BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                AB 890
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2011-2012 Regular Session
                                           
           BILL NO:    AB 890
           AUTHOR:     Olsen
           AMENDED:    January 13, 2012
           FISCAL:     No                HEARING DATE:     July 2, 2012
           URGENCY:    No                CONSULTANT:       Randy Pestor
            
           SUBJECT  :    CALIFORNIA ENVIRONMENTAL QUALITY ACT

            SUMMARY :    
           
            Existing law  :

           1)Under the California Environmental Quality Act (CEQA):

              a)   Requires lead agencies with the principal 
                responsibility for carrying out or approving a proposed 
                discretionary project to prepare a negative declaration, 
                mitigated declaration, or environmental impact report 
                (EIR) for this action, unless the project is exempt from 
                CEQA (CEQA includes various statutory exemptions, as well 
                as categorical exemptions in the CEQA guidelines).  
                (Public Resources Code §21000 et seq.).

              b)   Contains exemptions relating to roads, for example:

                i)     Operation, repair, maintenance, or minor 
                  alteration of existing private or public structures 
                  involving negligible or no expansion, including 
                  existing highways and streets, sidewalks, gutters, 
                  bicycle and pedestrian trails, and similar facilities 
                  (including road grading for the purpose of public 
                  safety).  (CEQA Guidelines §15301(c)).

                ii)         Minor public or private alterations to land, 
                  water, or vegetation, including, but not limited to, 
                  "grading on land with a slope of not less than 10 
                  percent . . ."  (CEQA Guidelines §15304(a)).

                iii)        Restriping of streets or highways to relieve 
                  traffic congestion.  (Public Resources Code §21080.19).








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                iv)         Any railroad grade separation project that 
                  eliminates an existing grade crossing or reconstructs 
                  an existing grade separation.  (§21080.13).

                v)     The institution or increase of passenger or 
                  commuter services on rail or highway rights-of-way 
                  already in use, including modernization of existing 
                  stations and parking facilities.  (§21080(b)(10)).

                vi)         Facility extensions not to exceed four miles 
                  in length required to transfer passengers from or to 
                  exclusive public mass transit guideway or busway public 
                  transit services.  (§21080(b)(12)).
            
           This bill  , under CEQA:

           1) Exempts a project or an activity to repair, maintain, or 
              make minor alterations to an existing roadway if the 
              project is initiated by a city or county to improve public 
              safety, the project does not cross a waterway, and the 
              project involves negligible or no expansion of an existing 
              use.

           2) Sunsets January 1, 2016.

            COMMENTS  :

            1) Purpose of Bill  .  According to the author, "AB 890 would 
              create a statutory exemption from the California 
              Environmental Quality Act (CEQA) for minor public safety 
              roadway improvements within roadway. This measure doesn't 
              exempt projects that cross waterways and increase capacity 
              of existing use.  AB 890 streamlines the process for minor 
              roadway improvements for cities and counties to improve 
              road safety."

           The author notes that "Cities and counties need to be able to 
              quickly perform some public work projects.  Public safety 
              must be a clear priority of the state, and CEQA at times 
              has hindered cities and counties from performing their 
              basic duties."










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            2) Brief background on CEQA  .  CEQA provides a process for 
              evaluating the environmental effects of a project, and 
              includes statutory exemptions, as well as categorical 
              exemptions in the CEQA guidelines.  If a project is not 
              exempt from CEQA, an initial study is prepared to determine 
              whether a project may have a significant effect on the 
              environment.  If the initial study shows that there would 
              not be a significant effect on the environment, the lead 
              agency must prepare a negative declaration.  If the initial 
              study shows that the project may have a significant effect 
              on the environment, the lead agency must prepare an EIR.

           Generally, an EIR must accurately describe the proposed 
              project, identify and analyze each significant 
              environmental impact expected to result from the proposed 
              project, identify mitigation measures to reduce those 
              impacts to the extent feasible, and evaluate a range of 
              reasonable alternatives to the proposed project.  Prior to 
              approving any project that has received environmental 
              review, an agency must make certain findings.  If 
              mitigation measures are required or incorporated into a 
              project, the agency must adopt a reporting or monitoring 
              program to ensure compliance with those measures.

