BILL ANALYSIS �
Bill No: SB
366
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2011-2012 Regular Session
Bill Analysis
SB 366 Author: Calderon
Introduced: February 15, 2011
Hearing Date: May 10, 2011
Consultant: Paul Donahue
SUBJECT : Permits and regulations: Agency review
SUMMARY : Requires each state agency to review its
regulations to identify duplicative, overlapping,
inconsistent or outdated provisions and repeal or amend
identified regulations. Creates a Streamlined Permit
Review Team charged with improving the efficiency of the
state permitting process for development projects.
Existing law :
1) The Administrative Procedure Act (APA) governs the
process for adoption, amendment, or repeal of regulations
by state agencies charged with the implementation of
statutes, and for legal review of those regulatory actions.
(Govt. Code � 11340 et seq.)
2) Directs the Office of Administrative Law (OAL), at the
request of any standing, select, or joint committee of the
Legislature, to initiate a priority review of any
regulation that the committee believes does not meet the
standards of (1) necessity, (2) authority, (3) clarity, (4)
reference, and (5) nonduplication. (Govt. Code � 11349.7)
3) Specifies that if OAL is notified of, or on its own
becomes aware of, an existing regulation for which the
statutory authority has been repealed or becomes
ineffective, then the OAL shall order the agency to show
cause why the regulation should not be repealed, and shall
notify the Legislature in writing of this order. (Govt.
Code � 11349.8)
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4) Authorizes an agency that is considering adopting,
amending, or repealing a regulation to consult with
interested persons before initiating any regulatory action.
(Govt. Code � 11346)
5) The Permit Streamlining Act (PSA):
a) Requires public agencies to provide detailed
information that will be required from an applicant
for a development project.<1>
b) Requires a lead agency for a development project to
approve or disapprove the project within 6 months
after the Environmental Impact Report is certified, or
within 3 months from the date of adoption of a
Negative Declaration or a determination by the lead
agency that the development project is exempt from
California Environmental Quality Act (CEQA), unless
the project proponent requests an extension of time.
c) If no action is taken within the allotted time
after CEQA review is complete, the project may be
deemed approved, except that an application can only
be deemed approved as a result of that failure to act
if specified requirements for public notice and review
have been satisfied.
This bill :
1) Requires each state agency,<2> within 180 days of the
effective date of the bill, to do the following:
a) Review all regulations that apply to or have been
----------------------
<1> A "development" means placement of any solid material
or structure on land or water; discharge of dredged
material or any gas, liquid, or solid waste; mining or
extraction of any materials; change in land use or water
use; timber operations; and removal of vegetation or kelp
harvesting. (Govt. Code � 65927)
<2> "Agency" refers to the State & Consumer Services;
Business, Transportation & Housing; California Emergency
Management; California Environmental Protection; California
Health & Human Services; Labor & Workforce Development; and
Natural Resources Agencies. (Govt. Code � 12800)
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adopted by departments within the agency, and identify
any regulations that are duplicative, overlapping,
inconsistent, or out of date.
b) Adopt, amend, or repeal regulations to reconcile or
eliminate any duplication, overlap, inconsistencies,
or out of date provisions.
c) Hold at least one noticed public hearing to accept
public comment on proposed revisions to its
regulations.
d) Notify relevant policy and fiscal committees of
each house of the Legislature of the agency's proposed
revisions to regulations at least 60 days prior to the
public hearing.
e) Adopt as emergency regulations any changes to a
regulation identified by the agency as duplicative,
overlapping, inconsistent, or out of date.
g) Report to the Governor and the Legislature on the
number and content of regulations it identifies as
duplicative, overlapping, inconsistent, or out of
date, and the actions taken by the agency to address
those regulations.
2) Requires each agency to notify departments within the
agency of existing departmental regulations that may be
duplicative, overlapping, or inconsistent with a regulation
adopted by another department within that agency.
3) Directs each department within an agency to notify the
agency of any revisions it plans to make to its regulations
at least 60 days prior to the public hearing.
4) Directs agencies to notify each other of any existing
regulations adopted by an agency that may duplicate,
overlap, or be inconsistent with the other agency's
regulations.
5) Establishes a Streamlined Permit Review Team, consisting
of the Secretary of Business, Transportation and Housing,
the Secretary for Environmental Protection, and the
Secretary of the Natural Resources Agency.
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a) Requires the Review Team, when requested by a
permit applicant, to convene a hearing of the
permitting agencies having jurisdiction over the
project, to coordinate actions on permits to help
reduce or eliminate unnecessary delay and paperwork,
and to ensure that the permitting agencies have
necessary information.
b) Requires a permitting agency<3> to determine the
completeness of an application within 30 days, or
request additional information from the applicant, and
act on a permit as soon as possible, but in any case
no later than the time permitted by law.
c) Specifies that if a permitting agency fails to
timely act on a completed permit application for a
project, the permit shall be deemed approved, and the
agency shall provide public notice of the approval
action.
d) Provides that these time limits may be extended
upon mutual written agreement of the lead agency and a
permitting agency, and do not apply if federal laws or
rules establish different time schedules that may
affect the disposition of the project.
e) Declares that, except as otherwise provided, these
provisions do not affect in any manner the
requirements, duties, or authority of a permitting
agency established by statute.
f) Declares that the regulatory provisions of the PSA
shall not be construed to affect the authority of an
agency to adopt regulations.
