BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Bob Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 487 Hearing Date: 4/29/15
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|Author: |Nielsen |
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|Version: |2/26/2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Joanne Roy |
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Subject: Sustainable Groundwater Management Act: California
Environmental Quality Act: exemptions
ANALYSIS:
Existing law:
1. Under the California Environmental Quality Act (CEQA) (Public
Resources Code §21000 et seq.), requires lead agencies with the
principal responsibility for carrying out or approving a
proposed discretionary 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. Exempts various types of projects from CEQA, such as:
A. Operation, repair, maintenance, permitting, leasing,
licensing, or minor alteration of existing public or
private structures and facilities. (CEQA Guidelines
§15301).
B. Replacement or reconstruction of existing structures or
facilities where the new structure will be located on the
same site and have substantially the same purpose. (CEQA
Guidelines §15302).
C. Construction and location of limited new, small
facilities or structures. (CEQA Guidelines §15303).
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3. Establishes the Sustainable Groundwater Management Act (SGMA):
A. Requires all groundwater basins designated as high- or
medium-priority basins that are subject to critical
conditions of overdraft to be managed under a groundwater
sustainability plan (GSP) by January 31, 2020. (Water Code
§10720.7).
B. Requires all other high- or medium-priority basins to
be managed under a GSP by January 31, 2022, except as
specified. (WC §10720.7).
C. Exempts the preparation and adoption of GSPs from CEQA.
(WC §10728.6)
D. Specifically states that a project implementing actions
taken pursuant to SGMA is not exempt from CEQA. (WC
§10728.6)
This bill:
1. Exempts from CEQA the formation of a groundwater sustainability
agency.
2. Exempts from CEQA the amendment of a GSP or coordinated GSP.
3. Exempts from CEQA a project that implements one of those plans,
except to the extent that the implementation requires the
construction or installation of a new facility.
Background
1. CEQA: Environmental Review Process.
CEQA provides a process for evaluating the environmental effects
of a project, and includes statutory exemptions as well as
categorical exemptions in the CEQA guidelines. If a project is
not exempt from CEQA, an initial study is prepared to determine
whether a 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, then the lead agency must prepare an EIR.
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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 an 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.
If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure must be
discussed but in less detail than the significant effects of
the proposed project.
2. What is Analyzed in an Environmental Review?
Pursuant to CEQA, an environmental review analyzing the
significant direct and indirect environmental impacts of a
proposed project, may include water quality, surface and
subsurface hydrology, land use and agricultural resources,
transportation and circulation, air quality and greenhouse gas
emissions, terrestrial and aquatic biological resources,
aesthetics, geology and soils, recreation, public services and
utilities such as water supply and wastewater disposal,
cultural resources, and tribal cultural resources.
The analysis must also evaluate the cumulative impacts of any
past, present, and reasonably foreseeable projects/activities
within study areas that are applicable to the resources being
evaluated. A study area for a proposed project must not be
limited to the footprint of the project because many
environmental impacts of a development extend beyond the
identified project boundary. Also, CEQA stipulates that the
environmental impacts must be measured against existing
physical conditions within the project area, not future,
allowable conditions.
3. Sustainable Groundwater Management Act.
On September 16, 2014, Governor Edmund G. Brown, Jr. signed a
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three-bill package known as the Sustainable Groundwater
Management Act. The three bills that make up SGMA are SB 1319
(Pavley), Chapter 348, Statutes of 2014, SB 1168 (Pavley),
Chapter 346, Statutes of 2014, and AB 1739 (Dickinson), Chapter
347, Statutes of 2014. SGMA allows local agencies to customize
groundwater sustainability plans to their regional economic and
environmental needs. SGMA creates a framework for sustainable,
local groundwater management for the first time in California.
SGMA requires local agencies to establish a new governance
structure, known as Groundwater Sustainability Agencies, prior
to developing groundwater sustainability plans for groundwater
basins or sub-basins that are designated as medium or high
priority. SGMA does the following:
Provides for sustainable management of groundwater
basins.
Enhances local management of groundwater consistent with
rights to use or store groundwater.
Establishes minimum standards for effective, continuous
management of groundwater.
Provides local groundwater agencies with the authority,
technical, and financial assistance needed to maintain
groundwater supplies.
Avoids or minimizes impacts for land subsidence.
Improves data collection and understanding of
groundwater resources and management.
Increases groundwater storage and removes impediments to
recharge.
