BILL ANALYSIS Ó
SB 731
Page 1
Date of Hearing: August 14, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
SB 731 (Steinberg) - As Amended: August 6, 2013
SENATE VOTE : 39-0
SUBJECT : Environment: California Environmental Quality Act.
SUMMARY : Enacts the California Environmental Quality Act (CEQA)
Modernization Act of 2013 and makes a number of changes to
provisions of CEQA law. Specifically, this bill :
1)States that this act shall be known, and may be cited, as the
CEQA Modernization Act of 2013. [Section 2]
2)Declares the following: [Section 1]
a) It is the intent of the Legislature to update CEQA to
establish thresholds of significance for noise and
transportation impacts for transit-oriented infill
projects;
b) It is not the intent of the Legislature to affect the
authority, consistent with CEQA, for a local agency to
impose its own, more stringent thresholds;
c) It is the intent of the Legislature to amend Section
65457 of the Government Code, which exempts from CEQA
projects undertaken pursuant to a specific plan for which
an environmental impact report (EIR) has been prepared,
unless certain conditions have occurred, to define with
greater specificity what "new information" means, and to
avoid duplicative review undertaken pursuant to CEQA for
projects and activities that comply with that plan; and,
d) It is the intent of the Legislature to establish clearer
procedures for a trial court to remand to a lead agency for
remedying only those portions of an EIR, negative
declaration, or mitigated negative declaration found to be
in violation of CEQA, while retaining those portions that
are not in violation so that the violations can be
corrected, recirculated for public comment, and completed
more efficiently and expeditiously. It is further the
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intent of the Legislature to specify the circumstances
under which a court could allow project approvals to remain
in place, and for projects to proceed.
3)Establishes, until January 1, 2017, the position of Advisor on
Renewable Energy Facilities in the office of the Governor.
[Sections 3 and 4]
4)Adds in a definition of "an event as specified in Section
21166 of the Public Resources Code," for a residential
development project that is exempted from CEQA because the
project is consistent with a specific plan for which an EIR
has been certified, as follows: [Section 5]
a) An event as specified in Section 21166 of the Public
Resources Code does not include any 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 not caused by, physical
impacts on the environment.
5)Authorizes a project applicant for a renewable energy project
to present to the public agency, orally or in writing, the
benefits onsite or offsite of the project, including, but not
limited to, measures that will mitigate greenhouse gas
emissions resulting from the project or measures that will
significantly reduce traffic, improve air quality or replace
higher emitting energy sources, and other significant
environmental or public health impacts. [Section 6]
6)Requires, when a public agency makes specified findings, those
findings to be made available in draft form for review by the
members of the public for at least 15 days prior to approval
of the proposed project, and requires the lead agency to
provide a notice of availability of the findings for review at
the lead agency's office during normal business hours through
all of the following mechanisms: [Section 7]
a) Publication in a newspaper of general circulation in the
area affected by the proposed project. If more than one
area will be affected, the notice shall be published in the
newspaper with the largest circulation from among the
newspapers of general circulation in those areas;
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b) By electronic mail, if available, and mail to the last
known name and address of all individual and organizations
that have submitted timely comments on the draft EIR;
c) By electronic mail, if available, and mail to the
responsible and trustee agencies that have submitted timely
comments on the draft EIR;
d) By electronic mail, if available, and mail to the
project applicant, if different from the lead agency, and
the applicant's duly authorized agent; and,
e) By electronic mail, if available, and mail to a person
who has filed a written request for notice with the clerk
of the governing body, if there is no governing body, the
director of the agency.
7)Requires, as a part of the mitigation monitoring plan, the
lead agency to prepare or cause to be prepared an annual
report on project compliance with mitigation measures required
pursuant to the bill's provisions. Requires the report to be
made publicly available online to enhance public disclosure
and accountability. Allows the lead agency to cease reporting
once all mitigation measures are completed. [Section 8]
8)Requires the Governor's Office of Planning and Research (OPR)
to prepare and submit to the Secretary of the Natural
Resources Agency for certification and adoption, proposed
revisions to the CEQA Guidelines to establish thresholds of
significance for noise and transportation impacts for
residential, mixed-use residential, or employment center
projects or infill sites within transit priority areas, and
requires the thresholds of significance to be based upon a
project's proximity to a multimodal transportation network,
its overall transportation accessibility, and its proximity to
a diversity of land uses. [Section 9]
9)Requires OPR to circulate, on or before July 1, 2014, a draft
revision of the CEQA Guidelines, pursuant to 8), above.
