California Legislature—2013–14 Regular Session

Assembly Bill No. 380

Introduced by Assembly Member Dickinson

February 14, 2013

An act to amend Sections 21080.5, 21083.9, 21092, 21092.2, 21092.3, 21108, 21152, and 21161 of the Public Resources Code, relating to the California Environmental Quality Act.

LEGISLATIVE COUNSEL’S DIGEST

AB 380, as introduced, Dickinson. California Environmental Quality Act: notice requirements

(1) The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report (EIR) on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.

CEQA authorizes the Secretary of the Natural Resources Agency to certify a regulatory program that meets specified requirements. CEQA provides that written documentation required by those certified regulatory programs may be submitted in lieu of an EIR. CEQA requires an administering agency to file with the secretary a notice of decision made pursuant to the certified regulatory program, which is required to be available for public inspection. CEQA requires a lead agency to call a scoping meeting for specified projects and provide a notice of the meeting to specified entities. CEQA requires the lead agency or a project proponent to file a notice of approval or determination with Office of Planning and Research if the lead agency is a state agency or the county clerk if the lead agency is a local agency. CEQA requires a public agency that has completed an EIR to file with the Office of Planning and Research a notice of completion.

CEQA requires a lead agency determining that an EIR is required for a project to send a notice of that determination to specified public agencies. CEQA requires a lead agency preparing an EIR, a negative declaration, or making a specified determination regarding a subsequent project to provide a public notice within a reasonable time period before the certification of the EIR, or the adoption of a negative declaration, or making the specified determination. CEQA requires those notices to be posted in the office of the county clerk in each county in which the project is located and requires the notices to remain posted for 30 days. CEQA requires the county clerk to post the notice within 24 hours of receipt.

This bill would additionally require the above mentioned notices to be filed with both the Office of Planning and Research and the county clerk and be posted by county clerk for public review. The bill would require the county clerk to post the notices within one business day, as defined, of receipt and stamp on the notice the date on which the notices were actually posted. By expanding the services provided by the lead agency and the county clerk, this bill would impose a state-mandated local program. The bill would require the county clerk to post the notices for at least 30 days. The bill would require the Office of Planning and Research to post the notices on a publicly available online database established and maintained by the office. The bill would require the office to stamp the notices with the date on which the notices were actually posted for online review and would require the notices to be posted for at least 30 days. The bill would authorize the office to charge an administrative fee not to exceed $10 per notice filed. The bill would specify that a time period or limitation periods specified by CEQA does not commence until the notices are actually posted for public review by the county clerk or is available in the online database, whichever is later. The bill would require the notice of determination to be filed solely by the lead agency.

(2) CEQA authorizes, for a project that is determined by a state agency to be exempted from the requirements of CEQA, a state agency or a project proponent to file a notice of determination with the Office of Planning and Research. CEQA authorizes, for a project that is determined by a local agency to be exempted from the requirements of CEQA, a local agency or a project proponent to file a notice of determination with the county clerk of the county in which the project is located.

This bill would require that notice of determination be filed with both the Office of Planning and Research and the county clerk. By requiring a county clerk to receive and post that notice of determination filed by a state agency, this bill would impose a state-mandated local program. The bill would provide that notice of determination be filed by the lead agency only.

(3) 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. State-mandated local program: yes.

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

SECTION 1.  

Section 21080.5 of the Public Resources Code
is amended to read:

21080.5.  

(a) Except as provided in Section 21158.1, when the
regulatory program of a state agency requires a plan or other written
documentation containing environmental information and
complying with paragraph (3) of subdivision (d) to be submitted
in support of an activity listed in subdivision (b), the plan or other
written documentation may be submitted in lieu of the
environmental impact report required by this division if the
Secretary of the begin insert Natural end insert Resources Agency has certified the
regulatory program pursuant to this section.

(b) This section applies only to regulatory programs or portions
thereof that involve either of the following:

(1) The issuance to a person of a lease, permit, license,
certificate, or other entitlement for use.

(2) The adoption or approval of standards, rules, regulations,
or plans for use in the regulatory program.

(c) A regulatory program certified pursuant to this section is
exempt from Chapter 3 (commencing with Section 21100), Chapter
4 (commencing with Section 21150), and Section 21167, except
as provided in Article 2 (commencing with Section 21157) of
Chapter 4.5.