Empowers local agencies to manage groundwater basins,
while minimizing state intervention.
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Comments
1. Purpose of Bill.
According to the author, "This bill seeks to minimize burdensome
costs and delays that are so often associated with CEQA by
providing a limited exemption to include the formation of a
groundwater agency, the preparation of groundwater management
plans or the enforcement of groundwater sustainability plans.
"Under current law, the requirement to perform CEQA will likely
foil the efforts of GSAs to form in a timely fashion and,
consequently, will impede groundwater sustainability planning
process.
"This bill is intended to help local agencies maintain control of
groundwater basins and limit unnecessary state intervention."
2. What is Lost With a CEQA Exemption?
It is not unusual for certain interests to assert that a
particular exemption will expedite construction of a particular
type of project and reduce costs. This, however, frequently
overlooks the benefits of adequate environmental review where
lead and responsible agencies are legally accountable for their
actions: to inform decisionmakers and the public about project
impacts, identify ways to avoid or significantly reduce
environmental damage, prevent environmental damage by requiring
feasible alternatives or mitigation measures, disclose to the
public reasons why an agency approved a project if significant
environmental effects are involved, involve public agencies in
the process, and increase public participation in the
environmental review and the planning processes.
If a project is exempt from CEQA, certain issues should be
addressed. For example:
How can decisionmakers and the public be aware of impacts,
mitigation measures, and alternatives of a project because of
the exemption?
Is it appropriate for the public to live with the
consequences when a project is exempt and impacts may not be
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mitigated and alternatives may not be considered regarding
certain matters, such as air quality, water quality, and
noise impacts?
Because adverse project impacts do not disappear when they
are not identified and mitigated, does an exemption result in
a direct transfer of responsibility for mitigating impacts
from the applicant to the public (i.e., taxpayers) if impacts
are ultimately addressed after completion of the project?
If taxpayers, rather than the project applicant, are
ultimately responsible for mitigating certain impacts of such
a project after project completion, what assessments or taxes
will be increased to fund mitigation or pay for alternatives
at a later date?
It is also not unusual for certain interests to blame CEQA
lawsuits. However, according to a study on the issue, "Despite
criticisms that CEQA often results in litigation, CEQA-related
litigation is relatively rare." The study noted that the
number of lawsuits to the number of CEQA reviews "yields an
estimate of one lawsuit per 354 CEQA reviews."
Those citing CEQA and CEQA litigation as a problem do not
indicate the result of that litigation. Were significant
impacts that were not evaluated in the initial document
ultimately addressed? What would have been the result if those
impacts had not been mitigated (e.g., flooding, exposure of
people to hazards, inadequate public services, congestion)?
When some suggest that CEQA "reforms" may be needed, others
note various provisions of CEQA that already provide
streamlined approaches, including master and focused EIRs;
transit priority and residential project streamlining (enacted
by SB 375 (Steinberg, Ducheny) Chapter 728, Statutes of 2008);
expedited review for environmental mandated projects; special
procedures for various types of housing projects (enacted by SB
1925 (Sher, Polanco) Chapter 1039, Statutes of 2002); various
litigation, mediation, tiering, and other revisions (SB 1456
(Simitian) Chapter 496, Statutes of 2010); amendments to
procedures relating to findings of overriding consideration (AB
231 (Huber) Chapter 432, Statutes of 2010); infill project and
other streamlining provisions (SB 226 (Simitian) Chapter 469,
Statutes of 2011); and several categorical exemptions contained
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in the CEQA Guidelines. Challenges to CEQA determinations must
be commenced within an unusually short 30 days of an agency's
filing of a notice of determination. Also, no later than 20
days from the date of service upon a public agency, the public
agency must file a notice with the court setting a time and
place for all parties to meet and attempt to settle the
litigation.
1. Hub for Multi-Disciplinary Regulatory Process.
A CEQA exemption does not alleviate a project proponent from its
obligation to obtain mandatory permits or adhere to specified
regulatory programs. CEQA assists in moving a project through
the multi-disciplinary, regulatory process because responsible
agencies rely on the lead agency's environmental documentation
in acting on the aspect of the project that requires its
approval and must prepare its own findings regarding the
project. A variety of issues, many of which involve permitting
and/or regulatory program requirements, should be coordinated
and analyzed together as a whole. CEQA provides a comprehensive
analysis of a project's impacts in those subject areas.
