Senate BillNo. 127


Introduced by Senators Vidak, Fuller, and Nielsen

(Principal coauthor: Assembly Member Olsen)

January 20, 2015


An act to add Section 21168.6.7 to the Public Resources Code, relating to environmental quality.

LEGISLATIVE COUNSEL’S DIGEST

SB 127, as introduced, Vidak. Environmental quality: Water Quality, Supply, and Infrastructure Improvement Act of 2014.

(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 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 by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA and 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.

The Water Quality, Supply, and Infrastructure Improvement Act of 2014, (Proposition 1), approved by the voters on the November 2, 2014 statewide general election, authorizes the issuance of bonds in the amount of $7,120,000,000 pursuant to the State General Obligation Bond Law to finance a water quality, supply, and infrastructure improvement program.

This bill would require the public agency, in certifying the environmental impact report and in granting approvals for projects funded, in whole or in part, by Proposition 1, including the concurrent preparation of the record of proceedings and the certification of the record of proceeding within 5 days of the filing of a specified notice, to comply with specified procedures. Because a public agency would be required to comply with those new procedures, this bill would impose a state-mandated local program. The bill would require the Judicial Council, on or before July 1, 2016, to adopt a rule of court to establish procedures applicable to actions or proceedings seeking judicial review of a public agency’s action in certifying the environmental impact report and in granting project approval for those projects that require the actions or proceedings, including any appeals therefrom, be resolved, to the extent feasible, within 270 days of the certification of the record of proceedings. The bill would prohibit a court from staying or enjoining those projects unless it makes specified findings.

(2) 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.

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

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

P2    1

SECTION 1.  

Section 21168.6.7 is added to the Public
2Resources Code
, to read:

3

21168.6.7.  

(a) For the purposes of this section “water project”
4means a project funded, in whole or in part, with proceeds of bonds
5sold pursuant to the Water Quality, Supply and Infrastructure
6Improvement Act of 2014 (Division 26.7 (commencing with
7Section 79700) of the Water Code).

8(b) Notwithstanding any other law, the procedures established
9pursuant to subdivision (c) shall apply to an action or proceeding
10brought to attack, review, set aside, void, or annul the certification
11of the environmental impact report for a water project or the
12granting of any approvals for a water project.

P3    1(c) On or before July 1, 2016, the Judicial Council shall adopt
2a rule of court to establish procedures applicable to actions or
3proceedings brought to attack, review, set aside, void, or annul the
4certification of the environmental impact report for a water project
5or the granting of any project approvals that require the actions or
6proceedings, including any potential appeals therefrom, be
7resolved, to the extent feasible, within 270 days of certification of
8the record of proceedings pursuant to subdivision (e).

9(d) (1)   The draft and final environmental impact report for a
10water project shall include a notice in not less than 12-point type
11stating the following:

12THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE
13PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG
14OTHER THINGS, THAT THE LEAD AGENCY NEED NOT
15 CONSIDER CERTAIN COMMENTS FILED AFTER THE
16CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE
17DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE
18CERTIFICATION OF THE EIR OR THE APPROVAL OF THE
19PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE
20PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE
21PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7
22OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE
23APPENDIX TO THIS EIR.

24(2) The draft environmental impact report and final
25environmental impact report shall contain, as an appendix, the full
26text of this section.

27(3) Within 10 days after the release of the draft environmental
28impact report, the lead agency shall conduct an informational
29workshop to inform the public of the key analyses and conclusions
30of that report.

31(4) Within 10 days before the close of the public comment
32period, the lead agency shall hold a public hearing to receive
33testimony on the draft environmental impact report. A transcript
34of the hearing shall be included as an appendix to the final
35environmental impact report.

36(5) (A)   Within five days following the close of the public
37comment period, a commenter on the draft environmental impact
38report may submit to the lead agency a written request for
39nonbinding mediation. The lead agency and applicant shall
40participate in nonbinding mediation with all commenters who
P4    1submitted timely comments on the draft environmental impact
2report and who requested the mediation. Mediation conducted
3pursuant to this paragraph shall end no later than 35 days after the
4close of the public comment period.

5(B) A request for mediation shall identify all areas of dispute
6raised in the comment submitted by the commenter that are to be
7mediated.

8(C) The lead agency shall select one or more mediators who
9shall be retired judges or recognized experts with at least five years
10experience in land use and environmental law or science, or
11mediation. The applicant shall bear the costs of mediation.

12(D) A mediation session shall be conducted on each area of
13dispute with the parties requesting mediation on that area of
14dispute.

15(E) The lead agency shall adopt, as a condition of approval, any
16measures agreed upon by the lead agency, the applicant, and any
17commenter who requested mediation. A commenter who agrees
18to a measure pursuant to this subparagraph shall not raise the issue
19addressed by that measure as a basis for an action or proceeding
20challenging the lead agency’s decision to certify the environmental
21impact report or to grant one or more initial project approvals.

22(6) The lead agency need not consider written comments
23submitted after the close of the public comment period, unless
24those comments address any of the following:

25(A) New issues raised in the response to comments by the lead
26agency.

