BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                               Senator Wieckowski, Chair
                                 2015 - 2016  Regular 
           
          Bill No:            AB 323
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          |Author:    |Olsen                                                |
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          |Version:   |4/6/2015               |Hearing      | 6/17/2015      |
          |           |                       |Date:        |                |
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          |Urgency:   |No                     |Fiscal:      |No              |
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          |Consultant:|Joanne Roy                                           |
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          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): 










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             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. 








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              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? 








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          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,  








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             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  








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               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
           








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           OPPOSITION:    

          None received  


           
                                           
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