BILL ANALYSIS �
AB 1060
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 1060
AUTHOR: Fox
INTRODUCED: February 22, 2013
FISCAL: Yes HEARING DATE: June 19, 2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA): FILING
FEES: EXEMPTIONS
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.). If there is substantial
evidence, in light of the whole record before a lead
agency, that a project may have a significant effect on the
environment, the lead agency must prepare a draft EIR.
(CEQA Guidelines �15064(a)(1), (f)(1)).
b) Authorizes the Department of Fish and Wildlife (DFW) to
charge and collect a filing fee, as provided in Fish and
Game Code (FGC) �711.4. Provides that a finding with
respect to each significant effect is not operative,
vested, or final until the filing fee required by FGC
�711.4 is paid. (Public Resources Code (PRC) �21089(b)).
c) States, "The legislature finds and declares that this
division is an integral part of any public agency's
decision making process, including, but not limited to, the
issuance of permits, licenses, certificates, or other
entitlements required for activities undertaken pursuant to
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federal statutes containing specific waivers of sovereign
immunity." (PRC �21006).
d) Defines "person" to include "any person, firm,
association, organization, partnership, business, trust,
corporation, limited liability company, company, district,
city, county, city and county, town, the state, and any of
the agencies or political subdivisions of such entities,
and, to the extent permitted by federal law, the United
States, or any of its agencies or political subdivisions."
(PRC �21066), (CEQA Guidelines �15376).
2) Requires DFW to impose and collect filing fees to defray the
costs of managing and protecting fish and wildlife trust
resources identified in the review of a project conducted
pursuant to CEQA. (FGC �711.4).
3) Provides that the DFW filing fee does not need to be paid if
specified conditions are met:
a) The project has no effect on fish and wildlife;
b) The project is being undertaken by DFW;
c) The project costs are payable by DFW from specified
funding sources; or,
d) The project is implemented by DFW through a contract
with either a nonprofit entity or a local government
agency. (FGC �711.4).
4) Provides that because wildlife resources, which are dependent
on federal lands are held in trust for the people of
California by DFW, filing fees are required to be paid for
federal projects and federally permitted projects unless
federal law explicitly precludes payment of such state fees .
(FGC �711.7(a)(2)).
This bill exempts a project "being carried out or implemented by
a branch of the United States Armed Forces" from paying the
filing fee pursuant to FGC �711.4.
COMMENTS :
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1) Purpose of Bill . According to the author, "Prior to approving
a project under CEQA, current law requires a public agency,
subject to the Act, to consult with DFW to determine whether
the project has significant impacts on the environment. DFW
may propose alternatives to the project or mitigation measures
to lessen or avoid the project's environmental impacts.
The military has asserted that this requirement poses a problem
for the military as they are legally prohibited from paying a
filing fee to DFW. Federal law limits states' regulatory
authority over federal projects and, as a result federal
entities are not authorized to pay fees pursuant to CEQA. As
a project applicant, the military seeks to develop water
projects with a state Regional Water Quality Control Board,
which acts as the lead agency. Because the military is unable
to pay the filing fee to DFW, this state requirement has
resulted in unnecessary delays to federal water projects and
in some cases has resulted in the Regional Water Board having
to pay for the DFW fee, despite limited funds."
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
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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) Department of Defense and CEQA: A Little History . SB 581
(Knight) of 1997 provided legislative intent that a dispute
exists regarding the applicability of CEQA to the approval of
Department of Defense projects by the Department of Toxic
Substances Control, and required OPR Director and the
Secretary of the Resources Agency to review the CEQA
Guidelines and recommend changes to CEQA or the guidelines to
resolve this dispute, and report any recommended changes by
March 1, 1998. SB 581 failed in the Assembly Natural
Resources Committee.
Supplemental report language in the Budget Act of 1997 cited the
Department of Defense assertion, required the OPR Director in
conjunction with the Secretary of the Resources Agency to make
recommendations "determined to be necessary for resolution of
this issue," and required the Director and Secretary to report
any recommendations to the Legislature by March 1, 1998. In
1998, the Natural Resources Agency and OPR released a report,
Applicability of CEQA To Department of Defense Projects
Requiring State Approvals . The report made findings that: a)
Congress has waived sovereign immunity under the Resource
Conservation and Recovery Act (RCRA) and the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) with regard to CEQA, which courts have determined to
be an integral element of public agency regulatory decisions;
b) The federal government is a "person" under CEQA; and c) The
state may assess a fee upon the appropriate federal applicant
agency. The report also provided options to resolve these
issues, including: a) Change the definition of "persons" in
the CEQA Guidelines to include "the federal government"; b)
Investigate duplication of CEQA and certain hazardous waste
requirements; and, c) Develop standards and protocols for
determining the scope and content of environmental documents
to be prepared pursuant to the National Environmental Policy
Act and ensuring CEQA compliance.