(d) To qualify for certification pursuant to this section, a
regulatory program shall require the utilization of an
interdisciplinary approach that will ensure the integrated use of
the natural and social sciences in decisionmaking and that shall
meet all of the following criteria:

(1) The enabling legislation of the regulatory program does both
of the following:

(A) Includes protection of the environment among its principal
purposes.

(B) Contains authority for the administering agency to adopt
rules and regulations for the protection of the environment, guided
by standards set forth in the enabling legislation.

(2) The rules and regulations adopted by the administering
agency for the regulatory program do all of the following:

(A) Require that an activity will not be approved or adopted as
proposed if there are feasible alternatives or feasible mitigation
measures available that would substantially lessen a significant
adverse effect that the activity may have on the environment.

(B) Include guidelines for the orderly evaluation of proposed
activities and the preparation of the plan or other written
documentation in a manner consistent with the environmental
protection purposes of the regulatory program.

(C) Require the administering agency to consult with all public
agencies that have jurisdiction, by law, with respect to the proposed
activity.

(D) Require that final action on the proposed activity include
the written responses of the issuing authority to significant
environmental points raised during the evaluation process.

(E) Require the filing of a notice of the decision by the
administering agency on the proposed activity begin delete with the Secretary
of the Resources Agency. Those notices shall be available for
public inspection, and a list of the notices shall be posted on a
weekly basis in the Office of the Resources Agency. Each list shall
remain posted for a period of 30 days end delete begin insert pursuant to Section 21092.3 end insert .

(F) Require notice of the filing of the plan or other written
documentation to be begin insert posted pursuant to Section 21092.3 and end insert made
to the public and to a person who requests, in writing, notification.
The notification shall be made in a manner that will provide the
public or a person requesting notification with sufficient time to
review and comment on the filing.

(3) The plan or other written documentation required by the
regulatory program does both of the following:

(A) Includes a description of the proposed activity with
alternatives to the activity, and mitigation measures to minimize
any significant adverse effect on the environment of the activity.

(B) Is available for a reasonable time for review and comment
by other public agencies and the general public.

(e) (1) The Secretary of the begin insert Natural end insert Resources Agency shall
certify a regulatory program that the secretary determines meets
all the qualifications for certification set forth in this section, and
withdraw certification on determination that the regulatory program
has been altered so that it no longer meets those qualifications.
Certification and withdrawal of certification shall occur only after
compliance with Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code.

(2) In determining whether or not a regulatory program meets
the qualifications for certification set forth in this section, the
inquiry of the secretary shall extend only to the question of whether
the regulatory program meets the generic requirements of
subdivision (d). The inquiry may not extend to individual decisions
to be reached under the regulatory program, including the nature
of specific alternatives or mitigation measures that might be
proposed to lessen any significant adverse effect on the
environment of the activity.

(3) If the secretary determines that the regulatory program
submitted for certification does not meet the qualifications for
certification set forth in this section, the secretary shall adopt
findings setting forth the reasons for the determination.

(f) After a regulatory program has been certified pursuant to
this section, a proposed change in the program that could affect
compliance with the qualifications for certification specified in
subdivision (d) may be submitted to the Secretary of the begin insert Natural end insert
Resources Agency for review and comment. The scope of the
secretary’s review shall extend only to the question of whether the
regulatory program meets the generic requirements of subdivision
(d). The review may not extend to individual decisions to be
reached under the regulatory program, including specific
alternatives or mitigation measures that might be proposed to lessen
any significant adverse effect on the environment of the activity.
The secretary shall have 30 days from the date of receipt of the
proposed change to notify the state agency whether the proposed
change will alter the regulatory program so that it no longer meets
the qualification for certification established in this section and
will result in a withdrawal of certification as provided in this
section.

(g) An action or proceeding to attack, review, set aside, void,
or annul a determination or decision of a state agency approving
or adopting a proposed activity under a regulatory program that
has been certified pursuant to this section on the basis that the plan
or other written documentation prepared pursuant to paragraph (3)
of subdivision (d) does not comply with this section shall be
commenced not later than 30 days from the date of the filing of
notice of the approval or adoption of the activity.

(h) (1) An action or proceeding to attack, review, set aside,
void, or annul a determination of the Secretary of the begin insert Natural end insert
Resources Agency to certify a regulatory program pursuant to this
section on the basis that the regulatory program does not comply
with this section shall be commenced within 30 days from the date
of certification by the secretary.

