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