BILL ANALYSIS �
SB 973
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: SB 973
AUTHOR: Vargas
AMENDED: As Introduced
FISCAL: Yes HEARING DATE: April 23, 2012
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : LIMITED DURATION EVENT CEQA EXEMPTION
SUMMARY :
Existing law , 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 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.). Some
categorical exemptions relating to special events, include, for
example:
1) Minor public or private alterations to land, water, or
vegetation, including, but not limited to: "temporary use of
land having negligible or no permanent effects on the
environment, including carnivals, sales of Christmas trees,
etc." (�15304(e)).
2)Construction or replacement of accessory structures,
including, but not limited to:
a) "Small parking lots." (�15311(b)).
b) "Placement of seasonal or temporary use items such as
lifeguard towers, mobile food units, portable restrooms, or
similar items in generally the same locations from time to
time in publicly owned parks, stadiums, or other facilities
designed for public use." (�15311(c)).
3)Normal operations of existing facilities for public gatherings
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for which the facilities were designed, including, but not
limited to: racetracks, stadiums, convention centers,
auditoriums, amphitheaters, planetariums, swimming pools, and
amusement parks. (�15323).
This bill :
1) Under CEQA, exempts approval of a park use permit or special
events permit for a limited duration event for civic,
charitable, community development, or recreational purposes
located on public property, within a public right of way, or
within a defined event venue.
2) Defines "limited duration event" to be either of the
following:
a) A recreational tournament, sporting event, youth
tournament, racing or walking event, fireworks display,
holiday celebration, concert, military appreciation event,
block party, wedding, job fair, festival and parade,
street fair, beach and neighborhood cleanup, farmers'
market, and art market.
b) Other event of similar purpose lasting 48 hours or
less.
3) Provides that a limited duration event does not include an
event requiring earth movement, or erection or demolition of
permanent structures.
4) Provides that a limited duration event may, but is not
required to, use public agency services.
COMMENTS :
1) Purpose of Bill . The sponsor of SB 973, San Diego Regional
Chamber of Commerce, is concerned about recent litigation
relating to the permitting of a Fourth of July fireworks show
at La Jolla Cove by the City of San Diego, and is seeking a
broad CEQA exemption for a "limited duration event."
According to the sponsor, "CEQA has been subject to litigation
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from exploitive attorneys who seek to distort CEQA's original
intent, as seen in the May 2011 court case, Coastal
Environmental Rights Foundation v. City of San Diego.
Recently, the Superior Court of California ruled that
temporary special event and park use permits issued by the
City of San Diego are subject to CEQA review."
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) Background on San Diego litigation . San Diego requires a
Parks Use Permit, which is intended to be a ministerial
permit, for certain public facility events. The city's
Special Events Permit for certain other organized activities
is considered a discretionary permit.
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As noted above, CEQA applies to discretionary projects
(�21080(a)).
The Court held that a decision to issue a Park Use Permit is not
ministerial because the city's ordinance gives the Park and
Recreation Department leeway in determining whether to issue
the permit due to such factors as congestion or interference
with vehicular or pedestrian traffic.
The Court issued an order staying enforcement of the order. San
Diego has revised Park Use Permit and Special Events Permit
requirements so that the Park Use Permit is ministerial, and
a fireworks event is subject to the Park Use Permit and not
subject to the Special Events Permit.
The Court has not issued a final judgment in the initial Coastal
Environmental Rights Foundation (CERF) case since San Diego
revised the Park Use Permit and Special Events Permit
requirements in response to the Court's proposed order
regarding the stay on enforcement of the judgment.
This initial case is referred to as "CERF I" because the
plaintiff subsequently challenged San Diego on the alleged
practice of not complying with CEQA for: a) the practice of
issuing Special Events permits ("CERF II"), b) the first set
of permit ordinance amendments and the exception of fireworks
displays from the Special Events ordinance ("CERF III"), and
c) the second set of ordinance amendments relating to the
Park Use Permit and setting capacity thresholds for fireworks
displays ("CERF IV").
4) SB 973 "limited duration event" CEQA exemption . SB 973
exempts a "limited duration event" from CEQA. However, SB
973 defines such an event far beyond that of a Fourth of July
fireworks event.
Moreover, SB 973 references various types of events with no time
limit (page 2, lines 10 to 14) and other events "of similar
purpose" lasting 48 hours or less (page 2, line 15).
According to the sponsor and others, the intent is for there
to be no time limit on these events, which could extend for
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months or even years. This could include, for example, an
all terrain vehicle event, a week long concert, a month long
festival, or an Occupy San Diego event billed as a "block
party" or "street fair" of unspecified duration.
The SB 973 exemption also applies to a "defined event venue"
which could be a private facility.
5) Placing Legislature in decisionmaking role with pending
litigation . As noted above, the fireworks event issue is
subject to pending litigation, and SB 973 places the
Legislature in the position of a "shadow court" - where
parties can go for a decision when litigation is pending and
they are not satisfied with the judicial system. The
Legislature traditionally does not involve itself in matters
with pending litigation.
Does the committee believe that environmental and development
issues being litigated should be addressed in this fashion?
6) Related legislation . AB 206 (Harkey) of 2011 exempt a
municipal fireworks display from the California Coastal Act
of 1976 and the California Environmental Quality Act.
According to the Assembly Natural Resources Committee
analysis of AB 206, the Court of Appeal held that a fireworks
display in Gualala produces both solid and gaseous waste in
the coastal zone and is a "development" under the Coastal
Act, requiring a coastal development permit. The Commission
required a coastal development permit for a 2008 fireworks
display sponsored by the Gualala Festivals Committee (GFC)
that was situated near the Gualala River estuary and Gualala
Point Island. The committee analysis notes that "The
Commission cited a 2006 report on fireworks displays prepared
by the National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, and Monterey Bay National
Marine Sanctuary that analyzed how portions of certain
firework devices containing chemicals fall back to the ground
or water during displays."