[Section 9]
10)Prohibits aesthetic and parking impacts of a residential,
mixed-use residential, or employment center project on an
infill site within a transit priority area from being
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considered significant impacts on the environment, and
declares that aesthetic impacts do not include impacts on
historical or cultural resources. [Section 9]
11)States that the provisions do not affect the significance of
traffic congestion on air quality. [Section 9]
12)States that the provisions do not affect, change, or modify
the authority of a lead agency to consider aesthetic impacts
pursuant to local design review ordinances or other
discretionary powers provided by other laws or policies, and
declares that this section does not affect the authority of a
public agency to establish or adopt more stringent thresholds
of significance for projects subject to these provisions.
[Section 9]
13)Defines the following terms, for purposes of 8) - 12) above:
[Section 9]
a) "Employment center project" to mean a project located on
property zoned for commercial uses with a floor area ratio
of no less than 0.75 and that is located within a transit
priority area.
b) "Floor area ratio" to mean the ratio of gross building
area of development, excluding structured parking areas,
proposed for the project divided by the net lot area.
c) "Gross building area" to mean the sum of all finished
areas of all floors of a building included within the
outside faces of its exterior walls.
d) "Infill site" to mean a lot located within an urban area
that has been previously developed, or on a vacant site
where at least 75% of the perimeter of the site adjoins, or
is separated only by an improved public right-of-way from,
parcels that are developed with qualified urban uses.
e) "Lot" to mean all parcels utilized by the project.
f) "Net lot area" to mean the area of a lot, excluding
publicly dedicated land and private streets that meet local
standards, and other public use areas as determined by the
local land use authority.
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g) "Transit priority area" to mean an area within one-half
mile of a major transit stop that is existing or planned,
if the planned stop is scheduled to be completed within the
planning horizon included in the Transportation Improvement
Program, adopted pursuant to specified federal regulations.
14)Allows the statute of limitations for bringing a CEQA lawsuit
to be tolled for successive periods up to four years by
agreement of the parties, if it is in writing, as specified,
states that the tolling agreement shall bar a defense to any
action filed which was not commenced within the time period
specified, and allows the tolling agreement to be renewed, as
specified. [Section 10]
15)Authorizes a lead agency, for certain projects and upon a
project applicant's request, to prepare concurrently with the
administrative process the record of proceedings that would be
used in a judicial challenge to an agency's action or decision
under CEQA. [Sections 11 - 12]
16)Requires preparation and certification of the record of
proceedings in the following manner: [Section 12]
a) The lead agency for the project shall prepare the record
of proceedings concurrently with the administrative
process;
b) All documents and other materials placed in the record
of proceedings shall be posted on, and be downloadable
from, an Internet Web site maintained by the lead agency
commencing with the date of the release of the draft EIR.
If the lead agency cannot maintain an Internet Web site
with the information required, the lead agency shall
provide a link on the agency's Internet Web site to that
information;
c) The lead agency shall make available to the public in a
readily accessible electronic format the draft EIR for
specified projects, and all other documents submitted to,
cited by, or relied on by the lead agency, in the
preparation of the draft environmental document;
d) A document prepared by the lead agency or submitted by
the applicant after the date of the release of the draft
environmental document that is part of the record of the
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proceedings shall be made available to the public in a
readily accessible electronic format within five business
days after the document is released or received by the lead
agency;
e) The lead agency shall encourage written comments on the
project to be submitted in a readily accessible electronic
format, and shall make any comment available to the public
in a readily accessible electronic format within five
business days of its receipt;
f) Within seven business days after the receipt of any
comment that is not in an electronic format, the lead
agency shall convert that comment into a readily accessible
electronic format and make it available to the public; and,
g) The lead agency shall certify the record of proceedings
within 30 days after the filing of specified notices.
