BILL ANALYSIS �
SB 617
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 617
AUTHOR: Evans
AMENDED: April 1, 2013
FISCAL: Yes HEARING DATE: May 1, 2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
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 discretionary project to
prepare a negative declaration, mitigated negative
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.).
2) Defines "environment" as "the physical conditions that exist
within the area that will be affected by a proposed project
including land, air, water, minerals, flora, fauna, noise,
objects of historic or aesthetic significance." (�21060.5).
3) Defines "significant effect on the environment" as "a
substantial, or potentially substantial, adverse change in the
environment." (�21068).
4) Provides exemptions from the requirements of CEQA for the
California Men's Colony West Facility, a prison facility at or
in the vicinity of Corcoran, a prison facility in the County
of King, and the Napa Valley Wine Train. (��21080.01,
21080.02, 21080.03, and 21080.04).
5) Requires a lead agency preparing an EIR or negative
declaration to provide public notice specifying the period
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during which comments will be received on the draft EIR or
negative declaration; 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 by
the project; and the address where copies of the draft EIR or
negative declaration, and all documents referenced in the
draft EIR or negative declaration, are available for review.
(�21092(b)).
6) Requires a lead agency to call at least one scoping meeting
for specific types of projects. (�21083.9).
7) Provides for specific requirements for posting of notices such
as the period of days for posting. (�21092.3).
8) Requires the preparation and certification of EIRs, and
specifies information to be included in an EIR. (�21100).
9) Requires a state lead agency to file a notice of approval or
determination with OPR and requires a local lead agency to
file a notice of approval or determination with the county
clerk in which the project is located. (�21108 and �21152).
Requires a public agency to file a notice of completion for an
EIR with OPR. (�21161).
10)Sets requirements relating to preparation, review, comment,
approval, and certification of environmental documents, as
well as procedures relating to an action or proceeding to
attack, review, set aside, void, or annul various actions of a
public agency on the grounds of noncompliance with CEQA. At
the time an action or proceeding is filed, the plaintiff must
file a request that the respondent public agency prepare the
record of proceedings, which must be served personally upon
the public agency no later than 10 business days from the date
the action or proceeding was filed. (�21167.6(a)). The public
agency must prepare and certify the record no later than 60
days from the date the request was made by the plaintiff, and
upon certification the public agency must lodge a copy of the
record with the court. (�21167.6(b)). The plaintiff may elect
to prepare the record of proceedings or the parties may agree
to an alternative method of preparation of the record.
(�21167.6(c)).
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This bill :
1) Adds to the definition of "environment" to include "the health
and safety of people affected by the physical conditions at
the location of a project." (�21060.5).
2) Adds to the definition of "significant effect on the
environment" to include "exposure of people, either directly
or indirectly, to substantial existing or reasonably
foreseeable natural hazard or adverse condition of the
environment." (�21068).
3) Repeals obsolete exemptions from the requirements of CEQA.
(��21080.01, 21080.02, and 21080.03).
4) Requires a notice of determination be filed with both the
Office of Planning and Research (OPR) and the county clerk
where the project is located. Requires OPR and the county
clerk to return the notice to the filing agency with a
notation showing the period of time the notice was posted.
(��21080.5 and 21092.3).
5) Requires a lead agency to post a notice of a public scoping
meeting and provide copies of the notice to specified
entities, including tribal governments. (�21083.9).
6) Expands the requirements for posting of notices to include
electronic posting of notices by OPR, requires OPR to retain a
physical copy of the notice for a specified period of time,
and return the notice to the filing agency with a notation of
the period it was posted. Authorizes OPR to require the
filing agency to pay an administrative fee not to exceed $10
per notice. (�21092.3).
7) Requires an EIR to include a statement on "any significant
effects that may result from locating development near, or
attracting people to, existing or reasonably foreseeable
natural hazards or adverse environmental conditions."
(�21100).
8) Requires lead agencies, both state and local, to file a notice
of approval or determination and notice of completion with the
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county clerk of each county the project is located in and OPR.
(��21108, 21152, and 21161).
9) Requires, until January 1, 2017, the lead agency, at the
request of a project applicant, to prepare a record of
proceedings concurrently with the preparation of negative
declarations, mitigated negative declarations, EIRs, or other
environmental documents for specified projects. (�21167.6).
COMMENTS :
1) Purpose of Bill . According to the author, "SB 617 will
improve and strengthen CEQA by updating various outdated
procedural requirements, clarifying that project reviews must
examine the impacts of the physical environment on the
project, and deleting obsolete provisions.
Since the enactment of the Jobs and Economic Improvement
Through Environmental Leadership Act of 2011 (AB 900, Chapter
354, Statutes of 2011), various parties have been interested
in providing for the record of proceedings to be prepared
concurrently with the administrative process at the request of
the applicant, in order to save time and effort in the event
of a challenge to a project under CEQA review. SB 617 applies
to a broad range of environmental projects and documents and
requires that documents and other materials placed in the
record of proceedings be posted on the lead agency's website.
Further, that notices during the environmental review process
be posted concurrently online at the county recorder's office
in the affected county and with [OPR], a known clearinghouse
for CEQA information. Finally SB 617 addresses the court's
decision in Ballona Wetlands Trust by clarifying that project
reviews must take into account the physical environment on a
given project."