2. Proposed Exemption for a Project Implementing a Plan.
SGMA exempts the preparation and adoption of GSPs from CEQA, but
specifically states that a project implementing actions taken
pursuant to SGMA is not exempt from CEQA. This bill proposes
to exempt a "project that implements a plan or coordinated
plan, except to the extent that the implementation requires the
construction or installation of a new facility."
A. Projects Implementing a GSP: Unintended Consequences.
Because a plan is not subject to CEQA, it seems all the more
imperative to require an environmental review for
implementing projects. Not only do those actions need an
analysis about the project itself, but also to consider
alternatives, direct and indirect impacts, cumulative
impacts, and how that one project may affect other projects
implementing a GSP and vice versa.
In addition, SGMA specifying that implementing projects are not
exempted from CEQA prevents an action from possibly
bypassing CEQA by including it in the GSP itself and simply
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considered part of the plan. For example, if a plan
includes a reservoir expansion, then that project
implementing the plan should be subject to an environmental
review. Providing an exemption for both the plan and
project would allow a reservoir expansion to go without the
transparency, public participation, and mitigation as
provided by conducting an environmental review.
B. "Project" is the Whole of an Action.
As defined in the CEQA Guidelines §15378, a "project" means
"the whole of an action, which has a potential for resulting
in either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the
environment?" Carving out an exception to the proposed
exemption for a "new facility" is inconsistent with
analyzing the whole of the action - CEQA does not allow for
segmenting a project.
C. "New Facility" is Vague.
The term "new facility" is unclear and too broad without a
definition. For example, if a project proposes to increase
water supply by expanding a reservoir, the project may
include modifying or replacing infrastructure, or building a
dam higher. Would an expansion to an existing reservoir be
considered a new facility or would it be covered by the
exemption for a project implementing a plan?
Current law provides exemptions for existing facilities and
replacement/reconstruction of them as well as new
construction or conversion of small structures. This bill
would increase ambiguity in the law.
3. Conclusion.
There is no illustrated need for the bill and exempting projects
implementing a GSP may have unintended consequences. As noted
above, much is lost when a CEQA exemption applies to a project.
CEQA provides decisionmakers and the public the opportunity to
become aware of and understand potential significant impacts,
how they may be mitigated, and look at alternative measures.
Is it prudent to force the public to live with the consequences
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of unmitigated significant impacts?
In this case, a project may proceed that could harm the
environment. While the project may implement a plan, it may
result in not achieving the overall goals and intent of the
SGMA.
Related/Prior Legislation
AB 455 (Bigelow) requires Judicial Council to establish procedures
for actions or proceedings brought to attack, review, set aside,
void, or annul the certification of an EIR for projects covered by
a groundwater sustainability plan that require the actions or
proceedings be resolved within 270 days of certification of the
record of proceeding; and prohibits the court from staying or
enjoining the construction or operation of a project unless the
court makes a certain finding. This bill is currently in Assembly
Water, Parks & Wildlife.
SB 1319 (Pavley), Chapter 348, Statutes of 2014, SB 1168 (Pavley),
Chapter 346, Statutes of 2014, and AB 1739 (Dickinson), Chapter
347, Statutes of 2014, establish the Sustainable Groundwater
Management Act requiring all groundwater basins designated as
high- or medium-priority basins that are subject to critical
conditions of overdraft to be managed under a groundwater
sustainability plan by January 31, 2020; requires all other high-
or medium-priority basins to be managed under a groundwater
sustainability plan by January 31, 2022, except as specified.
SOURCE: Author
SUPPORT:
Association of California Water Agencies
Rural County Representatives of California
OPPOSITION:
Clean Water Action
Community Water Center
Sierra Club California
ARGUMENTS IN SUPPORT: According to opposition, they "[believe]
that CEQA exemptions should apply to formation of [Groundwater
Sustainability Agencies], so that the [Groundwater Sustainability
Plan] planning process can proceed without delay."
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ARGUMENTS IN OPPOSITION: According to a coalition of opposition,
"This bill creates an unreasonably broad exemption from
[CEQA]?This legislation has the effect of removing the entire SGMA
implementation process from public scrutiny and environmental
oversight. This could have significant local impacts, including
lack of public notification and oversight of what may be a complex
local agenc[y] with significant new powers, and implementation of
projects that don't involve new facilities but still have impacts
on surface flow and ecosystems."
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