BILL ANALYSIS �
AB 1060
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 1060
AUTHOR: Fox
AMENDED: As Proposed To Be Amended
FISCAL: Yes HEARING DATE: July 3, 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
decisionmaking process, including, but not limited to,
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the issuance of permits, licenses, certificates, or
other entitlements required for activities undertaken
pursuant to 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 (AS PROPOSED) :
1)Provides that, for calendar years 2014 and 2015, no filing
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fee pursuant to FGC �711.4 shall be charged to a branch of
the US Armed Forces provided that notification is given to
the Governor's Office of Planning and Research (OPR).
2)Provides that it is the intent of the Legislature to obtain
a thorough review of federal agency payment or non-payment
of fees pursuant to this section and other laws prior to
January 1, 2016. Requires the Legislature to request
assistance of the California Research Bureau or the Senate
Office of Research with such review.
3)Requests the US Armed Forces to seek the appropriate
approval of the US Government to ensure that the very modest
filing fees for projects important to the military and to
the State of California are paid. The appropriate offices
of the US Armed Forces are requested to provide the chairs
of the policy and budget committees of both houses of the
Legislature with that request and any response.
4)Provides that this subdivision shall not be construed to be
a limitation on requirements under this section and any
other laws.
COMMENTS :
1) Amendments to AB 1060 . The author agreed to the proposed
amendments above in Senate Natural Resources and Water
Committee on June 25, 2013. Due to the limited period of
time between that hearing and Senate Environmental Quality
Committee's hearing on the bill, the amendments will be
accepted in this committee.
2) 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
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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."
3) 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.
4) 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
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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:
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
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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.
5) 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 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.
6) 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 undermines the
Legislature's direction to ensure adequate funding to DFW
for CEQA implementation as specified in SB 1148 (Pavley).
7) Antideficiency Act . Proponents of this bill state that the
military is prohibited from paying this fee and that paying
the fee would be a violation of the Antideficiency Act.
According to the U.S. Government Accountability Office,
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this federal law prohibits federal employees from making or
authorizing expenditure from, or creating or authorizing an
obligation under, any appropriation or fund in excess of
the amount available in the appropriation or fund unless
authorized by law. Federal employees who violate the
Antideficiency Act are subject to administrative and
criminal sanctions. Proponents state that because Congress
has not granted a clear waiver of sovereign immunity
relating to the filing fee, the military cannot pay the
filing fee and military employees would be in violation of
the Antideficiency Act if the fee was paid.
8) 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.
9) 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 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
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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
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.
10)Fish and Game Code �711.7 . Fish and Game Code states that
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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.
11)Double Referral to Senate Natural Resources and Water
Committee . This measure is double-referred to the Senate
Committees on Environmental Quality and Natural Resources
and Water. AB 1060 was heard on June 25, 2013, in Senate
Natural Resources and Water Committee and passed out with a
vote of 7-0.
SOURCE : Author
SUPPORT : None on file
OPPOSITION : None on file