(2) In an action brought pursuant to paragraph (1), the inquiry
shall extend only to whether there was a prejudicial abuse of
discretion by the secretary. Abuse of discretion is established if
the secretary has not proceeded in a manner required by law or if
the determination is not supported by substantial evidence.

(i) For purposes of this section, a county agricultural
commissioner is a state agency.

(j) For purposes of this section, an air quality management
district or air pollution control district is a state agency, except
that the approval, if any, by a district of a nonattainment area plan
is subject to this section only if, and to the extent that, the approval
adopts or amends rules or regulations.

(k) (1) The secretary, by July 1, 2004, shall develop a protocol
for reviewing the prospective application of certified regulatory
programs to evaluate the consistency of those programs with the
requirements of this division. Following the completion of the
development of the protocol, the secretary shall provide a report
to the Senate Committee on Environmental Quality and the
Assembly Committee on Natural Resources regarding the need
for a grant of additional statutory authority authorizing the secretary
to undertake a review of the certified regulatory programs.

(2) The secretary may update the protocol, and may update the
report provided to the legislative committees pursuant to paragraph
(1) and provide, in compliance with Section 9795 of the
Government Code, the updated report to those committees if
additional statutory authority is needed.

(3) The secretary shall provide a significant opportunity for
public participation in developing or updating the protocol
described in paragraph (1) or (2) including, but not limited to, at
least two public meetings with interested parties. A notice of each
meeting shall be provided at least 10 days prior to the meeting to
a person who files a written request for a notice with the agency
and to the Senate Committee on Environmental Quality and the
Assembly Committee on Natural Resources.

SEC. 2.  

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 begin insert public end insert 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) begin insert by posting
a notice of meeting pursuant to Section 21092.3, and providing
copies of the notice end insert 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) A public agency, organization, or individual who has filed
a written request for the notice.

(c) For a public agency, 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 begin insert public end insert 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 begin insert public end insert 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 begin insert public end insert scoping meeting.

SEC. 3.  

Section 21092 of the Public Resources Code is
amended to read:

21092.  

(a) A lead agency that is preparing an environmental
impact report or a negative declaration or making a determination
pursuant to subdivision (c) of Section 21157.1 shall provide public
notice of that fact within a reasonable period of time prior to
certification of the environmental impact report, adoption of the
negative declaration, or making the determination pursuant to
subdivision (c) of Section 21157.1.

(b) (1) The notice shall specify the period during which
comments will be received on the draft environmental impact
report or negative declaration, and shall include the date, time, and
place of any public meetings or hearings on the proposed project,
a brief description of the proposed project and its location, the
significant effects on the environment, if any, anticipated as a result
of the project, the address where copies of the draft environmental
impact report or negative declaration, and all documents referenced
in the draft environmental impact report or negative declaration,
are available for review, and a description of how the draft
environmental impact report or negative declaration can be
provided in an electronic format.

(2) This section shall not be construed in any manner that results
in the invalidation of an action because of the alleged inadequacy
of the notice content if there has been substantial compliance with
the notice content requirements of this section.

(3) The notice required by this section shall be begin insert filed and posted
pursuant to Section 21092.3 and end insert given to the last known name and
address of all organizations and individuals who have previously
requested notice, and shall also be given by at least one of the
following procedures:

(A) Publication, no fewer times than required by Section 6061
of the Government Code, by the public agency in a newspaper of
general circulation in the area affected by the proposed project. If
more than one area will be affected, the notice shall be published
in the newspaper of largest circulation from among the newspapers
of general circulation in those areas.

(B) Posting of notice by the lead agency on- and off-site in the
area where the project is to be located.

(C) Direct mailing to the owners and occupants of contiguous
property shown on the latest equalized assessment roll.

(c) For a project involving the burning of municipal wastes,
hazardous waste, or refuse-derived fuel, including, but not limited
to, tires, meeting the qualifications of subdivision (d), notice shall
be given to all organizations and individuals who have previously
requested notice and shall also be given by at least the procedures
specified in subparagraphs (A), (B), and (C) of paragraph (3) of
subdivision (b). In addition, notification shall be given by direct
mailing to the owners and occupants of property within one-fourth
of a mile of any parcel or parcels on which is located a project
subject to this subdivision.

(d) The notice requirements of subdivision (c) apply to both of
the following:

(1) The construction of a new facility.

