BILL NUMBER: SB 226 AMENDED BILL TEXT AMENDED IN ASSEMBLY AUGUST 23, 2011 AMENDED IN ASSEMBLY AUGUST 17, 2011 AMENDED IN ASSEMBLY JULY 14, 2011 INTRODUCED BY Senators Simitian and Vargas ( Coauthor: Senator Rubio ) ( Coauthor: Assembly Member Solorio ) FEBRUARY 9, 2011 An act to amend Section 65919.10 of the Government Code, and to amend Sections 21083.9, 21084, and 21177 of, to add Section 21080.35 to, and to add and repeal Sections 21084.2 and 21155.4 of, the Public Resources Code, relating to environmental quality, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST SB 226, as amended, Simitian. Environmental quality. (1) The California Environmental Quality Act (CEQA) requires a lead agency to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project, as defined, that it proposes to carry out or approve that may have a significant effect on the environment, as defined, or to adopt a negative declaration if it finds that the project will not have that effect. This bill would exempt from the requirements of CEQA the installation of a solar energy system, including associated equipment, on the roof of an existing building meeting specified conditions. Because a lead agency would be required to determine whether a project would be exempt under this provision, this bill would impose a state-mandated local program. (2) CEQA requires a lead agency to call a scoping meeting for a project of statewide, regional, or areawide significance, and requires the lead agency to provide notice of at least one of those scoping meetings to specified entities, including a county or city that borders on a county or city within which the project is located, unless otherwise designated annually by agreement between the lead agency and county or city. Existing law requires, prior to action by a legislative body to adopt or substantially amend a general plan, the planning agency to refer the proposed action to a city or county within or abutting the area covered by the proposal. This bill would authorize this referral of a proposed action to adopt or substantially amend a general plan of a city or county to be conducted concurrently with the scoping meeting. The city or county would be authorized to submit specified comments at the scoping meeting. (3) CEQA authorizes the Secretary of the Natural Resources Agency to certify and adopt guidelines to include a list of classes of projects that have been determined not to have a significant effect on the environment and are exempted from the requirements of CEQA (categorical exemption). This bill would provide that a project's greenhouse gas emissions are not, in and of themselves, deemed to cause the exemption to be inapplicable under specified conditions. This bill would also require the Secretary of the Natural Resources Agency, on or before March 1, 2012, to adopt a categorical exemption for solar photovoltaic projects located on disturbed agricultural lands meeting specified conditions. Because a lead agency would be required to determine whether the categorical exemption would apply to a project, this bill would impose a state-mandated local program. The bill would repeal this requirement on January 1, 2015. (4) CEQA authorizes the use of a sustainable communities environmental assessment or modified environmental impact report for the purposes of CEQA for a transit priority project meeting specified requirements. This bill would authorize, until the adoption by a metropolitan planning organization of a sustainable communities strategy, the use of a sustainable communities environmental assessment or modified environmental impact report for a transit proximity project meeting specified conditions. This bill would repeal this authorization on January 1, 2015. (5) CEQA prohibits a person from bringing or maintaining an action or proceeding unless the alleged grounds for noncompliance with CEQA were presented to the public agency during the public comment period or before the close of the public hearing on the project before the issuance of the notice of determination. This bill would authorize, until January 1, 2016, with specified exceptions, a lead agency to not consider written materials submitted after the close of the public comment period and would prohibit the use of those materials as a basis for challenging the lead agency's action pursuant to CEQA. (6) Existing law authorizes a county and a city to agree upon a procedure for referral to, and comment by, the city or county concerning the other entity's proposals to adopt or amend all or part of a general or specific plan or zoning ordinance, as specified. This bill would make a technical, nonsubstantive change to this authorization. (7) 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. (8) This bill would declare that it is to take effect immediately as an urgency statute. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) In 2008, the Legislature passed and the Governor signed Senate Bill 375, which was chaptered as Chapter 726 of the Statutes of 2008, requiring metropolitan planning organizations to adopt a sustainable community strategy that will comprehensively integrate land use planning, transportation investments, and climate policy. Part of Chapter 726 of the Statutes of 2008 includes incentives under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) to encourage development patterns that would help implement the sustainable communities strategy. (b) Metropolitan planning organizations will begin adopting these strategies in 2011, but adoption will not be complete until 2013. (c) One of the incentives created under Chapter 726 of the Statutes of 2008 is the sustainable communities environmental assessment that provides a more expeditious review under the California Environmental Quality Act for residential and mixed-use residential projects that have a proximity to transit. (d) Because of the severe recession that continues to impact California and because of the need to promote jobs in the construction industry, it is important to make the sustainable communities assessment available as early as possible in order to promote the construction of projects that will foster the use of transit. SEC. 2. Section 65919.10 of the Government Code is amended to read: 65919.10. If the proposed action is a change in a zoning ordinance, the county or city need not refer the zoning proposal to an affected city or county, as the case may be, if the zoning proposal is consistent with the general plan and the general plan proposal was referred and acted upon pursuant to this chapter. SEC. 3. Section 21080.35 is added to the Public Resources Code, to read: 