BILL ANALYSIS                                                                                                                                                                                                    

                              Senator Wieckowski, Chair
                                2015 - 2016  Regular 
          Bill No:            AB 291
          |Author:    |Medina                                               |
          |Version:   |6/10/2015              |Hearing      | 7/1/2015       |
          |           |                       |Date:        |                |
          |Urgency:   |No                     |Fiscal:      |Yes             |
          |Consultant:|Joanne Roy                                           |
          |           |                                                     |
          SUBJECT:  California Environmental Quality Act:  local agencies:  
           notice of determination:  water.

          Existing law, under the California Environmental Quality Act  
          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  

             a)   Requires the following to be included in an NOD (PRC  

               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  

          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  

          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  

          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  

          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  

          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.

          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  

          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  

                       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.  

          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  

          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  

          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  

          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  

          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  

          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  

          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  


          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  


          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  
                                      -- END --