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SB-776 Safe drinking water and water quality.(2021-2022)

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Date Published: 04/29/2021 09:00 PM
SB776:v96#DOCUMENT

Amended  IN  Senate  April 29, 2021
Amended  IN  Senate  April 19, 2021
Amended  IN  Senate  March 10, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 776


Introduced by Senator Gonzalez

February 19, 2021


An act to amend Section 11352 of the Government Code, to amend Sections 116340, 116385, 116681, 116766, and 116767 of the Health and Safety Code, and to add Chapter 6.7 (commencing with Section 13490) to Division 7 of the Water Code, relating to water.


LEGISLATIVE COUNSEL'S DIGEST


SB 776, as amended, Gonzalez. Safe drinking water and water quality.
(1) Existing law, the California Safe Drinking Water Act, requires the State Water Resources Control Board to administer provisions relating to the regulation of drinking water to protect public health. Existing law provides that the California Safe Drinking Water Act does not apply to small state water systems, except as specified.
This bill would expand the application of the act to small state water systems, as specified.
(2) Existing law requires any person operating a public water system to obtain and provide at that person’s expense an analysis of the water to the state board, in the form, covering those matters, and at intervals as the state board by regulation may prescribe.
This bill would authorize the state board to adopt regulations pursuant to the above provision as emergency regulations under the Administrative Procedure Act and would require the state board to hold a hearing before adopting those emergency regulations. The bill would exempt from the Administrative Procedure Act specified orders by the state board relating to drinking water.
(3) Existing law establishes the Safe and Affordable Drinking Water Fund in the State Treasury to help water systems provide an adequate and affordable supply of safe drinking water in both the near and long terms. Existing law authorizes the state board to provide for the deposit into the fund of certain moneys and continuously appropriates the moneys in the fund to the state board for grants, loans, contracts, or services to assist eligible recipients.
This bill would authorize the state board to award moneys from the fund of $10,000 or less without a written agreement to address a drinking water emergency and would exempt contracts entered into pursuant to the Safe and Affordable Drinking Water Fund provisions from specified existing law.
(4) Under existing law, the state board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act. Existing laws establishes various programs authorizing the state board to provide financial assistance for water quality and drinking water purposes, including, among other programs, the State Water Pollution Control Revolving Fund program, pursuant to which state and federal funds are continuously appropriated from the State Water Pollution Control Revolving Fund to the state board for loans and other financial assistance for purposes related to the federal Clean Water Act. Existing law generally authorizes the state board to enforce the financial assistance programs.
This bill would consolidate the enforcement authority available to the state board to enforce the terms, conditions, and requirements of its financial assistance programs, as specified. As part of that consolidation, the bill would explicitly authorize the state board to recover any costs incurred in the enforcement of an agreement, to recover any amount of financial assistance provided to a recipient not expended for the authorized purposes, and to impose civil penalties in specified amounts on any person who violates any term of a financial assistance agreement. The bill would require information related to funds disbursed or costs claimed for reimbursement pursuant to a financial assistance agreement to be furnished and attested to under penalty of perjury, and would provide that a person who knowingly makes a false statement, material misrepresentation, or false certification in any submittal to the state board relating to a financial assistance agreement, shall, upon conviction, be punished by a specified criminal fine or imprisonment, or by both that fine and imprisonment. By creating a new crime and expanding the crime of perjury, the bill would impose a state-mandated local program. The bill would require all moneys collected pursuant to the above provisions to be deposited into the fund from which the financial assistance agreement that is the subject of the action originated, unless the state board determines that deposit in another fund would be more effective for providing financial assistance for the same or substantially similar purpose, and if the fund is continuously appropriated and the moneys are derived from the imposition of penalties, the moneys would be required to be separately accounted for and available, upon appropriation by the Legislature, for the purposes for which expenditures from that fund are authorized.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 11352 of the Government Code is amended to read:

11352.
 The following actions are not subject to this chapter:
(a) The issuance, denial, or waiver of any water quality certification as authorized under Section 13160 of the Water Code.
(b) The issuance, denial, or revocation of waste discharge requirements and permits pursuant to Sections 13263 and 13377 of the Water Code and waivers issued pursuant to Section 13269 of the Water Code.
(c) The development, issuance, and use of the guidance document pursuant to Section 13383.7 of the Water Code.
(d) The issuance of an order pursuant to Section 116400 of the Health and Safety Code.
(e) The issuance of an order or directive requiring the submittal of technical reports pursuant to Section 116530 of the Health and Safety Code.

