BILL ANALYSIS Ó
AB 2438
Page 1
Date of Hearing: April 11, 2016
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 2438
(Waldron) - As Introduced February 19, 2016
SUBJECT: California Environmental Quality Act: exemption:
recycled water pipelines
SUMMARY: Establishes an exemption from the California
Environmental Quality Act (CEQA) for installation of new, and
maintenance of existing, recycled water pipelines less than
eight miles in length.
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)Provides that CEQA does not apply to a pipeline project less
than one mile in length within a public street or highway or
any other public right-of-way for the installation of a new
pipeline or the maintenance, repair, restoration,
reconditioning, relocation, replacement, removal, or
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demolition of an existing pipeline. Excludes any surface
facility related to the operation of the underground pipeline.
3)Provides that CEQA does not apply to a pipeline project less
than eight miles in length consisting of inspection,
maintenance, repair, restoration, reconditioning, relocation,
replacement, or removal of an existing intrastate liquid
pipeline subject to the Pipeline Safety Act, subject to
specified conditions, including:
a) Construction and excavation activities are not
undertaken over more than one half mile at a time.
b) The section of pipeline is not less than 8 miles from
any section that has received an exemption in the past 12
months.
c) Project activities are undertaken within an existing
right-of-way and the right-of-way is restored to its
pre-project condition.
d) The diameter of the pipeline is not increased.
4)Exempts recycled water projects to mitigate drought conditions
for which a state of emergency was proclaimed by the Governor
on January 17, 2014, if the project consists of construction
or expansion of recycled water pipeline and directly related
infrastructure within existing rights of way, and directly
related groundwater replenishment, if the project does not
affect wetlands or sensitive habitat, and where the
construction impacts are fully mitigated consistent with
applicable law. This exemption remains operative until the
current drought state of emergency has expired or until
January 1, 2017, whichever occurs first (SB 88, Chapter 27,
Statutes of 2015).
5)Defines "recycled water" as water which, as a result of
treatment of waste, is suitable for a direct beneficial use or
a controlled use that would not otherwise occur and is
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therefore considered a valuable resource.
THIS BILL:
1)Exempts from review under CEQA a project of less than eight
miles in length within a public street, highway, or
right-of-way for the construction and installation of a new
recycled water pipeline, or the maintenance, repair,
restoration, reconditioning, relocation, replacement, removal,
or demolition of an existing recycled water pipeline.
2)Defines "pipeline" to include subsurface pipelines and
subsurface or surface accessories or appurtenances to a
pipeline, such as mains, traps, vents, cables, conduits,
vaults, valves, flanges, manholes, and meters.
3)Requires the lead agency to do all of the following:
a) Hold a noticed public hearing to consider and adopt
mitigation measures for potential traffic impacts of the
project.
b) File a notice of exemption with the Office of Planning
and Research (OPR) and in the office of the county clerk of
each county in which the project is located within 20 days
of the approval of the project.
c) Ensure that the overlaying property owner has given
permission to access the property, in the case of a
right-of-way over private property, if access is not
granted in the express terms of the right-of-way.
d) Ensure the restoration of the public street, highway, or
right-of-way to a condition consistent with all applicable
local laws or regulations, or a negotiated agreement.
4)Requires the project applicant to comply with all applicable
laws and regulations, including California Code of Regulations
Chapter 3 (commencing with Section 60301) of Division 4 of
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Title 22 (i.e., water recycling criteria).
5)Provides that the exemption does not apply to any of the
following:
a) A project that is a part of a recycled water pipeline
project greater than eight miles.
b) A project that is adjacent to another project for which
a claim of exemption has been made.
c) A project that is located in a resource area, such as a
park, open space, protected habitat areas, or lands subject
to a conservation easement.
d) A project for which an excavation activity that is more
than one-half mile in length at any one time will be
undertaken.
6)Sunsets January 1, 2020.
7)Makes findings related to the drought and the benefits of
recycled water.
FISCAL EFFECT: Unknown
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
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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 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.
CEQA includes limited exemptions for relatively small-scale
pipeline maintenance and installation projects. A general
exemption is available for projects under one mile in length.
A more specific exemption is available for projects up to
eight miles in length involving maintenance and replacement,
but not expansion, of pipelines regulated under the Pipeline
Safety Act (e.g., petroleum pipelines). This bill proposes an
exemption for pipeline projects significantly broader than any
existing exemption. It would apply to both existing and new
pipelines.
2)Author's statement:
Water recycling has the greatest potential to provide much
needed water resources in our state. The problem many
communities face when attempting to get the required
infrastructure in the ground, even when there is not much of an
impact to the environment, is that the project must still comply
with the cumbersome CEQA process. In most cases the recycled
water pipelines are going in the ground next to existing water
pipelines, which are found on streets and roadways in public
right-of-ways, but the CEQA process requires a project to comply
with numerous potential impacts creating extensive time delays
and costs.
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3)No evidence that CEQA is an unreasonable impediment to
recycled water projects. A review of CEQA notices submitted
to OPR shows that recycled water projects have been routinely
approved via exemption or negative declaration. This bill
exempts pipeline projects within existing rights of way. All
such projects are exempt under current law if they are under
one mile. Categorical exemptions are available for
maintenance, replacement and reconstruction of existing public
utility facilities, involving negligible or no expansion of
capacity. In June 2015, SB 88, a drought relief budget
trailer bill, added an exemption for recycled water projects
to mitigate drought conditions under the current drought state
of emergency.
4)Prior legislation. This bill is identical to AB 2417
(Nazarian), which passed this Committee on April 28, 2014 by a
vote of 7-1. AB 2417 was later held in the Senate
Environmental Quality Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chamber of Commerce
Los Angeles County Economic Development Corporation
Rincon del Diablo Municipal Water District
San Diego County Water Authority
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San Diego Unincorporated Communities
Southwest California Legislative Council
Valley Center Municipal Water District
Opposition
California League of Conservation Voters
Sierra Club California
Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092