In response to this report, AB 2397 (Bowen), Chapter 272,
Statutes of 1998, did the following:
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a) Added to the definition of "persons" in CEQA, to the
extent permitted by law, the United States or any of its
agencies or political subdivisions;
b) Provided legislative intent that CEQA is an integral
part of any public agency's decisionmaking process for
entitlements required for activities undertaken pursuant to
federal statutes containing specific waivers of sovereign
immunity; and,
c) Provided legislative intent that the change in
definition of "person" (#a above) and the legislative
intent regarding entitlements (#b above) are declaratory of
existing law.
4) Background: DFW filing fee . The Fish and Game Code was
amended in the late 1980s to require payment of environmental
review fees to DFW (at the time known as Department of Fish
and Game) for all negative declarations, mitigated negative
declarations, and EIRs prepared pursuant to CEQA. The fee is
paid to the county clerk, or to the Governor's Office of
Planning and Research (OPR) in the case of a state lead
agency, at the time the notice of determination is filed. The
fee is transmitted to DFW to fund its environmental review
staff. A project approval is not considered final until the
fee is paid or a "no effect" determination form is submitted
and approved by DFW. Currently, the filing fee ranges between
$1,000 to $3,000 depending on the type of environmental review
required.
5) SB 1148 (Pavley): Filing fee: Adequate funding for DFW .
There is general consensus that DFW's programs to support
wildlife and enforce the law are underfunded. Last year, SB
1148 (Pavley), Chapter 565, Statutes of 2012, made numerous
changes to implement policy recommendations arising out of a
Strategic Vision process for DFW in order to improve the
effectiveness of this department in protecting and managing
fish and wildlife resources. Among the changes, SB 1148
clarified DFW's authority to establish and adjust fees for
CEQA filings and require the fees to be sufficient to recover
all reasonable administrative and implementation costs, as
well as authorized DFW to establish a fee structure to phase
in fee adjustments in order to provide for full cost recovery
within five years. AB 1060's exemption to pay the filing fee
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conflicts with the Legislature's direction to ensure adequate
funding to DFW for CEQA implementation as specified in SB 1148
(Pavley).
6) Number of projects likely affected and potential revenue loss
to DFW . OPR states that this bill would affect one to four
projects each year, costing up to $10,000 annually. However,
DFW estimates that this bill would affect between 32 and 64
projects each year, resulting in a loss of $32,000 to $192,000
in revenue to DFW annually. It should be noted that
regardless of whether the fee is paid, DFW must still perform
the work for which the fee pays. OPR and DFW have yet to
discuss or reconcile this vast difference in numbers. It
seems that this bill may have a more expansive effect than the
author or OPR anticipate. Until there is a better and solid
understanding about the effects of AB 1060 on DFW, this bill
is premature.
7) The Supremacy Clause . The Supremacy Clause of the U.S.
Constitution (Art. VI, Sec. 2) states that "?[t]his
Constitution, and the laws of the United States that shall be
made in pursuance thereof?shall be the supreme law of the
land; and the judges of every state shall be bound thereby,
anything in the Constitution or laws of any state to the
contrary notwithstanding." The federal government is,
therefore, generally free of any regulation imposed by a
state. This immunity can only be waived by Congress, and any
such waiver must be express and unambiguous.
The U.S. Navy is concerned that military projects are delayed
because the Navy is not authorized to pay this fee. When
asked whether the U.S. Navy has ever requested Congress for a
waiver so that it may pay the filing fee, the Navy's response
was no.
8) Federal Enclave Clause . The term "federal enclave" is used to
identify federally owned property that is under the exclusive
jurisdiction of the federal government under the Federal
Enclave Clause, U.S. Constitution Art. I, �8, cl. 17. The
Federal Enclave Clause provides Congress the power to:
Exercise exclusive Legislation in all Cases whatsoever,?over
all Places purchased by the Consent of the Legislature of
the State in which the Same shall be for the Erection of
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Forts,?, and other needful Buildings. (U.S. Const. Art. I,
�8, cl. 17)
Congress may expressly waive the federal government's
exclusive jurisdiction over a federal enclave and allow state
law to operate. Where state laws directly affect the federal
government, the courts have required the congressional waiver
to be clear and unambiguous.
Each of the major federal pollution control laws enacted by
Congress contains a provision requiring federal facilities to
comply with state and local requirements, thus explicitly
waiving sovereign immunity such as the Clean Air Act, Clean
Water Act, Safe Drinking Water Act, RCRA, and CERCLA. As a
result of these waivers, states may require federal agencies
to conform with state requirements including, but not limited
to, the issuance of permits and the assessment of reasonable
fees.