6) Declares further that the provisions of this bill shall
not be construed to weaken or undermine in any manner any
human health, public or worker rights, public welfare,
environmental, or other protection established by law; but
rather it is the intent of the Legislature to ensure that
state agencies focus more efficiently and directly on their
duties, so as to use scarce public dollars more efficiently
-------------------------
<3> "Permitting agency" means any entity within the
Business, Transportation and Housing Agency, CalEPA, or the
Natural Resources Agency.
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to implement laws, while achieving equal or improved
economic and public benefits.
7) Except for a reporting requirement, this urgency bill
sunsets on Jan. 1, 2013.
COMMENTS :
1) Purpose : According to the author, several economists
and business leaders who are strong supporters of state
laws to protect worker safety, health, environment and
other values have suggested that several steps should be
taken to make the state's regulatory climate more favorable
and efficient. Chief among the suggestions are (1) that
the state conduct a top to bottom review of regulations to
eliminate duplicative, overlapping, inconsistent or
outdated regulations, and (2) establishment of a "one stop
shop" consolidated permitting process where businesses can
get greater coordination on state permits.
2) Streamlined Permit Review Team : This bill adds Article
5.5 to the existing PSA, establishing a permit review team
comprised of 3 state agency heads. Upon request of a
development project applicant, the team would convene a
hearing of the permitting agencies having jurisdiction over
the project, to "coordinate actions on permits to help
reduce or eliminate unnecessary delay and paperwork."
This process is similar to the Colorado Joint Review
Process (JRP), which has been in effect since 1978.
According to a recent report of the Administrative
Conference of the United States (ACUS),<4> the JRP approach
has demonstrated its effectiveness in coordinating multiple
agency review of major projects because that objective is
its major purpose. The ACUS review of the history of the
Colorado JRP found that it "it can remain neutral and
mediate various interests, thereby operating by consensus,
because it has no policy making role, it is insulated from
-------------------------
<4> The Administrative Conference of the United States is
an independent federal agency dedicated to improving the
administrative process through consensus-driven applied
research, providing nonpartisan expert advice and
recommendations for improvement of federal agency
procedures. Its membership is composed of innovative
federal officials and experts with diverse views and
backgrounds from both the private sector and academia.
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politics, and it has no substantive permitting or siting
authority. It has the backing of the Governor of Colorado
and high level state officials. It is supported by mining
companies who have been willing to participate in this
process."
The report notes that JRP process relies on frequent
meetings throughout the entire process in which all the
parties sit down together in one room to meet and talk with
each other, establish lines of communication, and raise and
deal with many issues. The ACUS found that this process is
quite effective for implementing the scoping of issues
method for preparing environmental impact statements under
the �Colorado CEQA] regulations. The report found that
"concerns about a project were most often addressed using
the JRP before the developer has made a firm financial
commitment to a specific design for its project.
Furthermore, changes can more easily be made to the project
in that early-stage to reflect community concerns than is
the case later on in the project."
The remaining provisions of this Section of the bill recast
existing law set forth in the Permit Streamlining Act of
1977, as indicated below:
a) This bill requires a permitting agency to determine
the completeness of an application within 30 days in
accordance with the requirements of the PSA, or request
additional information from the applicant, and act on a
permit as soon as possible, but in any case no later than
the time permitted by law. �See proposed Section
65958.5(c)]
The PSA already contains nearly identical provisions
providing that each public agency shall determine in
writing whether an application is complete not later than
30 days after the agency has received an application for a
development project. The agency's determination shall
specify those parts of the application that are incomplete,
and shall indicate the manner in which they can be made
complete. �Govt. Code � 65943(a)]
b) As another example, this bill specifies that if a
permitting agency fails to act on a completed permit
application for a project no later than the time specified
in the PSA, the failure to act shall be deemed approval of
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the permit application for the project, in accordance with
the requirements of the PSA. However, the permitting agency
must provide public notice when the project is deemed
approved. �See proposed Section 65958.5(d) (2)]
The PSA already provides that in the event that a lead
agency or a responsible agency fails to act to approve or
to disapprove a development project within the required
time limits, the failure to act shall be deemed approval of
the permit application for the development project.
