BILL NUMBER: SB 476 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 23, 2009
INTRODUCED BY Senator Correa
FEBRUARY 26, 2009
An act to amend Sections 21083, 21091, and 21177 of, and
to add Section 21080.34 to, Section 21177 of the
Public Resources Code, relating to the environment.
LEGISLATIVE COUNSEL'S DIGEST
SB 476, as amended, Correa. Environment: California Environmental
Quality Act: noncompliance allegations: public comment.
(1) The
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. 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 provides for a public review period for the public
to review a draft EIR, proposed negative declaration, or proposed
mitigated negative declaration. CEQA requires a lead agency to
evaluate and respond to comments on a draft EIR, proposed negative
declaration, or proposed mitigated negative declaration made during
the public review period and authorizes a lead agency to evaluate and
respond to comments made on a draft EIR when the comments are
submitted after the public review period. CEQA requires an action or
proceeding alleging noncompliance with its requirements to be based
on grounds that were presented to the public agency orally or in
writing by any person during the public comment period provided under
CEQA or prior to the close of the public hearing on the project
before the issuance of the notice of determination.
This bill would allow an action or proceeding to be
brought based on alleged grounds of noncompliance with CEQA raised
after the public comment period if the person can demonstrate that
the alleged grounds were not known and could not have been known with
reasonable diligence at the time the EIR, negative declaration, or
mitigated negative declaration was made available for public review,
and therefore could not have been presented prior to the close of the
comment period and the person raised the alleged grounds
This bill instead would prohibit an action or
proceeding from being brought based on alleged grounds of
noncompliance with CEQA unless the alleged grounds for noncompliance
were presented to the public agency orally or in writing by any
person during the public comment period provided under CEQA or
prior to the close of the public hearing on the project before the
issuance filing, rather than issuance,
of the notice of determination.
The bill would prohibit a lead agency from considering comments
received after the close of the public review period, except in this
case in which the bill would authorize alleged grounds of
noncompliance with CEQA to be raised after the public comment period.
The bill would limit the evaluation of the cumulative effect of a
project in an EIR to the information available at the time of
publishing of the notice of preparation.
(2) CEQA exempts certain specified projects from its requirements.
This bill would exempt from its requirements projects related to
the installation of environmental enhancement on or within a property
or structure if the enhancement does not increase the square footage
of the property or structure. Because a lead agency would be
required to determine whether a project is exempt under this
provision and to provide certain notice regarding its determination,
the bill would impose a state-mandated local program.
(3) 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
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21080.34 is added to the
Public Resources Code, to read:
21080.34. This division does not apply to an approval or a permit
that may be required when an owner or occupant of an existing, or
approved but unbuilt, residential or commercial property or structure
elects to install environmental enhancement on or within that
property or structure. For the purposes of this section,
environmental enhancement, as determined by the lead agency, may
include alterations to the property or structure that reduce energy
and water usage, or emissions, or both usage and emissions. The
enhancement shall not increase the square footage of the existing, or
approved but unbuilt, residential or commercial property or
structure.
SEC. 2. Section 21083 of the Public Resources
Code is amended to read:
21083. (a) The Office of Planning and Research shall prepare and
develop proposed guidelines for the implementation of this division
by public agencies. The guidelines shall include objectives and
criteria for the orderly evaluation of projects and the preparation
of environmental impact reports and negative declarations in a manner
consistent with this division.
(b) The guidelines shall specifically include criteria for public
agencies to follow in determining whether or not a proposed project
may have a "significant effect on the environment." The criteria
shall require a finding that a project may have a "significant effect
on the environment" if one or more of the following conditions
exist:
(1) A proposed project has the potential to degrade the quality of
the environment, to curtail the range of the environment, or to
achieve short-term, to the disadvantage of long-term, environmental
goals.
(2) The possible effects of a project are individually limited but
cumulatively considerable. As used in this paragraph, "cumulatively
considerable" means that the incremental effects of an individual
project are considerable when viewed in connection with the effects
of past projects, the effects of other current projects, and the
effects of probable future projects. In evaluating cumulative effects
in an environmental impact report, the information required to be
considered shall be limited to the information available at the time
of the publishing of the notice of preparation.
(3) The environmental effects of a project will cause substantial
adverse effects on human beings, either directly or indirectly.
(c) The guidelines shall include procedures for determining the
lead agency pursuant to Section 21165.
(d) The guidelines shall include criteria for public agencies to
use in determining when a proposed project is of sufficient
statewide, regional, or areawide environmental significance that a
draft environmental impact report, a proposed negative declaration,
or a proposed mitigated negative declaration shall be submitted to
appropriate state agencies, through the State Clearinghouse, for
review and comment prior to completion of the environmental impact
report, negative declaration, or mitigated negative declaration.
(e) The Office of Planning and Research shall develop and prepare
the proposed guidelines as soon as possible and shall transmit them
immediately to the Secretary of the Resources Agency. The Secretary
of the Resources Agency shall certify and adopt the guidelines
pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code, which shall become
effective upon the filing thereof. However, the guidelines shall not
be adopted without compliance with Sections 11346.4, 11346.5, and
11346.8 of the Government Code.
(f) The Office of Planning and Research shall, at least once
every two years, review the guidelines adopted pursuant to this
section and shall recommend proposed changes or amendments to the
Secretary of the Resources Agency. The Secretary of the Resources
Agency shall certify and adopt guidelines, and any amendments
thereto, at least once every two years, pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, which shall become effective upon the filing
thereof. However, guidelines may not be adopted or amended without
compliance with Sections 11346.4, 11346.5, and 11346.8 of the
Government Code.