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
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negative declaration. If the initial study shows that the
project may have a significant effect on the environment, then
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 an 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.
3) Ballona Wetlands . In the case of Ballona Wetlands Land Trust
et al. v. City of Los Angeles (Ballona Wetlands), the
petitioners alleged that the revised EIR failed to adequately
analyze the impacts of potential sea level rise from global
warming on the project under CEQA Guidelines �15126.2(a). The
appellate court held that CEQA does not require analysis of
the effects on a project caused by the environment. On March
21, 2012, the California Supreme Court denied the petition for
review and requests for depublication of the Second District
Court of Appeal's opinion in Ballona Wetlands. Some have
referred to this as a converse CEQA analysis.
The provision at issue is in the CEQA Guidelines, �15126.2(a),
and states:
The EIR shall also analyze any significant environmental
effects the project might cause by bringing development and
people in to the area affected. For example, an EIR on a
subdivision astride an active fault line should identify as
a significant effect the seismic hazard to future occupants
of the subdivision. The subdivision would have the effect
of attracting people to the location and exposing them to
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the hazards found there. Similarly, the EIR should evaluate
any potentially significant impacts of locating development
in other areas susceptible to hazardous conditions (e.g.,
floodplains, coastlines, wildfire risk areas) as identified
in authoritative hazard maps, risk assessments or in land
use plans addressing such hazards areas.
It should be noted that although the Second District Court of
Appeal held that CEQA does not require analysis of the effects
on a project caused by the environment and may be considered
persuasive in the other district courts of appeal, the holding
is not necessarily binding on those other appellate districts.
Also, it is unknown whether California Supreme Court's
decision not to hear the case is an endorsement of the holding
in Ballona Wetlands.
OPR and the Natural Resources Agency have kept the provision
in �15126.2(a) in place after previous decisions with similar
conclusions. For example, in 1995, the First District Court
of Appeal in Baird v. County of Contra Costa, 32 Cal.App.4th
1464, held that the effect of the environment on the project
is "beyond the scope of CEQA." It appears that OPR is not
currently planning on repealing the challenged language and
may be relying on footnote 9 in Ballona Wetlands to support
its position. Footnote 9 states:
?the statement in Guidelines section 15126.2, subdivision
(a) that 'the EIR should evaluate any potentially
significant impacts of locating development in other areas
susceptible to hazardous conditions (e.g. floodplains,
coastlines, wildfire risk areas) as identified in
authoritative hazard maps, risk assessments or in land use
plans addressing such hazard areas' is consistent with CEQA
only to the extent that such impacts constitute impacts on
the environment caused by the development rather than
impacts on the project caused by the environment.
SB 617 addresses Ballona Wetlands by requiring an EIR to
include "any significant effects that may result from locating
development near, or attracting people to, existing or
reasonably foreseeable natural hazards or adverse
environmental conditions."
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4) Providing environmental documents in an electronic format .
Under CEQA, environmental documents must be submitted to the
State Clearinghouse for review and comment by state agencies
under certain conditions (e.g., state agency is a lead,
responsible or trustee agency; proposed project is of
sufficient statewide, regional, or areawide environmental
significance). A copy of the environmental document must also
be provided in an electronic format. (PRC �21082.1(c)(4)).
5) Concurrent preparation of the record of proceedings . AB 900
(Buchanan and Gordon), Chapter 354, Statutes of 2011, enacted
The Jobs and Economic Improvement Through Environmental
Leadership Act of 2011, to set procedures relating to an
"environmental leadership development project" (ELDP) selected
by the Governor. An ELDP must meet certain requirements and
one of the provisions given for an ELDP is that the record of
proceedings must be prepared concurrently with the
administrative process.
Since the enactment of AB 900, the author states that various
parties have been interested in providing for the record of
proceedings to be prepared concurrently with the
administrative process at the request of the applicant in
order to save time and effort in the event of a challenge to a
project under CEQA review. This bill requires that documents
and other materials placed in the record of proceedings be
posted on the lead agency's Internet website.
6) Related legislation and technical consideration . SB 436
(Jackson) clarifies the entities that must receive public
notice regarding the period to comment on an environmental
document. Each bill amends different provisions of the same
section. If SB 436 and SB 617 are both approved by the
Senate, double-jointing language will be necessary to amend in
each bill in the Assembly. SB 436 is also being heard in
Senate Environmental Quality Committee on May 1, 2013.
7) Previous legislation . AB 209 (Ammiano), Chapter 171, Statutes
of 2011, requires a lead agency preparing an EIR or negative
declaration under CEQA to include a description of how the
draft EIR or negative declaration could be provided in an
electronic format.
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SOURCE : Author
SUPPORT : California Coastkeeper Alliance
Center on Race, Poverty & the Environment
Clean Water Action
Endangered Habitats League
Environmental Protection Information Center
Laguna Greenbelt, Inc.
League of Women Voters of California
Planning and Conservation League
Santa Clarita Organization for Planning and the
Environment
Sierra Club California
1 Individual
OPPOSITION : American Council of Engineering Companies,
California
Associated Builders and Contractors of California
Association of California Water Agencies
California Apartment Association
California Association of Realtors
California Chamber of Commerce
California Grocers Association
California League of Food Processors
California Manufacturers and Technology
Association
California Special Districts Association
Chemical Industry Council of California
Civil Justice Association of California
Large-Scale Solar Association