2017 and 2018, the Legislature streamlined the CEQA process to increase the availability of affordable housing. The new law addresses the homeless crisis by removing barriers to the building of supportive housing and emergency shelters. Specifically, the new law facilitates an increase in supportive housing and shelters by exempting from CEQA certain activities approved by the City of Los Angeles and other qualified agencies. The exemption would also extend to several enumerated ordinances of the City of Los Angeles. If the lead agency determines that an activity qualifies for the exemption, it must file a notice of exemption with the Office of Planning and Research and the county clerk. The law sunsets on Jan. 1, 2025.
AB 1515 Planning and zoning: community plans: review under the California Environmental Quality Act
The Planning and Zoning Law requires each county and city to adopt a comprehensive, long-term general plan for its physical development and the development of any land outside its boundaries that, in the planning agency’s judgment, bears relation to its planning. After the legislative body has adopted a general plan, that law also authorizes, or if so directed by the legislative body, requires, the planning agency to prepare specific plans for the systematic implementation of the general plan for all or part of the area covered by the general plan. This measure prohibits a court from setting aside the approval of a development project that meets certain requirements on the basis that a local agency (including a charter city) did not comply with CEQA when adopting an update to a community plan. These provisions remain in effect until Jan. 1, 2025, but the repeal of these provisions will not affect any right or immunity granted by the bill to a development project that meets the specified requirements before that date.
AB 1560 California Environmental Quality Act: transportation: major transit stop
CEQA’s provisions exempt residential projects on infill sites if the site meets certain requirements, including that the projects are located within a ½ mile from a major transit stop. Previously, the Public Resources Codes did not include “bus rapid transit” in its definition of a major transit stop. This measure amends section 21064.3 to revise the definition of “major transit stop” to include a bus rapid transit station, and adds section 21060.2 to define “bus rapid transit.” This will allow those areas that are served by bus rapid transit, and not by rail, to take advantage of incentive programs to develop affordable housing.
AB 1824 California Environmental Quality Act: exemption for closure of railroad grade crossing
Until Jan. 1, 2025, this measure provides that a closure of a railroad grade crossing is exempt from CEQA’s provisions when the California Public Utilities Commission determines that a crossing is a threat to public safety. The new law excepts from the exemption any crossing for high-speed rail or any crossing carried out by the High Speed Rail Authority. The law also requires a lead agency to file a notice of exemption to certain entities, and makes non-substantive changes related to sections of the Government Code.
SB 450 California Environmental Quality Act exemption: supportive and transitional housing: motel conversion
Until Jan. 1, 2025, this bill exempts from CEQA interim motel housing projects. An interim motel housing project makes minor changes to convert a structure with a certificate of occupancy as a motel, hotel, residential hotel or hostel for use as supportive or transitional housing under certain conditions. The project must not result in the expansion of more than 10 percent of the floor area, and must not result in significant effects related to traffic, noise, air or water quality. When the need for the converted structure ends, the structure returns to its original use. If a lead agency determines that a project qualifies for an exemption, it must file a notice of exemption with the appropriate agencies.
SB 632 California Environmental Quality Act: State Board of Forestry and Fire Protection: vegetation treatment program: final program environmental impact report
The California Department of Forestry and Fire Protection oversees the protection and stewardship of 31 million acres of privately owned wildlands. In 2018, former Gov. Jerry Brown issued an executive order to increase fire fuel treatment programs to reduce the risk of wildfires and, in 2019, Gov. Gavin Newsom declared a state of emergency, requiring state agencies to expedite projects that protect communities vulnerable to wildfires. For more than 10 years, the CAL FIRE Board has worked on a project environmental impact report for a vegetation treatment program that would alter landscape fuels to reduce wildfire frequency and reduce the life and property loss. The VTP would reduce fire fuels, strategically place fuel breaks and implement prescribed burning. Given the recent increase in wild fires throughout California, this law requires the Board to certify its PEIR (SCH #2019012052) as soon as practically feasible, but no later than Feb. 1, 2020.
SB 744 Planning and zoning: California Environmental Quality Act: permanent supportive housing
In 2016, California’s passed the “No Place Like Home” Program allocating $2 billion in bonds to counties to develop supportive housing for the homeless and seriously mental ill. In 2018, AB 2162’s passage created a streamlined process for supportive housing developments. The new law takes the streamlined process further by precluding CEQA review in some instances. A public agency’s decision to seek funding for NPLH or the Department of Housing and Community Development’s award for NPLH funding do not constitute projects requiring CEQA review. If a NPLH project does not qualify for approval as a use by right, the lead agency must prepare and certify the record of proceeding for the environmental review, as required. The new law also provides that a local government’s review of design review standards for a qualifying project under AB 2162 is exempt from CEQA review.
Public Works
AB 1166 Public works: protection of underground infrastructure: regional notification center system: electronic positive response
The Dig Safe Act of 2016 established the California Underground Safe Excavation Board, which protects subsurface utility installations. Under the Act, an excavator must notify the proper Regional Notification Center of its intent to excavate, and receive a ticket from the RNC acknowledging its request. An operator must respond to the request by marking the site, by notifying the excavator that it has no underground utilities near the site or by providing further information about the location of its facilities. The Act also authorized the operator to record how it responded to the excavator’s request by electronically sending a “positive response” through the RNC before the excavation began. The new law now requires that, beginning Jan. 1, 2021, every operator must supply an electronic positive response through the appropriate RNC. The Board may extend the compliance deadline to Dec. 31, 2021, on a showing of good cause by the operator, and a determination by the Board of which facts constitute good cause. Under the new law, the RNCs are required to annually report to the Board about the status of their continual technological development in their roles of facilitating communication between excavators and operators in a manner that enhances safety, accountability and efficiency.
Climate Change
SB 351 Climate change: Transformative Climate Communities Program
The California Strategic Growth Council works with state agencies to improve air and water quality, and protect natural resources. As part of the Council, the Transformative Climate Communities program was created in 2016 to fund community projects that maximize environmental, health and economic benefits to disadvantaged communities. In 2018, the final guidelines for the TCC program indicated the program would assess the feasibility of including unincorporated areas in future grant making. This law is a follow-up to that review, and provides that DACs located in unincorporated areas will be eligible for grant monies for projects through the TCC.
Hazardous Waste
SB 317 Hazardous waste: waste facilities: prohibited chemicals
Chemical deodorants used in RV tanks or campground chemical toilets, when connected to a septic system, can cause the treatment facility to fail, and contaminate groundwater and drinking well water. Beginning Jan. 1, 2022, this measure adds section 25210.2 to the California Health and Safety Code. Section 25210.2(a) prohibits the commercial sale of any product that contains certain chemical compounds for use in an RV holding tank or a campground chemical toilet that discharges to septic tanks. Subject to funding being made available, section 25210.2(a) directs the SWRCB to investigate methods to detect and quantify concentrations of chemical toilet deodorants. Section 25210.2(d) requires an owner or operator of an RV park or campground using a septic system to conspicuously post notice prohibiting use of these products, and requires certification of the notice provision as a prerequisite to any waste discharge or waiver of discharge obligation. Enforcement of the new requirements would need legislative appropriation.
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