17)Requires the record of proceedings for the preparation of a
negative declaration, mitigated negative declaration, EIR, or
other document prepared to meet, the requirements contained in
16), above, for any of the following: [Section 13]
a) A project determined to be of statewide, regional, or
areawide environmental significance, as specified;
b) Infill projects for which an EIR was certified for a
city or county's planning level decision;
c) A project implementing a sustainable communities
strategy pursuant to SB 375; and,
d) A project for which the project applicant has requested
for, and the lead agency consents to, the preparation for
the record of proceeding, as specified, requires the lead
agency to respond to the request by the project applicant
within 10 business days from the date that the request is
received by the lead agency, and allows the project
applicant and the lead agency to mutually agree, in
writing, to extend the time period for the lead agency to
respond, as specified.
18)Requires the California Research Bureau, subject to the
availability of funds and other conditions, to annually submit
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to the Legislature a report with information on actions or
proceedings brought pursuant to the bill's provisions, that
includes, but is not limited to, all of the following:
[Section 14]
a) The names of the plaintiffs or petitioners, the
respondents or defendants, and the real parties in
interest;
b) The type of action or proceeding filed and the alleged
violation; and,
c) The disposition, if any, of the action or proceeding.
19)Requires, when a court finds that a public agency has not
complied with CEQA, that the court issue a peremptory writ of
mandate specifying what action is necessary to comply, and
requires the writ include only those mandates necessary to
achieve compliance and only those project activities in
noncompliance. Permits a writ to direct the agency to revise
only those portions of a CEQA document found not to be in
compliance, provided the non-compliant issues are severable
for the remainder of the project. [Section 15]
20)States the intent of the Legislature to appropriate the sum
or $30 million in the annual Budget Act to the Strategic
Growth Council to provide competitive grants to local agencies
for planning activities related to implementing SB 375.
[Section 16]
21)States that no reimbursement is required because a local
agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the
program or level of service mandated by this act. States, if
the Commission on State Mandates determines that this act
contains other costs mandated by the state, then reimbursement
to local agencies and school districts for those costs shall
be made. [Section 17]
EXISTING LAW :
1)Requires lead agencies with the principal responsibility for
carrying out or approving a proposed project to prepare a
negative declaration, mitigated negative declaration, or EIR
for this action, unless the project is exempt from CEQA.
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2)Requires an EIR to identify and analyze:
a) Significant effects on the environment that would occur
if the project is approved, unless the agency finds that
alternatives to the project or mitigation measures would
address the effects, or specific overriding economic,
legal, social, technological, or other benefits of the
project outweigh them; and,
b) Cumulative impacts of a project when, considered in the
context of environmental change occurring over time, the
incremental effect is cumulatively considerable.
3)Exempts from CEQA specified residential housing projects which
meet criteria established to ensure the project does not have
a significant effect on the environment, including urban
infill housing projects not more than 100 units on a site not
more than four acres in size which is within one-half mile of
a major transit stop.
4)Establishes abbreviated CEQA review procedures for specified
infill projects, where only specific or more significant
effects on the environment which were not addressed in a prior
planning-level EIR need be addressed. An EIR for such a
project need not consider alternative locations, densities,
and building intensities or growth-inducing impacts. Infill
projects may include residential, retail, commercial, transit
station, school, or public office building projects located
within an urban area.
5)Requires the Office of Planning and Research (OPR) to develop
CEQA guidelines, including statewide standards to promote
smart growth, reduction of greenhouse gas (GHG) emissions,
reduction in water use, energy efficiency improvements and
protection of public health.
6)Requires metropolitan planning organizations to include a
sustainable communities strategy (SCS), as defined, in their
regional transportation plans, or an alternative planning
strategy (APS), for the purpose of reducing GHG emissions,
aligns planning for transportation and housing, and creates
specified incentives for the implementation of the strategies,
including CEQA exemption or abbreviated review for eligible
residential projects.
