BILL NUMBER: AB 231 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 20, 2010
AMENDED IN SENATE AUGUST 9, 2010
AMENDED IN SENATE JUNE 23, 2010
AMENDED IN SENATE JUNE 26, 2009
AMENDED IN SENATE JUNE 18, 2009
AMENDED IN ASSEMBLY APRIL 29, 2009
INTRODUCED BY Assembly Member Huber
FEBRUARY 5, 2009
An act to amend Section 21094 of the Public Resources Code,
relating to the environment, and declaring the urgency thereof, to
take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 231, as amended, Huber. Environment: California Environmental
Quality Act: overriding consideration.
(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.
The 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. For
projects whose environmental impacts can not be mitigated to less
than significance, existing law authorizes a lead agency to find that
specified overriding economic, legal, social, technological, or
other benefits of the project outweigh the significant effects on the
environment. If an EIR has been prepared and certified for a
program, plan, policy, or ordinance, a lead agency is required to use
a tiered EIR for a later project if the lead agency determines that
the later project is consistent with the program, plan, policy, or
ordinance, and satisfies other criteria.
This bill would authorize a lead agency, until January 1, 2016, to
rely on incorporate by reference a
finding of overriding consideration made in a prior EIR for a later
project if specified conditions are met, including that the lead
agency determines that the later project's significant impacts on the
environment are not greater than or different from those identified
in the prior EIR.
(2) This bill would incorporate
additional changes to Section 21094 of the Public Resources Code
proposed by this bill and SB 1456, to be operative only if this bill
and SB 1456 are both enacted and become effective on or before
January 1, 2011, and this bill is enacted last.
(2)
(3) This bill would declare that it is to
take effect immediately as an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21094 of the Public Resources Code is amended
to read:
21094. (a) (1) If a prior environmental impact report has been
prepared and certified for a program, plan, policy, or ordinance, the
lead agency for a later project that meets the requirements of this
section shall examine significant effects of the later project upon
the environment by using a tiered environmental impact report, except
that the report on the later project need not examine those effects
that the lead agency determines were either (1) mitigated or avoided
pursuant to paragraph (1) of subdivision (a) of Section 21081 as a
result of the prior environmental impact report, or (2) examined at a
sufficient level of detail in the prior environmental impact report
to enable those effects to be mitigated or avoided by site-specific
revisions, the imposition of conditions, or other means in connection
with the approval of the later project.
(2) If a prior environmental impact report has been prepared and
certified for a program, plan, policy, or ordinance, and the lead
agency makes a finding of overriding consideration pursuant to
subdivision (b) of Section 21081, the lead agency for a later project
that uses a tiered environmental impact report from that program,
plan, policy, or ordinance may rely on
incorporate by reference that finding of overriding
consideration if all of the following conditions are met:
(A) The lead agency determines that the project's significant
impacts on the environment are not greater than or different from
those identified in the prior environmental impact report.
(B) The lead agency incorporates into the later project all the
applicable mitigation measures identified by the prior environmental
impact report.
(C) The prior statement finding of
overriding considerations was not based on a determination that
mitigation measures should be identified and approved in a subsequent
environmental review.
(D) The prior environmental impact report was certified not more
than three years before the date findings are made pursuant to
Section 21081 for the later project.
(E) Section 21166 does not apply to the prior environmental impact
report.
(E) The lead agency has determined that the mitigation measures or
alternatives found to be infeasible in the prior environmental
impact report pursuant to paragraph (3) of subdivision (a) of Section
21081 remain infeasible based on the criteria set forth in that
section.
(3) On and after January 1, 2016, a lead agency may
shall not take action pursuant to paragraph (2)
with regard to relying on a incorporating by
reference a prior finding of overriding consideration
made in a prior environmental impact report ,
and paragraph (2) shall become inoperative on that date
January 1, 2016 .
(b) This section applies only to a later project that the lead
agency determines (1) is consistent with the program, plan, policy,
or ordinance for which an environmental impact report has been
prepared and certified, (2) is consistent with applicable local land
use plans and zoning of the city, county, or city and county in which
the later project would be located, and (3) is not subject to
Section 21166.
(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.
(d) All public agencies that propose to carry out or approve the
later project may utilize the prior environmental impact report and
the environmental impact report on the later project to fulfill the
requirements of Section 21081.
(e) If tiering is used pursuant to this section, an environmental
impact report prepared for a later project shall refer to the prior
environmental impact report and state where a copy of the prior
environmental impact report may be examined.
