BILL ANALYSIS Ó
AB 311
Page 1
Date of Hearing: March 23, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 311
(Gallagher) - As Amended March 17, 2015
SUBJECT: Environmental quality: Water Quality, Supply, and
Infrastructure Improvement Act of 2014
SUMMARY: Establishes special administrative and judicial review
procedures under the California Environmental Quality Act (CEQA)
for water storage projects funded by the Water Quality, Supply,
and Infrastructure Improvement Act of 2014 (Proposition 1).
EXISTING LAW:
1)Requires lead agencies with the principal responsibility for
carrying out or approving 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 (CEQA includes various statutory
exemptions, as well as categorical exemptions in the CEQA
guidelines).
2)Authorizes judicial review of CEQA actions taken by public
agencies, following the agency's decision to carry out or
approve the project. Challenges alleging improper
determination that a project may have a significant effect on
the environment, or alleging an EIR doesn't comply with CEQA,
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must be filed in the Superior Court within 30 days of filing
of the notice of approval. The courts are required to give
CEQA actions preference over all other civil actions.
3)Establishes that a record of proceeding includes, but is not
limited to, all application materials, staff reports,
transcripts or minutes of public proceedings, notices, written
comments, and written correspondence prepared by or submitted
to the public agency regarding the proposed project.
Establishes a procedure for the preparation, certification,
and lodging of the record of proceedings.
4)Provides that the public benefits of the following water
storage projects are eligible for funding under Proposition 1:
a) Surface storage projects identified in the CALFED
Bay-Delta Program Record of Decision, except for projects
prohibited by the California Wild and Scenic Rivers Act.
b) Groundwater storage projects and groundwater
contamination prevention or remediation projects that
provide water storage benefits.
c) Conjunctive use and reservoir reoperation projects.
d) Local and regional surface storage projects that improve
the operation of water systems in the state and provide
public benefits.
THIS BILL establishes special CEQA procedures for Proposition
1-funded water storage projects, as follows:
1)Requires Judicial Council to adopt a rule of court, by July 1,
2016, requiring lawsuits and any appeals to be resolved, to
the extent feasible, within 270 days of certification of the
record of proceedings (which must occur within five days of
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the lead agency filing the notice of determination on the
project).
2)Requires the project EIR to include a specified notice that
the EIR is subject to the provisions of the section added by
this bill.
3)Requires the lead agency to conduct an informational workshop
within 10 days of release of the Draft EIR and hold a public
hearing within 10 days before close of the public comment
period.
4)Requires the lead agency and applicant to participate in
nonbinding mediation with any party who submitted comments on
the Draft EIR and requested mediation within five days of the
close of the public comment period, with the cost to be paid
by the applicant. Requires mediation to end within 35 days of
the close of the public comment period.
5)Requires the lead agency to adopt any measures agreed upon in
mediation. Prohibits a commenter from raising an issue
addressed by that measure in a lawsuit.
6)Permits the lead agency to ignore written or oral comments
submitted after the close of the public comment period, with
specified exceptions for materials addressing new information
released after the close of the public comment period.
7)Authorizes the lead agency to prepare and certify the record
of proceedings concurrently with the administrative process
for environmental documents, and to promptly post all
documents on the Internet. Requires the applicant to pay the
lead agency for all costs of preparing and certifying the
record of proceedings.
8)Requires the lead agency to provide all EIR documents and
comments in an electronic format (with the exception of
certain copyright-protected documents), certify the record
within five days of filing the notice of determination,
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provide the record to a party upon written request, and
provide the record to the superior court within 10 days of the
filing of a petition for review.
9)Generally prohibits a court, in granting relief, from staying
or enjoining the construction or operation of an eligible
water storage project and provides that a court may only
enjoin those specific activities associated with the project
that present an imminent threat to public health and safety or
that materially, permanently, and adversely affect unforeseen
important Native American artifacts or unforeseen important
historical, archaeological, or ecological values.
(in effect limiting the equitable powers of the court and
prohibiting existing remedies under CEQA such as voiding the
lead agency's decision or suspending project activities)
FISCAL EFFECT: Unknown
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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.
CEQA actions taken by 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. Under current law, court challenges
of CEQA decisions generally must be filed within 30-35 days,
depending on the type of decision. The courts are required to
give CEQA actions preference over all other civil actions.
The petitioner must request a hearing within 90 days of filing
the petition and, generally, briefing must be completed within
90 days of the request for hearing. There is no deadline
specified for the court to render a decision.
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In 2011, AB 900 (Buchanan) and SB 292 (Padilla) established
expedited judicial review procedures for a limited number of
projects. For AB 900, it was large-scale projects meeting
extraordinary environmental standards and providing
significant jobs and investment. For SB 292, it was a
proposed downtown Los Angeles football stadium and convention
center project achieving specified traffic and air quality
mitigations. For these eligible projects, the bills provided
for original jurisdiction by the Court of Appeal and a
compressed schedule requiring the court to render a decision
on any lawsuit within 175 days. This promised to reduce the
existing judicial review timeline by 100 days or more, while
creating new burdens for the courts and litigants to meet the
compressed schedule. AB 900's provision granting original
jurisdiction to the Court of Appeal was invalidated in 2013 by
a decision in the Alameda Superior Court in Planning and
Conservation League v. State of California. The stadium
project subject to SB 292 has not proceeded. In 2013, SB 743
(Steinberg) established special CEQA procedures modeled on SB
292 for the proposed Sacramento Kings arena project. Like SB
292, SB 743 applied to a single project and included specified
traffic and air quality mitigations.
2)Should the AB 900/SB 292/SB 743 model be expanded? It's an
open question whether the idea of limiting the scope and time
of judicial review of favored projects was ever good policy,
even for one project. The practical benefit of this approach
to developers is debatable and it's unclear whether that
benefit outweighs the potential sacrifice to effective
environmental review and the increased burden on the courts.
The only project that seems to have used and possibly
benefited from the judicial review procedures enacted since
2011 is the Sacramento Kings arena project. It should be
noted that the procedures in SB 743 applied only to the arena
project and SB 743 also required the arena to be certified
Leadership in Energy and Environmental Design (LEED) Gold, as
well as minimize traffic and air quality impacts through
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project design or mitigation measures including reducing to at
least zero the net greenhouse gas (GHG) emissions from private
automobile trips to the arena, achieve reductions in GHG
emissions from automobiles and light trucks that will exceed
the GHG emission reduction targets for 2020 and 2035 adopted
for the Sacramento region pursuant to SB 375, and achieve a
15% reduction in vehicle-miles traveled per attendee.
This bill applies similar expedited review procedures to any
water storage project funded by Proposition 1, but does not
include any mitigation measures. The bill would apply to an
unknown number of future water storage projects with unknown
impacts. Since the projects are undefined, it's impossible to
evaluate their merits, much less whether those merits justify
preferential treatment. The potential for many projects to
qualify also increases the burden on the courts. Judicial
Council indicates that the requirement to resolve lawsuits
within 270 days may be unworkable in practice, will likely
have an adverse impact on other cases, and undermines equal
access to justice.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chamber of Commerce
Opposition
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California League of Conservation Voters
Judicial Council of California
Natural Resources Defense Council
Sierra Club California
Trout Unlimited
Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092