BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 291
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|Author: |Medina |
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|Version: |6/10/2015 |Hearing | 7/1/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Joanne Roy |
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SUBJECT: California Environmental Quality Act: local agencies:
notice of determination: water.
ANALYSIS:
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 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 (PRC) §21000 et seq.).
2)When a project is approved or carried out by a local agency,
requires the local agency to file a notice of approval or
determination (NOD) 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. (PRC
§21152).
a) Requires the following to be included in an NOD (PRC
§21152(a)):
i) Identification of the project applicant, indication
whether the project will have a significant effect on the
environment; and,
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ii) Statement on whether an EIR has been prepared.
iii) If an EIR has been prepared, also inclusion of
certification that the final EIR, along with comments
and responses, is available to the public.
b) If a project has been determined not to be subject to
CEQA and the local agency approves or determines to carry
out the project, authorizes the local agency or project
applicant to file a notice of exemption (NOE) with the
county clerk of each county in which the project will be
located. (PRC §21152(b)).
c) Requires the notice to be (PRC §21152(c)):
i) Available for public inspection;
ii) Posted within 24 hours of receipt of the county
clerk; and,
iii) Remain posted for 30 days.
3)If an NOD is not filed, requires legal challenges under CEQA
begin within 180 days from the date of the public agency's
decision to carry out or approve the project. (PRC
§21167(a)).
4)If an NOD is filed, legal challenges under CEQA begin 30 days
from the date of the NOD filing. (PRC §21167(b), (c), and
(e)).
This bill:
1) Establishes an alternative and optional procedure for filing
an NOD for a local agency water project relating to water
rights; conjunctive use of surface water and groundwater
supplies; or, change in the point of discharge, place of use,
or purpose of use.
2) For the alternative NOD filing procedure, provides that the
local agency "may take all of the following actions":
a) File the NOD in the form required in current law with
the county clerk of the county in which the local agency's
principal office is located.
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b) Make payment of the Department of Fish and Wildlife
(DFW) filing fee, pursuant to Fish and Game Code (FGC)
§711.4 to the county clerk of the county in which the
local agency's principal office is located.
c) File the NOD with the Office of Planning and Research
(OPR) without further payment to DFW.
d) Transmit a copy of the NOD, which must state when the
NOD was filed with OPR, to the county clerk of each county
in which the project will be located in a specified
manner.
3) Requires the county clerk receiving the NOD to comply with
posting requirements as specified in current law, such as
posting the NOD within 24 hours of receipt for a period of 30
days.
4) Requires all NODs filed with the Office of Planning and
Research (OPR) under this alternative filing procedure to be
available for public inspection at OPR and requires a list of
those NODs be posted on a weekly basis in OPR for 30 days
each.
5) Prohibits a county clerk from requiring an original NOD, any
information regarding the filing of the NOD with OPR other
than the date on which the NOD was filed with OPR, or any
additional information from the local agency.
6) Authorizes a county to charge a $75 fee for handling and
posting the NOD.
7) Requires the statute of limitations for filing a lawsuit,
regarding a project subject to the alternative NOD filing
process, begin on the date that the NOD is filed with OPR.
Background
1) CEQA: 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
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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, 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.
2) What is analyzed in an environmental review? Pursuant to
CEQA, an environmental review analyzing the significant
direct and indirect environmental impacts of a proposed
project, may include water quality, surface and subsurface
hydrology, land use and agricultural resources,
transportation and circulation, air quality and greenhouse
gas emissions, terrestrial and aquatic biological resources,
aesthetics, geology and soils, recreation, public services
and utilities such as water supply and wastewater disposal,
cultural resources, and tribal cultural resources.
The analysis must also evaluate the cumulative impacts of any
past, present, and reasonably foreseeable projects/activities
within study areas that are applicable to the resources being
evaluated. A study area for a proposed project must not be
limited to the footprint of the project because many
environmental impacts of a development extend beyond the
identified project boundary. Also, CEQA stipulates that the
environmental impacts must be measured against existing
physical conditions within the project area, not future,
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allowable conditions.