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7)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project. Challenges alleging improper
determination that a project may have a significant effect on
the environment, or alleging an EIR doesn't comply with CEQA,
must be filed in the Superior Court within 30 days of filing
of the notice of approval.
8)Establishes that a record of proceeding includes, but is not
limited to, all application materials, staff reports,
transcripts or minutes of public proceedings, notices, written
comments, and written correspondence prepared by or submitted
to the public agency regarding the proposed project.
Establishes a procedure for the preparation, certification,
and lodging of the record of proceedings.
FISCAL EFFECT : This bill is keyed fiscal.
COMMENTS :
1)Background on the CEQA Modernization Act of 2013 . This bill
enacts the CEQA Modernization Act of 2013 and is intended to
update CEQA law and streamline project review. According to
the author, this bill is the outgrowth of an effort that began
last summer at the end of session (2012) when Senator
Steinberg held SB 317 (Rubio), a last minute 'gut and amend'
effort to rewrite the law. Senator Steinberg pledged to come
back in 2013 with legislation to update and streamline the
law, and to take it through a full public process. Last fall,
Senator Steinberg and then-Senator Rubio convened a series of
experts in working groups to review key issues and identify
areas of consensus for new legislation, and in February 2013,
SB 731 was introduced.
The author notes that there has been considerable comment on
this bill from all sides:
Environmental groups want to "modernize" CEQA to do
more to discourage sprawl and to take into account flood
and wildfire impacts.
Business and developer groups want to "modernize"
CEQA to reduce paperwork and limit CEQA enforcement
lawsuits in the courts.
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According to the author, this bill makes several substantive
and important changes that will modernize CEQA by making it
more efficient. For instance, developers have long complained
about the delay associated with litigation and, in particular,
about delays that have been created by petitioners who are
slow to prepare the administrative record. Developers have
also complained that the traffic "level of service" metric for
traffic analysis inhibits smart, transit friendly infill
projects. The author also points out that while everyone
agrees that parking itself should not constitute an
environmental impact, both smart growth advocates and
developers have long believed that excessive parking
requirements under CEQA increase vehicle trips, air pollution
and GHGs. Developers also argue that CEQA benefits for
residential and mixed residential projects in transit priority
areas should be extended to employment center projects as
well.
1)Responses from Stakeholder Groups . There have been a number
of working groups and coalitions formed around the many
interests pertaining to SB 731 and CEQA reform, including the
following:
CEQA Working Group . In a letter dated July 23, 2013,
the CEQA Working Group (a broad coalition of business,
local government, housing, clean tech, transit, education,
transportation and other advocates that support meaningful
CEQA modernization) wrote that "it is critical to
significantly amend SB 731 to achieve meaningful reform
that stamps out widespread abuses of CEQA that are serving
as roadblocks to environmentally responsible projects that
create high-value jobs and economic growth." The CEQA
Working Group notes that as "drafted, SB 731 would not
advance true CEQA reform and, in fact, could make approval
of worthy and responsible projects even more difficult."
The CEQA Working Group urges the consideration of the
following principles to amend SB 731:
Incentivize projects that help California achieve
its aggressive GHG reduction and land-use planning
goals.
Increase transparency in CEQA litigation.
Ensure CEQA litigants have skin in the game.
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CEQA + Infill Discussion Group . In a letter dated July
19, 2013, the CEQA + Infill Discussion Group (a diverse
cross-section of interest groups working to promote and
build sustainable and equitable communities) offered
suggestions for how CEQA can advance infill and
transit-oriented development while protecting vulnerable
communities, public health and environmental quality and
made several recommendations to provisions in SB 371:
Instead of the outdated Level of Service (LOS)
metric, CEQA should focus on strategies to reduce
automobile use and protect communities from harmful
emissions. The analysis of parking in CEQA can have
deleterious unintended consequences.
OPR should be directed to gather the best available
research and best practices on preventing and mitigating
physical and economic displacement, which could then be
incorporated in the General Plan and CEQA Guidelines.
Amend existing settlement provisions in CEQA to make
them more effective in practice.
