BILL ANALYSIS Ó
AB 2417
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 2417
AUTHOR: Nazarian
AMENDED: May 7, 2014
FISCAL: Yes HEARING DATE: June 18, 2014
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):
EXEMPTION: RECYCLED WATER PIPELINES
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA):
1) Requires lead agencies with the principal responsibility for
carrying out or approving a proposed 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.). Exemptions relating
to pipelines include:
a) A project of less than one mile in length within a
public street or highway, or another public right-of-way
for the installation of a new pipeline or maintenance,
repair, restoration, reconditioning, relocation,
replacement, removal, or demolition of an existing
pipeline. "Pipeline" means "subsurface pipelines and
subsurface or surface accessories or appurtenances to a
pipeline, such as mains, traps, vents, cables, conduits,
vaults, valves, flanges, manholes and meters."
(§21080.21).
i) Requires a resource agency to consider only the
length of pipeline that is within its legal
jurisdiction in determining the applicability of this
exemption to a natural gas pipeline safety
enhancement activity under review by the resource
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agency. (§21080.21).
ii) Defines "natural gas pipeline" to mean a public
utility activity as part of a program to enhance the
safety of intrastate natural gas pipelines in
accordance with a decision, rule, or regulation
adopted by the Public Utilities Commission; and
defines "resource agency" to mean the State Lands
Commission, California Coastal Commission, Department
of Fish and Game, or the State Water Resources
Control Board, and local or regional agencies with
permitting authority under the California Coastal Act
of 1976 or regional water quality control board
requirements. (§21080.21).
iii) Sunsets the provisions above, in §21080.21, on
January 1, 2016. (§21080.21).
b) The inspection, repair, restoration, reconditioning,
relocation, replacement, or removal of an existing
pipeline less than eight miles in length, or any valve,
flange, meter, or other equipment directly attached to the
pipeline if certain conditions are met (e.g., "pipeline"
is covered under the Elder California Pipeline Safety Act
of 1981 (for transporting hazardous liquid substances or
highly volatile liquid substances), project is not less
than eight miles from any section of pipeline that has
been subject to this exemption in the past 12 months,
certain notice is provided, project is located within an
existing right-of-way and restored to its condition prior
to the project, notice requirements). (§21080.23).
c) Operation, repair, maintenance, or minor altercation of
existing private or public structures involving negligible
or no expansion, including existing facilities of both
investor and publicly owned utilities used to provide
electric power, natural gas, sewage, or other public
utility services. (CEQA Guidelines §15301(b)).
d) Replacement or reconstruction of existing structures
and facilities where the new structure will be located on
the same site as the structure replaced and will have
substantially the same purpose and capacity, including
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replacement or reconstruction of existing utility systems
or facilities involving negligible or no expansion of
capacity. (CEQA Guidelines §15301(c)).
2) Defines "recycled water" to mean water which, as a result of
treatment of waste, is suitable for a direct beneficial use
or a controlled use that would not otherwise occur and is
therefore considered a valuable resource." (Water Code
§13050(n)).
This bill :
1) Exempts from review under CEQA a project of less than eight
miles in length within a public street, highway, or
right-of-way for the construction and installation of a new,
recycled water pipeline, or maintenance, repair, restoration,
reconditioning, relocation, replacement, removal, or
demolition of an existing recycled water pipeline.
2) Defines "pipeline" to include subsurface pipelines and
subsurface or surface accessories or appurtenances to a
pipeline, such as mains, traps, vents, cables, conduits,
vaults, valves, flanges, manholes, and meters.
3) Requires the lead agency to do all of the following:
a) Hold a noticed public hearing to consider and adopt
mitigation measures for potential traffic impacts of the
project.
b) File a notice of exemption with the Office of Planning
and Research and in the office of the county clerk of each
county in which the project is located within 20 days of
the approval of the project.
c) Ensure that the overlaying property owner has given
permission to access the property, in the case of a
right-of-way over private property, if access is not
granted in the express terms of the right-of-way.
d) Ensure the restoration of the public street, highway,
or right-of-way to a condition consistent with all
applicable local laws or regulations, or a negotiated
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agreement.
4) Requires the project applicant to comply with all applicable
laws and regulations, including California Code of
Regulations Chapter 3 (commencing with §60301) of Division 4
of Title 22 (i.e., water recycling criteria).
5) Provides that the exemption does not apply to any of the
following:
a) A project that is a part of a recycled water pipeline
project greater than eight miles.
b) A project that is located in a resource area, such as a
park, open space, protected habitat areas, or lands
subject to a conservation easement.
c) A project for which an excavation activity that is more
than one-half mile in length at any one time will be
undertaken.
6) Sunsets January 1, 2018.
7) Makes findings related to the drought and the benefits of
recycled water.