(2) The expansion of an existing facility that burns hazardous
waste which would increase its permitted capacity by more than
10 percent. For purposes of this paragraph, the amount of expansion
of an existing facility shall be calculated by comparing the
proposed facility capacity with whichever of the following is
applicable:

(A) The facility capacity approved in the facility’s hazardous
waste facilities permit pursuant to Section 25200 of the Health and
Safety Code or its grant of interim status pursuant to Section
25200.5 of the Health and Safety Code, or the facility capacity
authorized in any state or local agency permit allowing the
construction or operation of a facility for the burning of hazardous
waste, granted before January 1, 1990.

(B) The facility capacity authorized in the facility’s original
hazardous waste facilities permit, grant of interim status, or any
state or local agency permit allowing the construction or operation
of a facility for the burning of hazardous waste, granted on or after
January 1, 1990.

(e) The notice requirements specified in subdivision (b) or (c)
shall not preclude a public agency from providing additional notice
by other means if the agency so desires, or from providing the
public notice required by this section at the same time and in the
same manner as public notice otherwise required by law for the
project.

SEC. 4.  

Section 21092.2 of the Public Resources Code is
amended to read:

21092.2.  

(a) The notices required pursuant to Sections 21080.4,
begin insert 21080.5, end insert 21083.9, 21092, 21108, 21152, and 21161 shall be mailed
to every person who has filed a written request for notices with
either the clerk of the governing body or, if there is no governing
body, the director of the agency. If the agency offers to provide
the notices by email, upon filing a written request for notices, a
person may request that the notices be provided to him or her by
email. The request may also be filed with any other person
designated by the governing body or director to receive these
requests. The agency may require requests for notices to be
annually renewed. The public agency may charge a fee, except to
other public agencies, that is reasonably related to the costs of
providing this service.

(b) Subdivision (a) shall not be construed in any manner that
results in the invalidation of an action because of the failure of a
person to receive a requested notice, if there has been substantial
compliance with the requirements of this section.

(c) The notices required pursuant to Sections 21080.4 and 21161
shall be provided by the State Clearinghouse to any legislator in
whose district the project has an environmental impact, if the
legislator requests the notice and the State Clearinghouse has
received it.

SEC. 5.  

Section 21092.3 of the Public Resources Code is
amended to read:

21092.3.  

begin insert (a) end insert begin insert   end insert The notices required pursuant to Sections 21080.4
begin delete and end delete begin insert , 21080.5, 21083.9, end insert 21092 begin delete for an environmental impact report end delete begin insert ,
21108, 21152, and 21161 end insert shall be posted in the office of the county
clerk of each county in which the project will be located and shall
remain posted for a period of begin insert at least end insert 30 days begin insert of the full duration
of any statutory time period under this division the notice may
commence, whichever is longer end insert . begin delete The notice required pursuant to
Section 21092 for a negative declaration shall be so posted for a
period of 20 days, unless otherwise required by law to be posted
for 30 days. end delete The county clerk shall post the notices within begin delete 24 hours
of receipt end delete begin insert one business day of receipt and shall stamp on the notice
the date on which it was actually posted for public review end insert .

begin insert

(b) The notices required pursuant to Sections 21080.4, 21080.5,
21083.9, 21092, 21108, 21152, and 21161 shall be filed with, and
posted on a publicly available, online database established and
maintained by the Office of Planning and Research. The online
database shall include the capability to view and download the
notices in the form filed with the Office of Planning and Research.
Notices filed in the online database shall be stamped by the Office
of Planning and Research with the date on which they were
actually posted for online review by the public, and shall remain
posted for a period of at least 30 days or the duration of any time
period the notice may commence, whichever is longer. The Office
of Planning and Research shall post the notices in its online
database within one business day of receipt. The Office of Planning
and Research may require the agency filing the notice to pay an
administrative fee not to exceed ten dollars ($10) per notice filed
for the purposes of maintaining its online database and
implementing its duties under this section. The agency filing the
notice may recover its filing costs from the person specified in
subdivision (b) or (c) of Section 21065, as reflected in the agency’s
record of proceedings.

end insert begin insert

(c) Any time periods of limitation periods established under this
division that are subject to the notices posted under this section
shall not commence until the notice is actually posted for public
review by the county clerk and in the online database maintained
by the Office of Planning and Research. If the county clerk and
the Office of Planning and Research posts the notice on different
days, the time period shall run from the date of the later posting.

end insert begin insert

(d) For the purposes of this section, “business days” does not
include Saturday, Sunday, or a day observed as a holiday by the
state government.

end insert

SEC. 6.  

