BILL NUMBER: SB 122 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 24, 2016
PASSED THE ASSEMBLY AUGUST 23, 2016
AMENDED IN ASSEMBLY AUGUST 15, 2016
AMENDED IN SENATE JUNE 1, 2015
AMENDED IN SENATE APRIL 20, 2015
AMENDED IN SENATE MARCH 26, 2015
AMENDED IN SENATE MARCH 12, 2015
INTRODUCED BY Senators Jackson and Hill
(Coauthor: Senator Hertzberg)
JANUARY 15, 2015
An act to amend Sections 21082.1, 21091, 21159.9, and 21167.6 of,
and to add Section 21167.6.2 to, the Public Resources Code, relating
to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 122, Jackson. California Environmental Quality Act: record of
proceedings.
(1) 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 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. CEQA
establishes a procedure for the preparation and certification of the
record of proceedings upon the filing of an action or proceeding
challenging a lead agency's action on the grounds of noncompliance
with CEQA.
This bill would require the lead agency, at the request of a
project applicant and consent of the lead agency, to prepare a record
of proceedings concurrently with the preparation of a negative
declaration, mitigated negative declaration, EIR, or other
environmental document for projects.
(2) CEQA requires the lead agency to submit to the State
Clearinghouse a sufficient number of copies of specified
environmental documents prepared pursuant to CEQA for review and
comment by state agencies in certain circumstances and a copy of
those documents in electronic form, as prescribed. CEQA requires the
Office of Planning and Research to implement, utilizing existing
resources, a public assistance program to, among other things,
establish and maintain a database to assist in the preparation of
environmental documents, establish and maintain a central repository
for the collection, storage, retrieval, and dissemination of certain
notices provided to the office, and provide to the California State
Library copies of documents submitted in electronic format to the
office pursuant to CEQA.
This bill would require a lead agency to submit to the State
Clearinghouse those environmental documents in either a hard-copy or
electronic form as prescribed by the office. The bill would instead
require the office to establish and maintain a database for the
collection, storage, retrieval, and dissemination of environmental
documents and notices prepared pursuant to CEQA and to make the
database available online to the public. The bill would eliminate the
requirement to provide copies of documents to the California State
Library. The bill would require the office to submit to the
Legislature a report, by July 1, 2017, describing the implementation
of this requirement and a status report, by July 1, 2019.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21082.1 of the Public Resources Code is amended
to read:
21082.1. (a) A draft environmental impact report, environmental
impact report, negative declaration, or mitigated negative
declaration prepared pursuant to the requirements of this division
shall be prepared directly by, or under contract to, a public agency.
(b) This section does not prohibit, and shall not be construed as
prohibiting, a person from submitting information or other comments
to the public agency responsible for preparing an environmental
impact report, draft environmental impact report, negative
declaration, or mitigated negative declaration. The information or
other comments may be submitted in any format, shall be considered by
the public agency, and may be included, in whole or in part, in any
report or declaration.
(c) The lead agency shall do all of the following:
(1) Independently review and analyze any report or declaration
required by this division.
(2) Circulate draft documents that reflect its independent
judgment.
(3) As part of the adoption of a negative declaration or a
mitigated negative declaration, or certification of an environmental
impact report, find that the report or declaration reflects the
independent judgment of the lead agency.
(4) Submit a sufficient number of copies, in either a hard-copy or
electronic form as required by the Office of Planning and Research,
of the draft environmental impact report, proposed negative
declaration, or proposed mitigated negative declaration to the State
Clearinghouse for review and comment by state agencies, if any of the
following apply:
(A) A state agency is any of the following:
(i) The lead agency.
(ii) A responsible agency.
(iii) A trustee agency.
(B) A state agency otherwise has jurisdiction by law with respect
to the project.
(C) The proposed project is of sufficient statewide, regional, or
areawide environmental significance as determined pursuant to the
guidelines certified and adopted pursuant to Section 21083.
SEC. 2. Section 21091 of the Public Resources Code is amended to
read:
21091. (a) The public review period for a draft environmental
impact report shall not be less than 30 days. If the draft
environmental impact report is submitted to the State Clearinghouse
for review, the review period shall be at least 45 days, and the lead
agency shall provide a sufficient number of copies of the document,
in either a hard-copy or electronic form as required by the Office of
Planning and Research, to the State Clearinghouse for review and
comment by state agencies.
(b) The public review period for a proposed negative declaration
or proposed mitigated negative declaration shall not be less than 20
days. If the proposed negative declaration or proposed mitigated
negative declaration is submitted to the State Clearinghouse for
review, the review period shall be at least 30 days, and the lead
agency shall provide a sufficient number of copies of the document,
in either a hard-copy or electronic form as required by the Office of
Planning and Research, to the State Clearinghouse for review and
comment by state agencies.
