BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: SB 1008 ----------------------------------------------------------------- |Author: |Lara | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |3/28/2016 |Hearing |4/6/2016 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Joanne Roy | | | | ----------------------------------------------------------------- SUBJECT: California Environmental Quality Act: Los Angeles Regional Interoperable Communications System: exemption ANALYSIS: Existing law: 1) Under the California Environmental Quality Act (CEQA), 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). (Public Resources Code (PRC) §21000 et seq.) 2) Exempts the design, site acquisition, construction, operation or maintenance of certain Los Angeles Regional Interoperable Communications System (LA-RICS) equipment and structures, if specified criteria are met. This provision sunsets January 1, 2017. (PRC §21080.25). This bill: 1) Exempts from CEQA the design, site acquisition, construction, operation or maintenance of certain structures and equipment of LA-RICS, consisting of long-term evolution (LTE) broadband mobile data system and a land mobile radio (LMR) system, if specified criteria are met. SB 1008 (Lara) Page 2 of ? 2) Requires each LA-RICS project exempted from CEQA to meet specified criteria, including: a) The project site is publicly owned and already contains antennas and/or equipment enclosures. b) The construction and implementation at the project site would not substantially adversely impact wetlands, riparian areas, or habitat of significant value, and would not harm any protected species. c) The construction and implementation of the project at the site would not substantially adversely impact historical resources. d) Operation of the project would not exceed the maximum permissible exposure standards established by the Federal Communications Commission. e) A new LTE antenna support structure or LMR antenna support structure would comply with applicable height restrictions; and certain equipment may not exceed specified height limits. f) A new central system switch must be located within an existing enclosed structure at a publicly owned project site or housed at an existing private communications facility. 3) Specifies that this exemption does not apply if the project site is located on a school site, or cultural or sacred site. 4) Prior to determining whether this exemption may apply to a project, requires the LA-RICS Joint Powers Authority (Authority) to do the following: a) Hold noticed public hearings in areas affected by the project to hear and respond to public comments. b) Provide public notice in a newspaper of general circulation in the area affected by the project. 5) For an exempted project, requires the Authority to file a notice of exemption (NOE) with the Office of Planning and Research and the county clerk in the county in which the project is located as well as post the NOE on its website. 6) Requires the Authority to post on its website information SB 1008 (Lara) Page 3 of ? related to environmental reviews of LA-RICS projects. 7) Requires the Authority and its member agencies to approve use agreements for the LA-RICS in an open and noticed public meeting. 8) Extends the sunset for this exemption from January 1, 2017 to January 1, 2020. 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. 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, SB 1008 (Lara) Page 4 of ? 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. 1) LA-RICS. According to the Authority: [LA-RICS] will provide improved radio and broadband communication for the public safety providers of the greater Los Angeles region. LA-RICS is comprised of two distinct, but compatible projects: a [LMR] communications and a [LTE] broadband communications system. Covering 88 cities and the unincorporated area of Los Angeles County within a 4.084 square mile area, LA-RICS will provide integrated communications for over 50 law enforcement agencies, 31 fire departments as well as Emergency Medical Services (EMS), transportation, and education agencies. The LMR communication system will provide day-to-day voice and narrowband data radio communications service for individual public safety agencies, enable interoperability and interagency communications among member agencies and mutual aid providers, and support communications with regional, state, and federal agencies during disaster events?The LTE wireless network technology will provide day-to-day broadband data communications service for individual public safety agencies, provide emergency responders high speed access to lifesaving multimedia information, and support the National Public Safety Broadband Network (NPSBN) initiative. Comments SB 1008 (Lara) Page 5 of ? 2) Purpose of Bill. According to the author: [LA-RICS] is the single greatest emergency preparedness and homeland security need in the Los Angeles region. The system will provide direct communication interoperability between law enforcement, fire, Federal, State and military agencies in major disasters, such as floods, fires, earthquakes, and terrorist incidents. The LA-RICS Project is especially critical given the tragic event of September 11th, which demonstrated the necessity of an interoperable communications system that would assist first-responders in saving lives. SB 1008 would extend the current CEQA exemption deadline for the LA-RICS project for three additional years, from January 1, 2017, to January 1, 2020. The extension of the current CEQA exemption is needed to continue to build out the LA-RICS LTE broadband system and LMR system, and would facilitate the timely environmental review and construction of sites that would be used for this important project. The Federal environmental review process, under the National Environmental Policy Act, for the LA-RICS Project sites, which is still required for the CEQA-exempt sites, has taken longer than previously anticipated. The proposed extension is especially essential for the continued build out of the LA-RICS system which is funded by the critical Federal Broadband Technology Opportunities Program (BTOP) grant awarded to the LA-RICS Authority by the U.S. Department of Commerce. Recently enacted Federal legislation provided a five-year extension for BTOP grant recipients, including LA-RICS, through Federal Fiscal Year 2020. The extension would allow much needed additional time for LA-RICS to construct additional sites to increase coverage and capacity of the LTE broadband system, and ensure that these sites are streamlined for environmental review, constructed and completed on time to enable first responders to communicate in all emergencies and major disasters. The exemption will not apply to undeveloped land or privately-owned land. It will only apply to sites on publicly-owned land where telecommunication infrastructure is already located such as on existing police, sheriff or fire station sites which already contain existing antenna support SB 1008 (Lara) Page 6 of ? structure. Sites will not be located in environmentally sensitive areas, such as wetlands, riparian areas, or habitat of significant value, and would not adversely affect historical resources. 