Amended in Senate September 4, 2015

California Legislature—2015–16 First Extraordinary Session

Senate Bill No. 11

Introduced by Senator Berryhill

(Coauthors: Senators Anderson, Bates, Fuller, Gaines, Huff, Morrell, Runner, Stone, and Vidak)

( begin delete Coauthor: end delete begin insert Coauthors: end insert Assembly begin delete Member Bigelow end delete begin insert Members Bigelow, Brough, Chang, Gallagher, and Lackey end insert )

July 16, 2015

begin delete An act to amend Section 21080.37 of the Public Resources Code, relating to the California Environmental Quality Act. end delete begin insert An act to add Sections 21080.36 and 21168.6.7 to the Public Resources Code, relating to environmental quality. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 11, as amended, Berryhill. begin delete California Environmental Quality Act: exemption: roadway improvement. end delete begin insert Environmental quality: transportation infrastructure. end insert

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The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report (EIR) on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA.

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This bill would exempt from these CEQA provisions a project that consists of the inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of existing transportation infrastructure if certain conditions are met, and would require the person undertaking these projects to take certain actions, including providing notice to an affected public agency of the project’s exemption. Because a lead agency would be required to determine if a project qualifies for this exemption, this bill would impose a state-mandated local program.

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This bill would also, in an action or proceeding seeking judicial review under CEQA, prohibit a court from staying or enjoining a transportation infrastructure project that is included in a sustainable communities strategy or an alternate planning strategy and for which a programmatic EIR has been certified unless it makes specified findings. For purpose of these provisions, the bill would specify that a transportation infrastructure project includes a project that consists of new construction of transportation infrastructure or a project that consists of the inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of existing transportation infrastructure.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.

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CEQA, until January 1, 2016, exempts a project or an activity to repair, maintain, or make minor alterations to an existing roadway, as defined, other than a state roadway, if the project or activity is carried out by a city or county with a population of less than 100,000 persons to improve public safety and meets other specified requirements.

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This bill would extend the above-referenced exemption until January 1, 2025, and delete the limitation of the exemption to projects or activities in cities and counties with a population of less than 100,000 persons. The bill would also expand the exemption to include state roadways.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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The Legislature finds and declares all of the
following:

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(a) The state has an urgent need to repair and complete public
safety improvements to existing transportation infrastructure,
including highways, roadways, bridges, tunnels, transit systems,
and paths and sidewalks serving bicycles or pedestrians, or both.

end insert begin insert

(b) The state also has an urgent need to improve transportation
infrastructure to meet urgent mobility, greenhouse gas reduction,
and economic policy goals. Specifically, each metropolitan
planning organization in the state has completed a sustainable
communities strategy or alternative planning strategy to reduce
greenhouse gas emissions consistent with targets initially
established, and required to be periodically updated through 2050,
by the State Air Resources Board, as required by Section 65080
of the Government Code. Each of these sustainable communities
strategies or alternate planning strategies is required by
subdivision (d) of Section 65080 of the Government Code to be
updated either every four or five years to meet applicable new
requirements, including new greenhouse gas reduction targets
established by the State Air Resources Board. The environmental
impacts and feasible mitigation measures for each of these
sustainable communities strategies or alternate planning strategies
are required to be fully assessed in compliance with the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code). The transportation system
improvements included in each adopted sustainable communities
strategy or alternative planning strategy, and accompanying
regional transportation plan, are subject to review and approval
by each metropolitan planning organization as well as the State
Air Resources Board, as informed by a certified programmatic
environmental impact report.

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(c) The Legislature intends to reduce duplicative environmental
reviews and avoid unwarranted delays of repairs and public safety
improvements to existing transportation infrastructure and to
transportation infrastructure improvements included in approved
sustainable communities strategies or alternative planing strategies
adopted, and periodically updated, pursuant to Section 65080 of
the Government Code.

