BILL ANALYSIS Ó
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