Health, Social and Environmental Justice : A broad
coalition of health, social and environmental justice
organizations, in a letter dated August 5, 2013, note three
specific areas that are of particular concern because of
the unintended and often negative consequences of the type
of development encouraged in SB 731, as follows:
Infill development and TOD, unless implemented
cautiously and comprehensively with strong
anti-displacement language, can produce negative
externalities in communities, including negative health
impacts, shifts in livability, uneven job opportunities,
and potential displacement of long-time residents.
Streamlining projects in TOD areas can duplicate the
same adverse impacts already mentioned above, and the
process of streamlining also brings up concerns about
limiting public participation in the CEQA review process.
Establishing thresholds of significance on
particular land use elements could eliminate the ability
of communities to mitigate significant environmental
impacts including noise, pollution from idling and lack
of parking, and a lacking analysis of levels of services.
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Public Works Coalition . The Public Works Coalition (a
broad alliance of public agencies, collectively
representing nearly every school, California State
University, county, and special district in California), in
a letter dated July 31, 2013, has concerns with the
following provisions in SB 371:
Definition of "new information" in Section 5
Renewable energy projects in Section 6
Notice of Draft CEQA findings in Section 7
Annual mitigation monitoring plan report in Section
8
Noise, transportation and parking thresholds of
significance in Section 9
Concurrent preparation of the Administrative Record
in Section 12
Peremptory writ of mandate in Section 15
[For a full discussion of local agency concerns, see
Comment #3 below].
1)Local Government Concerns : Local agencies are the "lead
agencies" that conduct the CEQA review required for both
public and private projects. Almost all of the local
government associations have concerns with various provisions
in this bill. In order to review these concerns as
comprehensively as possible, this analysis will discuss those
major concerns by bill section.
Definition of "New Information" [Section 5] - There is
general consensus among the Public Works Coalition (PWC),
the Rural County Representatives of California (RCRC) and
the League of California Cities (League), that the addition
of language regarding "new information" in this section
creates confusion. They argue that it is unnecessary
because it simply restates existing law, and that its
inclusion could have unintended consequences.
Renewable Energy Projects [Section 6] - The PWC, RCRC,
League and the Association of California Water Agencies
(ACWA) have concerns with the language in Section 6 that
states that a project applicant for a renewable energy
project may present to the public agency the benefits of
the project. These groups note that there is nothing in
current law that prohibits a project applicant from
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presenting the benefits of the project, and that its
explicit inclusion in this section appears to give
renewable energy projects priority over other types of
projects.
Circulation of Draft CEQA Findings [Section 7] - The
PWC, RCRC, League and ACWA all oppose the provisions
contained in Section 7 of the bill which, in certain cases,
would require a lead agency to post online the CEQA
findings for a project 15 days prior to approval. These
groups believe that this notice period would add new
responsibilities for public agencies, extend the CEQA
process, and create a new avenue for CEQA litigation.
Annual Mitigation Monitoring Plan Report [Section 8] -
The PWC, RCRC and ACWA strongly oppose the provisions in
Section 8 that would require a lead agency to prepare, or
cause to be prepared, an annual report on project
compliance with mitigation measures required by a
mitigation monitoring plan. ACWA notes that requiring
annual mitigation reports will be time and resource
intensive, and potentially divert resources from
implementing mitigation, in addition to providing more
opportunities for project opponents to challenge projects
based on the alleged failure to complete mitigation
measures. The League notes that lead agencies already have
discretion to prepare and publish such a program, if
desired.
Noise, Transportation and Parking Thresholds of
Significance [Section 9] - The PWC, RCRC, League and ACWA
all oppose the provisions in Section 9 that would require
OPR to propose guideline revisions to include thresholds of
significance for noise and the transportation and parking
impacts for residential, mixed-use residential, or
employment center projects within transit priority areas.
These groups believe that public agencies, and not OPR, are
in the best position to determine significance thresholds
for noise and traffic standards, while taking into
consideration site specific local conditions and the local
environment.
Tolling Agreements [Section 10] - The PWC and RCRC are
neutral on the provisions in Section 10 which would codify
the right to enter into tolling agreement in CEQA cases.
