BILL ANALYSIS Ó
AB 1586
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Date of Hearing: April 4, 2016
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 1586
(Mathis) - As Amended March 28, 2016
SUBJECT: California Environmental Quality Act: Temperance Flat
Reservoir
SUMMARY: Generally prohibits a court, in granting relief in an
action or proceeding challenging the Temperance Flat Reservoir
under the California Environmental Quality Act (CEQA), from
staying or enjoining the construction or operation of the
project.
EXISTING LAW:
1)CEQA 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
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the environment, or alleging an EIR doesn't comply with CEQA,
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.
THIS BILL generally prohibits a court, in granting relief, from
staying or enjoining the construction or operation of the
Temperance Flat Reservoir project, except that a court may
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: Non-fiscal
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
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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.
In 2011, AB 900 (Buchanan) and SB 292 (Padilla) established
expedited CEQA 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
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(Steinberg) established special CEQA procedures modeled on SB
292 for the Sacramento Kings arena project. Like SB 292, SB
743 applied to a single project and included specified traffic
and air quality mitigations. SB 743 included a provision
limiting injunctive relief which is nearly identical to the
provision in this bill.
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 SB 743 required the arena to be certified
Leadership in Energy and Environmental Design (LEED) Gold, as
well as minimize traffic and air quality impacts through
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.
3)Author's statement:
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Current law requires an EIR be conducted by a lead agency on
any project which may have significant effects on the
environment. The agency must also prepare a plan to mitigate
all environmental impacts prior to the start of the project.
If any organization sues the validity of the EIR, the project
must cease during the proceedings. Presently, there are
select projects which receive exemption from (CEQA),
streamlining the projects enactment. These projects are
required to submit their EIR, but they are exempt from ceasing
construction and maintenance of the project. Unfortunately,
there is no such exemption for the construction of the
Temperance Flat Reservoir, which was established in the 2014
Water Bond.
Temperance Flat Reservoir is a proposed dam project on the San
Joaquin River, west of Auberry, California. The dam's main
purpose would be to supplement storage capacity in the upper
San Joaquin River basin. Under the current proposal,
Temperance Flat would more than double water storage on the
San Joaquin River from below Friant Reservoir. The total
water acreage capacity of Temperance Flat Reservoir would
equal approximately 1.25 million acre feet.
The Temperance Flat Project will provide necessary water
storage to mitigate the effects of future droughts in the
state. However, the progress of this project remains in
question, because the discretion of organizations which may
wish to stall or hinder the construction of the reservoir.
Should the EIR be challenged within the courts, the state
cannot guarantee the completion of the reservoir prior to the
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next severe drought.
AB 1586 will ensure that the Temperance Flat Reservoir is
completed and operational before the next drought impacts the
state. California cannot delay this opportunity to capture
more water during future wet years. By exempting the
reservoir from CEQA lawsuits, AB 1586 will guarantee an
additional 1.25 million acre feet to California's annual water
supply for our people, agriculture, and environmental
protection projects.
4)Temperance movement. The Temperance Flat project is highly
controversial because it would flood scenic canyons and
historic sites along the San Joaquin River, and impact
upstream hydroelectricity generation. Estimated construction
costs are $2.6 billion or more. The projected date for start
of construction is 2021, with operation by 2030.
Water Quality, Supply, and Infrastructure Improvement Act of
2014 (Proposition 1) provides $2.7 billion to fund the public
benefits of a range of water storage projects, including
surface storage projects, which may include Temperance Flat.
Under Proposition 1, the California Water Commission will
decide which projects get funded.
5)Prior legislation. AB 311 (Gallagher, 2014) established
special administrative and judicial review procedures under
the CEQA, including limited injunctive relief, for water
storage projects funded by Proposition 1. AB 311 failed twice
in this Committee, on March 23 and April 27, 2015.
6)Double referral. This bill has been double-referred to the
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Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Association of California Water Agencies
California Chamber of Commerce
San Joaquin Valley Water Infrastructure Authority
Valley Ag Water Coalition
Opposition
Judicial Council
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Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092