Section 21108 of the Public Resources Code is
amended to read:

21108.  

(a) If a state agency approves or determines to carry
out a project that is subject to this division, the state agency shall
file notice of that approval or that determination with the Office
of Planning and Research begin insert and with the county clerk of each county
in which the project will be located end insert . The notice shall identify the
person or persons in subdivision (b) or (c) of Section 21065, as
reflected in the agency’s record of proceedings, and indicate the
determination of the state agency whether the project will, or will
not, have a significant effect on the environment and shall indicate
whether an environmental impact report has been prepared pursuant
to this division.

(b) If a state agency determines that a project is not subject to
this division pursuant to subdivision (b) of Section 21080 or
Section 21172, and the state agency approves or determines to
carry out the project, the state agency begin delete or the person specified in
subdivision (b) or (c) of Section 21065 end delete may file notice of the
determination with the begin insert county clerk of each county in which the
project will be located and the end insert Office of Planning and Research.
A notice filed pursuant to this subdivision shall identify the person
or persons in subdivision (b) or (c) of Section 21065, as reflected
in the agency’s record of proceedings. A notice filed pursuant to
this subdivision by a person specified in subdivision (b) or (c) of
Section 21065 shall have a certificate of determination attached
to it issued by the state agency responsible for making the
determination that the project is not subject to this division pursuant
to subdivision (b) of Section 21080 or pursuant to Section 21172.
The certificate of determination may be in the form of a certified
copy of an existing document or record of the state agency.

begin delete

(c) A notice filed pursuant to this section shall be available for
public inspection, and a list of these notices shall be posted on a
weekly basis in the Office of Planning and Research. Each list
shall remain posted for a period of 30 days. The Office of Planning
and Research shall retain each notice for not less than 12 months.

end delete

SEC. 7.  

Section 21152 of the Public Resources Code is
amended to read:

21152.  

(a) If a local agency approves or determines to carry
out a project that is subject to this division, the local agency shall
file notice of the approval or the determination within five working
days after the approval or determination becomes final, with the
county clerk of each county in which the project will be located
begin insert and with the Office of Planning and Research end insert . The notice shall
identify the person or persons in subdivision (b) or (c) of Section
21065, as reflected in the agency’s record of proceedings, and
indicate the determination of the local agency whether the project
will, or will not, have a significant effect on the environment and
shall indicate whether an environmental impact report has been
prepared pursuant to this division. The notice shall also include
certification that the final environmental impact report, if one was
prepared, together with comments and responses, is available to
the general public.

(b) If a local agency determines that a project is not subject to
this division pursuant to subdivision (b) of Section 21080 or
pursuant to Section 21172, and the local agency approves or
determines to carry out the project, the local agency begin delete or the person
specified in subdivision (b) or (c) of Section 21065 end delete may file a
notice of the determination with the county clerk of each county
in which the project will be located begin insert and the Office of Planning and
Research end insert . A notice filed pursuant to this subdivision shall identify
the person or persons in subdivision (b) or (c) of Section 21065,
as reflected in the agency’s record of proceedings. A notice filed
pursuant to this subdivision begin delete by a person specified in subdivision
(b) or (c) of Section 21065 end delete shall have a certificate of determination
attached to it issued by the local agency responsible for making
the determination that the project is not subject to this division
pursuant to subdivision (b) of Section 21080 or Section 21172.
The certificate of determination may be in the form of a certified
copy of an existing document or record of the local agency.

begin delete

(c) A notice filed pursuant to this section shall be available for
public inspection, and shall be posted within 24 hours of receipt
in the office of the county clerk. A notice shall remain posted for
a period of 30 days. Thereafter, the clerk shall return the notice to
the local agency with a notation of the period it was posted. The
local agency shall retain the notice for not less than 12 months.

end delete

SEC. 8.  

Section 21161 of the Public Resources Code is
amended to read:

21161.  

Whenever a public agency has completed an
environmental impact report, it shall cause a notice of completion
of that report to be filed with the begin insert county clerk of each county in
which the project will be located and the end insert Office of Planning and
Research. The notice of completion shall briefly identify the project
and shall indicate that an environmental impact report has been
prepared. The notice of completion shall identify the project
location by latitude and longitude. Failure to file the notice required
by this section shall not affect the validity of a project.

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.