3) What is an NOD and how is it filed? An NOD is a brief notice
filed by a public agency after it approves or determines to
carry out a project. The NOD must include the project name,
description, location, lead agency's name, and the date of
project approval. For an EIR, it also must summarize the
project's significant impacts and state whether mitigation
measures were made as conditions of approval, findings were
prepared, a mitigation monitoring or reporting program was
adopted, and a statement of overriding considerations was
adopted.
Within five working days of project approval, if the lead agency
is a local agency, the NOD must be filed with the county
clerk (or multiple county clerks if the project is located in
more than one county); and, if any state agency discretionary
approval is required, with OPR. The county clerk must post
the NOD within 24 hours of receipt for 30 days during regular
business hours and retained in the agency files for at least
12 months. The notice must also be sent to anyone previously
requesting notice. After the 30 days of posting, the clerk
must return the notice to the local agency with a notation of
the period it was posted.
4) Statute of limitations. According to the Judicial Council of
California, "A statute of limitations is a deadline for
filing a lawsuit. Most lawsuits MUST be filed within a
certain amount of time. In general, once the statute of
limitations on a case 'runs out,' the legal claim is not
valid any longer." Depending on the type of lawsuit, the
time period for a statute of limitations varies, e.g. injury
to a person is two years from the date of injury, contracts
in writing is four years from the date the contract was
broken, or latent defects/unknown problems in real property
improvements is 10 years from the date construction was
mostly finished.
Under CEQA, parties wishing to challenge agency approval of a
project must seek court review within the following time
periods:
30 days after an agency has filed an NOD (for
either a negative declaration or an EIR).
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35 days after an agency has filed an NOE.
180 days after an agency decides to carry out or
approve a project; or 180 days from commencement of a
project for those without a formal decision (when no NOE
or NOD has been filed).
The statute of limitations begins to run on the date on which
the notice is actually posted and made available for public
review. When an NOD or NOE is not filed, then the statute of
limitations for filing a lawsuit to attack, review, set
aside, void, or annul acts or decisions of a public agency on
grounds of noncompliance with CEQA is 180 days from the date
of the agency's decision to approve or carry out a project.
Comments
1) Purpose of Bill. According to the author, "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 for 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."
2) Filing of NOD triggers shorter statute of limitations. If an
NOD is not filed, the statute of limitations period is 180
days after the public agency's decision to carry out or
approve the project. When a public agency files an NOD in
compliance with specified requirements, the statute of
limitations for CEQA legal challenges related to negative
declarations and EIRs is 30 days from the date of filing the
NOD. Thus, the filing of an NOD significantly reduces the
window of time in which a lawsuit may be filed.
3) Concerns with this bill's effect on statute of limitations.
As noted above, the statute of limitations for filing a
lawsuit regarding a negative declaration or EIR is 30 days
after an agency has filed an NOD. When a project approved by
a local agency will be located in more than one county,
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failure to file the notice in each county may result in a
denial of the shorter statute of limitations. Although no
court has ruled on this issue, this is likely the result
considering the strict interpretation of the statute by the
courts.
This bill requires the statute of limitations, for a local
agency's water project subject to this bill, to begin on the
date that the NOD is filed with OPR. The bill provides that
the local agency has up to five working days after a local
agency has approved or determined to carry out a water
project to file the NOD with OPR and the county clerk's
office in each county the project is located. Based on the
requirements of this bill, it is possible that the public may
not be given the full 30 days to review an NOD.
