BILL ANALYSIS �
AB 890
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 890
AUTHOR: Olsen
AMENDED: January 13, 2012
FISCAL: No HEARING DATE: July 2, 2012
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law :
1)Under the California Environmental Quality Act (CEQA):
a) Requires lead agencies with the principal
responsibility for carrying out or approving a proposed
discretionary project to prepare a negative declaration,
mitigated 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 �21000 et seq.).
b) Contains exemptions relating to roads, for example:
i) Operation, repair, maintenance, or minor
alteration of existing private or public structures
involving negligible or no expansion, including
existing highways and streets, sidewalks, gutters,
bicycle and pedestrian trails, and similar facilities
(including road grading for the purpose of public
safety). (CEQA Guidelines �15301(c)).
ii) Minor public or private alterations to land,
water, or vegetation, including, but not limited to,
"grading on land with a slope of not less than 10
percent . . ." (CEQA Guidelines �15304(a)).
iii) Restriping of streets or highways to relieve
traffic congestion. (Public Resources Code �21080.19).
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iv) Any railroad grade separation project that
eliminates an existing grade crossing or reconstructs
an existing grade separation. (�21080.13).
v) The institution or increase of passenger or
commuter services on rail or highway rights-of-way
already in use, including modernization of existing
stations and parking facilities. (�21080(b)(10)).
vi) Facility extensions not to exceed four miles
in length required to transfer passengers from or to
exclusive public mass transit guideway or busway public
transit services. (�21080(b)(12)).
This bill , under CEQA:
1) Exempts a project or an activity to repair, maintain, or
make minor alterations to an existing roadway if the
project is initiated by a city or county to improve public
safety, the project does not cross a waterway, and the
project involves negligible or no expansion of an existing
use.
2) Sunsets January 1, 2016.
COMMENTS :
1) Purpose of Bill . According to the author, "AB 890 would
create a statutory exemption from the California
Environmental Quality Act (CEQA) for minor public safety
roadway improvements within roadway. This measure doesn't
exempt projects that cross waterways and increase capacity
of existing use. AB 890 streamlines the process for minor
roadway improvements for cities and counties to improve
road safety."
The author notes that "Cities and counties need to be able to
quickly perform some public work projects. Public safety
must be a clear priority of the state, and CEQA at times
has hindered cities and counties from performing their
basic duties."
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2) Brief background on CEQA . 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, 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 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.
3) CEQA and federal NEPA review . Many highway improvement
projects are also funded with federal funds and are thereby
also subject to the National Environmental Policy Act
(NEPA). According to information in the Caltrans "Third
Report to the California Legislature Pursuant to Section
820.1 of the California Streets and Highways Code, January
1, 2011," 4,277 environmental documents were prepared under
the Caltrans federal surface transportation project
delivery pilot program, with most also being joint
CEQA/NEPA documents, and 4,054 of these documents were
categorical exclusions under NEPA. According to the
report, "Two lawsuits have been initiated against Caltrans
over the past three years under the Pilot Program."
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4) Blaming CEQA . 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 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?
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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 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) Information needed . Committee staff met with staff from
the author and sponsor March 23, 2012, along with some
supporters and opponents of this bill. At the conclusion
of the meeting, committee staff requested responses to the
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following questions in order to evaluate the potential need
for this bill: a) has the county been challenged for
determining that a highway improvement project is subject
to an existing categorical exemption, and if so how often
has the county been challenged; b) how many road
improvement projects used the existing categorical
exemptions and how many negative declarations or other
environmental documents were prepared for these projects;
and c) how many road improvement projects were subject to
the exceptions to the use of categorical exemptions, and
what were those exceptions.
Since the March 23, 2012, meeting, committee staff only
received a response to the first question - and the county
is "not aware of any cases in which the County was sued
over the use of a categorical exemption."
2) Support and opposition concerns . According to the Tuolumne
County Board of Supervisors in supporting and sponsoring AB
890, "These studies and mitigation seem to be taking longer
periods of time and higher costs to complete. The result
is a reduction in financial resources available to make
public safety improvements to existing roadways." The
board notes that it "has advocated for a change in the law
that regains a proper perspective as to CEQA compliance
costs relative to the actual disturbance of the physical
environment within already established right of ways."
According to opponents, "Current law already provides two
alternatives to a full-scale CEQA exemption, which we
believe will achieve the author's goals while still
identifying and mitigating any significant impacts of the
project." Opponents also note that "while the author may
intend to deal with only minor impacting projects, the fact
is, the bill could also exempt projects that have
significant effects on archaeological, Native American
heritage sites, and riparian endangered plant and species."
3) Related legislation . AB 1665 (Galgiani) exempts from CEQA
the closure of a railroad grade crossing by order of the
Public Utilities Commission if the PUC finds the crossing
to present a public safety threat, and AB 2245 (Smyth)
exempts a project for Class II bikeways undertaken by a
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city or county within an existing right-of-way under
certain conditions. The Senate Environmental Quality
Committee will also hear these bills July 2, 2012.
SB 1380 (Rubio) exempts a bicycle plan for an urbanized area
from CEQA for restriping of streets and highways, bicycle
parking and storage, signal timing to improve street and
highway intersection operations, and related signage for
bicycles, pedestrians, and vehicles. SB 1380 was approved
by the Senate Environmental Quality Committee April 30,
2012 (6-0), and will be heard by the Assembly Natural
Resources Committee July 2, 2012.
SOURCE : Tuolumne County
SUPPORT : Associated Builders and Contractors of
California, Associated General Contractors,
Association of California Cities - Orange
County, California Chamber of Commerce,
California State Association of Counties,
California State Council of Laborers, Madera
County Board of Supervisors, Orange County
Business Council, Regional Council of Rural
Counties, Southwest Riverside County
Legislative Council, Stanislaus County,
Transportation Agency for Monterey County,
Tulare County Board of Supervisors
OPPOSITION : California League of Conservation Voters,
California Native Plant Society, Planning and
Conservation League, Sierra Club California