BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                               AB 2245
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2011-2012 Regular Session
                                           
           BILL NO:    AB 2245
           AUTHOR:     Smyth
           AMENDED:    May 15, 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 bicycle facilities 
                that include, 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, 
                  "creation of bicycle lanes on existing rights-of-way."  
                  (CEQA Guidelines §15304(h)).










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

           2)Under the California Bicycle Transportation Act:

              a)   Authorizes a city or county to prepare a bicycle 
                transportation plan that must include certain elements 
                (e.g., proposed land use and settlement patterns, 
                existing proposed bikeways and bicycle facilities, 
                bicycle safety and education facilities, project 
                priorities for implementation, past expenditures and 
                future financial needs).  (Streets and Highways Code 
                §891.2).

              b)   Defines bikeways as follows:  a) Class I bikeway, such 
                as a "bike path," with a completely separated 
                right-of-way for the exclusive use of bicycles and 
                pedestrians with motorist crossflows minimized; b) Class 
                II bikeway, such as a "bike lane," that provides a 
                restricted right-of-way for exclusive or semiexclusive 
                bicycle use with through travel by motor vehicles or 
                pedestrians prohibited, but with vehicle parking and 
                crossflows by pedestrians and motorists permitted; and c) 
                Class III bikeway, such as an onstreet or offstreet "bike 
                route," that provides a right-of-way designated  by signs 
                or markings and shared with pedestrians or motorists.  
                (§890.4).
            
           This bill  , under CEQA:

           1) Exempts a project for Class II bikeways undertaken by a 
              city or county within an existing road right-of-way.  If a 
              city or county determines that a Class II bikeway is exempt 
              under this provision, then the city or county must prepare 
              an assessment of any traffic and safety impacts of the 
              project and hold a public hearing to review those impacts 
              and hear and respond to public comments.

           2) Sunsets January 1, 2017.

            COMMENTS  :











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            1) Purpose of Bill  .  According to the author, "Current law 
              requires transportation projects to undergo rigorous 
              environmental review - this currently extends to the 
              re-striping of a road that has already undergone CEQA 
              review.  As gas prices continue to escalate and we ramp up 
              efforts to curb emissions, it is incumbent upon the state 
              to encourage the development of more bike-able communities. 
               AB 2245 will achieve this by exempting Class II bike 
              lanes, those created by restriping existing roadways, from 
              CEQA."

           The author also notes that "The County of Los Angeles just 
              recently approved an ambitious plan to add 832 miles of new 
              bikeways.  Many of these will be of the Class II variety 
              where simple restriping is all that is needÝed] to connect 
              communities for non-motorized travel.  Class I and III 
              bikeways where new paths are being constructed through the 
              environment will not be exempted under this bill, requiring 
              those to continue to undergo CEQA review."

            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 










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              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) 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 










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                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?

              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. 










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               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) Bikeway legislation  .  SB 1380 (Rubio):  a) provides an 
              exemption for a bikeway plan for an urbanized area 
              consisting of restriping existing streets and highways, 
              bicycle parking and storage, signal timing to improve 
              street and highway intersection operations, bicycle parking 
              and storage, and related storage if certain requirements 
              are met (e.g., noticed public hearings, measures to 
              mitigate bike and pedestrian safety impacts); b) sunsets 
              January 1, 2018, so that the exemption can be evaluated and 
              any unanticipated consequences considered; and c) requires 
              a notice of exemption for a plan to be filed with the 
              Office of Planning and Research (OPR) to assist in this 
              evaluation.  SB 1380 was approved by the Senate 
              Environmental Quality Committee April 30, 2012 (6-0), and 
              the Senate May 29, 2012 (36-2).

              According to the author of AB 2245, as noted above, Los 
              Angeles County recently approved a bikeway plan and many of 
              these will be Class II bikeways where restriping is all 
              that is needed.  However, Class III bikeways may also 
              require restriping.  If the Committee believes that the AB 
              2245 exemption is needed, then to be clearer - and 
              consistent with SB 1380 - it would be more appropriate for 
              AB 2245 to:  a) instead refer to restriping of streets and 
              highways for bicycle lanes that are consistent with a 
              bikeway plan; b) require hearings to be in areas affected 
              by the project, and specify the hearing notice 
              requirements; c) require the notice of exemption to be 
              filed with OPR; and d) sunset January 1, 2018, rather than 
              January 1, 2017.

            2) Support and opposition concerns  .  According to the 
              Automobile Club of Southern California in supporting AB 
              2245, "The encouragement of greater bicycling as a viable 
              mode of transportation through the provision of these 
              facilities should provide a net environmental benefit."











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           According to the United Transportation Union in opposing this 
              bill, "The addition of Class II bikeway projects, 
              undertaken by a city, county, or a city and county within 
              an existing right-of-way, to the exemptions of current CEQA 
              requirements, creates an unsafe condition for all motorists 
              and bike riders in California."  
            
            3) Related legislation  .  AB 890 (Olsen) exempts certain 
              roadway improvement projects, and 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 (the 
              Senate Environmental Quality Committee will also hear these 
              bills July 2, 2012), and SB 1380, as discussed above.

            SOURCE  :        Assemblymember Smyth  

           SUPPORT  :       American Council of Engineering Companies of 
                          California, Associated Builders and Contractors 
                          of California, Automobile Club of Southern 
                          California, California Chamber of Commerce, 
                          California Park & Recreation Society, City of 
                          Los Angeles, Los Angeles County Metropolitan 
                          Transportation Authority, Regional Council of 
                          Rural Counties, Southwest California 
                          Legislative Counsel, State Park Partners 
                          Coalition  

           OPPOSITION  :    United Transportation Union