Amended in Senate May 6, 2013

Amended in Senate April 15, 2013

Senate Bill No. 754

Introduced by Senator Evans

February 22, 2013

An act to amend Sections 21082.1, 21083.2, 21094, and 21094.5 of, and to add Section 21168.10 to, the Public Resources Code, relating to environmental quality.

LEGISLATIVE COUNSEL’S DIGEST

SB 754, as amended, Evans. California Environmental Quality Act.

(1) The California Environmental Quality Act, referred to begin delete an end delete begin insert as end insert CEQA, requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report, referred to as an EIR, on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. If a project is required to undertake mitigation measures pursuant to an EIR or a mitigated negative declaration, CEQA requires the lead agency to adopt a reporting or monitoring program for the project.

This bill would authorize a person meeting specified requirements to bring an action or proceeding to enforce the implementation of the mitigation measures specified in a reporting and monitoring program adopted pursuant to CEQA if a project applicant fails to implement those measures.

This bill would prohibit a project proponent or environmental consultant retained by the project proponent to contract for, direct, or prepare the initial study, EIR, draft EIR, negative declaration, or mitigated negative declaration.

(2) Where a prior EIR has been certified for a project, CEQA authorizes the lead agency to rely on the prior EIR by authorizing the preparation of a tiered EIR for a later project if the lead agency makes a specified determination. If a prior EIR has been certified for a planning level decision, CEQA limits the environmental review of an infill project to those effects that are specific to the project that were not addressed in the prior EIR or, if substantial new information shows that the effects will be more significant, those effects that were considered in the prior EIR.

This bill would prohibit the use of a prior EIR for the above-described purposes if the EIR was certified more than 7 years prior to the issuance of a notice of preparation of an EIR for the later project or infill project or the commencement of the environmental review of the later project or infill project, whichever is earlier. By prohibiting the use of those prior EIRs, this bill would increase the level of service provided by the lead agency, thereby imposing a state-mandated local program.

(3) CEQA caps the amount a project applicant is required to pay for mitigation measures to avoid or mitigate the project’s impact on archaeological resources to a specified amount.

This bill would repeal the cap on that amount.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

begin delete

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

end delete begin delete

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

(a) The Legislature finds and declares all of the
following:

(1) For more than 40 years, the California Environmental Quality
Act (CEQA) has served to protect California’s environment and
provide a more transparent and informed decisionmaking process
on construction and other projects that can impact public health,
the environment, and cultural resources.

(2) CEQA has been modified through legislative and judicial
action throughout the act’s existence, ensuring that it has remained
useful.

(3) Additional modifications would ensure CEQA continues to
fulfill its critical functions and meet its purpose of ensuring that
projects are properly analyzed for environmental and cultural
impacts; that those impacts are fully disclosed to the public; that
significant impacts are reduced and mitigated to the extent feasible;
and that the public’s ability to enforce CEQA is maintained.

(b) It is the intent of the Legislature to provide limited
modifications to improve CEQA function by requiring translation
of initial notices and executive summaries in certain circumstances,
providing clear procedures for enforcement of mitigation measures,
clarifying that the baseline from which to assess environmental
impacts cannot be based on unpermitted activity, prohibiting a
project applicant from overseeing or directing preparation of its
environmental review documents, limiting an agency’s ability to
charge for administrative record costs where a petitioner elects to
prepare the administrative record, and removing outdated
restrictions on mitigation fees for certain archaeological resource
impacts.

SEC. 2.  

Section 21082.1 of the Public Resources Code is
amended to read:

21082.1.  

(a) Any draft environmental impact report,
environmental impact report, negative declaration, or mitigated
negative declaration prepared pursuant to the requirements of this
division shall be prepared directly by a public agency or by
environmental consultants under direct contract with and
supervision of the lead agency.

(b) A project applicant or a consultant retained by the project
applicant shall not contract for, direct, or prepare the lead agency’s
initial study, environmental impact report, draft environmental
impact report, negative declaration, or mitigated negative
declaration.

(c) This section is not intended to prohibit, and shall not be
construed as prohibiting, any person from submitting information
or other comments to the public agency responsible for preparing
an initial study, environmental impact report, draft environmental
impact report, negative declaration, or mitigated negative
declaration. The information or other comments may be submitted
in any format, shall be considered by the public agency, and may
be included, in whole or in part, in any report or declaration.