For example, a local agency files the NOD with OPR on Day 1
(July 1, Wednesday), but files the NOD with Counties A, B,
and C on Day 5 (Tuesday, July 7th, the next week). The
counties have an additional 24 hours from the time of receipt
to post the notice, and the NOD is posted in those counties
on Day 6 (Wednesday, July 8th). People who rely on the NOD
postings at the county clerk's office will not have the
opportunity to see the NOD until a full week after the clock
has already started ticking on the statute of limitations;
approximately 25% of the statute of limitations has been
automatically shaved off before they receive notice to make a
claim. Although this process provides certainty to the lead
agency, it does not provide fairness to the public.
a) Fundamental Fairness. As shown in the example above,
the running of the statute of limitations in this bill can
begin a substantial amount of time ahead of when a person
has been given actual notice at the county level. Is it
fundamentally fair that the statute of limitations would
begin days, if not a full week, before a person has had
the chance to look at the NOD in a county clerk's office?
b) Potentially limits public disclosure and participation.
In Committee for Green Foothillls v. Santa Clara County
Bd. Of Supervisors (2010) 48 Cal.4th 32 at page 43, the
California Supreme Court states that NODs "alert the
public about environmental decisions?.Public notification
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serves the public's right to be informed in such a way
that it can intelligently weigh the environmental
consequences of any contemplated action and have an
appropriate voice in the formulation of any decision."
In addition, the first appellate court in Latinos Unidos de
Napa v. City of Napa (2011) (196 Cal.App. 4th 1154)
states, "Predictability and certainty are the twin guiding
virtues that enable people to comply with legal
requirements?Busy, concerned persons in a community are
entitled to a full 30 days of posting in a public place?"
Although this bill requires a county to post an NOD for a
full 30 days, this bill may reduce the amount of time for
people, who are relying on notice at the county level, to
prepare and initiate a challenge to a lead agency's
environmental review.
Litigation is the only enforcement mechanism for CEQA - is it
prudent to essentially allow a local agency to shorten the
time for which the public is entitled to notice a claim?
4) Multi-county projects are not limited to water projects.
Sponsors of the bill state that water projects are unique for
local agency projects in that they can span multiple
counties. However, it does not seem all that uncommon for
non-water related projects to be located in more than one
county.
For example, several local air districts' jurisdictions and
projects may overlay multiple counties, such as San Joaquin
Valley Air Pollution Control District, which is made up of
eight counties, and the Bay Area Air Quality Management
District, which is made up of nine counties. Many
multi-county special districts and projects exist in the Bay
Area alone, such as: Bay Area Rapid Transit, Alameda Contra
Costa Transit District, East Bay Regional Park District,
Midpeninsula Open Space District. Also, energy/utility
projects may span multiple counties with utility- or
pipelines. Even a housing development project may be
located in multiple counties such as when it crosses county
lines for road access.
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Considering that water projects are not unique in spanning
across multiple counties, a question arises as to the need
for creating special NOD filing requirements in statute to
accommodate them.
5) NOD posting requirements: Beyond one's control? NODs must
remain posted for the full 30 days; premature removal of a
posted notice, even if by a few hours, will result in
application of the 180-day statute of limitations.
Sponsors of the bill contend that it is unfair for a local lead
agency, on a water project covering multiple counties, to be
held accountable should a county clerk located far away err
in the NOD posting requirements, such as not keeping an NOD
posted for the entire 30 days. However, they do not cite any
incidences or cases in which a water agency has had such an
issue or been subject to litigation because of violations of
NOD requirements.
If a lead agency is concerned that a county may fail to post the
NOD for the entire 30-day period, then it would likely
behoove the lead agency to communicate with the county
clerk's office to make sure the county clerk's office is
aware of this requirement.
6) How pressing of an issue is this? This bill prohibits a
county from requiring an original notice, any information
regarding the filing of the NOD with OPR other than the date
on which the notice was filed with OPR, or any additional
information from the local agency other than a filing fee for
the county or DFW.
Sponsors state that filing an NOD in multiple counties can be a
"logistical nightmare." They state that confusion may arise
because each county has its own set of requirements for
filing, e.g. number of copies, original copies, or the
environmental review document must be included.
However, is this a policy issue that needs to be addressed in
statute? Or is it more of a matter of improving preparation
and organization on the part of the local agency when filing
an NOD? There are a finite number of counties to post an
NOD, a maximum of 58; and it is unlikely that any county
clerk office changes its filing requirements often. In
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addition, filing an NOD comes at the end of the environmental
review process, so there is likely a substantial amount of
time for the lead agency to plan and prepare for each
county's filing requirements. In fact, the sponsors produced
a chart showing the filing requirements for each county.