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begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 21080.36 is added to the end insert begin insert Public Resources
Code end insert begin insert , to read: end insert

begin insert

begin insert 21080.36. end insert   

(a) This division does not apply to a project that
consists of the inspection, maintenance, repair, restoration,
reconditioning, relocation, replacement, or removal of existing
transportation infrastructure, including, but not limited to,
highways, roadways, bridges, tunnels, transit systems, and paths
and sidewalks serving bicycles or pedestrians, or both, if the
project meets both of the following conditions:

(1) The project is located within an existing right-of-way, and
any area surrounding the right-of-way that is to be altered as a
result of construction activities that are necessary for the
completion of the project will be restored to its condition before
the project.

(2) The project applicant agrees to comply with all conditions
otherwise authorized by law, imposed by the city or county
planning department as part of any local agency permit process,
that are required to mitigate potential impacts of the proposed
project, and to otherwise comply with the Keene-Nejedly California
Wetlands Preservation Act (Chapter 7 (commencing with Section
5810) of Division 5), the California Endangered Species Act
(Chapter 1.5 (commencing with Section 2050) of Division 3 of the
Fish and Game Code), and other applicable state laws, and with
all applicable federal laws.

(b) If a project meets the requirements of subdivision (a), the
person undertaking the project shall do all of the following:

(1) Notify, in writing, any affected public agency, including, but
not limited to, any public agency having permit, land use,
environmental, public health protection, or emergency response
authority of the exemption of the project from this division under
subdivision (a).

(2) Provide notice to the public in the affected area in a manner
consistent with paragraph (3) of subdivision (b) of Section 21092.

(3) In the case of a private right-of-way over private property,
receive from the underlying property owner permission to access
the property.

(4) Comply with all conditions otherwise authorized by law,
imposed by the city or county planning department as part of any
local agency permit process, that are required to mitigate potential
impacts of the proposed project, and to otherwise comply with the
Keene-Nejedly California Wetlands Preservation Act (Chapter 7
(commencing with Section 5810) of Division 5), the California
Endangered Species Act (Chapter 1.5 (commencing with Section
2050) of Division 3 of the Fish and Game Code), and other
applicable state laws, and with all applicable federal laws.

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begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 21168.6.7 is added to the end insert begin insert Public Resources
Code end insert begin insert , to read: end insert

begin insert

begin insert 21168.6.7. end insert   

(a) This section shall apply to a transportation
infrastructure project that is included in a sustainable communities
strategy or an alternative planning strategy approved by a
metropolitan planning organization pursuant to Section 65080 of
the Government Code, for which a programmatic environmental
impact report has been certified. For purposes of this section, a
transportation infrastructure project includes a project that
consists of new construction of transportation infrastructure or a
project that consists of the inspection, maintenance, repair,
restoration, reconditioning, relocation, replacement, or removal
of existing transportation infrastructure.

(b)  In any action or proceeding to attack, review, set aside,
void, or annul a determination, finding, or decision of a public
agency with respect to a transportation infrastructure project
described in subdivision (a), the court shall not stay or enjoin the
construction or operation of the transportation infrastructure
project unless the court finds either of the following:

(1) The continued construction or operation of the transportation
infrastructure project presents an imminent threat to the public
health and safety.

(2) The transportation infrastructure project contains unforeseen
important Native American artifacts or unforeseen important
historical, archaeological, or ecological values that would be
materially, permanently, and adversely affected by the continued
construction or operation of the transportation infrastructure
project unless the court stays or enjoins the construction or
operation of the transportation infrastructure project.

(c) If the court finds that paragraph (1) or (2) of subdivision
(b) is satisfied, the court shall only enjoin those specific activities
associated with the transportation infrastructure 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.

(d) An action or proceeding to attack, set aside, void, or annul
a determination, finding, or decision of the lead agency or
responsible agency granting subsequent project approval for a
transportation infrastructure project included in the programmatic
environmental impact review described in subdivision (a) shall be
subject to the judicial remedy limitations of this section.

(e) Where an action or proceeding brought pursuant to this
section challenges portions or aspects of a project other than the
transportation infrastructure project meeting the criteria of
subdivision (a), and those portions or specific project activities
are severable from the transportation infrastructure project, the
court may enter an order as to those parties or aspects of the
project other than the transportation infrastructure project that
includes one or more of the remedies set forth in Section 21168.9.