SEC. 3. Section 21091 of the Public Resources
Code is amended to read:
21091. (a) The public review period for a draft environmental
impact report may not be less than 30 days. If the draft
environmental impact report is submitted to the State Clearinghouse
for review, the review period shall be at least 45 days, and the lead
agency shall provide a sufficient number of copies of the document
to the State Clearinghouse for review and comment by state agencies.
(b) The public review period for a proposed negative declaration
or proposed mitigated negative declaration may not be less than 20
days. If the proposed negative declaration or proposed mitigated
negative declaration is submitted to the State Clearinghouse for
review, the review period shall be at least 30 days, and the lead
agency shall provide a sufficient number of copies of the document to
the State Clearinghouse for review and comment by state agencies.
(c) (1) Notwithstanding subdivisions (a) and (b), if a draft
environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration is submitted to the State
Clearinghouse for review and the period of review by the State
Clearinghouse is longer than the public review period established
pursuant to subdivision (a) or (b), whichever is applicable, the
public review period shall be at least as long as the period of
review and comment by state agencies as established by the State
Clearinghouse.
(2) The public review period and the state agency review period
may, but are not required to, begin and end at the same time. Day one
of the state agency review period shall be the date that the State
Clearinghouse distributes the document to state agencies.
(3) If the submittal of a CEQA document is determined by the State
Clearinghouse to be complete, the State Clearinghouse shall
distribute the document within three working days from the date of
receipt. The State Clearinghouse shall specify the information that
will be required in order to determine the completeness of the
submittal of a CEQA document.
(d) (1) The lead agency shall consider comments it receives on a
draft environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration if those comments are
received within the public review period. Except in circumstances
specified in subdivision (a) of Section 21177, the lead agency shall
not consider comments received after the close of the public review
period.
(2) (A) With respect to the consideration of comments received on
a draft environmental impact report, the lead agency shall evaluate
comments on environmental issues that are received from persons who
have reviewed the draft and shall prepare a written response pursuant
to subparagraph (B). Except in circumstances specified in
subdivision (a) of Section 21177, the lead agency shall not respond
to comments that are received after the close of the public review
period.
(B) The written response shall describe the disposition of each
significant environmental issue that is raised by commenters. The
responses shall be prepared consistent with Section 15088 of Title 14
of the California Code of Regulations, as those regulations existed
on June 1, 1993.
(3) (A) With respect to the consideration of comments received on
a draft environmental impact report, proposed negative declaration,
proposed mitigated negative declaration, or notice pursuant to
Section 21080.4, the lead agency shall accept comments via e-mail and
shall treat e-mail comments as equivalent to written comments.
(B) Any law or regulation relating to written comments received on
a draft environmental impact report, proposed negative declaration,
proposed mitigated negative declaration, or notice received pursuant
to Section 21080.4, shall also apply to e-mail comments received for
those reasons.
(e) (1) Criteria for shorter review periods by the State
Clearinghouse for documents that must be submitted to the State
Clearinghouse shall be set forth in the written guidelines issued by
the Office of Planning and Research and made available to the public.
(2) Those shortened review periods may not be less than 30 days
for a draft environmental impact report and 20 days for a negative
declaration.
(3) A request for a shortened review period shall only be made in
writing by the decisionmaking body of the lead agency to the Office
of Planning and Research. The decisionmaking body may designate by
resolution or ordinance a person authorized to request a shortened
review period. A designated person shall notify the decisionmaking
body of this request.
(4) A request approved by the State Clearinghouse shall be
consistent with the criteria set forth in the written guidelines of
the Office of Planning and Research.
(5) A shortened review period may not be approved by the Office of
Planning and Research for a proposed project of statewide, regional,
or areawide environmental significance as determined pursuant to
Section 21083.
(6) An approval of a shortened review period shall be given prior
to, and reflected in, the public notice required pursuant to Section
21092.
(f) Prior to carrying out or approving a project for which a
negative declaration has been adopted, the lead agency shall consider
the negative declaration together with comments that were received
and considered pursuant to paragraph (1) of subdivision (d).
SEC. 4. SECTION 1. Section 21177 of
the Public Resources Code is amended to read:
21177. (a) An action or proceeding shall not be brought pursuant
to Section 21167 unless the alleged grounds for noncompliance with
this division were presented to the public agency orally or in
writing by any person during the public comment period
provided by this division. If a person can demonstrate that the
alleged grounds for noncompliance relate to matters that were not
known and could not have been known with reasonable diligence at the
time the environmental impact report, negative declaration, or
mitigated negative declaration was made available for public review,
and therefore could not have been presented prior to the close of the
comment period, then an action or proceeding may be brought pursuant
to Section 21167 only if the alleged grounds for noncompliance with
this division were presented to the public agency by the person prior
to the close of comment period provided by this
division or prior to the close of the public hearing on the
project before the issuance filing of
the notice of determination pursuant to Sections 21108 and 21152
.
(b) A person shall not maintain an action or proceeding unless
that person objected to the approval of the project orally or in
writing during the public comment period provided by this division or
prior to the close of the public hearing on the project before the
issuance of the notice of determination.
(c) This section does not preclude an organization formed after
the approval of a project from maintaining an action pursuant to
Section 21167 if a member of that organization has complied with
subdivision (b).
(d) This section does not apply to the Attorney General.
(e) This section does not apply to any alleged grounds for
noncompliance with this division for which there was no public
hearing or other opportunity for members of the public to raise those
objections orally or in writing prior to the approval of the
project, or if the public agency failed to give the notice required
by law.
SEC. 5. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because a local agency or school district has the
authority to levy service charges, fees, or assessments sufficient to
pay for the program or level of service mandated by this act, within
the meaning of Section 17556 of the Government Code.