SEC. 2.

 Section 116340 of the Health and Safety Code is amended to read:

116340.
 This chapter shall not apply to state small water systems except as provided under this section:
(a)  The state board shall adopt regulations specifying minimum requirements for operation of a state small water system. The requirements may be less stringent than the requirements for public water systems as set forth in this chapter.
(b)  The minimum requirements for state small water systems adopted by the state board pursuant to subdivision (a) shall be enforced by the local health officer or a local health agency designated by the local health officer. In counties that do not have a local health officer, the requirements shall be enforced by the state board. Local health agencies may adopt more stringent requirements for state small water systems than those specified in the state regulations.
(c)  The reasonable costs of the local health officer in carrying out the requirements of this section may be recovered through the imposition of fees on state small water systems by the local governing body in accordance with Section 101325.
(d) Sections 116400, 116530, 116665, and 116735 and Article 10 (commencing with Section 116700) apply to a state small water system to the same extent as those sections apply to a public water system. Section 116650 applies to a state small system for a violation of a requirement or order that applies to a state small system under this section.
(e) This section does not limit the remedies available, civil or criminal, for violations or requirements of this chapter that apply to a state small water system or for consistent failure to provide an adequate supply of safe drinking water.

SEC. 3.

 Section 116385 of the Health and Safety Code is amended to read:

116385.
  (a)  Any person operating a public water system shall obtain and provide at that person’s expense an analysis of the water to the state board, in the form, covering those matters, and at intervals as the state board by regulation may prescribe. The analysis shall be performed by a laboratory duly certified by the state board.
(b) The adoption of regulations under this section relating to the form or format of, and intervals at which, the analysis shall be provided and any amendments to that regulation is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health, safety, and general welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, an emergency regulation or amendments to that regulation adopted by the state board pursuant to this section is not subject to review by the Office of Administrative Law and shall remain in effect until revised by the state board. The state board shall hold a public hearing before adopting the regulations.

SEC. 4.

 Section 116681 of the Health and Safety Code is amended to read:

116681.
 The following definitions shall apply to this section and Sections 116682, 116684, and 116686:
(a) “Adequate supply” means sufficient water to meet residents’ health and safety needs at all times.
(b) “Affected residence” means a residence within a disadvantaged community that is reliant on a water supply that is either inadequate or unsafe and that is not served by a public water system or state small water system.
(c) “Consistently fails” means a failure to provide an adequate supply of safe drinking water.
(d) “Consolidated water system” means the public water system resulting from the consolidation of a public water system with another public water system, state small water system, or affected residences.
(e) “Consolidation” means joining two or more public water systems, state small water systems, or affected residences into a single public water system.
(f) “Disadvantaged community” means a disadvantaged community, as defined in Section 79505.5 of the Water Code.
(g) “Domestic well” means a groundwater well used to supply water for the domestic needs of an individual residence or a water system that is not a public water system and that has no more than four service connections.
(h) “Extension of service” means the provision of service through any physical or operational infrastructure arrangement other than consolidation.
(i) “Infill site” means a site within the area served by a subsumed water system that, as of the date of consolidation, is adjacent to a parcel that is developed for qualified urban uses.
(j) “Operation period” means the period during which an administrator provides services to a designated water system.
(k) “Qualified urban use” means any residential, commercial, public institutional, industrial, transit or transportation facility, or retail use, or any combination of those uses.
(l) “Receiving water system” means the public water system that provides service to a subsumed water system through consolidation or extension of service.
(m) “Safe drinking water” means water that meets all primary and secondary drinking water standards.
(n) “State small water system” has the same meaning as provided in Section 116275.
(o) “Subsumed water system” means the public water system, state small water system, or affected residences served by domestic wells consolidated into or receiving service from the receiving water system.