COMMENTS :
1) Purpose of Bill . According to the author, "[W]ater recycling
is a critical conservation tool and one of the key solutions
to addressing the devastating water shortages in the state?In
addition to meeting all permit requirements under federal,
state, and local laws, local water agencies must go through
an extensive [CEQA] process, which could dramatically
increase the time and cost needed to finish a project. CEQA
also subjects the project to potential litigation, which
could hinder a project's progress. The CEQA process can
deter or delay projects related to recycled water that have
minimal or no substantial impact on the environment." The
author further states, "AB 2417 will expedite the process for
local communities to install, maintain and operate recycled
water pipelines, also known as purple pipelines, that are
restricted to 8 miles or less; in order to more effectively
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address the water needs of Californians throughout the
state."
2) Background on CEQA .
a) Overview of CEQA Process . 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.
b) What Is Analyzed In an Environmental Review ? Pursuant
to CEQA, an environmental review analyzing the significant
direct and indirect environmental impacts of a proposed
project may include water quality, surface and subsurface
hydrology, land use and agricultural resources,
transportation and circulation, air quality and greenhouse
gas emissions, terrestrial and aquatic biological
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resources, aesthetics, geology and soils, recreation,
public services and utilities such as water supply and
wastewater disposal, and cultural resources. The analysis
must also evaluate the cumulative impacts of any past,
present, and reasonably foreseeable projects/activities
within study areas that are applicable to the resources
being evaluated. A study area for a proposed project must
not be limited to the footprint of the project because
many environmental impacts of a development extend beyond
the identified project boundary. Also, CEQA stipulates
that the environmental impacts must be measured against
existing physical conditions within the project area, not
future, allowable conditions.
3) Is Ignoring Impacts Prudent ? There may be significant
impacts that would not be addressed with an exemption as
proposed by this bill. For example, such a pipeline
exemption may adversely affect roads and may cause conflicts
with entrances to nearby homes and businesses considering a
right-of-way can be fairly expansive such as 50 feet or more
in width. There may also be adverse noise and air quality
impacts for area residents, or sensitive uses such as
schools, senior centers, and hospitals. Eight miles of new
pipeline carrying recycled water may also have long-term,
growth-inducing impacts. With a CEQA exemption, as provided
by this bill, there would be no consideration of these and
other impacts under the Act.
4) EIGHT Miles of NEW Pipeline ? To help put in perspective how
long eight miles of pipeline is, consider the following:
The City of San Francisco is seven miles in width.
This bill would allow for new pipeline to be built
across the entire city plus an additional mile without
an environmental review.
The Golden Gate Bridge is 1.7 miles - Eight miles
is the equivalent in distance to more than 4.5 Golden
Gate Bridges placed end-to-end.
Yosemite Valley stretches for 7.5 miles in a
roughly east-west direction.
The approximate distance between Santa Monica Pier
and Beverly Hills Blvd. in Beverly Hills is eight miles.
The length of 140.8 football fields placed
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end-to-end is equal to eight miles.
Taking into account the sheer distance of a project that
would have no environmental review pursuant to this bill, do
the ends justify the means? Is it prudent to ignore up to
eight miles worth of potentially significant impacts caused
by the construction of new pipeline?
1) Background: Recycled Water .
a) Overview of Recycled Water . Recycled water is treated
wastewater from various sources such as domestic sewage,
industrial wastewater, and stormwater runoff, and is
conveyed to a water treatment plant. Before recycled
water can be used for these beneficial uses, the regional
water quality control boards (RWQCBs) and the Department
of Public Health (DPH) require treatment to remove
pollutants that could be harmful to the beneficial use.
Recycled water is most commonly used for nonpotable (not
for drinking) purposes, such as agriculture, landscape,
public parks, and golf course irrigation. Other
nonpotable applications include cooling water for power
plants and oil refineries, industrial process water for
such facilities as paper mills and carpet dyers, toilet
flushing, dust control, construction activities, concrete
mixing, and artificial lakes.
Recycled water can satisfy most water demands, as long as it
is adequately treated to ensure water quality appropriate
for the use. Most recycled water treatment plants produce
tertiary treated water, meaning the water has been through
three levels of treatment including filtration and
disinfection. In uses where there is a greater chance of
human exposure to the water, more treatment is required.
As for any water source that is not properly treated,
health problems can arise from drinking or being exposed
to recycled water if it contains disease-causing organisms
or other contaminants.
Although most water recycling projects have been developed to
meet nonpotable water demands, a number of projects use
recycled water indirectly for potable purposes. These
projects include recharging groundwater aquifers and
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augmenting surface water reservoirs with recycled water.
For example, Orange County has a wastewater-recycling
program where wastewater is treated to a level meeting
state and federal drinking water standards and is then
released into local groundwater recharge basins, where it
will eventually be re-drawn for municipal or private use.
b) Regulatory Authorities of Recycled Water in California .
