BILL ANALYSIS Ó
SB 731
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 731
AUTHOR: Steinberg
AMENDED: April 23, 2013
FISCAL: Yes HEARING DATE: May 1, 2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) AND
SUSTAINABLE COMMUNITIES STRATEGY
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) States the intent of the Legislature that "all agencies of
the state government which regulate activities of private
individuals, corporations, and public agencies which are
found to affect the quality of the environment, shall
regulate such activities so that major consideration is
given to preventing environmental damage, while providing a
decent home and satisfying living environment for every
Californian. (PRC §21000).
3) States the intent of the Legislature to "[t]ake all action
necessary to provide the people of this state with clean
air and water, enjoyment of aesthetic, natural, scenic, and
historic environmental qualities, and freedom from
excessive noise." ((PRC §21001(b)).
4) States the intent of the Legislature to "[e]nsure that the
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long-term protection of the environment, consistent with
the provision of a decent home and suitable living
environment for every Californian, shall be the guiding
criterion in public decision." (PRC §21001(d)).
5) Exempts from CEQA, a residential development project that
is undertaken to implement, and is consistent with, a
specific plan for which an EIR has been certified.
Provides that this exemption does not apply if, after
certification of the EIR for the specific plan, a specified
event occurs (as described in PRC §21166), unless a
supplemental EIR for the specified plan is certified.
(Government Code §65457).
6) Establishes the Strategic Growth Council to award grants
and loans for planning and developing sustainable
communities' strategies. (Public Resources Code §75121).
7) In making a finding of overriding considerations, requires
the public agency to base its finding on substantial
evidence in the record. (PRC §21081.5).
8) Requires a public agency to adopt a reporting or monitoring
program of mitigation measures and ensure their
enforceability. (PRC §21081.6).
9) Defines "environment" as "the physical conditions which
exist within the area which will be affected by the
proposed project, including land, air, water, minerals,
flora, fauna, noise, objects of historic or aesthetic
significance." (PRC §21060.5).
10)Establishes a procedure for preparing and certifying the
record of proceedings for an action against a public agency
on the grounds of noncompliance with CEQA. (PRC §21167).
11)Establishes requirements for a court order for
noncompliance. (PRC §21168.9).
This bill :
1) States the Legislature's intent to revise various
provisions in CEQA.
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2) Establishes the position of Advisor on Renewable Energy
Facilities in the Governor's office and sunsets the
position on January 1, 2017.
3) Expands the exemption for a residential development project
that is undertaken to implement a specific plan by
providing that "new information" triggering an
environmental review does not include "new information
consisting solely of argument, speculation, unsubstantiated
opinion or narrative, evidence that is clearly inaccurate
or erroneous, or evidence of social or economic impacts
that do not contribute to, or are caused by, physical
impacts on the environment."
4) Authorizes the appropriation of $30 million in the annual
state budget to the Strategic Growth Council for
Sustainable Communities Strategy project grants.
5) Authorizes a renewable energy project applicant to present
to the public agency, orally or in writing, the benefits of
the project such as reducing traffic or improving air
quality.
6) In making a finding of overriding considerations, requires
those findings to be made available in draft form for
review by the public at least 15 days prior to approval of
the proposed project. Requires the lead agency to provide
notice of the draft findings through specified methods,
including electronically.
7) Requires a lead agency to prepare an annual report on
project compliance with mitigation measures as part of the
mitigation monitoring plan.
8) Provides that aesthetic impacts of a residential, mixed-use
residential, or employment center project, as defined,
within a transit priority area, as defined, shall not be
considered significant impacts on the environment.
Clarifies that this provision does not affect or change the
authority a lead agency's authority to consider aesthetic
impacts pursuant to local design review ordinances or other
discretionary powers.
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9) Requires the Office of Planning and Research to prepare
revisions to the CEQA guidelines establishing thresholds of
significance for noise, and for transportation and parking
impacts on residential, mixed-use residential or employment
centers within transit priority areas. Provides that this
provision does not affect the authority of a public agency
from establishing transportation or parking standards
applicable to projects requiring more stringent thresholds
of significance.