(c) (1) Notwithstanding subdivisions (a) and (b), if a draft
environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration is submitted to the State
Clearinghouse for review and the period of review by the State
Clearinghouse is longer than the public review period established
pursuant to subdivision (a) or (b), whichever is applicable, the
public review period shall be at least as long as the period of
review and comment by state agencies as established by the State
Clearinghouse.
(2) The public review period and the state agency review period
may, but are not required to, begin and end at the same time. Day one
of the state agency review period shall be the date that the State
Clearinghouse distributes the CEQA document to state agencies.
(3) If the submittal of a CEQA document is determined by the State
Clearinghouse to be complete, the State Clearinghouse shall
distribute the document within three working days from the date of
receipt. The State Clearinghouse shall specify the information that
will be required in order to determine the completeness of the
submittal of a CEQA document.
(d) (1) The lead agency shall consider comments it receives on a
draft environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration if those comments are
received within the public review period.
(2) (A) With respect to the consideration of comments received on
a draft environmental impact report, the lead agency shall evaluate
comments on environmental issues that are received from persons who
have reviewed the draft and shall prepare a written response pursuant
to subparagraph (B). The lead agency may also respond to comments
that are received after the close of the public review period.
(B) The written response shall describe the disposition of each
significant environmental issue that is raised by commenters. The
responses shall be prepared consistent with Section 15088 of Title 14
of the California Code of Regulations.
(3) (A) With respect to the consideration of comments received on
a draft environmental impact report, proposed negative declaration,
proposed mitigated negative declaration, or notice pursuant to
Section 21080.4, the lead agency shall accept comments via electronic
mail and shall treat electronic-mail comments as equivalent to
written comments.
(B) Any law or regulation relating to written comments received on
a draft environmental impact report, proposed negative declaration,
proposed mitigated negative declaration, or notice received pursuant
to Section 21080.4 shall also apply to electronic-mail comments
received for those reasons.
(e) (1) Criteria for shorter review periods by the State
Clearinghouse for documents that must be submitted to the State
Clearinghouse shall be set forth in the written guidelines issued by
the Office of Planning and Research and made available to the public.
(2) Those shortened review periods may not be less than 30 days
for a draft environmental impact report and 20 days for a negative
declaration.
(3) A request for a shortened review period shall only be made in
writing by the decisionmaking body of the lead agency to the Office
of Planning and Research. The decisionmaking body may designate by
resolution or ordinance a person authorized to request a shortened
review period. A designated person shall notify the decisionmaking
body of this request.
(4) A request approved by the State Clearinghouse shall be
consistent with the criteria set forth in the written guidelines of
the Office of Planning and Research.
(5) A shortened review period may not be approved by the Office of
Planning and Research for a proposed project of statewide, regional,
or areawide environmental significance as determined pursuant to
Section 21083.
(6) An approval of a shortened review period shall be given prior
to, and reflected in, the public notice required pursuant to Section
21092.
(f) Prior to carrying out or approving a project for which a
negative declaration has been adopted, the lead agency shall consider
the negative declaration together with comments that were received
and considered pursuant to paragraph (1) of subdivision (d).
SEC. 3. Section 21159.9 of the Public Resources Code is amended to
read:
21159.9. The Office of Planning and Research shall implement a
public assistance and information program to ensure efficient and
effective implementation of this division and to do both of the
following:
(a) Establish a public education and training program for
planners, developers, and other interested parties to assist them in
implementing this division.
(b) (1) Establish and maintain a database for the collection,
storage, retrieval, and dissemination of environmental documents,
notices of exemption, notices of preparation, notices of
determination, and notices of completion provided to the Office of
Planning and Research. The database shall be available online to the
public through the Internet. The Office of Planning and Research may
coordinate with another state agency to host and maintain the online
database.
(2) The Office of Planning and Research may phase in the
submission of electronic documents and use of the database by state
and local public agencies.
(3) (A) Pursuant to Section 9795 of the Government Code, the
Office of Planning and Research shall, no later than July 1, 2017,
submit to the Legislature a report describing how it plans to
implement this subdivision, and shall provide an additional report to
the Legislature no later than July 1, 2019, describing the status of
the implementation of this subdivision.
(B) Pursuant to Section 10231.5 of the Government Code, this
paragraph is inoperative on July 1, 2023.
SEC. 4. Section 21167.6 of the Public Resources Code is amended to
read:
21167.6. Notwithstanding any other law, in all actions or
proceedings brought pursuant to Section 21167, except as provided in
Section 21167.6.2 or those involving the Public Utilities Commission,
all of the following shall apply:
(a) At the time that the action or proceeding is filed, the
plaintiff or petitioner shall file a request that the respondent
public agency prepare the record of proceedings relating to the
subject of the action or proceeding. The request, together with the
complaint or petition, shall be served personally upon the public
agency not later than 10 business days from the date that the action
or proceeding was filed.