21080.35. (a) Except as provided in subdivision (d), this division does not apply to the installation of a solar energy system on the roof of an existing building. (b) For the purposes of this section, a "solar energy system" includes all associated equipment. Associated equipment consists of parts and materials that enable the generation and use of solar electricity or solar-heated water, including any monitoring and control, safety, conversion, and emergency responder equipment, as well as any equipment necessary to connect the energy generated to the electrical grid. "Associated equipment" does not include a substation. (c) (1) Except for the associated equipment necessary to connect the energy generated to the electrical grid, which may be located immediately adjacent to the parcel of the building, associated equipment shall be located on the same parcel of the building. (2) Associated equipment shall not occupy more than 500 square feet of ground surface or disturb water bodies, plants identified as rare pursuant to Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code, wetlands, or riparian areas. (d) This section does not apply if the associated equipment would otherwise require one of the following: (1) An individual federal permit pursuant to Section 401 or 404 of the federal Clean Water Act (33 U.S.C. Sec. 1341 or 1344) or waste discharge requirements pursuant to the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). (2) An individual take permit for species protected under the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) or the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code). (3) A streambed alteration permit pursuant to Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code. SEC. 4. Section 21083.9 of the Public Resources Code is amended to read: 21083.9. (a) Notwithstanding Section 21080.4, 21104, or 21153, a lead agency shall call at least one scoping meeting for either of the following: (1) A proposed project that may affect highways or other facilities under the jurisdiction of the Department of Transportation if the meeting is requested by the department. The lead agency shall call the scoping meeting as soon as possible, but not later than 30 days after receiving the request from the Department of Transportation. (2) A project of statewide, regional, or areawide significance. (b) The lead agency shall provide notice of at least one scoping meeting held pursuant to paragraph (2) of subdivision (a) to all of the following: (1) A county or city that borders on a county or city within which the project is located, unless otherwise designated annually by agreement between the lead agency and the county or city. (2) A responsible agency. (3) A public agency that has jurisdiction by law with respect to the project. (4) A transportation planning agency or public agency required to be consulted pursuant to Section 21092.4. (5) An organization or individual who has filed a written request for the notice. (c) For an entity, organization, or individual that is required to be provided notice of a lead agency public meeting, the requirement for notice of a scoping meeting pursuant to subdivision (b) may be met by including the notice of a scoping meeting in the public meeting notice. (d) A scoping meeting that is held in the city or county within which the project is located pursuant to the federal National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.) and the regulations adopted pursuant to that act shall be deemed to satisfy the requirement that a scoping meeting be held for a project subject to paragraph (2) of subdivision (a) if the lead agency meets the notice requirements of subdivision (b) or subdivision (c). (e) The referral of a proposed action to adopt or substantially amend a general plan to a city or county pursuant to paragraph (1) of subdivision (a) of Section 65352 of the Government Code may be conducted concurrently with the scoping meeting required pursuant to this section, and the city or county may submit its comments as provided pursuant to subdivision (b) of that section at the scoping meeting. SEC. 5. Section 21084 of the Public Resources Code is amended to read: 21084. (a) The guidelines prepared and adopted pursuant to Section 21083 shall include a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from this division. In adopting the guidelines, the Secretary of the Natural Resources Agency shall make a finding that the listed classes of projects referred to in this section do not have a significant effect on the environment. (b) A project's greenhouse gas emissions shall not, in and of themselves, be deemed to cause an exemption adopted pursuant to subdivision (a) to be inapplicable if the project complies with all applicable regulations or requirements adopted to implement statewide, regional, or local plans consistent with Section 15183.5 of Title 14 of the California Code of Regulations. (c) A project that may result in damage to scenic resources, including, but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway designated as an official state scenic highway, pursuant to Article 2.5 (commencing with Section 260) of Chapter 2 of Division 1 of the Streets and Highways Code, shall not be exempted from this division pursuant to subdivision (a). This subdivision does not apply to improvements as mitigation for a project for which a negative declaration has been approved or an environmental impact report has been certified. (d) A project located on a site that is included on any list compiled pursuant to Section 65962.5 of the Government Code shall not be exempted from this division pursuant to subdivision (a). (e) The changes made to this section by Chapter 1212 of the Statutes of 1991 apply only to projects for which applications have not been deemed complete on or before January 1, 1992, pursuant to Section 65943 of the Government Code. (f) A project that may cause a substantial adverse change in the significance of an historical resource, as specified in Section 21084.1, shall not be exempted from this division pursuant to subdivision (a). SEC. 6. Section 21084.2 is added to the Public Resources Code, to read: 21084.2. (a) On or before March 1, 2012, the Secretary of the Natural Resources Agency shall amend the guidelines adopted pursuant to Section 21084 to add solar photovoltaic projects that are located on disturbed agricultural lands to the classes of projects that have been determined not to have a significant effect on the environment and that are therefore exempt from this division. The amendment shall be limited to projects that meet all the following conditions: (1) The project has a maximum electrical generating capacity of not more than 10 megawatts. (2) The project is located exclusively on lands previously used for agricultural production for at least five years that have been mechanically disturbed or converted from native vegetation through plowing, bulldozing, or other similar means. (3) The project is not located on prime farmland, farmland of statewide importance, unique farmland, and farmland of local importance, collectively designated as important farmlands by the Department of Conservation. For purposes of this section, land designated in these important farmland categories shall not be reclassified due to irrigation status. (4) The project is located exclusively on land that, based upon generally accepted biological survey or assessment methods, has been determined in a report of a qualified biologist on file with the agency to have no significant value as habitat for endangered, threatened, candidate, and other sensitive species, and that provides no significant habitat or wildlife corridors. (5) The project is located on a parcel of land that is not larger than 100 acres. (b) (1) For the purposes of this section, a "photovoltaic project" includes all associated equipment. Associated equipment consists of parts and materials that enable the generation and use of solar electricity or solar-heated water, including any monitoring and control, safety, conversion, and emergency responder equipment, as well as any equipment necessary to connect the energy generated to the electrical grid. "Associated equipment" does not include a substation. (2) (A) Except for the associated equipment necessary to connect the energy generated to the electrical grid, which may be located immediately adjacent to the parcel, associated equipment shall be located on the same parcel. (B) Associated equipment shall not occupy more than 500 square feet of ground surface or disturb water bodies, plants identified as rare pursuant to Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code, wetlands, or riparian areas. (c) In adopting an amendment pursuant to this section, the Secretary of the Natural Resources Agency shall take into consideration the potential for impacts on agriculture and natural resources, and may impose additional conditions on the exemption in order to avoid any significant effects on the environment, including any effects associated with the decommissioning of the project. The Secretary of the Natural Resources Agency shall impose conditions to prevent the repeated application of the class of exemption provided pursuant to this section to facilities in the same vicinity and under forms of common ownership or control. (d) This section shall remain in effect only until January 1, 2015, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2015, deletes or extends that date. SEC. 7. Section 21155.4 is added to the Public Resources Code, to read: 21155.4. (a) A transit proximity project that (1) includes a major transit stop as part of the project, or (2) that is located within one-quarter mile of an existing major transit stop or an existing high-quality transit corridor may be reviewed under the procedures set forth in subdivision (b) or (c) of Section 21155.2 if the project has incorporated all mitigation measures or best practices recommended for protection of public health by the local air district, air pollution control district, or air quality management district. (b) For purposes of this section, a transit proximity project is one that satisfies paragraphs (1) and (2) of subdivision (b) of Section 21155 and is located within an urbanized area. (c) For the purpose of this section, the following definitions apply: (1) "Major transit stop" has the same meaning as set forth in Section 21064.3. (2) "High-quality transit corridor" has the same meaning as set forth in subdivision (b) of Section 21155. (3) This section shall apply only to projects located within a metropolitan planning organization and shall cease to apply to projects upon the adoption by that metropolitan planning organization of a sustainable communities strategy pursuant to Section 65080 of the Government Code. (d) This section shall remain in effect only until January 1, 2015, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2015, deletes or extends that date. SEC. 8. Section 21177 of the Public Resources Code, as amended by Section 11 of Chapter 496 of the Statutes of 2010, is amended to read: 21177. (a) An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination. (b) A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of the notice of determination. (c) (1) This division does not require a public agency to consider written materials submitted after the close of the public comment period, unless those materials address any of the following matters: (A) New issues raised in the response to comments by the lead agency. (B) New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar legislative document. (C) Changes made to the project after the close of the public comment period. (D) Proposed conditions for approval of a project, mitigation measures for a project included in an environmental document, or proposed findings required by Section 21081 or a proposed mitigation and monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, where the public agency releases those documents subsequent to the release of the draft environmental impact report. (E) New information that was not reasonably known and could not have been reasonably known during the public comment period. (2) If a lead agency elects not to consider written materials submitted after the close of the public comment period, except as required pursuant to paragraph (1), the lead agency is not required to respond to that written material, and that written material shall not be raised in an action or proceeding brought pursuant to Section 21167. (d) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivisions (a) and (b). The grounds for noncompliance may have been presented directly by a member or by a member agreeing with or supporting the comments of another person. (e) This section does not apply to the Attorney General. (f) This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law, including as required pursuant to Section 21092.2. (g) This section shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. SEC. 9. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code. SEC. 10. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to protect the environment and public health at the earliest possible time, it is necessary for this act to take effect immediately.