Perhaps a more practical solution would be for a local agency
to have such a tool so that they may more readily meet the
filing requirements of each county.
7) Streamlining for one may be additional work and confusion for
others. This bill creates a separate set of rules for NODs
for specified types of water projects. CEQA's NOD filing
requirements in PRC §21152 cover all projects for local
agencies. Counties receive and post NODs for a variety of
projects in addition to water projects. Rather than have one
set of statutory rules for counties to follow regarding all
NOD filings, this bill would require counties to keep track
and abide by two different sets of rules based on the type of
project. Why should a county be obligated to follow a
different set of rules for filing and posting a notice simply
based on the type of project? Also, does this bill create
more opportunities for litigation should a county fail to
follow the requirements of this alternative NOD filing
procedure?
If the concern is that counties may not be executing the
requirements of filing and posting an NOD correctly, then
does it make sense to mandate additional and different
requirements for a special subset of NODs for the counties to
abide in order to make things easier for one kind of local
lead agency on specified types of projects? Does this bill
create more room for error and more opportunity for
litigation?
8) Ensuring the needs of the public are met. Counties
throughout the state vary from one another and have different
ways for meeting the needs of their communities. For
example, some counties may be more technologically advanced
than others; some counties may have more resources available
than others; or, some counties' clerk offices may be more
easily accessible than others. It seems prudent to allow the
counties the flexibility to have their own reasonable
requirements in addition to what is required in statute, such
as the number of copies that must be submitted, to ensure
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that their communities have the information they need.
Also, the sponsors believe this bill will address a concern they
have regarding when a county clerk has posted the NOD or for
how long the notice was posted. However, CEQA already
provides the local agency with such information because the
county clerk is required to return the notice to the local
agency with a notation of the period it was posted. In
addition, if a question arises about the posting during the
30-day requirement, it seems that this can be resolved
through simple communication, e.g. call the county clerk's
office.
The issues trying to be resolved by this bill are more
appropriately addressed at the implementation level rather
than by amending the statute.
9) Filing fee set at $75. The purpose of a filing fee is to
cover the cost of performing the service. This bill proposes
to set a separate NOD filing fee a county may charge for this
alternative process at $75. Pursuant to FGC §711.4(e), a
county clerk may charge a processing fee of $50; and
additional county fees may apply. They vary by county, but
most counties charge approximately $50. For those counties
in which it costs $50 to cover the transaction, is it
appropriate to mandate a fee that could be potentially 50%
higher than the actual cost?
10)Concerns with the language in the bill.
a) Adding confusion to the code. By adding a new section
in statute for special NOD filing requirements for certain
types of water projects, this bill creates confusion in
other sections of CEQA. Although the bill attempts to
cover some of this in proposed §21152(d), the bill is not
thorough - For example, proposed subdivision (d) is not
clear that it only applies to a water project where notice
has been provided pursuant to this section. Other
sections that refer to §21152, such as §21167.6.5, for
example, should refer to the proposed §21152.2. However,
this bill does not amend other sections to reference
proposed §21152.2. A question arises as to how someone
using these other sections would know to look at §21152.2
without a cross-reference added to those sections.
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b) "May take all of the following actions." This bill
states that in lieu of filing an NOD pursuant to existing
law, a local agency carrying out a specified type of water
project "may take all of the following actions" - does
this mean that the agency is not required to take all of
the actions but is authorized to pick and choose? It
seems unlikely that such an interpretation is intended,
but the language is unclear.
11)Notice requirements for one county but not all? This bill
requires the local agency to file an NOD, with the county
clerk of the county in which the local agency's principal
office is located, in the manner mandated in PRC §21152(a),
such as to indicate whether the project will have a
significant effect on the environment and include
certification that the final EIR, together with comments and
responses, is available to the general public. However, this
bill is silent as to whether PRC §21152(a) requirements apply
to NOD filings in other counties. Is it the intent of this
bill to allow a local agency to provide the public in
counties, other than where the local agency's principal
office is located, with different or less information?