SEC. 5.

 Section 116766 of the Health and Safety Code is amended to read:

116766.
 (a) The Safe and Affordable Drinking Water Fund is hereby established in the State Treasury to help water systems provide an adequate and affordable supply of safe drinking water in both the near and long terms. Notwithstanding Section 13340 of the Government Code, all moneys deposited in the fund are continuously appropriated to the board to fund the following:
(1) Operation and maintenance costs to help deliver an adequate supply of safe drinking water in both the near and long terms.
(2) Consolidating water systems, or extending drinking water services to other public water systems, domestic wells, and state small water systems.
(3) The provision of replacement water, as needed, to ensure immediate protection of health and safety as a short-term solution.
(4) The provision of services under Section 116686 for purposes of helping the systems become self-sufficient in the long term.
(5) The development, implementation, and sustainability of long-term drinking water solutions.
(6) Board costs associated with the implementation and administration of programs pursuant to this chapter.
(b) Consistent with subdivision (a), the board shall expend moneys in the fund for grants, loans, contracts, or services to assist eligible recipients.
(c) (1) Eligible recipients of funding under this chapter are public agencies, nonprofit organizations, public utilities, mutual water companies, federally recognized California Native American tribes, nonfederally recognized Native American tribes on the contact list maintained by the Native American Heritage Commission for the purposes of Chapter 905 of the Statutes of 2004, administrators, and groundwater sustainability agencies.
(2) To be eligible for funding under this chapter, grants, loans, contracts, or services provided to a public utility that is regulated by the Public Utilities Commission or a mutual water company shall have a clear and definite public purpose and shall benefit the customers of the water system and not the investors.
(d) On and after July 1, 2020, an expenditure from the fund shall be consistent with the fund expenditure plan.
(e) The board may expend moneys from the fund for reasonable costs associated with the administration of this chapter, not to exceed 5 percent of the annual deposits into the fund.
(f) In administering the fund, the board shall make reasonable efforts to ensure that funds are used to secure the long-term sustainability of drinking water service and infrastructure, including, but not limited to, requiring adequate technical, managerial, and financial capacity of eligible applicants as part of funding agreement outcomes.
(g) Beginning in the 2023–24 fiscal year, and each fiscal year thereafter until June 30, 2030, if the annual transfer to the fund pursuant to paragraph (3) of subdivision (b) of Section 39719 is less than one hundred thirty million dollars ($130,000,000), on an annual basis the Director of Finance shall calculate a sum equivalent to the difference, up to one hundred thirty million dollars ($130,000,000), and the Controller shall transfer that sum from the General Fund to the Safe and Affordable Drinking Water Fund. This subdivision is operative only while a market-based compliance mechanism adopted pursuant to Section 38562 is operative.
(h) The board may authorize funding up to ten thousand dollars ($10,000) without a written agreement to address a drinking water emergency.
(i) Notwithstanding Section 11019 of the Government Code, the board may make advance payments, as necessary to implement the purposes of this chapter, except that an advance payment for construction shall not exceed 25 percent of the total amount of construction funding provided by the board for a project.
(j) Contracts pursuant to this section are exempt from Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of the Public Contract Code and Section 4526 of the Government Code, and may be awarded on a noncompetitive bid basis as necessary to implement the purposes of this section.

SEC. 6.

