BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 291


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          Date of Hearing:  April 13, 2015


                       ASSEMBLY COMMITTEE ON NATURAL RESOURCES


                                 Das Williams, Chair


          AB 291  
          (Medina) - As Introduced February 11, 2015


          SUBJECT:  California Environmental Quality Act:  local agencies:  
           notice of determination:  water


          SUMMARY:  Establishes alternative procedures for the filing of  
          California Environmental Quality Act (CEQA) notices for  
          multi-county water projects.


          EXISTING LAW: 


          1)Requires, under CEQA, lead agencies with the principal  
            responsibility for approving or carrying out a proposed  
            project to prepare a negative declaration, mitigated negative  
            declaration, or environmental impact report (EIR) for this  
            action, unless the project is exempt from CEQA.


          2)When a project is approved or carried out by a local agency,  
            requires the local agency to file notice of the approval or  
            determination within five working days after the approval or  
            determination becomes final, with the county clerk of each  
            county in which the project will be located.










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          3)When a project is approved or carried out by a state agency,  
            requires the state agency to file notice of the approval or  
            determination with the Office of Planning and Research (OPR).


          4)Authorizes judicial review of CEQA actions taken by public  
            agencies, following the agency's decision to carry out or  
            approve the project, subject to statutes of limitations  
            ranging from 30 to 180 days:

             a)   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  
               within 30 days of filing of the notice of determination.

             b)   Challenges alleging improper determination that a  
               project is exempt from CEQA must be filed within 35 days of  
               filing of the notice of exemption, or 180 days if no notice  
               has been filed.

             c)   Challenges alleging an agency has failed to determine  
               whether a project has a significant effect on the  
               environment must be filed within 180 days.

          THIS BILL:


          1)For water projects, authorizes a local agency to file a notice  
            of approval or determination with the county clerk of the  
            county in which the agency's principal office is located and  
            with OPR, in lieu of filing with each county in which the  
            project will be located.


          2)Defines "water project" to include water conservation and  
            transfer of conserved supply; conjunctive use of surface water  
            and groundwater supplies; transfers of treated wastewater  
            (recycled water); permits to appropriate water; petitions to  
            change an existing water rights permit including temporary  








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            urgency changes; changes for short-term transfers of water  
            (one year or less); and changes for long-term transfers of  
            water (more than one year).


          FISCAL EFFECT:  Unknown


          COMMENTS:  


          1)Background.  CEQA provides a process for evaluating the  
            environmental effects of applicable projects undertaken or  
            approved by public agencies.  If a project is not exempt from  
            CEQA, an initial study is prepared to determine whether the  
            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.  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.

            Once a lead agency has approved a project, the agency must  
            file a notice of determination.  State agencies are required  
            to file notice with OPR, which is then posted on OPR's CEQAnet  
            website.  Local agencies are required to file notice within  
            five working days with the county clerk of each county in  
            which the project will be located.  These notices may be  
            posted on the county's website, but this is not required.   








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            Depending on the county's practices, the notice may simply be  
            posted on a bulletin board in the clerk's office.  CEQA also  
            requires notices to be sent upon request to any interested  
            person.

            Generally, CEQA actions taken by local public agencies can be  
            challenged in Superior Court once the agency approves or  
            determines to carry out the project.  CEQA appeals are subject  
            to unusually short statutes of limitations, which are tied to  
            the date the notice was filed.  Under current law, court  
            challenges of CEQA decisions generally must be filed within  
            30-35 days, depending on the type of decision.  Failure to  
            file a notice in time may increase the statute of limitations  
            to 180 days.


          2)Author's statement:


               The current process provides little public notice outside  
               of an agency's home county, where the public presumably is  
               particularly aware of an agency's activities. Additionally,  
               it creates significant confusion for local agencies filing  
               the notices because different county clerks have different  
               requirements for posting notices. The current process  
               undermines CEQA's policy of ensuring prompt resolution of  
               disputes about environmental reviews because non-compliance  
               with CEQA's requirements for technical errors in posting  
               notices can result in a much longer statute of limitations  
               applying to such a dispute.


               Notices for water projects may have to be filed in five or  
               more counties, or wherever the project may have some impact  
               - essentially, those counties through which the project's  
               water flows. In fact, where a water project involves the  
               State Water Project or the Central Valley Project, notices  
               may have to be filed in dozens of counties. In some  
               instances, technical errors in a county clerk's posting  








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               process have resulted in additional CEQA litigation, even  
               when the errors were not caused by the local agency that  
               adopted the CEQA notice.


          3)Bill may not need to sacrifice notice to all affected counties  
            to achieve its objective.  This bill creates alternative  
            notice requirements for multi-county water projects, such as  
            water transfers, by requiring the lead agency to file notice  
            in its home county and with OPR, rather than in every county  
            in which the project is located.  The objective is to avoid  
            having the 30-day statute of limitations (in the case of an  
            EIR) contingent on timely filing in each and every county.   
            The bill arguably improves overall public notice since the  
            notice filed with OPR will be available online.  However, it  
            potentially deprives notice to the person who relies on the  
            notice posted by their local county clerk.  The bill could  
            achieve its objective, while also maintaining notice to  
            affected counties, by specifying that the statutory notice  
            requirements are satisfied by the filing with OPR, as is the  
            case with state agency projects, but that a copy of the notice  
            must also be mailed within five days to the county clerk of  
            each county in which the project will be located.
          REGISTERED SUPPORT / OPPOSITION:




          Support


          Association of California Water Agencies (co-sponsor)


          McGeorge Law School Legislative and Public Policy Clinic  
          (co-sponsor)


          Association of Environmental Professionals








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          California Municipal Utilities Association


          California Special Districts Association


          Eastern Municipal Water District


          Metropolitan Water District of Southern California


          Mountain Counties Water Resources Association


          San Diego County Water Authority


          Valley Ag Water Coalition


          3 individuals




          Opposition


          Sierra Club California















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          Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)  
          319-2092