12)Proposed OPR's list of NODs filed under alternative
requirements. This bill requires all NODs filed with OPR
under this alternative filing procedure to be available for
public inspection and requires a list of those NODs be posted
on a weekly basis in OPR for 30 days each. What is required
to be included in the list? Why is such a list necessary?
How does the posting of a list in Sacramento help people
located elsewhere, such as Inyo or Humboldt Counties? Is
this list meant to be available online? The language is
unclear as to the purpose and requirements of this list.
13)Setting a bad precedent. There are likely thousands of
projects subject to CEQA annually throughout the state. Lead
agencies at the local level can be one of 58 counties, 482
cities, or approximately 2,300 special districts (according
to the California Special Districts Association).
CEQA is a statute that covers a wide range of projects and lead
agencies, and the NOD filing is one step in several of the
environmental review process. CEQA is a complex statute;
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adding special NOD filing requirements for one type of
project and catering to one type of local lead agency, as
this bill proposes, would seem to further complicate process.
If special provisions for NOD filings are made for this
scenario, then is it plausible that the Legislature should
expect to see more proposals come forward to add separate
provisions for various requirements tailored to individual
wishes of other, various lead agencies? This bill sets a bad
precedent.
14)Conclusion. As mentioned above, the sponsors of this bill do
not cite any cases or incidences in which there has been
issues concerning filing NODs for water projects located in
multiple counties. Also, water projects are not unique in
that other types of projects can be located in multiple
counties as well. Sponsors' argument that filing NODs in
multiple counties is a "logistical nightmare" seems more like
an inconvenience that would be better resolved through simple
preparation methods of a lead agency rather than legislation.
Also, the Senate Environmental Quality Committee has been
involved in several stakeholder working groups over the years
and recently conducted a survey jointly with Senate Judiciary
Committee to explore ways in which CEQA may be improved. Not
once has the problem proposed to be addressed in this bill
been raised in any of these efforts.
This bill may do more harm than good. This bill may potentially
shorten the time a person has notice to file a claim, and may
limit transparency and public participation, which are two
pillars of CEQA. This bill may create more work and
confusion for counties. Lastly, this bill may create
additional causes of action.
If the intent of this bill is to provide certainty when the
statute of limitations begins after a notice for a project is
filed in multiple counties, and because it is imperative to
provide the public the full 30 days to which it is entitled,
the Committee may wish to consider striking the contents of
the bill and replacing it with clarifying language in PRC
§21167 stating that for a project carried out by a local
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agency that is located in more than one county, the
commencement of the time period specified in subdivision (b),
(c), (d), or (e) commences on the latest date in which a
notice specified in (a) or (b) of Section 21152 has been
accepted for filing by an office of the county clerk.
SOURCE: Association of California Water Agencies
McGeorge Law School Legislative and Public Policy
Clinic
SUPPORT:
Association of Environmental Professionals
California Council for Environmental and Economic Balance
California Municipal Utilities Association
California Special Districts Association
Castaic Lake Water Agency
City of Corona
City of Sacramento
Cucamonga Valley Water District
East Bay Municipal Utility District
Eastern Municipal Water District
Mountain Counties Water Resources Association
Municipal Water District of Orange County
Northern California Water Association
San Diego County Water Authority
San Luis & Delta-Mendota Water Authority
Santa Clara Valley Water District
Sonoma County Water Agency
Southern California Water Committee
Stockton East Water District
The Metropolitan Water District of Southern California
Three Valleys Municipal Water District
Valley Ag Water Coalition
Walnut Valley Water District
Western Canal Water District
Yuba County Water Agency
OPPOSITION:
California League of Conservation Voters
Center for Biological Diversity
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County of Inyo Board of Supervisors
Foothill Conservancy
Natural Resources Defense Council
Planning and Conservation League
Sierra Club California
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