 Section 116767 of the Health and Safety Code is amended to read:

116767.
 For the purposes of this chapter:
(a) “Adequate supply” has the same meaning as defined in Section 116681.
(b) “Administrator” has the same meaning as defined in Section 116686.
(c) “Board” means the State Water Resources Control Board.
(d) “Community water system” has the same meaning as defined in Section 116275.
(e) “Consistently fails” has the same meaning as defined in Section 116681.
(f) “Disadvantaged community” has the same meaning as defined in Section 79505.5 of the Water Code.
(g) “Domestic well” has the same meaning as defined in Section 116681.
(h) “Fund” means the Safe and Affordable Drinking Water Fund established pursuant to Section 116766.
(i) “Fund expenditure plan” means the fund expenditure plan adopted pursuant to Article 4 (commencing with Section 116768).
(j) “Groundwater sustainability agency” has the same meaning as defined in Section 10721 of the Water Code.
(k) “Low-income household” means a single household with an income that is less than 200 percent of the federal poverty level, as updated periodically in the Federal Register by the United States Department of Health and Human Services under authority of subsection (2) of Section 9902 of Title 42 of the United States Code.
(l) “Mutual water company” means a mutual water company, as defined in Section 14300 of the Corporations Code, that operates a public water system or a state small water system.
(m) “Nonprofit organization” means an organization qualified to do business in California and qualified under Section 501(c)(3) of Title 26 of the United States Code.
(n) “Public agency” means a state agency or department, special district, joint powers authority, city, county, city and county, or other political subdivision of the state.
(o) “Public utility” has the same meaning as defined in Section 216 of the Public Utilities Code.
(p) “Public water system” has the same meaning as defined in Section 116275.
(q) “Replacement water” includes, but is not limited to, bottled water, vended water, point-of-use, or point-of-entry treatment units.
(r) “Safe drinking water” has the same meaning as defined in Section 116681.
(s) “Service connection” has the same meaning as defined in Section 116275.
(t) “State small water system” has the same meaning as defined in Section 116275.
(u) “Technical assistance provider” means a person whom the state board has determined is competent to assist a water system by providing administrative, technical, operational, legal, or managerial services to meet the purposes of this section, pursuant to criteria set forth in the policy adopted by the state board pursuant to Section 116768.5 and the fund expenditure plan. A privately owned public utility may serve as a technical assistance provider for purposes of this section.
(v) “Vended water” has the same meaning as defined in Section 111070.

SEC. 7.

 Chapter 6.7 (commencing with Section 13490) is added to Division 7 of the Water Code, to read:
CHAPTER  6.7. Cost Recovery, Enforcement, and Administration

13490.
 The purpose of this chapter is to consolidate administrative enforcement authority available to the state board to enforce the terms, conditions, and requirements of its financial assistance programs.

13491.
 As used in this chapter, the following terms have the following meanings:
(a) “Agreement” means any agreement or contract for financial assistance from the state board to an eligible recipient, including, but not limited to, a loan, grant, installment sale agreement, contract, or other form of agreement made for the purpose of providing financial assistance.
(b) “Recipient” means any person or entity that receives any financial assistance from the state board, including, but not limited to, a recipient’s contractors or consultants who performs work for a recipient.

13492.
 (a) The state board may recover any costs incurred in the enforcement of an agreement, including any criminal, civil, or administrative action related to the agreement.
(b) (1) The state board may recover any amount of financial assistance provided to a recipient not expended for purposes authorized by the agreement up to the full amount of the agreement.
(2) Except as provided in paragraph (3), the Attorney General, upon request of the state board, shall bring an action in superior court to recover costs under this section.
(3) The state board may recover costs administratively as civil liability under Article 2.5 (commencing with Section 13323) of Chapter 5.
(c) The amount of the costs constitutes a lien on any property, including real property and personal property, obtained through, or improved with the proceeds of, the agreement. For real property liens under this section, the lien shall attach upon service of a copy of the notice of lien on the owner and upon the recordation of a notice of lien, if the notice identifies the property purchased with the financial assistance, the amount of the lien, and the owner of record of the property, in the office of the county recorder of the county in which the property is located. Upon recordation of a real property lien or notice to the recipient of a personal property lien, the lien shall have the same force, effect, and priority as a judgment lien, except that it attaches only to the property posted and described in the notice of lien, and shall continue for 10 years from the time of the recording of the notice, unless sooner released or otherwise discharged. Not later than 45 days from the date of receipt of a notice of lien, the owner may petition the court for an order releasing the property from the lien or reducing the amount of the lien. In that court action, the state board shall establish that the costs were reasonable and necessary. The lien may be foreclosed by an action brought by the state board for a money judgment. The lien shall be renewable at the expiration of each 10-year period from the time of the recording of the notice unless it has been discharged or foreclosed.