3) AB 1486 (Lara) Letter to the Journal. On August 24, 2012, AB 1486 (Lara, Chapter 690, Statutes of 2012) was amended to exempt from CEQA certain LA-RICS projects and was passed by the Legislature on August 31, 2012. Because of AB 1486's rush through the legislative process, some requirements did not make it into the final version of the bill. However, in order to stay true to commitments made on AB 1486, the author wrote a Letter to the Journal on August 31, 2012, stating his intent that the bill include additional, specified requirements in order for the LA-RICS exemption in AB 1486 to apply to a project. SB 1008 includes those requirements specified in the author's Letter to the Journal so as to ensure that the exemption more accurately reflects AB 1486 requirements in their entirety. 4) 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: SB 1008 (Lara) Page 7 of ? 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 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, the total number of CEQA cases filed averages about 200 cases per year statewide and make up approximately 0.02% of 1,100,000 civil cases filed annually in California. The California Attorney General's office conducted a case study of CEQA challenges in the City and County of San Francisco from July 2011 through December 2011 and found that 18 lawsuits were filed out of 5,203 projects considered under CEQA. CEQA litigation is low considering the thousands of projects subject to CEQA each year as well as for the volume of civil litigation in general statewide. In addition, 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)? 1) LA-RICS past issues. LA-RICS has not been without its share of problems such as labor disputes, environmental concerns, and public protests. Some issues that have arisen over the last year include: SB 1008 (Lara) Page 8 of ? a) By mid-February 2015, 13 of the 86 cities dropped out of LA-RICS, which leaves those remaining to carry a larger portion of the costs. Also, some cities refused to approve sites, which reduced the number of sites for the LTE network. b) In March 2015, the Los Angeles County Board of Supervisors ordered a halt to the construction of towers at county fire stations citing a lack of transparency and complaints that the project was moving forward without adequate notice to residents. Firefighters raised concern about radio frequency emissions causing the potential health hazards to them and neighboring residents. c) On April 1, 2015, the Los Angeles City Council members voted to stop build-out of the LTE system as well, citing potential financial burdens on the city. d) On April 3, 2015, the National Telecommunications and Information Administration (NTIA) suspended a $154 million grant to the Authority for LA-RICS, noting the project was "severely behind schedule." Federal officials ordered communications project managers to "stop all work immediately" and directed LA-RICS authority to submit an amended LTE network plan by April 13, 2015 that was acceptable to the Los Angeles City Council, the Los Angeles County Board of Supervisors, and NTIA. The LTE network plan began with potentially 232 sites; when the suspension occurred, the number of sites had decreased to 177; the revised LTE network plan reduced the number to 82 sites. e) In November 2015, the Los Angeles City Council members unanimously voted to opt out of its membership to LA-RICS citing potential cost advantage of deploying a new city-owned LMR network. According to a city report, if the city had remained a member of LA-RICS after November 24, 2015, the city would have been liable for 29%-33% of all LA-RICS costs. f) The LA-RICS projects subject to this bill require an environmental review under the National Environmental Protection Act (NEPA). According to the author, the federal environmental review process for the LA-RICS project sites has taken longer than previously expected - In fact, the SB 1008 (Lara) Page 9 of ? closing date for the public review period for the Draft Programmatic Environmental Assessment (DPEA) for the LA-RICS LMR project is April 5, 2016. The Authority complied with CEQA for the LMR sites that were not exempt pursuant to PRC §21080.25; and issued the Final EIR for the LA-RICS LMR System on March 21, 2016. The author states, "The Authority approved sites in the LTE project in 2014 and 2015 and determined that all LTE sites were exempt from review under CEQA pursuant to PRC §21080.25, the statutory CEQA exemption specifically adopted for LA-RICS." A question arises as to whether some of these issues could have been avoided or mitigated through the CEQA process such as providing transparency and a forum to address public concerns about health risks to firefighters and local residents, which as noted above, were serious enough concerns to make both the City of Los Angeles and the Los Angeles County Board of Supervisors halt construction in March 2015. Also, considering that the NEPA review has yet to be completed for the LMR project and the CEQA review is done, a question arises as to how much time the CEQA exemption actually saved. Related/Prior Legislation AB 1486 (Lara, Chapter 690, Statutes of 2012) exempted the design, site acquisition, construction, operation or maintenance of certain LA-RICS equipment, and sunsets January 1, 2017. SOURCE: County of Los Angeles County of Los Angeles Sheriff's Department SUPPORT: California Chamber of Commerce California State Sheriffs' Association OPPOSITION: California League of Conservation Voters Sierra Club California -- END --