A number of regulatory agencies have adopted requirements
that must be followed when producing, distributing, and
using recycled water. DPH has adopted strict public
health and safety requirements and guidelines, which help
protect the public from any potential risk associated with
use of recycled water (Titles 17 and 22 of the California
Code of Regulations). The State Water Resources Control
Board (SWRCB) and RWQCBs grant permits to oversee
production, conveyance, and use of recycled water. Local
Departments of Public Health may also have guidelines and
inspection requirements for the use of recycled water,
such as requirements for the use of backflow devices to
prevent mixing of recycled water with potable water. The
sanitation districts have adopted ordinances and
requirements for recycled water users pertaining to the
use of recycled water that incorporate requirements and
regulations imposed upon the sanitation districts by other
regulatory agencies.
c) CEQA Provides Hub For Multi-Disciplinary Regulatory
Process . A CEQA exemption does not alleviate a project
proponent from its obligation to obtain mandatory permits
or adhere to specified regulatory programs. CEQA assists
in moving a project through the multi-disciplinary,
regulatory process because responsible agencies rely on
the lead agency's environmental documentation in acting on
the aspect of the project that requires its approval and
must prepare its own findings regarding the project. A
variety of issues (see Comment #2(b)), many of which
involve permitting and/or regulatory program requirements,
should be coordinated and analyzed together as a whole.
CEQA provides a comprehensive analysis of a project's
impacts in those subject areas.
2) What Kind of Recycled Water Does This Exemption Apply ? This
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bill exempts from CEQA the construction and installation of
"a new recycled water pipeline". The bill is silent on the
nature/use of recycled water, such as potable or nonpotable
use, or the degree/type of treatment to which this exemption
applies. Current law provides no definition of "recycled
water" in CEQA. Recycled water is treated to a level that is
appropriate for its intended beneficial use. For example,
recycled water for landscape irrigation water is treated at a
lower level than recycled water meant for indirect potable
use. The author and sponsors cite examples where the
pipeline for recycled water would be used for nonpotable uses
but is silent on potable uses. Is it the intent of the
author and sponsors for this exemption to apply to recycled
water for all beneficial uses or only nonpotable ones?
3) SWRCB's Recycled Water Policy . SWRCB's report, Policy for
Water Quality Control for Recycled Water (last revised in
January 2013), states, "We strongly encourage local and
regional water agencies to move toward clean, abundant, local
water for California by emphasizing appropriate water
recycling, water conservation, and maintenance of supply
infrastructure and the use of stormwater (including
dry-weather urban runoff) in these plans; these sources of
supply are drought-proof, reliable, and minimize our carbon
footprint and can be sustained over the long-term." Among
the goals adopted, is to "increase the use of recycled water
over 2002 levels by at least one million acre-feet per year
(afy) by 2020 and by at least two million afy by
2030?Included in these goals is the substitution of as much
recycled water for potable water as possible by 2030."
(SWRCB, Policy for Water Quality Control for Recycled Water,
p. 1).
SWRCB's Recycled Water Policy includes ways to expedite the
implementation of recycled water projects. The report makes
no mention that CEQA is an impediment to either reaching
these goals or increasing the use of recycled water in the
state, but rather encourages public agencies to use the
presumption that recycled water has a beneficial impact "in
evaluating the impacts of recycled water projects on the
environment as required by [CEQA]." (Ibid, p. 3).
4) "Minimal or No Substantial Impact on the Environment" . The
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author and sponsors both state that projects related to
recycled water may have minimal or no substantial impact on
the environment. CEQA provides that if an initial study
shows that there would not be a significant effect on the
environment, then the lead agency must prepare a negative
declaration or a mitigated negative declaration (ND/MND).
The lead agency then prepares a draft ND/MND and publishes
the document for public review for at least 21 days. After
comments are considered, the lead agency can either
recirculate the ND/MND if public comments required the
project scope to change, or the lead agency can adopt the
document. The lead agency must file a Notice of
Determination after adopting the document and there is a
30-day statute of limitations for legal challenge.
The benefit to the project proponent, by complying with CEQA and
preparing an ND/MND when there is no significant impact, is
that these environmental documents can be completed more
quickly, at less cost, and have a shorter statute of
limitations for legal challenge than an EIR. The benefit to
the public is transparency, informed decisionmaking, public
comment, and the knowledge that the project's impacts are
less than significant.
The State Clearinghouse's CEQA database shows that in the past
few years, there have been multiple recycled water pipeline
projects that involve constructing new recycled water
pipeline and have complied with CEQA. Many of these projects
required an MND as opposed to an EIR. Considering that the
type of projects subject to AB 2714's proposed exemption have
been complying with CEQA for years, many of which requiring
only an MND, the Committee may wish to consider whether this
bill is needed.