13493.
 (a) (1) Except as provided in subdivisions (b) and (c), if a person is convicted under Section 13499.2 of this code or Section 25299.80.5 of the Health and Safety Code or is found to be civilly liable under Section 13499 of this code or Section 25299.78 or 25299.80 of the Health and Safety Code, the state board may permanently disqualify that person from receiving financial assistance from the state board. If the state board determines that the disqualified person is a contractor or consultant, a recipient shall not submit invoices to the state board for any work performed or directed by that person.
(2) For purposes of this section, “contractor or consultant” means a person whose professional services are engaged to perform work for which public moneys are expended.
(b) If the person convicted under Section 13499.2 or found to be civilly liable under Section 13499 is a recipient, the state board may permanently disqualify the recipient from further receipt of moneys from the state board, with respect to only the financial assistance programs that are the subject of that conviction under Section 13499.2 or found civilly liable under Section 13499, and only if the state board makes a finding that the alleged violation is knowing, willful, or intentional.
(c) If the person convicted under Section 13499.2 of this code or Section 25299.80.5 of the Health and Safety Code or found to be civilly liable under Section 13499 of this code or Section 25299.78 or 25299.80 of the Health and Safety Code is a contractor or consultant, the state board may permanently disqualify the contractor or consultant from requesting reimbursement for work conducted pursuant to any financial assistance program administered by the state board, including participation in work conducted pursuant to financial assistance programs that are not the subject of that conviction under Section 13499.2 of this code or Section 25299.80.5 of the Health and Safety Code or finding of liability under Section 13499 of this code or Section 25299.78 or 25299.80 of the Health and Safety Code, if the state board makes one of the following findings:
(1) The alleged violation is knowing, willful, or intentional.
(2) The contractor or consultant received a material economic benefit from the action that caused the violation.
(3) The alleged violation is chronic or the contractor or consultant is a recalcitrant violator, as determined pursuant to subdivision (g) of Section 13399.
(d) In addition to the requirements of subdivisions (b) and (c), in determining the extent to which a person, including, but not limited to, a recipient, contractor, or consultant, convicted under Section 13499.2 of this code or Section 25299.80.5 of the Health and Safety Code or found civilly liable under Section 13499 of this code or Section 25299.78 or 25299.80 of the Health and Safety Code may be disqualified from receiving any funds from the state board, including the extent to which the person may be reimbursed for pending or future claims or disbursement requests from the state board, the state board shall take into account the nature, circumstances, extent, and gravity of the violation, any prior history of misrepresentations by the person to the state board or a local agency, any economic benefits or savings that resulted or would have resulted from the false statement, and any other matters as justice may require.

13494.
 Upon motion and sufficient showing by any party, the court or board, as appropriate, shall join to the action a person who may be liable for costs or expenditures of the type recoverable under this chapter.

13495.
 The standard of liability for any costs recoverable pursuant to this chapter is strict liability.

13496.
 (a) An A recipient’s indemnification, hold harmless, conveyance, or similar contract with a third party shall not preclude any liability for costs recoverable under this chapter. This section does not bar any contract to insure, hold harmless, or indemnify a party to the contract.
(b) The entry of judgment against any party to the action does not bar any future action by the state board against any person who is later discovered to be potentially liable for costs incurred by the state board related to any financial assistance program.
(c) Payment of a claim or disbursement request by the state board under this chapter is subject to the state acquiring by subrogation the rights of the recipient to recover financial assistance moneys from a third party under the financial assistance agreement.

13497.
 (a) Any person, including a recipient, recipient’s contractor, consultant, employee, agent, assignee, or grantee who violates any requirement or term of a financial assistance agreement is liable for a civil penalty of not more than one thousand dollars ($1,000) for each day of violation, not to exceed 25 percent of the total amount of the financial assistance agreement.
(b) The Attorney General, upon request of the state board, shall bring an action in superior court to impose the civil penalty specified in subdivision (a).
(c) The state board may impose the civil penalty administratively pursuant to Article 2.5 (commencing with Section 13323) of Chapter 5.