(b) (1) The public agency shall prepare and certify the record of
proceedings not later than 60 days from the date that the request
specified in subdivision (a) was served upon the public agency. Upon
certification, the public agency shall lodge a copy of the record of
proceedings with the court and shall serve on the parties notice that
the record of proceedings has been certified and lodged with the
court. The parties shall pay any reasonable costs or fees imposed for
the preparation of the record of proceedings in conformance with any
law or rule of court.
(2) The plaintiff or petitioner may elect to prepare the record of
proceedings or the parties may agree to an alternative method of
preparation of the record of proceedings, subject to certification of
its accuracy by the public agency, within the time limit specified
in this subdivision.
(c) The time limit established by subdivision (b) may be extended
only upon the stipulation of all parties who have been properly
served in the action or proceeding or upon order of the court.
Extensions shall be liberally granted by the court when the size of
the record of proceedings renders infeasible compliance with that
time limit. There is no limit on the number of extensions that may be
granted by the court, but no single extension shall exceed 60 days
unless the court determines that a longer extension is in the public
interest.
(d) If the public agency fails to prepare and certify the record
within the time limit established in paragraph (1) of subdivision
(b), or any continuances of that time limit, the plaintiff or
petitioner may move for sanctions, and the court may, upon that
motion, grant appropriate sanctions.
(e) The record of proceedings shall include, but is not limited
to, all of the following items:
(1) All project application materials.
(2) All staff reports and related documents prepared by the
respondent public agency with respect to its compliance with the
substantive and procedural requirements of this division and with
respect to the action on the project.
(3) All staff reports and related documents prepared by the
respondent public agency and written testimony or documents submitted
by any person relevant to any findings or statement of overriding
considerations adopted by the respondent agency pursuant to this
division.
(4) Any transcript or minutes of the proceedings at which the
decisionmaking body of the respondent public agency heard testimony
on, or considered any environmental document on, the project, and any
transcript or minutes of proceedings before any advisory body to the
respondent public agency that were presented to the decisionmaking
body prior to action on the environmental documents or on the
project.
(5) All notices issued by the respondent public agency to comply
with this division or with any other law governing the processing and
approval of the project.
(6) All written comments received in response to, or in connection
with, environmental documents prepared for the project, including
responses to the notice of preparation.
(7) All written evidence or correspondence submitted to, or
transferred from, the respondent public agency with respect to
compliance with this division or with respect to the project.
(8) Any proposed decisions or findings submitted to the
decisionmaking body of the respondent public agency by its staff, or
the project proponent, project opponents, or other persons.
(9) The documentation of the final public agency decision,
including the final environmental impact report, mitigated negative
declaration, or negative declaration, and all documents, in addition
to those referenced in paragraph (3), cited or relied on in the
findings or in a statement of overriding considerations adopted
pursuant to this division.
(10) Any other written materials relevant to the respondent public
agency's compliance with this division or to its decision on the
merits of the project, including the initial study, any drafts of any
environmental document, or portions thereof, that have been released
for public review, and copies of studies or other documents relied
upon in any environmental document prepared for the project and
either made available to the public during the public review period
or included in the respondent public agency's files on the project,
and all internal agency communications, including staff notes and
memoranda related to the project or to compliance with this division.
(11) The full written record before any inferior administrative
decisionmaking body whose decision was appealed to a superior
administrative decisionmaking body prior to the filing of litigation.
(f) In preparing the record of proceedings, the party preparing
the record shall strive to do so at reasonable cost in light of the
scope of the record.
(g) The clerk of the superior court shall prepare and certify the
clerk's transcript on appeal not later than 60 days from the date
that the notice designating the papers or records to be included in
the clerk's transcript was filed with the superior court, if the
party or parties pay any costs or fees for the preparation of the
clerk's transcript imposed in conformance with any law or rules of
court. Nothing in this subdivision precludes an election to proceed
by appendix, as provided in Rule 8.124 of the California Rules of
Court.
(h) Extensions of the period for the filing of any brief on appeal
may be allowed only by stipulation of the parties or by order of the
court for good cause shown. Extensions for the filing of a brief on
appeal shall be limited to one 30-day extension for the preparation
of an opening brief and one 30-day extension for the preparation of a
responding brief, except that the court may grant a longer extension
or additional extensions if it determines that there is a
substantial likelihood of settlement that would avoid the necessity
of completing the appeal.
(i) At the completion of the filing of briefs on appeal, the
appellant shall notify the court of the completion of the filing of
briefs, whereupon the clerk of the reviewing court shall set the
appeal for hearing on the first available calendar date.