(d) The lead agency shall do all of the following:

(1) Independently review and analyze any report or declaration
required by this division.

(2) Circulate draft documents that reflect its independent
judgment.

(3) As part of the adoption of a negative declaration or a
mitigated negative declaration, or certification of an environmental
impact report, find that the report or declaration reflects the
independent judgment of the lead agency.

(4) Submit a sufficient number of copies of the draft
environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration, and a copy of the report
or declaration in an electronic form as required by the guidelines
adopted pursuant to Section 21083, to the State Clearinghouse for
review and comment by state agencies, if any of the following
apply:

(A) A state agency is any of the following:

(i) The lead agency.

(ii) A responsible agency.

(iii) A trustee agency.

(B) A state agency otherwise has jurisdiction by law with respect
to the project.

(C) The proposed project is of sufficient statewide, regional, or
areawide environmental significance as determined pursuant to
the guidelines certified and adopted pursuant to Section 21083.

SEC. 3.  

Section 21083.2 of the Public Resources Code is
amended to read:

21083.2.  

(a) As part of the determination made pursuant to
Section 21080.1, the lead agency shall determine whether the
project may have a significant effect on archaeological resources.
If the lead agency determines that the project may have a significant
effect on unique archaeological resources, the environmental
impact report shall address the issue of those resources. An
environmental impact report, if otherwise necessary, shall not
address the issue of nonunique archaeological resources. A negative
declaration shall be issued with respect to a project if, but for the
issue of nonunique archaeological resources, the negative
declaration would be otherwise issued.

(b) If it can be demonstrated that a project will cause damage
to a unique archaeological resource, the lead agency may require
reasonable efforts to be made to permit any or all of these resources
to be preserved in place or left in an undisturbed state. Examples
of that treatment, in no order of preference, may include, but are
not limited to, any of the following:

(1) Planning construction to avoid archaeological sites.

(2) Deeding archaeological sites into permanent conservation
easements.

(3) Capping or covering archaeological sites with a layer of soil
before building on the sites.

(4) Planning parks, greenspace, or other open space to
incorporate archaeological sites.

(c) To the extent that unique archaeological resources are not
preserved in place or not left in an undisturbed state, mitigation
measures shall be required as provided in this subdivision. The
project applicant shall provide a guarantee to the lead agency to
pay one-half the estimated cost of mitigating the significant effects
of the project on unique archaeological resources. In determining
payment, the lead agency shall give due consideration to the in-kind
value of project design or expenditures that are intended to permit
any or all archaeological resources or California Native American
culturally significant sites to be preserved in place or left in an
undisturbed state. When a final decision is made to carry out or
approve the project, the lead agency shall, if necessary, reduce the
specified mitigation measures to those which can be funded with
the money guaranteed by the project applicant plus the money
voluntarily guaranteed by any other person or persons for those
mitigation purposes. In order to allow time for interested persons
to provide the funding guarantee referred to in this subdivision, a
final decision to carry out or approve a project shall not occur
sooner than 60 days after completion of the recommended special
environmental impact report required by this section.

(d) Excavation as mitigation shall be restricted to those parts of
the unique archaeological resource that would be damaged or
destroyed by the project. Excavation as mitigation shall not be
required for a unique archaeological resource if the lead agency
determines that testing or studies already completed have
adequately recovered the scientifically consequential information
from and about the resource, if this determination is documented
in the environmental impact report.

(e) Unless special or unusual circumstances warrant an
exception, the field excavation phase of an approved mitigation
plan shall be completed within 90 days after final approval
necessary to implement the physical development of the project
or, if a phased project, in connection with the phased portion to
which the specific mitigation measures are applicable. However,
the project applicant may extend that period if he or she so elects.
begin delete Nothing in this end delete begin insert This end insert section shall begin insert not end insert nullify protections for Indian
cemeteries under any other provision of law.

(f) As used in this section, “unique archaeological resource”
means an archaeological artifact, object, or site about which it can
be clearly demonstrated that, without merely adding to the current
body of knowledge, there is a high probability that it meets any of
the following criteria:

(1) Contains information needed to answer important scientific
research questions and that there is a demonstrable public interest
in that information.

(2) Has a special and particular quality such as being the oldest
of its type or the best available example of its type.

(3) Is directly associated with a scientifically recognized
important prehistoric or historic event or person.