(f) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity shall
not affect other provisions or applications that can be given effect
without the invalid provision or application.

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begin insert SEC. 4. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.

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SECTION 1.  

Section 21080.37 of the Public Resources Code
is amended to read:

21080.37.  

(a) This division does not apply to a project or an
activity to repair, maintain, or make minor alterations to an existing
roadway if all of the following conditions are met:

(1) (A) The project does not cross a waterway.

(B) For purposes of this paragraph, “waterway” means a bay,
estuary, lake, pond, river, slough, or a perennial, intermittent, or
ephemeral stream, lake, or estuarine-marine shoreline.

(2) The project involves negligible or no expansion of an
existing use beyond that existing at the time of the lead agency’s
determination.

(3) (A) The site of the project does not contain wetlands or
riparian areas and does not have significant value as a wildlife
habitat, and the project does not harm any species protected by the
federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et
seq.), the Native Plant Protection Act (Chapter 10 (commencing
with Section 1900) of Division 2 of the Fish and Game Code), or
the California Endangered Species Act (Chapter 1.5 (commencing
with Section 2050) of Division 3 of the Fish and Game Code), and
the project does not cause the destruction or removal of any species
protected by a local ordinance.

(B) For the purposes of this paragraph:

(i) “Riparian areas” mean those areas transitional between
terrestrial and aquatic ecosystems and that are distinguished by
gradients in biophysical conditions, ecological processes, and biota.
A riparian area is an area through which surface and subsurface
hydrology connect waterbodies with their adjacent uplands. A
riparian area includes those portions of terrestrial ecosystems that
significantly influence exchanges of energy and matter with aquatic
ecosystems. A riparian area is adjacent to perennial, intermittent,
and ephemeral streams, lakes, and estuarine-marine shorelines.

(ii) “Significant value as a wildlife habitat” includes wildlife
habitat of national, statewide, regional, or local importance; habitat
for species protected by the federal Endangered Species Act of
1973 (16 U.S.C. Sec. 1531, et seq.), the California Endangered
Species Act (Chapter 1.5 (commencing with Section 2050) of
Division 3 of the Fish and Game Code), or the Native Plant
Protection Act (Chapter 10 (commencing with Section 1900) of
Division 2 of the Fish and Game Code); habitat identified as
candidate, fully protected, sensitive, or species of special status
by local, state, or federal agencies; or habitat essential to the
movement of resident or migratory wildlife.

(iii) “Wetlands” has the same meaning as in the United States
Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).

(iv) “Wildlife habitat” means the ecological communities upon
which wild animals, birds, plants, fish, amphibians, and
invertebrates depend for their conservation and protection.

(4) The project does not impact cultural resources.

(5) The roadway does not affect scenic resources, as provided
pursuant to subdivision (c) of Section 21084.

(b) Prior to determining that a project is exempt pursuant to this
section, the lead agency shall do both of the following:

(1) Include measures in the project to mitigate potential
vehicular traffic and safety impacts and bicycle and pedestrian
safety impacts.

(2) Hold a noticed public hearing on the project to hear and
respond to public comments. The hearing on the project may be
conducted with another noticed lead agency public hearing.
Publication of the notice shall be no fewer times than required by
Section 6061 of the Government Code, by the lead agency in a
newspaper of general circulation in the area.

(c) For purposes of this section, “roadway” means a roadway
as defined pursuant to Section 530 of the Vehicle Code and the
previously graded and maintained shoulder that is within a roadway
right-of-way of no more than five feet from the edge of the
roadway.

(d) (1) If a state agency determines that a project is not subject
to this division pursuant to this section, and it approves or
determines to carry out that project, it shall file a notice with the
Office of Planning and Research in the manner specified in
subdivisions (b) and (c) of Section 21108.

(2) If a local agency determines that a project is not subject to
this division pursuant to this section, and it approves or determines
to carry out that project, it shall file a notice with the Office of
Planning and Research, and with the county clerk in the county in
which the project will be located in the manner specified in
subdivisions (b) and (c) of Section 21152.

(e) This section shall remain in effect only until January 1, 2025,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2025, deletes or extends that date.

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