For example, during the time Congress was considering the
Clean Air Act Amendments of 1990, the Department of Defense
was litigating the scope of federal liability to pay state
fees under the Clean Air Act. Congress addressed the issue in
the 1990 Amendments, revising the waiver provision and
obligating federal agencies to pay any fee or charge imposed
by any state or local agency to defray the costs of its air
pollution regulatory program.
Over the past few decades, Congress has progressively amended
environmental laws to include broader waivers of sovereign
immunity, requiring federal agencies to adhere to state and
local environmental regulations. When commenting on a federal
law enacted a few years ago, which requires the federal
government to pay stormwater management fees to local and
state governments, Nancy Sutley, Chairwoman of the White House
Council on Environmental Quality, stated, "It is important
that the federal government not only be a leader, but also a
good neighbor." She also acknowledged that the federal
government has a large footprint on the environment with more
than 2 million employees, 500,000 buildings and 600,000
vehicles nationwide.
Considering past and fairly recent federal actions noted
above, it would be more consistent and appropriate to ask
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Congress for a waiver to provide the Department of Defense the
authorization to pay this filing fee rather than the state
action proposed in this bill.
9) Fish and Game Code �711.7 . Fish and Game Code states that the
DFW filing fees are required to be paid for federal projects
and federally permitted projects unless federal law explicitly
precludes payment of such state fees. (FGC �711.7(a)(2)).
The framework is already in current law to deal with the
purpose of this bill. When asked if a federal agency has ever
explicitly exempted itself from paying state filing or permit
fees pursuant to this section, DFW responded that program
staff is not aware of any federal agency citing this
situation.
The Navy has stated that it considers that FGC �711.7 is
incorrect or backwards. The Navy contends that the default
position of preemption is that the federal agency does not
have to do anything to show that it does not have to pay the
filing fee whereas FGC �711.7 requires the federal agency to
be proactive in saying that it does not have to comply/pay.
If this is a matter of interpretation, then the proper branch
of government to raise this issue is the judicial branch, not
the state legislative branch.
10)Setting precedent . This filing fee was enacted into statute
in1990. Twenty-three years later, AB 1060 proposes to carve
out an exemption for the U.S. Armed Forces from paying the
filing fee. Under current law, the only entity that is
exempted from this fee is the agency that actually performs
the tasks required by the fee, DFW. All other project
applicants and public agencies are required to pay. This bill
would set a precedent by opening the door for other project
applicants and public agencies to seek an exemption as well.
11)Support . The Department of Defense states:
Through the review of certain projects, the [DFW] CEQA
review fee has become an issue. Due to federal fiscal
law issues, we cannot reimburse this minor fee. The
result has been potential delays of projects necessary
to modernize our California installations to accept new
generations of weapon systems.
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An example is a pier project at Naval Base San Diego.
A pier constructed for World War II-era ships cannot
support modern vessels. Moreover, it is in disrepair
and lacks some basic environmental safeguards such as
stormwater collection. A new pier will incorporate
these requirements as well as use construction that
minimizes impacts to San Diego Bay. It seems ironic
for such a project, which also represents tens of
millions of dollars of construction for the California
economy, to find itself at risk due to a filing fee.
AB 1060 is a simple fix to this. It will allow these
necessary projects to proceed without diminishing in
any way current oversight and review, while continuing
the needed modernization of our installations.
12)Opposition . Opposition to AB 1060 states:
"AB 1060 is not necessary to accomplish the stated
purpose of the bill, if the military is not currently
exempted from state fees by federal law all the
military need to do is get federal law changed. Short
of that, DFW is obligated to review impacts to the
State's wildlife resources and it is chronically
underfunded to do that. AB 1060 also seems to be
overly broad in its language (e.g., 'carried out or
implemented') and may include non-military sponsored
projects.
Information, apparently provided by [the author's]
office, regarding the military's authority to pay this
State fee reports the military is precluded from
paying, which meets the requirement in law for an
exemption. Claims that other agencies (e.g., regional
water boards) are paying the fees on behalf of the
military are highly suspect - why would a regional
board or any other entity pay a fee when none is due?
A simple reading of the current law would seem in
order."
13)Double Referral to Senate Natural Resources and Water
Committee . If this measure is approved by the Senate
Environmental Quality Committee, the do pass motion must
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include the action to re-refer the bill to the Senate Natural
Resources and Water Committee.
SOURCE : Author
SUPPORT : Department of Defense
OPPOSITION : California Native Plant Society
National Wildlife Federation California
Planning and Conservation League
Sierra Club California