SEC. 1.5. Section 21094 of the Public
Resources Code is amended to read:
21094. (a) Where (1)
If a prior environmental impact report has been prepared
and certified for a program, plan, policy, or ordinance, the lead
agency for a later project that meets the requirements of this
section shall examine significant effects of the later project upon
the environment by using a tiered environmental impact report, except
that the report on the later project need is
not required to examine those effects
which that the lead agency determines were either
(1) mitigated of the following:
(A) Mitigated or avoided pursuant
to paragraph (1) of subdivision (a) of Section 21081 as a result of
the prior environmental impact report , or (2) examined
.
( B ) Examined
at a sufficient level of detail in the prior environmental
impact report to enable those effects to be mitigated or avoided by
site specific site- specific
revisions, the imposition of conditions, or by other means in
connection with the approval of the later project.
(2) If a prior environmental impact report has been prepared and
certified for a program, plan, policy, or ordinance, and the lead
agency makes a finding of overriding consideration pursuant to
subdivision (b) of Section 21081, the lead agency for a later project
that uses a tiered environmental impact report from that program,
plan, policy, or ordinance may incorporate by reference that finding
of overriding consideration if all of the following conditions are
met:
(A) The lead agency determines that the project's significant
impacts on the environment are not greater than or different from
those identified in the prior environmental impact report.
(B) The lead agency incorporates into the later project all the
applicable mitigation measures identified by the prior environmental
impact report.
(C) The prior finding of overriding considerations was not based
on a determination that mitigation measures should be identified and
approved in a subsequent environmental review.
(D) The prior environmental impact report was certified not more
than three years before the date findings are made pursuant to
Section 21081 for the later project.
(E) The lead agency has determined that the mitigation measures or
alternatives found to be infeasible in the prior environmental
impact report pursuant to paragraph (3) of subdivision (a) of Section
21081 remain infeasible based on the criteria set forth in that
section.
(3) On and after January 1, 2016, a lead agency shall not take
action pursuant to paragraph (2) with regard to incorporating by
reference a prior finding of overriding consideration, and paragraph
(2) shall become inoperative on January 1, 2016.
(b) This section applies only to a later project which
that the lead agency determines (1) is
consistent is all of the following:
(1) Consistent with the program,
plan, policy, or ordinance for which an environmental impact report
has been prepared and certified , (2) is consistent
.
(2) Consistent with applicable
local land use plans and zoning of the city, county, or city and
county in which the later project would be located , and (3)
is not .
(3) Not subject to Section 21166.
(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.
(d) All public agencies which that
propose to carry out or approve the later project may utilize the
prior environmental impact report and the environmental impact report
on the later project to fulfill the requirements of Section 21081.
(e) (1) If a lead agency determines pursuant to this subdivision
that a cumulative effect has been adequately addressed in a prior
environmental impact report, that cumulative effect is not required
to be examined in a later environmental impact report, mitigated
negative declaration, or negative declaration for purposes of
subparagraph (B) of paragraph (1) of subdivision (a).
(2) When assessing whether there is a new significant cumulative
effect, the lead agency shall consider whether the incremental
effects of the project are cumulatively considerable.
(3) (A) For purposes of paragraph (2), if the lead agency
determines the incremental effects of the project are significant
when viewed in connection with the effects of past, present, and
probable future projects, the incremental effects of a project are
cumulatively considerable.
(B) If the lead agency determines incremental effects of a project
are cumulatively considerable, the later environmental impact
report, mitigated negative declaration, or negative declaration shall
examine those effects.
(4) If the lead agency makes one of the following determinations,
the cumulative effects of a project are adequately addressed for
purposes of paragraph (1):
(A) The cumulative effect has been mitigated or avoided as a
result of the prior environmental impact report and findings adopted
pursuant to paragraph (1) of subdivision (a) of Section 21081 as a
result of the prior environmental impact report.
(B) The cumulative effect has been examined at a sufficient level
of detail in the prior environmental impact report to enable the
effect to be mitigated or avoided by site-specific revisions, the
imposition of conditions, or by other means in connection with the
approval of the later project.
(e) When
(f) If tiering is used pursuant
to this section, an environmental impact report prepared for a later
project shall refer to the prior environmental impact report and
state where a copy of the prior environmental impact report may be
examined.
(g) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 2. Section 1.5 of this bill incorporates
amendments to Section 21094 of the Public Resources Code proposed by
both this bill and SB 1456. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2011, (2) each bill amends Section 21094 of the Public Resources
Code, and (3) this bill is enacted after SB 1456, in which case
Section 1 of this bill shall not become operative.
SEC. 2. SEC. 3. This act is an
urgency statute necessary for the immediate preservation of the
public peace, health, or safety within the meaning of Article IV of
the Constitution and shall go into immediate effect. The facts
constituting the necessity are:
To promote, as soon as possible, the creation of jobs in the state
by expediting the environmental review of a project, thereby
preserving the public peace, health, and safety, it is necessary for
this measure to take effect immediately.