13498.
 (a) A recipient or a recipient’s consultant or contractor or other agent shall furnish, under penalty of perjury, any information related to funds disbursed or costs claimed for reimbursement pursuant to a financial assistance agreement under this chapter as the state board may require.
(b) A person who fails or refuses to furnish information under subdivision (a) or furnishes false information to the state board is subject, in accordance with the requirements of subdivision (c), to civil liability of not more than ten thousand dollars ($10,000) for each violation of this subdivision.
(c) (1) A recipient shall not be liable under subdivision (b) unless the court or the state board, as the case may be, finds any of the following:
(A) The alleged violation is knowing, willful, or intentional.
(B) The recipient or a recipient’s consultant or contractor or other agent received a material economic benefit from the action that caused the alleged violation.
(C) The alleged violation is chronic or that the recipient or a recipient’s consultant or contractor or other agent is a recalcitrant violator, as determined pursuant to subdivision (g) of Section 13399.
(d) The Attorney General, upon request of the state board, shall bring an action in superior court to impose the civil liability specified in subdivision (b).
(e) The state board may impose the civil liability specified in subdivision (b) administratively under Article 2.5 (commencing with Section 13323) of Chapter 5.

13499.
 (a) A person who makes a misrepresentation in any submittal to the state board, including, but not limited to, an application, report, certification, record, invoice, form, or other document that is submitted to the state board relating to a financial assistance agreement, is subject to civil liability of not more than five hundred thousand dollars ($500,000) for each violation of this subdivision.
(b) The Attorney General, upon request of the state board, shall bring an action in superior court to impose the civil liability specified in subdivision (a).
(c) The state board may impose the civil liability administratively under Article 2.5 (commencing with Section 13323) of Chapter 5.
(d) The state board shall file a complaint with any applicable licensing board against any person licensed or otherwise regulated by that licensing board who is found to be liable under this section.

13499.2.
 (a) A person who knowingly makes or causes to be made any false statement, material misrepresentation, or false certification in any submittal to the state board relating to an agreement, including, but not limited to, applications, records, reports, certifications, plans, invoices, forms, or other documents that are submitted, filed, or required to be received by the state board for purposes of obtaining or administering a financial assistance agreement, shall, upon conviction, be punished by a criminal fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail for not more than one year, or in the state prison for 16 months, two years, or three years, or by both that fine and imprisonment.
(b) The Attorney General, or a district attorney, upon request of the state board, may bring an action in superior court to impose the criminal penalty specified in subdivision (a).
(c) Nothing in this chapter shall prevent the state board from refusing to enter into an agreement with a recipient if the recipient has been convicted for a fraud crime or found civilly liable for fraud or misrepresentation in a civil or administrative proceeding.

13499.4.
 (a) Except as provided in subdivision (b), remedies under this chapter are in addition to, and do not supersede or limit, any other remedy, civil or criminal, including, but not limited to, the state board’s rights and remedies under an agreement.
(b) Civil liability shall not be imposed both administratively and by the superior court for the same violation.
(c) In determining the appropriate amount of liability under Section 13497, 13498, or 13499, the court, or the state board, as the case may be, shall take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the nature and persistence of the violation, the length of time over which the violation occurs, and the corrective action, if any, taken by the violator.
(d) (1) Unless the state board determines that deposit in another fund would be more effective for providing financial assistance for the same or substantially similar purpose, all moneys collected pursuant to this chapter shall be deposited into the fund from which the financial assistance agreement that is the subject of the action originated.
(2) If the moneys deposited pursuant to paragraph (1) are derived from the imposition of penalties and are deposited into a fund that is continuously appropriated, that continuous appropriation shall not apply to the moneys. The moneys shall be separately accounted for and shall be available, upon appropriation by the Legislature, for the purposes for which expenditures from that fund are authorized.

SEC. 8.

  No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.