BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: AB 323 ----------------------------------------------------------------- |Author: |Olsen | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |4/6/2015 |Hearing | 6/17/2015 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |No | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Joanne Roy | | | | ----------------------------------------------------------------- SUBJECT: California Environmental Quality Act: exemption: roadway improvement 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) 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 project, unless the project is exempt from CEQA. 3) Exempts from CEQA, until January 1, 2016, minor roadway repairs, maintenance and minor alterations as follows (PRC §21080.37): AB 323 (Olsen) Page 2 of ? a) Requires the project to meet the following conditions: i. The project is carried out by a city or county with a population of less than 100,000 to improve public safety. ii. The project does not cross a "waterway" (defined as a bay, estuary, lake, pond, river, slough, or a perennial, intermittent, or ephemeral stream, lake, or estuarine-marine shoreline). iii. The project involves negligible or no expansion of an existing use. iv. The project is not on a state roadway. v. The site of the project does not contain wetlands, riparian areas, or significant wildlife habitat value and does not harm any protected species, impact cultural resources, or affect scenic resources. b) Requires the lead agency to: i. Include measures in the project to mitigate potential vehicular traffic and safety impacts and bicycle and pedestrian safety impacts. ii. Hold a noticed public hearing on the project to hear and respond to public comments. AB 323 (Olsen) Page 3 of ? iii. File a notice of exemption with the Office of Planning and Research (OPR). This bill extends the January 1, 2016 sunset date to January 1, 2020 on an exemption from CEQA, pursuant to PRC §21080.37, for projects to repair, maintain, and make minor alterations to existing roadways under specified conditions. 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 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? AB 323 (Olsen) Page 4 of ? 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, allowable conditions. Comments 1) Purpose of Bill. According to the author, "California has four times as many traffic fatalities on rural non-interstate roads compared to all other roads. Oftentimes, small communities come across minor or emergency roadway repairs that need to be made quickly. To delay or halt those repairs is to impact the safety and economic health of small communities that may have limited road alternatives. AB 323 would allow the streamlined process to continue to save lives." 2) Has this exemption been used yet? AB 890 (Olsen, Chapter 528, Statutes of 2012), established the exemption, which is the subject of AB 323. Among the conditions, AB 890 required lead agencies claiming this exemption to file a notice of exemption with OPR. OPR reports no notices filed to date, so it appears that the AB 890 exemption has yet to be used. To preserve the Legislature's ability to periodically evaluate the effects of this exemption, AB 323 (Olsen) Page 5 of ? AB 323 extends the sunset to January 1, 2020. 3) What is lost with a CEQA exemption? It is not unusual for certain interests to assert that a particular exemption will expedite construction of a particular type of project and reduce costs. This, however, frequently overlooks the benefits of adequate environmental review where lead and responsible agencies are legally accountable for their actions to: Inform decisionmakers and the public about project impacts; Identify ways to avoid or significantly reduce environmental damage; Prevent environmental damage by requiring feasible alternatives or mitigation measures; Disclose to the public reasons why an agency approved a project if significant environmental effects are involved; Involve public agencies in the process; and, Increase public participation in the environmental review and the planning processes. If a project is exempt from CEQA, certain issues should be addressed. For example: How can decisionmakers and the public be aware of impacts, mitigation measures, and alternatives of a project because of the exemption? Is it appropriate for the public to live with the consequences when a project is exempt and impacts may not be mitigated and alternatives may not be considered regarding certain matters, such as air quality, water quality, and noise impacts? Because adverse project impacts do not disappear when they are not identified and mitigated, does an exemption result in a direct transfer of responsibility for mitigating impacts from the applicant to the public (i.e., taxpayers) if impacts are ultimately addressed after completion of the project? If taxpayers, rather than the project applicant, are ultimately responsible for mitigating certain impacts of such AB 323 (Olsen) Page 6 of ? a project after project completion, what assessments or taxes will be increased to fund mitigation or pay for alternatives at a later date? It is also not unusual for certain interests to blame CEQA lawsuits. However, according to a study on the issue, "Despite criticisms that CEQA often results in litigation, CEQA-related litigation is relatively rare." The study noted that the number of lawsuits to the number of CEQA reviews "yields an estimate of one lawsuit per 354 CEQA reviews." Those citing CEQA and CEQA litigation as a problem do not indicate the result of that litigation. Were significant impacts that were not evaluated in the initial document ultimately addressed? What would have been the result if those impacts had not been mitigated (e.g., flooding, exposure of people to hazards, inadequate public services, congestion)? Related/Prior Legislation AB 890 (Olsen, Chapter 528, Statutes of 2012), exempted a project or activity from CEQA to repair, maintain, or make minor alterations to an existing roadway if certain conditions are met, and sunsets January 1, 2016. SOURCE: Author SUPPORT: American Society of Civil Engineers Region 9 Association of California Cities - Orange County California Chamber of Commerce California Central Valley Flood Control Association California State Association of Counties California Construction Trucking Association City of Camarillo City of Fountain Valley City of Indian Wells League of California Cities Rural County Representatives of California Southwest California Legislative Council Town of Danville Tuolumne County Board of Supervisors AB 323 (Olsen) Page 7 of ? OPPOSITION: None received -- END --