However, the permit shall be deemed approved only if public
notice has occurred. �Govt. Code � 65956 (b)]
c) Another provision in this bill states that the
specified time limits shall not apply if federal statutes,
regulations, or delegation agreements establish time
schedules that differ from those time limits, and failure
to comply with federal time schedules could affect the
disposition of the project. �See proposed Section
65958.5(f)]
The PSA expressly states already that the "time limits
established by this article shall not apply in the event
that federal statutes or regulations require time schedules
which exceed such time limits." �Govt. Code � 65954]
d) The remaining provisions of this Section of the
bill simply declare that it does not affect in any manner
the requirements, duties, or authority of a permitting
agency established by statute. In addition, the bill
declares that nothing in the PSA (into which these
provisions of the bill would be added) shall be construed
to affect the authority or requirement for an agency to
adopt regulations as provided by statute. �See proposed
Section 65958.5(g) and (h)]
These declarations are a restatement of existing law
already contained elsewhere in the PSA. For example, other
provisions of the PSA, which this bill amends, specify that
it "does not confer any new or additional authority over
the issuance of environmental permits on the California
Environmental Protection Agency or diminish in any way the
existing authority of any other state or local agency."
(Govt. Code � 65959.3)
The above provisions of this bill are restatements of
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existing law within the PSA. It would seem that a clearer
approach would be to incorporate by reference the existing
provisions of the PSA.
Therefore, the Committee may wish to consider amendments to
the bill that leave intact provisions enacting the permit
review team and defining its functions, deleting
subdivisions (c) through (h) of proposed Govt. Code �
65958.5. �Page 7, line 3 to 35, inclusive], and in place of
these provisions, expressly incorporate by reference the
relevant provisions of the PSA.
3) Agency review of regulations : This bill directs state
agencies to review departmental regulations and identify
regulations that are (1) duplicative, (2) overlapping, (3)
inconsistent, or (4) out of date.
Existing law does provide that OAL, at the request of any
Committee of the Legislature, shall initiate a priority
review of any regulation that the Committee believes does
not meet statutory standards of (1) necessity, (2)
authority, (3) clarity, (4) reference, and (5)
nonduplication. (Govt. Code � 11349.7)
However, there is little incentive on the part of most
state agencies to conduct a review of regulations once they
have been adopted. For most agencies, adoption of
regulations is not a routine function of the agency, so
once the process has been completed, the agency may in fact
be inclined to resist re-opening a proceeding in order to
review the regulations for continued relevance and
consistency.
According to the author, "the state's regulatory process
has been at times antiquated redundant, perplexing and
contradictory, and on this basis, it has been called a
barrier to economic recovery and growth." The author says
that regulation should be economical in its impact and
achieve its intended objectives without holding back job
growth in California. Perhaps this step can move the state
further toward achievement of this goal.
4) Opposition : The opponents to this bill object to the
"deemed approved" clause that is contained in the expedited
permit review portion of the bill. They state that, "with
many agencies having suffered severe cutbacks in personnel
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we must not put project approvals on auto-pilot, which
potentially could allow poorly planned and damaging
projects to be approved without the necessary review.
5) Support : Supporters state that this time of economic
crisis is a good time for the California Legislature to
look at ways to save state industries that must compete
with less-regulated products of other states and nations.
6) Note : This bill has been double referred to Senate
Rules Committee.
7) Related legislation :
SB 396 (Huff, 2011) . Requires each state agency to review
each regulation adopted prior to January 1, 2012, and
report to the Legislature on the regulations. Each agency
would thereafter be directed to review its regulations that
have been in effect for at least 20 years and submit a
report to the Legislature on its findings associated with
the review. (Failed passage in Senate Environmental Quality
Committee)
SB 401 (Fuller, 2011) . Specifies that every regulation
proposed by an agency after January 1, 2012, include a
provision repealing the regulation in 5 years. Prohibits
OAL from approving a proposed regulation unless it contains
repeal provisions. (Failed passage in Senate Environmental
Quality Committee)
AB 49 (Gatto, 2011) . Requires the Office of Permit
Assistance to provide information to developers explaining
the permit approval process at the state and local levels,
or assisting them in meeting statutory environmental
quality requirements. (Pending in Assembly)
SB 959 (Ducheny, 2010) . Among other things, would have
required the Office of Permit Assistance to provide
information to developers explaining the permit approval
process at the state and local levels, or assisting them in
meeting statutory environmental quality requirements.
(Vetoed)
AB 1805 (Calderon, 2010) and SB 1010 (Correa, 2010 ). Would
have created a CEQA litigation protection pilot program
that would have allowed the BT&H agency to exempt 100
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projects over four years from judicial review based on
CEQA. (Failed passage in Assembly Natural Resources and
Senate Environmental Quality Committees, respectively)
AB 8 XX (Nestande, 2009) . Temporarily established an
expedited permit streamlining procedure for specified
projects by accelerating permit review, issuance, or denial
of permits for the projects without affecting the
underlying authority of permitting agencies. (Chap. 6,
Stats. 2009).
AB 2603 (Gaines, 2009) . Would have required an agency to
submit a report of the regulations eliminated or identified
for elimination to the State Auditor. Required the State
Auditor to perform an evaluation of the identified
regulations and determine whether the removal of the
regulations will result in a positive impact on the
regulatory burden on businesses and the business climate.
(Failed in Assembly Business, Professions and Consumer
Protection Committee)
SUPPORT:
Associated California Loggers
OPPOSE :
Sierra Club
FISCAL COMMITTEE : Yes
URGENCY : Yes
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