(g) As used in this section, “nonunique archaeological resource”
means an archaeological artifact, object, or site which does not
meet the criteria in subdivision (f). A nonunique archaeological
resource need be given no further consideration, other than the
simple recording of its existence by the lead agency if it so elects.

(h) As part of the objectives, criteria, and procedures required
by Section 21082 or as part of conditions imposed for mitigation,
a lead agency may make provisions for archaeological sites
accidentally discovered during construction. These provisions may
include an immediate evaluation of the find. If the find is
determined to be a unique archaeological resource, contingency
funding and a time allotment sufficient to allow recovering an
archaeological sample or to employ one of the avoidance measures
may be required under the provisions set forth in this section.
Construction work may continue on other parts of the building site
while archaeological mitigation takes place.

(i) This section does not apply to any project described in
subdivision (a) or (b) of Section 21065 if the lead agency elects
to comply with all other applicable provisions of this division.
This section does not apply to any project described in subdivision
(c) of Section 21065 if the applicant and the lead agency jointly
elect to comply with all other applicable provisions of this division.

(j) Any additional costs to any local agency as a result of
complying with this section with respect to a project of other than
a public agency shall be borne by the project applicant.

(k) This section is not intended to affect or modify the
requirements of Section 21084 or 21084.1.

SEC. 4.  

Section 21094 of the Public Resources Code, as
amended by Section 9 of Chapter 548 of the Statutes of 2012, is
amended to read:

21094.  

(a) (1) If a prior environmental impact report has been
prepared and certified for a program, plan, policy, or ordinance,
the lead agency for a later project that meets the requirements of
this section shall examine significant effects of the later project
upon the environment by using a tiered environmental impact
report, except that the report on the later project is not required to
examine those effects that the lead agency determines were either
of the following:

(A) Mitigated or avoided pursuant to paragraph (1) of
subdivision (a) of Section 21081 as a result of the prior
environmental impact report.

(B) Examined at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated
or avoided by site-specific revisions, the imposition of conditions,
or by other means in connection with the approval of the later
project.

(2) If a prior environmental impact report has been prepared
and certified for a program, plan, policy, or ordinance, and the
lead agency makes a finding of overriding consideration pursuant
to subdivision (b) of Section 21081, the lead agency for a later
project that uses a tiered environmental impact report from that
program, plan, policy, or ordinance may incorporate by reference
that finding of overriding consideration if all of the following
conditions are met:

(A) The lead agency determines that the project’s significant
impacts on the environment are not greater than or different from
those identified in the prior environmental impact report.

(B) The lead agency incorporates into the later project all the
applicable mitigation measures identified by the prior
environmental impact report.

(C) The prior finding of overriding considerations was not based
on a determination that mitigation measures should be identified
and approved in a subsequent environmental review.

(D) The prior environmental impact report was certified not
more than three years before the date findings are made pursuant
to Section 21081 for the later project.

(E) The lead agency has determined that the mitigation measures
or alternatives found to be infeasible in the prior environmental
impact report pursuant to paragraph (3) of subdivision (a) of
Section 21081 remain infeasible based on the criteria set forth in
that section.

(b) This section applies only to a later project that the lead
agency determines is all of the following:

(1) Consistent with the program, plan, policy, or ordinance for
which an environmental impact report has been prepared and
certified.

(2) Consistent with applicable local land use plans and zoning
of the city, county, or city and county in which the later project
would be located.

(3) Not subject to Section 21166.

(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.

(d) All public agencies that propose to carry out or approve the
later project may utilize the prior environmental impact report and
the environmental impact report on the later project to fulfill the
requirements of Section 21081.

(e) (1) If a lead agency determines pursuant to this subdivision
that a cumulative effect has been adequately addressed in a prior
environmental impact report, that cumulative effect is not required
to be examined in a later environmental impact report, mitigated
negative declaration, or negative declaration for purposes of
subparagraph (B) of paragraph (1) of subdivision (a).

(2) When assessing whether there is new significant cumulative
effect, the lead agency shall consider whether the incremental
effects of the project are cumulatively considerable.

(3) (A) For purposes of paragraph (2), if the lead agency
determines the incremental effects of the project are significant
when viewed in connection with the effects of past, present, and
probable future projects, the incremental effects of a project are
cumulatively considerable.

