BILL ANALYSIS �
SB 973
Page 1
Date of Hearing: July 2, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 973 (Vargas) - As Amended: May 2, 2012
SENATE VOTE : 37-1
SUBJECT : California Environmental Quality Act: exemption:
limited duration events.
SUMMARY : Allows a lead agency to grant a categorical California
Environmental Quality Act (CEQA) exemption for an annual
firework display subject to limitations. The bill also
authorizes the Office of Planning and Research (OPR) to evaluate
issues related to events that include fireworks displays to
assist local agencies mitigate impacts and develop ordinances.
EXISTING LAW : Pursuant to CEQA:
1)Requires a lead agency to identify the significant
environmental impacts of "discretionary projects" and to avoid
or mitigate those impacts, if feasible. CEQA does not apply
to projects that are purely "ministerial."
2)Defines a "discretionary project" as a project that requires
the exercise of judgment or deliberation when the lead agency
decides to approve or disapprove a particular activity. A
purely "ministerial project" merely requires the lead agency
to determine whether there has been conformity with applicable
statutes, ordinances, or regulations.
3)Requires a lead agency carrying out or approving a proposed
discretionary project to prepare an initial study and
eventually an Environmental Impact Report (EIR) of Negative
Declaration (ND), unless, however, a categorical or statutory
exemption applies.
4)Requires the Office of Planning and Research (OPR) to prepare
and develop proposed guidelines for the implementation of CEQA
(i.e. CEQA Guidelines). These guidelines are required to
include a list of CEQA exemptions (i.e. categorical
exemptions), which are classes of projects that have been
determined not to have a significant effect on the
environment. In adopting the guidelines, the Secretary of
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the Natural Resources Agency is required to make a finding
that the listed classes of projects do not have a significant
effect on the environment.
5)Provides, pursuant to the CEQA Guidelines, a categorical
exemption for minor public or private alterations in the
condition of land, water, and/or vegetation, including minor
temporary use of land having negligible or no permanent
effects on the environment, including carnivals, sales of
Christmas trees, etc.
6)Precludes the use of a categorical exemption under the
following circumstances:
a) If the project, while ordinarily insignificant in its
impact on the environment, may in a particularly sensitive
environment be significant;
b) If the cumulative impacts of successive projects of the
same type in the same place, over time is significant;
c) If there is a reasonable possibility that the activity
will have a significant effect on the environment due to
unusual circumstances; and
d) If there are certain effects related to scenic highways,
hazardous waste sites, and historical resources.
THIS BILL :
1)Authorizes OPR to evaluate issues related to events that
include fireworks displays and identify potential
environmental issues relating to fireworks displays, including
air and water quality, debris, display duration, timing, fire
hazards, and wildlife. Based on this evaluation, OPR may
develop guidelines to assist local agencies (1) address and
mitigate impacts at an event that includes fireworks displays
and (2) develop ordinances for events that include fireworks
displays.
2)Authorizes a lead agency to grant the "minor alterations to
land" CEQA exemption (see paragraph "5" in "EXISTING LAW") to
a firework display that is held annually on a public site or
at a large venue. A lead agency is not authorized to grant
more than one exemption annually for a specific public site or
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large venue.
3)Prohibits this bill from affecting the resolution of a legal
action filed before January 1, 2013.
FISCAL EFFECT : According to the Senate Appropriations
Committee, one-time cost pressures of approximately $50,000 to
the General Fund for the evaluation of the impacts of firework
displays and the development of associated guidelines.
COMMENTS :
1)Purpose of the Bill. The bill is in response to lawsuits
filed by the Coastal Environmental Rights Foundation, Inc.
(CERF) against the City of San Diego (City) concerning its
permitting of certain public events and specifically fireworks
shows. CERF has asserted that the City's issuance of these
permits was a discretionary decision, which required it to
consider the potential adverse environmental effects of the
proposed activity consistent with CEQA. The City did not
dispute that it had failed to perform any environmental review
in conjunction with the permitting process. Rather, it
maintained that the only applicable permits were ministerial,
not discretionary, in nature.
The San Diego County Superior Court found that the City's
permits were discretionary in nature and were subject to CEQA
review. Since the initial court ruling, the City amended its
ordinance at least twice attempting to turn its fireworks
display permitting into a ministerial process. The court
found that these ordinances did not create valid ministerial
permits.
In response to these lawsuits, the author introduced this bill
seeking a statutory CEQA exemption for a "limited duration
event for civic, charitable, community development, or
recreational purposes that is located on public property,
within a public right of way, or within a defined event
venue." The bill defined "limited duration event" as either
"�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" or "�o]ther event of similar purpose lasting 48 hours
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or less."
The bill was amended in the Senate Environmental Quality
Committee to its current form, which does not contain a
statutory CEQA exemption. Instead, the bill authorizes a lead
agency to utilize an existing categorical CEQA exemption to a
firework display that is held annually on a public site or at
a large venue. The bill limits this categorical exemption to
one exemption annually for a specific public site or large
venue (which actually seems to narrow the existing exemption).