10)Allows the statute of limitations for an action against a
public agency for noncompliance to be suspended, for a
maximum of four years, by mutual agreement of the parties.
11)Requires a lead agency, at the request of a project
applicant, to prepare a record of proceedings concurrently
with the preparation of an environmental review document.
Requires all documents in the record of proceedings be
posted on the lead agency's Internet web site.
12)Authorizes the statute of limitations to be suspended by
mutual agreement of the parties. Provides that the period
of time for tolling may not exceed four years in such an
agreement but authorizes the extension of the tolling
period.
13)Authorizes a court to direct an agency to revise only those
portions of a CEQA document found not to be in compliance
with CEQA and includes specific requirements to be met for
a court to do so.
COMMENTS :
1) Purpose of Bill . According to the author, SB 731 is a
comprehensive reform measure to strengthen CEQA's
protection of the state's environment and residents while
modernizing the law to aid California's economic growth.
The author states, "today's bill is the result of months of
discussion and negotiation with key representatives from
the business, environmental, and organized labor
communities." These changes were key issues identified by
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a CEQA working group of experts brought together by Senator
Steinberg this past fall. The author states, "Taken
together they will help reduce litigation and delays from
CEQA while protecting the legitimate uses of the statute."
2) Background on CEQA . Governor Reagan signed CEQA into law
in 1970. Since then, 334 sections have been added, amended
or repealed since 1990; 170 sections since 2002; and 83
sections since 2008.
For a better understanding of the types of CEQA documents and
the numbers of documents produced, the chart below by the
State Clearinghouse shows all CEQA documents filed with the
State Clearinghouse between 1999 and 2010.
Key:
NOP Notice of Preparation
EIR Draft Environmental Impact Report
ND/MND Negative Declaration/ Mitigated Negative
Declaration
NOD Notice of Determination
NOE Notice of Exemption
EA Environmental Assessment (Federal)
EIS Draft Environmental Impact Report (Federal)
OTHER Other types of documents, including Final EIRs,
Early Consultation Notices, plans, etc.
3) CEQA: The environmental review process . A CEQA
environmental review document is a public document. It
provides for transparency as well as an opportunity for
citizens to comment on the document and participate in the
environmental review 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
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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.
4) CEQA litigation . Enforcement of CEQA is primarily through
citizens' lawsuits challenging a project's environmental
review in court. Some contend that CEQA litigation delays,
if not kills, projects and that vexatious litigation
abounds. However, the total number of CEQA cases filed is
actually quite small, averaging only about 200 cases per
year statewide. CEQA cases make up 0.02% of 1,100,000
civil cases filed annually in California. In addition, the
California Attorney General's office conducted a case study
of CEQA challenges in the City and County of San Francisco
from July 2011 through December 2011 and found that 18
lawsuits were filed out of 5,203 projects considered under
CEQA. However, some parties argue that the simple threat
of a lawsuit is an impetus for extra costs and delays of a
project subject to environmental review.
To address litigious concerns, this bill authorizes, among
other things, the following: concurrent preparation of a
record of proceedings with the preparation of an
environmental review document to reduce litigation delays,
the statute of limitations to be tolled by mutual agreement
of the parties to facilitate settlements, and partial
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remand by the court directing an agency to revise only
those portions of a CEQA document not in compliance. In
addition, SB 731 provides that for specified projects,
aesthetic impacts are not considered significant impacts
under CEQA and directs OPR to develop uniform thresholds of
significance for noise, and transportation and parking
impacts of specified projects in transit priority areas.
5) Amendments . The author proposes to add the following
amendments:
a) Request the Department of Justice to report annually
to the Legislature on CEQA litigation in order to
provide reliable and unbiased information regarding CEQA
lawsuits.
b) Provide that funds for appropriating the $30 million
for Sustainable Communities Strategy project grants may
come from cap and trade revenues, AB 118 funds, or other
sources as determined in the annual budget.
SOURCE : Author
SUPPORT : California Association of Realtors
OPPOSITION : None on file