(B) If the lead agency determines incremental effects of a project
are cumulatively considerable, the later environmental impact
report, mitigated negative declaration, or negative declaration shall
examine those effects.

(4) If the lead agency makes one of the following
determinations, the cumulative effects of a project are adequately
addressed for purposes of paragraph (1):

(A) The cumulative effect has been mitigated or avoided as a
result of the prior environmental impact report and findings adopted
pursuant to paragraph (1) of subdivision (a) of Section 21081 as
a result of the prior environmental impact report.

(B) The cumulative effect has been examined at a sufficient
level of detail in the prior environmental impact report to enable
the effect to be mitigated or avoided by site-specific revisions, the
imposition of conditions, or by other means in connection with
the approval of the later project.

(f) If tiering is used pursuant to this section, an environmental
impact report prepared for a later project shall refer to the prior
environmental impact report and state where a copy of the prior
environmental impact report may be examined.

(g) A prior environmental impact report shall not be used for
tiering under this section if it was certified more than seven years
prior to the issuance of a notice of preparation of an environmental
impact report for the later project or the commencement of the
environmental review of the later project, whichever is earlier.

(h) This section shall remain in effect only until January 1, 2016,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2016, deletes or extends that date.

SEC. 5.  

Section 21094 of the Public Resources Code, as added
by Section 4 of Chapter 496 of the Statutes of 2010, is amended
to read:

21094.  

(a) Where a prior environmental impact report has
been prepared and certified for a program, plan, policy, or
ordinance, the lead agency for a later project that meets the
requirements of this section shall examine significant effects of
the later project upon the environment by using a tiered
environmental impact report, except that the report on the later
project is not required to examine those effects that the lead agency
determines were either of the following:

(1) Mitigated or avoided pursuant to paragraph (1) of subdivision
(a) of Section 21081 as a result of the prior environmental impact
report.

(2) Examined at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated
or avoided by site-specific revisions, the imposition of conditions,
or by other means in connection with the approval of the later
project.

(b) This section applies only to a later project that the lead
agency determines is all of the following:

(1) Consistent with the program, plan, policy, or ordinance for
which an environmental impact report has been prepared and
certified.

(2) Consistent with applicable local land use plans and zoning
of the city, county, or city and county in which the later project
would be located.

(3) Not subject to Section 21166.

(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.

(d) All public agencies that propose to carry out or approve the
later project may utilize the prior environmental impact report and
the environmental impact report on the later project to fulfill the
requirements of Section 21081.

(e) When tiering is used pursuant to this section, an
environmental impact report prepared for a later project shall refer
to the prior environmental impact report and state where a copy
of the prior environmental impact report may be examined.

(f) A prior environmental impact report shall not be used for
tiering under this section if it was certified more than seven years
prior to the issuance of a notice of preparation of an environmental
impact report for the later project or the commencement of the
environmental review of the later project, whichever is earlier.

(g) This section shall become operative on January 1, 2016.

SEC. 6.  

Section 21094.5 of the Public Resources Code is
amended to read:

21094.5.  

(a) (1) If an environmental impact report was
certified for a planning level decision of a city or county, the
application of this division to the approval of an infill project shall
be limited to the effects on the environment that (A) are specific
to the project or to the project site and were not addressed as
significant effects in the prior environmental impact report or (B)
substantial new information shows the effects will be more
significant than described in the prior environmental impact report.
A lead agency’s determination pursuant to this section shall be
supported by substantial evidence.

(2) An effect of a project upon the environment shall not be
considered a specific effect of the project or a significant effect
that was not considered significant in a prior environmental impact
report, or an effect that is more significant than was described in
the prior environmental impact report if uniformly applicable
development policies or standards adopted by the city, county, or
the lead agency, would apply to the project and the lead agency
makes a finding, based upon substantial evidence, that the
development policies or standards will substantially mitigate that
effect.

(3) The environmental impact report for a planning level
decision of a city or county may not be used under this section if
it was certified more than seven years prior to the issuance of a
notice of preparation of an environmental impact report for the
infill project or the commencement of environmental review of
the infill project, whichever is earlier.

(b) If an infill project would result in significant effects that are
specific to the project or the project site, or if the significant effects
of the infill project were not addressed in the prior environmental
impact report, or are more significant than the effects addressed
in the prior environmental impact report, and if a mitigated negative
declaration or a sustainable communities environmental assessment
could not be otherwise adopted, an environmental impact report
prepared for the project analyzing those effects shall be limited as
follows:

(1) Alternative locations, densities, and building intensities to
the project need not be considered.