According to the committee analysis, "The Commission did not
invoke the 'temporary event' exception under the Coastal Act
because it had evidence that the planned fireworks display
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would have significant adverse impacts upon coastal
resources. Specifically, the Bureau of Land Management and
the federal Fish and Wildlife Service issued a report after a
similar fireworks display conducted by GFC in 2007. The
report explained that the 2007 fireworks display caused a
visible effect on nesting seabirds on Gualala Point Island.
A significant number of these birds abandoned their nests as
a result of the fireworks display, leaving eggs and chicks
behind to die."
The analysis also noted that the 2008 GFC fireworks display is
the only fireworks related event against which the Commission
obtained a cease-and-desist order; the Commission rarely
asserts its authority over fireworks displays, and has worked
cooperatively with fireworks display organizers at Seacliff
State Beach, Morro Bay, and Sea World. GFC made no attempt
to file a coastal development permit and simply notified the
Commission a few months before the event.
AB 206 failed in the Assembly Natural Resources Committee April
25, 2011 (3-4).
7) Opposition concerns (note Comment #1 for sponsor position) .
According to opponents that note current exemptions under
CEQA for events, "In the rare, limited, and fact-specific
situation in which a park use or special event would cause
irreparable damage to the environment, CEQA review may be
desirable. For example, a fireworks show over a sensitive
coastal zone, in which water quality, air quality, human
health, marine mammals, and marine bird species would be
greatly affected, should require environmental analysis.
Likewise, a city or county may be interested in analyzing the
environmental consequences of a land-intensive off-road
competition or obstacle races. In short, SB 973 offers a
statewide CEQA exemption where a city or county case-by-case
determination is more appropriate."
According to the Coastal Environmental Rights Foundation (CERF),
"SB 973 is unnecessary, as a CEQA exemption already exists
for 'minor temporary use of land having negligible or no
permanent effects on the environment.' (CEQA Guidelines sec.
15304(e)). This problem is unique to the City of San Diego,
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where officials have chosen not to utilize this exemption,
and it is not of statewide concern." CERF also notes that
San Diego "has amended its Municipal Code to address the vast
majority of permits on City land, and could choose to further
amend its process locally. The City is also in the process
of conducting environmental review for its major special
events and has assured the court on multiple occasions it
will comply with the ruling to address significant
environmental impacts."
8) More consideration of fireworks displays needed ? There has
not been any CEQA litigation for fireworks displays or
short-term events other than the La Jolla Cove CERF
litigation.
However, if the Committee believes Fourth of July fireworks
event issues should be addressed, rather than through a broad
CEQA event exemption, the Office of Planning and Research
(OPR) could: a) study fireworks issues and identify
potential environmental issues relating to fireworks; and b)
develop guidelines with measures that address these issues to
assist agencies in developing event ordinances for fireworks
displays, including ministerial ordinances.
If the Committee believes an exemption is needed, OPR could
also be required to prepare, develop, and transmit to the
Resources Agency a categorical exemption for a Fourth of July
fireworks display that incorporates measures to address
certain issues (e.g., wildlife, air and water quality,
debris, fire hazards, timing), using information from the
fireworks study.
If the Committee believes that a statutory exemption for a
Fourth of July fireworks display is needed, then such an
exemption should be more specific regarding requirements to
be met, along with an appropriate sunset date so that an OPR
report can be reviewed and an opportunity provided to revise
the exemption.
Due to pending litigation, any amendments would need to
specify that any of the above provisions do not apply to, or
affect, the current CERF litigation.
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SOURCE : San Diego Regional Chamber of Commerce
SUPPORT : American Council of Engineering Companies of
California, Bay Area Council, Brea Chamber of
Commerce, California Alliance for Golf,
California Chamber of Commerce, California Hotel
& Lodging Association, California Outdoor
Recreation Partners, California Park & Recreation
Society, California State Club Association,
California Travel Association, City of Folsom
Parks & Recreation District Director Robert Goss,
City of Orangevale Recreation & Park District,
College Area Business District, County of San
Diego, Donate Life California, Fireworks & Stage
FX America, Indio Chamber of Commerce, Kern
County Board of Supervisors, La Jolla Fireworks
Foundation, Los Angeles Area Chamber of Commerce,
Los Angeles County Economic Development
Corporation Member Lari Sheehan, North Bay
Leadership Council, North Orange County
Legislative Alliance, Ocean Beach Mainstreet
Association Executive Director Denny Knox, Orange
County Business Council, Orangeville Recreation
and Park District Administrator Greg A. Foell,
Rancho Simi Recreation and Park District Chair
Kathleen O'Brien, Roseville Mayor Pauline
Roccucci, San Diego, San Diego Armed Services
YMCA Board of Management Member Lari Sheehan, San
Diego Deputy Director of Intergovernmental, San
Diego Regional Chamber of Commerce, San Diego
Regional EDC, San Francisco Chamber of Commerce,
San Gabriel Valley Economic Partnership, San Jose
Silicon Valley Chamber of Commerce, Sheraton San
Diego Hotel & Marina General Manager Scott
Hermes, Signal Hill Mayor Larry Forester, Silicon
Valley Leadership Group, Simi Valley Chamber of
Commerce, Solano Avenue Association, Southwest
Riverside County Legislative Council, State Park
Partners Coalition, Susan G. Komen for the Cure
(7 California Affiliates), Vista
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OPPOSITION : California League of Conservation Votes,
California Coastal Protection Network, California
Native Plant Society, Coastal Environmental
Rights Foundation, Planning and Conservation
League, Sierra Club California, 1 individual