BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 1415
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|Author: |Bates |
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|Version: |2/19/2016 |Hearing |4/6/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Joanne Roy |
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SUBJECT: California Environmental Quality Act: water projects:
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 from CEQA during the drought state of emergency
proclaimed by the Governor on January 17, 2014, for a public
agency to mitigate drought conditions by building or expanding
a recycled water pipeline and related groundwater replenishment
infrastructure if it is within an existing right-of-way, does
not impact wetlands or sensitive habitat, and where the
construction impacts are fully mitigated. This authority
remains operative until the state of emergency has expired or
until January 1, 2017, whichever occurs first. (PRC
§21080.08).
3) Exempts from CEQA the development and approval of building
standards by state agencies for recycled water systems until
July 1, 2017. (PRC §21080.45).
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4) Exempts from CEQA a local government's adoption of an ordinance
to limit or prohibit the drilling of new or deeper groundwater
wells, or to limit or prohibit increased extractions from
existing groundwater wells, through stricter conditions on the
issuance of well permits or changes in the intensity of land use
that would increase demand on groundwater. Sunsets July 1,
2017, or so long as the state of emergency declared January 17,
2014, remains in effect. (PRC §21080.46).
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This bill:
1)Exempts from CEQA a project that meets the following criteria:
a) The project is proposed by one or more public agencies, or
a combination of public agencies and private organizations,
for the purpose of mitigating drought conditions for which
the Governor has declared a state of emergency; and,
b) The project is drought-oriented and primarily intended to
provide, or preserve and maintain water to any degree or
quality:
i) Storage capacity;
ii) New, increased, or preserved production; or,
iii) Treatment.
2)Provides that an exempt project that has commenced in any form
or to any degree will remain exempt regardless of whether the
state of emergency has ended.
3)Provides that the term, "drought-oriented project" is to be
broadly interpreted.
4)Provides that an exempted project cannot be combined with a
non-drought-oriented project for purposes of making both
projects exempt.
5)Prohibits the separation of elements of a larger project, for
purposes of timely advancing of a project, from being deemed in
violation of the Public Contract Code.
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
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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, 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.
Comments
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1) Purpose of Bill.
The author states:
SB 1415 will avoid long delays for water storage projects
due to the CEQA process and allow locals to act more
quickly in dealing with water shortages during emergency
drought conditions throughout California. This committee
has passed CEQA legislation in the past seeking to exempt
or streamline the eminent domain process. Specifically in
2013, the governor signed SB 743 to streamline the CEQA
and eminent domain process to speed the development of a
downtown arena for the Sacramento Kings. If streamlining
CEQA is good enough for the Kings, why not for local water
districts in located in other geographic regions?
Similarly, the governor signed AB 83 X3 in 2009, providing
a special exemption from CEQA for the construction of a
new National Football League (NFL) sports complex within
the city of Industry. Again, I support injecting capital
and jobs into the Southern California economy, but why are
we supporting just one or two localities in California and
not helping address issues of local control throughout the
state? I believe SB 1415 is a step in the right direction
to aid our locals in times of an emergency drought in
order to provide more water storage at times we need it
most.
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
SB 1415 (Bates) Page 6 of
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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
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
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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) Sprawling exemption.
SB 1415 specifies that the term, "drought-oriented project" is to
be broadly interpreted, which would provide an exemption from
CEQA for a vast array of projects, including very large and
controversial ones such as new dams. This bill states that the
exemption applies to a project primarily intended to provide,
or preserve and maintain: storage capacity to any degree or
quality, production of water to any degree or quality, or
treatment of water to any degree or quality. Ensuring an
adequate water supply is critical, particularly in times of
drought, but to bypass the environmental review process for any
project that may even be tangentially "drought-oriented" and be
hastily acted upon without the transparency, public
participation, and informed decisionmaking provided by CEQA is
highly questionable in terms of short- and long-term
consequences for public health, the environment, and land use
planning.
2) Need for the bill?
On January 17, 2014, Governor Brown signed a proclamation
declaring a drought State of Emergency in California. The
Governor's Proclamation suspended CEQA to the extent that CEQA
otherwise would have applied to specified actions necessary to
mitigate the effects of the drought. On April 25, 2014, the
Governor issued an Executive Order to redouble state drought
actions. The Executive Order continued to suspend
environmental review required by CEQA to allow actions called
for in the proclamation to respond to the drought to take place
as quickly as possible. On December 22, 2014, the Governor
issued Executive Order B-28-14, which extended the waiver of
CEQA contained in the January 17, 2014 and April 25, 2014
Proclamations through May 31, 2016. Last year, the Legislature
passed, and the Governor signed, SB 88 (Committee on Budget and
Fiscal Review, Chapter 27, Statutes of 2015), which included
tailored CEQA exemptions for the purpose of addressing the
drought.
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Considering the several CEQA-related actions mentioned above by
the Governor as well as the Legislature to address this
drought, the committee may wish to consider the need for this
bill.
SOURCE: Author
SUPPORT:
Association of California Water Agencies
California Chamber of Commerce
Civil Justice Association of California
OPPOSITION:
California League of Conservation Voters
Planning and Conservation League
Sierra Club California
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