(2) Growth inducing impacts of the project need not be
considered.

(c) This section applies to an infill project that satisfies both of
the following:

(1) The project satisfies any of the following:

(A) Is consistent with the general use designation, density,
building intensity, and applicable policies specified for the project
area in either a sustainable communities strategy or an alternative
planning strategy for which the State Air Resources Board,
pursuant to subparagraph (H) of paragraph (2) of subdivision (b)
of Section 65080 of the Government Code, has accepted a
metropolitan planning organization’s determination that the
sustainable communities strategy or the alternative planning
strategy would, if implemented, achieve the greenhouse gas
emission reduction targets.

(B) Consists of a small walkable community project located in
an area designated by a city for that purpose.

(C) Is located within the boundaries of a metropolitan planning
organization that has not yet adopted a sustainable communities
strategy or alternative planning strategy, and the project has a
residential density of at least 20 units per acre or a floor area ratio
of at least 0.75.

(2) Satisfies all applicable statewide performance standards
contained in the guidelines adopted pursuant to Section 21094.5.5.

(d) This section applies after the Secretary of the Natural
Resources Agency adopts and certifies the guidelines establishing
statewide standards pursuant to Section 21094.5.5.

(e) For the purposes of this section, the following terms mean
the following:

(1) “Infill project” means a project that meets the following
conditions:

(A) Consists of any one, or combination, of the following uses:

(i) Residential.

(ii) Retail or commercial, where no more than one-half of the
project area is used for parking.

(iii) A transit station.

(iv) A school.

(v) A public office building.

(B) Is located within an urban area on a site that has been
previously developed, or on a vacant site where at least 75 percent
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.

(2) “Planning level decision” means the enactment or
amendment of a general plan, community plan, specific plan, or
zoning code.

(3) “Prior environmental impact report” means the
environmental impact report certified for a planning level decision,
as supplemented by any subsequent or supplemental environmental
impact reports, negative declarations, or addenda to those
documents.

(4) “Small walkable community project” means a project that
is in an incorporated city, which is not within the boundary of a
metropolitan planning organization and that satisfies the following
requirements:

(A) Has a project area of approximately one-quarter mile
diameter of contiguous land completely within the existing
incorporated boundaries of the city.

(B) Has a project area that includes a residential area adjacent
to a retail downtown area.

(C) The project has a density of at least eight dwelling units per
acre or a floor area ratio for retail or commercial use of not less
than 0.50.

(5) “Urban area” includes either an incorporated city or an
unincorporated area that is completely surrounded by one or more
incorporated cities that meets both of the following criteria:

(A) The population of the unincorporated area and the
population of the surrounding incorporated cities equal a population
of 100,000 or more.

(B) The population density of the unincorporated area is equal
to, or greater than, the population density of the surrounding cities.

SEC. 7.  

Section 21168.10 is added to the Public Resources
Code, to read:

21168.10.  

(a) If a project applicant or other responsible person
or entity identified in a reporting or monitoring program adopted
pursuant to Section 21081.6 fails to implement any mitigation
measure specified in that reporting or monitoring program, a person
may bring an action or proceeding to require the implementation
of the mitigation measure, if the begin delete private action is commenced more
than 60 days after the date that the end delete person has given notice of the
alleged failure to the project applicant or other responsible person
or entity, the public agency that adopted the mitigation measure
for the begin delete project end delete begin insert project, end insert and the Attorney begin delete General end delete begin insert General. The
private action may be filed concurrently with the notice required
in subdivision (b) end insert .

begin delete

(b) The action described in subdivision (a) may be filed
concurrently with the required notice to the public agency and the
Attorney General, if the person filing the action includes detailed
allegations in the petition demonstrating that the environmental
harm the mitigation measure or measures are intended to reduce
or avoid is reasonably likely to be incurred before the 60-day
waiting period has lapsed, and seeks a restraining order, a
preliminary injunction, or other interim relief to prevent the damage
when filing the action.

(c)

end delete

begin insert (b) end insert  A person bringing an action or proceeding pursuant to this
section shall notify the public agency and the Attorney General
that the action or proceeding has been filed.

SEC. 8.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution 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, within the meaning of Section
17556 of the Government Code.