           If a mitigation measure would cause one or more significant 
              effects in addition to those that would be caused by the 
              proposed project, the effects of the mitigation measure 
              must be discussed but in less detail than the significant 
              effects of the proposed project.

            3) CEQA and federal NEPA review  .  Many highway improvement 
              projects are also funded with federal funds and are thereby 
              also subject to the National Environmental Policy Act 
              (NEPA).  According to information in the Caltrans "Third 
              Report to the California Legislature Pursuant to Section 
              820.1 of the California Streets and Highways Code, January 
              1, 2011," 4,277 environmental documents were prepared under 
              the Caltrans federal surface transportation project 
              delivery pilot program, with most also being joint 
              CEQA/NEPA documents, and 4,054 of these documents were 
              categorical exclusions under NEPA.  According to the 
              report, "Two lawsuits have been initiated against Caltrans 
              over the past three years under the Pilot Program."









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            4) Blaming CEQA  .  It is not unusual for certain interests to 
              assert that a particular exemption will expedite 
              construction of a particular type of project and reduce 
              costs.  This, however, frequently overlooks the benefits of 
              adequate environmental review where lead and responsible 
              agencies are legally accountable for their actions:  to 
              inform decisionmakers and the public about project impacts, 
              identify ways to avoid or significantly reduce 
              environmental damage, prevent environmental damage by 
              requiring feasible alternatives or mitigation measures, 
              disclose to the public reasons why an agency approved a 
              project if significant environmental effects are involved, 
              involve public agencies in the process, and increase public 
              participation in the environmental review and the planning 
              processes.

           If a project is exempt from CEQA, certain issues should be 
              addressed.  For example:

                  How can decisionmakers and the public be aware of 
                impacts, mitigation measures, and alternatives of a 
                project because of the exemption?

                  Is it appropriate for the public to live with the 
                consequences when a project is exempt and impacts may not 
                be mitigated and alternatives may not be considered 
                regarding certain matters, such as air quality, water 
                quality, and noise impacts?

                  Because adverse project impacts do not disappear when 
                they are not identified and mitigated, does an exemption 
                result in a direct transfer of responsibility for 
                mitigating impacts from the applicant to the public 
                (  i.e.  , taxpayers) if impacts are ultimately addressed 
                after completion of the project?

                  If taxpayers, rather than the project applicant, are 
                ultimately responsible for mitigating certain impacts of 
                such a project after project completion, what assessments 
                or taxes will be increased to fund mitigation or pay for 
                alternatives at a later date?










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              It is also not unusual for certain interests to blame CEQA 
              lawsuits.  However, according to a study on the issue, 
              "Despite criticisms that CEQA often results in litigation, 
              CEQA-related litigation is relatively rare."  The study 
              noted that the number of lawsuits to the number of CEQA 
              reviews "yields an estimate of one lawsuit per 354 CEQA 
              reviews."

              Those citing CEQA and CEQA litigation as a problem do not 
              indicate the result of that litigation.  Were significant 
              impacts that were not evaluated in the initial document 
              ultimately addressed?  What would have been the result if 
              those impacts had not been mitigated (  e.g.  , flooding, 
              exposure of people to hazards, inadequate public services, 
              congestion)?

              When some suggest that CEQA "reforms" may be needed, others 
              note various provisions of CEQA that already provide 
              streamlined approaches, including master and focused EIRs; 
              transit priority and residential project streamlining 
              (enacted by SB 375 (Steinberg, Ducheny) Chapter 728, 
              Statutes of 2008); expedited review for environmental 
              mandated projects; special procedures for various types of 
              housing projects (enacted by SB 1925 (Sher, Polanco) 
              Chapter 1039, Statutes of 2002); various litigation, 
              mediation, tiering, and other revisions (SB 1456 (Simitian) 
              Chapter 496, Statutes of 2010); amendments to procedures 
              relating to findings of overriding consideration (AB 231 
              (Huber) Chapter 432, Statutes of 2010); infill project and 
              other streamlining provisions (SB 226 (Simitian) Chapter 
              469, Statutes of 2011); and several categorical exemptions 
              contained in the CEQA Guidelines.  Challenges to CEQA 
              determinations must be commenced within an unusually short 
              30 days of an agency's filing of a notice of determination. 
               Also, no later than 20 days from the date of service upon 
              a public agency, the public agency must file a notice with 
              the court setting a time and place for all parties to meet 
              and attempt to settle the litigation.