5) What do We Lose With a CEQA Exemption ? It is not unusual for
certain interests to assert that CEQA impedes on a project
coming to fruition or that a particular exemption will
expedite construction of a particular type of project and
reduce costs. This, however, frequently overlooks the
benefits of environmental review: to inform decisionmakers
and the public about project impacts, identify ways to avoid
or significantly reduce environmental damage, prevent
environmental damage by requiring feasible alternatives or
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mitigation measures, disclose to the public reasons why an
agency approved a project if significant environmental
effects are involved, involve public agencies in the process,
and increase public participation in the environmental review
and the planning processes.
If a project is exempt from CEQA, certain issues may not get
addressed. For example:
How can decisionmakers and the public be aware of
impacts, mitigation measures, and alternatives of an exempt
pipeline?
Is it appropriate for the public to live with the
consequences of exempt projects where impacts are not
mitigated and alternatives are not considered regarding
certain matters, such as air quality, water quality, noise,
cumulative impacts, and growth inducing impacts?
Because adverse project impacts do not disappear when
they are not identified and mitigated with an exemption,
does the exemption result in a direct transfer of
responsibility for mitigating impacts from the project
applicant/developer to the public ( i.e. , taxpayers) if
impacts are ultimately addressed after completion of the
project?
If taxpayers, rather than a developer, are ultimately
responsible for mitigating impacts of an exempt project
after project completion, what assessments or taxes will be
increased to fund mitigation or pay for alternatives at a
later date?
Regardless of the merits of any project, short-term,
long-term, and/or permanent consequences of a project should
be known by the decisionmakers, the project proponent, and
the public before a project is approved, and mitigated or
avoided if possible before it is too late - CEQA specifically
provides for that informed decisionmaking. Recycled water
projects, including constructing up to eight miles of new
pipeline, pose challenges, risks, and serious consequences,
such as the potential for urban sprawl, that should be
assessed and subject to environmental review.
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1) Cannot Segment a Project under CEQA . Considering that AB
2417 exempts up to eight miles of new pipeline, it is
possible that this may be part of a larger water recycling
project. CEQA requires that a project must be treated and
analyzed as a whole and not segmented into multiple,
individual projects. So, for example, if a new pipeline is
connected to a new wastewater facility, the AB 2417 proposed
exemption would not apply - the new pipeline cannot be
segmented as a separate project and must be considered as
part of the project as a whole.
2) Support . According to the sponsors, "The exemption proposed
by AB 2417 would help expand the availability of recycled
water for use by industry or landscape irrigators; would help
California meet its recycled water goal of an additional one
million acre-feet by 2020; and would reduce energy costs from
importing water. In light of the fact that California uses
60 percent of potable water for landscape irrigation, efforts
to expand recycled water use for landscape irrigation and
other nonpotable uses would save potable water supplies for
human consumption. The sponsors believe that water recycling
has the greatest potential to provide much needed water
resources in our state. The problem many communities face
when attempting to get the required infrastructure in the
ground is that although there is not much of an impact to the
environment, the project must still comply with the
cumbersome CEQA process. Most of the time recycled water
pipelines are going in the ground next to existing water
pipelines that are on streets and roadways in public
right-of-ways but because the CEQA process requires a project
to comply with numerous potential impacts it creates
extensive time delays and costs."
3) Opposition . Opposition states, "While we support the use of
recycled water, just because a project is intended to deliver
recycled water does not mean that project has no possibility
of incurring significant adverse environmental impacts that
can and should be identified and mitigated as an integral
part of planning and implementing the project. This fact
does not change just because a proposed recycled water
pipeline project is proposed to be constructed within a
roadway, highway or public right-of-way. Some right-of-ways
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are quite large and include parks, open space and other
public areas where excavation and other activities attendant
to installing or repairing large pipelines can have quite a
range of significant adverse environmental impacts. In the
abstract, providing for delivery of recycled water to
communities in need may be a laudable environmental goal.
However, doing so in a manner that ignores and avoids any
consideration of, or responsibility for, the associated
short-term construction or long-term cumulative and
growth-inducing impacts of such projects - and does not
require the proponents of such projects to mitigate or avoid
such impacts to the extent feasible - does not serve the
public interest or protect the environment."
4) Previous Legislation . AB 83 (Jeffries) (2011) provided an
exemption from CEQA for installation of a new recycled water
pipeline less than eight miles in length within a paved
public street highway, or right-of-way. AB 83 failed in the
Assembly Natural Resources Committee.
SOURCE : Association of California Water Agencies
California Association of Sanitation Agencies
California Municipal Utilities Association
Civil Justice Association of California
Three Valleys Municipal Water District
WateReuse
SUPPORT : California Chamber of Commerce
OPPOSITION : Azul
California League of Conservation Voters
Clean Water Action
Natural Resources Defense Council
Planning and Conservation League
Sierra Club California