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However, both the League, which supports the addition of
tolling agreement language in statute, and ACWA believe
that the four-year limit should be removed because the
parties in litigation should mutually agree upon an
appropriate tolling period.
Concurrent Preparation of the Administrative Record
[Sections 12 and 13] - The PWC, RCRC, League and ACWA all
oppose provisions in Section 12 of the bill that would
require public agencies to prepare the administrative
record concurrently with the CEQA process upon receipt of
written request of a project applicant. These groups note
that this provision could dramatically increase the number
of records prepared even if litigation is never filed, and
would impose requirements on public agencies that would be
extremely costly and resource intensive. Additionally,
local agencies may concurrently prepare the administrative
record at their discretion under existing law.
Partial Writs of Mandate [Section 15] - The PWC, RCRC
and ACWA have concerns with provisions in Section 15 that
specify that a court shall issue a peremptory writ of
mandate specifying what action by the public agency is
necessary to comply with CEQA. ACWA and the PWC recommend
that the provision be amended to include interlocutory
remands. The League supports greater flexibility for a
court to fashion a remedy that is specific to the project.
Given the broad scope of local government concerns, the
Committee may wish to ask the author to specifically address
how he plans to resolve these issues.
1)Data Dumps and Infill Exemption . Several county advocacy
groups [CSAC, Urban Counties Caucus (UCC), and RCRC] point out
additional concerns with the CEQA process outside the scope of
the provisions of the bill, and have asked that amendments be
taken to address these concerns.
CSAC, UCC and RCRC note that "Last minute comments on a draft
EIR delay a public agency's ability to consider and respond to
the comments, and creates additional costly delays for public
agencies. Currently, negative declarations and EIRs must be
circulated for public review and comment for a specified
period before going to an agency's governing body for
approval. Under current law, however, would-be petitioners do
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not have to raise their arguments during the public comment
period in order to preserve them for review in court -
comments can be raised at any time up until the agency takes
final action at the hearing on the project. This has resulted
in members of the public submitting lengthy comments at the
project hearing, forcing lengthy delays in the process in
order to appropriately review and respond to those comments."
Also, "The infill exemption provided for housing projects does
not work for counties because it is too difficult to meet the
requirements under the exemption. In addition, SB 226
(Simitian, 2011) which provided for streamlined process for
infill, is only applicable in certain urbanized areas which
must be surrounded by incorporated cities?[which] leaves
counties out of this streamlined process."
The League additionally supports limiting CEQA challenges to
issues that were raised during the public comment period
unless the problems were not known and could not have been
known with reasonable diligence during the public comment
period.
The Committee may wish to ask the author if he plans to
address these concerns.
2)Support arguments : Supporters argue that the bill will reduce
the barriers to building more sustainable development, and in
doing so, will improve California's social, environmental and
economic well-being.
Opposition arguments : Opponents argue that the bill's
provisions do not contain true CEQA reform, and local
government advocates argue that many provisions in the bill
will lead to increased litigation, thus increasing costs for
local agencies and delaying projects.
REGISTERED SUPPORT / OPPOSITION :
Support
Center for Sustainable Neighborhoods
Concerns
League of California Cities
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Opposition
Association of California School Administrators (unless amended)
Association of California Water Agencies (unless amended)
Association of California Healthcare Districts (unless amended)
California Association of Sanitation Agencies (unless amended)
California Association of School Business Officials (unless
amended)
California Special Districts Association (unless amended)
California State Association of Counties (unless amended)
California State University (unless amended)
California's Coalition for Adequate School Housing (unless
amended)
Center on Race, Poverty & the Environment (unless amended)
Coalition for Economic Survival (unless amended)
Communities for a Better Environment (unless amended)
Esperanza Community Housing Corporation (unless amended)
Healthy Homes Collaborative (unless amended)
Los Angeles Community Action Network (unless amended)
Rural County Representatives of California (unless amended)
Physicians for Social Responsibility - LA (unless amended)
Small School Districts' Association (unless amended)
Strategic Actions for a Just Economy (unless amended)
Three Valleys Municipal Water District (unless amended)
T.R.U.S.T. South LA (unless amended)
Urban Counties Caucus (unless amended)
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958