            1) Information needed  .  Committee staff met with staff from 
              the author and sponsor March 23, 2012, along with some 
              supporters and opponents of this bill.  At the conclusion 
              of the meeting, committee staff requested responses to the 









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              following questions in order to evaluate the potential need 
              for this bill:  a)  has the county been challenged for 
              determining that a highway improvement project is subject 
              to an existing categorical exemption, and if so how often 
              has the county been challenged; b) how many road 
              improvement projects used the existing categorical 
              exemptions and how many negative declarations or other 
              environmental documents were prepared for these projects; 
              and c) how many road improvement projects were subject to 
              the exceptions to the use of categorical exemptions, and 
              what were those exceptions.

           Since the March 23, 2012, meeting, committee staff only 
              received a response to the first question - and the county 
              is "not aware of any cases in which the County was sued 
              over the use of a categorical exemption."  
            
            2) Support and opposition concerns  .  According to the Tuolumne 
              County Board of Supervisors in supporting and sponsoring AB 
              890, "These studies and mitigation seem to be taking longer 
              periods of time and higher costs to complete.  The result 
              is a reduction in financial resources available to make 
              public safety improvements to existing roadways."  The 
              board notes that it "has advocated for a change in the law 
              that regains a proper perspective as to CEQA compliance 
              costs relative to the actual disturbance of the physical 
              environment within already established right of ways."

           According to opponents, "Current law already provides two 
              alternatives to a full-scale CEQA exemption, which we 
              believe will achieve the author's goals while still 
              identifying and mitigating any significant impacts of the 
              project."  Opponents also note that "while the author may 
              intend to deal with only minor impacting projects, the fact 
              is, the bill could also exempt projects that have 
              significant effects on archaeological, Native American 
              heritage sites, and riparian endangered plant and species."  
            
            3) Related legislation  .  AB 1665 (Galgiani) exempts from CEQA 
              the closure of a railroad grade crossing by order of the 
              Public Utilities Commission if the PUC finds the crossing 
              to present a public safety threat, and AB 2245 (Smyth) 
              exempts a project for Class II bikeways undertaken by a 









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              city or county within an existing right-of-way under 
              certain conditions.  The Senate Environmental Quality 
              Committee will also hear these bills July 2, 2012.

           SB 1380 (Rubio) exempts a bicycle plan for an urbanized area 
              from CEQA for restriping of streets and highways, bicycle 
              parking and storage, signal timing to improve street and 
              highway intersection operations, and related signage for 
              bicycles, pedestrians, and vehicles.  SB 1380 was approved 
              by the Senate Environmental Quality Committee April 30, 
              2012 (6-0), and will be heard by the Assembly Natural 
              Resources Committee July 2, 2012.

            SOURCE  :        Tuolumne County  

           SUPPORT  :       Associated Builders and Contractors of 
                          California, Associated General Contractors, 
                          Association of California Cities - Orange 
                          County, California Chamber of Commerce, 
                          California State Association of Counties, 
                          California State Council of Laborers, Madera 
                          County Board of Supervisors, Orange County 
                          Business Council, Regional Council of Rural 
                          Counties, Southwest Riverside County 
                          Legislative Council, Stanislaus County, 
                          Transportation Agency for Monterey County, 
                          Tulare County Board of Supervisors
            
           OPPOSITION  :    California League of Conservation Voters, 
                          California Native Plant Society, Planning and 
                          Conservation League, Sierra Club California