27(B) New information released by the public agency subsequent
28to the release of the draft environmental impact report, such as
29new information set forth or embodied in a staff report, proposed
30permit, proposed resolution, ordinance, or similar documents.

31(C) Changes made to the project after the close of the public
32comment period.

33(D) Proposed conditions for approval, mitigation measures, or
34proposed findings required by Section 21081 or a proposed
35reporting and monitoring program required by paragraph (1) of
36subdivision (a) of Section 21081.6, where the lead agency releases
37those documents subsequent to the release of the draft
38environmental impact report.

39(E) New information that was not reasonably known and could
40not have been reasonably known during the public comment period.

P5    1(7) The lead agency shall file the notice required by subdivision
2(a) of Section 21108 or subdivision (a) of Section 21152 within
3five days after the last initial project approval.

4(e) (1)   The lead agency shall prepare and certify the record of
5the proceedings in accordance with this subdivision and in
6accordance with Rule 3.1365 of the California Rules of Court. The
7applicant shall pay the lead agency for all costs of preparing and
8certifying the record of proceedings.

9(2) No later than three business days following the date of the
10release of the draft environmental impact report, the lead agency
11shall make available to the public in a readily accessible electronic
12format the draft environmental impact report and all other
13documents submitted to or relied on by the lead agency in the
14preparation of the draft environmental impact report. A document
15prepared by the lead agency or submitted by the applicant after
16the date of the release of the draft environmental impact report
17that is a part of the record of the proceedings shall be made
18available to the public in a readily accessible electronic format
19within five business days after the document is prepared or received
20by the lead agency.

21(3) Notwithstanding paragraph (2), documents submitted to or
22relied on by the lead agency that were not prepared specifically
23for the project and are copyright protected are not required to be
24made readily accessible in an electronic format. For those copyright
25protected documents, the lead agency shall make an index of these
26documents available in an electronic format no later than the date
27of the release of the draft environmental impact report, or within
28five business days if the document is received or relied on by the
29lead agency after the release of the draft environmental impact
30report. The index must specify the libraries or lead agency offices
31in which hardcopies of the copyrighted materials are available for
32public review.

33(4) The lead agency shall encourage written comments on the
34project to be submitted in a readily accessible electronic format,
35and shall make any such comment available to the public in a
36readily accessible electronic format within five days of its receipt.

37(5) Within seven business days after the receipt of any comment
38that is not in an electronic format, the lead agency shall convert
39that comment into a readily accessible electronic format and make
40it available to the public in that format.

P6    1(6) The lead agency shall indicate in the record of the
2proceedings comments received that were not considered by the
3lead agency pursuant to paragraph (6) of subdivision (d) and need
4not include the content of the comments as a part of the record.

5(7) Within five days after the filing of the notice required by
6subdivision (a) of Section 21108 or subdivision (a) of Section
7 21152, the lead agency shall certify the record of the proceedings
8for the approval or determination and shall provide an electronic
9copy of the record to a party that has submitted a written request
10for a copy. The lead agency may charge and collect a reasonable
11fee from a party requesting a copy of the record for the electronic
12copy, which shall not exceed the reasonable cost of reproducing
13that copy.

14(8) Within 10 days after being served with a complaint or a
15petition for a writ of mandate, the lead agency shall lodge a copy
16of the certified record of proceedings with the superior court.

17(9) Any dispute over the content of the record of the proceedings
18shall be resolved by the superior court. Unless the superior court
19directs otherwise, a party disputing the content of the record shall
20file a motion to augment the record at the time it files its initial
21brief.

22(10) The contents of the record of proceedings shall be as set
23forth in subdivision (e) of Section 21167.6.

24(f) (1)   (A)   In granting relief in an action or proceeding brought
25pursuant to this division, the court shall not stay or enjoin the
26construction or operation of a water project unless the court finds
27either of the following:

28(i) The continued construction or operation of the water project
29presents an imminent threat to the public health and safety.

30(ii) The water project site contains unforeseen important Native
31American artifacts or unforeseen important historical,
32archaeological, or ecological values that would be materially,
33permanently, and adversely affected by the continued construction
34or operation of the water project unless the court stays or enjoins
35the construction or operation of the water project.

36(B) If the court finds that clause (i) or (ii) is satisfied, the court
37shall only enjoin those specific activities associated with the water
38project that present an imminent threat to public health and safety
39or that materially, permanently, and adversely affect unforeseen
P7    1important Native American artifacts or unforeseen important
2historical, archaeological, or ecological values.

3(2) An action or proceeding to attack, set aside, void, or annul
4a determination, finding, or decision of the lead agency granting
5a subsequent project approval shall be subject to the requirements
6of Chapter 6 (commencing with Section 21165).

7

SEC. 2.  

No reimbursement is required by this act pursuant to
8Section 6 of Article XIII B of the California Constitution because
9a local agency or school district has the authority to levy service
10charges, fees, or assessments sufficient to pay for the program or
11level of service mandated by this act, within the meaning of Section
1217556 of the Government Code.



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