In addition, the bill allows OPR to assist local agencies in
developing ordinances for events that include fireworks
displays.
The sponsor of the bill, the San Diego Regional Chamber of
Commerce, has submitted a letter to this committee expressing
its "�hope] that SB 973's original intent can be restored-to
exempt temporary special events and fireworks displays from
CEQA review because these events are critical to our
community."
2)Discussion on CEQA Exemptions. The sponsor asserts that CEQA
was not meant to apply to limited duration events and that
they should be treated differently than major construction
projects. In a San Diego Union-Tribune editorial written by
the sponsor's representative and titled "In Sacramento,
common-sense solutions need not apply," the representative
explains, " �w]e thought that most people could make a
distinction between a construction project that uses
bulldozers and earthmovers to erect a permanent structure and
a fair or event that occupies a corner of a park one week and
is gone the next."
It seems reasonable to generally assume that a firework
display or other type of limited duration event should be
treated differently than a major construction project. This
is why CEQA contains a categorical exemption that applies to
minor public or private alterations in the condition of land,
water, and/or vegetation, including "minor temporary use of
land having negligible or no permanent effects on the
environment, including carnivals, sales of Christmas trees,
etc."
As discussed above, the City has spent its resources
unsuccessfully arguing that its permitting process is
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ministerial. The City has never attempted, as an alternative,
to use the "minor temporary use of land" exemption to permit
public events. As such, one could argue that the City has not
exhausted all of its remedies and that the categorical
exemption should be utilized before seeking a more rigid
approach, such as a statutory exemption. If there is concern
whether firework displays and other limited duration events
fit under the "minor temporary use of land" exemption because
they are not specifically listed in the CEQA Guidelines (as
carnivals and sales of Christmas trees are), the author and
committee may wish to consider clarifying amendments that add
other limited duration events, such as fireworks displays, as
examples of projects that could fall under the categorical
exemption. This amendment could replace the existing
provision in the bill that actually appears to impose
additional limitations on the "minor alterations to land"
categorical exemption.
In discussions with the sponsor and the City about the
categorical exemption option, they explained that claiming a
categorical exemption is problematic because it could be
challenged based on an exception to an exemption (see
paragraph "6" in "EXISTING LAW"). An exception may be invoked
to nullify a categorical exemption if, for example, there is a
reasonable possibility that significant environmental impacts
will result due to unusual circumstances. Since the City has
not attempted to claim a categorical exemption when permitting
a public event, it is too speculative to determine whether a
legal challenge invoking an exception to an exemption would
have merit.
As was indicated by the original version of the bill and the
sponsor's recent letter and editorial, the proponents of the
bill would prefer a statutory exemption for the permitting of
limited duration events ranging from fireworks displays
lasting less than an hour to the America's Cup, which can last
several years. The benefit of a statutory exemption is that
the permitting process is easier because there is no required
environmental analysis under CEQA. The problem, however, is
that a project that has significant environmental impacts can
receive approval without anyone having to identify feasible
mitigation measures or evaluate reasonable alternatives.
3)Previous Legislation. Last year, AB 206 (Harkey), which would
have created both a statutory CEQA exemption and Coastal Act
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exemption for firework displays, failed passage in this
committee. AB 206 was motivated in large part by a court
ruling regarding an annual firework display in Gualala. In
that case, the California Coastal Commission (Commission)
required a coastal development permit for a 2008 fireworks
display sponsored by the Gualala Festivals Committee (GFC).
The fireworks display was situated near the Gualala River
estuary and Gualala Point Island. The Commission did not
invoke the "temporary event" exception under the Coastal Act
because it had evidence that the planned fireworks display
would have significant adverse impacts upon coastal resources.
Specifically, the Bureau of Land Management and the National
Fish and Wildlife Service issued an environmental 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. According to the Commission, staff had hoped
to work with GFC in 2008 to avoid adverse effects on nesting
birds on Gualala Point Island by discussing options such as a
location change. GFC made no attempt to work with the
Commission; instead, it simply notified the Commission just a
few months before the event that it intended to proceed
without a coastal development permit. The Commission issued a
cease-and-desist order, which the court affirmed.
With a statutory CEQA exemption for limited duration events
such as fireworks displays, an event similar to the Gualala
River fireworks show would be able to escape environmental
review even if there are known significant environmental
impacts that can be mitigated or avoided. The Gualala case
illustrates the need for a nuanced approach to exempting
limited duration events from CEQA. This is why it appears
that the categorical exemption process is the most reasonable
approach.
REGISTERED SUPPORT / OPPOSITION :
Support
San Diego Regional Chamber of Commerce Save Our Events Coalition
(sponsor)
California Retailers Association
SB 973
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Opposition
Monterey County Board of Supervisors
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092