SEC. 5. Section 21167.6.2 is added to the Public Resources Code,
to read:
21167.6.2. (a) (1) Notwithstanding Section 21167.6, upon the
written request of a project applicant received no later than 30 days
after the date that the lead agency makes a determination pursuant
to subdivision (a) of Section 21080.1, Section 21094.5, or Chapter
4.2 (commencing with Section 21155) and with the consent of the lead
agency as provided in subdivision (e), the lead agency shall prepare
and certify the record of proceedings in the following manner:
(A) The lead agency for the project shall prepare the record of
proceedings pursuant to this division concurrently with the
administrative process.
(B) All documents and other materials placed in the record of
proceedings shall be posted on, and be downloadable from, an Internet
Web site maintained by the lead agency commencing with the date of
the release of the draft environmental document for the project. If
the lead agency cannot maintain an Internet Web site with the
information required pursuant to this section, the lead agency shall
provide a link on the agency's Internet Web site to that information.
(C) The lead agency shall make available to the public in a
readily accessible electronic format the draft environmental document
for the project, and all other documents submitted to, cited by, or
relied on by the lead agency, in the preparation of the draft
environmental document for the project.
(D) A document prepared by the lead agency or submitted by the
applicant after the date of the release of the draft environmental
document for the project that is a part of the record of the
proceedings shall be made available to the public in a readily
accessible electronic format within 5 business days after the
document is released or received by the lead agency.
(E) The lead agency shall encourage written comments on the
project to be submitted in a readily accessible electronic format,
and shall make any comment available to the public in a readily
accessible electronic format within 5 business days of its receipt.
(F) Within 7 business days after the receipt of any comment that
is not in an electronic format, the lead agency shall convert that
comment into a readily accessible electronic format and make it
available to the public in that format.
(G) The lead agency shall certify the record of proceedings within
30 days after the filing of the notice required pursuant to Section
21108 or 21152.
(2) This subdivision does not require the disclosure or posting of
any trade secret as defined in Section 6254.7 of the Government
Code, information about the location of archaeological sites or
sacred lands, or any other information that is subject to the
disclosure restrictions of Section 6254 of the Government Code.
(b) Any dispute regarding the record of proceedings prepared
pursuant to this section shall be resolved by the court in an action
or proceeding brought pursuant to subdivision (b) or (c) of Section
21167.
(c) The content of the record of proceedings shall be as specified
in subdivision (e) of Section 21167.6.
(d) The negative declaration, mitigated negative declaration,
draft and final environmental impact report, or other environmental
document shall include a notice in no less than 12-point type stating
the following:
"THIS DOCUMENT IS SUBJECT TO SECTION 21167.6.2 OF THE PUBLIC
RESOURCES CODE, WHICH REQUIRES THE RECORD OF PROCEEDINGS FOR THIS
PROJECT TO BE PREPARED CONCURRENTLY WITH THE ADMINISTRATIVE PROCESS;
DOCUMENTS PREPARED BY, OR SUBMITTED TO, THE LEAD AGENCY TO BE POSTED
ON THE LEAD AGENCY'S INTERNET WEB SITE; AND THE LEAD AGENCY TO
ENCOURAGE WRITTEN COMMENTS ON THE PROJECT TO BE SUBMITTED TO THE LEAD
AGENCY IN A READILY ACCESSIBLE ELECTRONIC FORMAT."
(e) (1) The lead agency shall respond to a request by the project
applicant within 10 business days from the date that the request
pursuant to subdivision (a) is received by the lead agency.
(2) A project applicant and the lead agency may mutually agree, in
writing, to extend the time period for the lead agency to respond
pursuant to paragraph (1), but they shall not extend that period
beyond the commencement of the public review period for the proposed
negative declaration, mitigated negative declaration, draft
environmental impact report, or other environmental document.
(3) The request to prepare a record of proceedings pursuant to
this section shall be deemed denied if the lead agency fails to
respond within 10 business days of receiving the request or within
the time period agreed upon pursuant to paragraph (2), whichever ends
later.
(f) The written request of the applicant submitted pursuant to
subdivision (a) shall include an agreement to pay all of the lead
agency's costs of preparing and certifying the record of proceedings
pursuant to this section and complying with the requirements of this
section, in a manner specified by the lead agency.
(g) The costs of preparing the record of proceedings pursuant to
this section and complying with the requirements of this section are
not recoverable costs pursuant to Section 1032 of the Code of Civil
Procedure.
(h) Pursuant to subdivision (f) and Section 21089, the lead agency
may charge and collect a reasonable fee from the person making the
request pursuant to subdivision (a) to recover the costs incurred by
the lead agency in preparing the record of proceedings pursuant to
this section.