The California Environmental Quality Act requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report 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. The act 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. The act establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to the act.

This bill would prohibit the court, in an action or proceeding alleging a violation of the act, from staying or enjoining the construction or operation of the Temperance Flat Reservoir unless the court makes certain findings.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Temperance Flat Reservoir.

The California Environmental Quality Act requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report 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. The act 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. The act establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to the act.

This bill would prohibit the court, in an action or proceeding alleging a violation of the act, from staying or enjoining the construction or operation of the Temperance Flat Reservoir unless the court makes certain findings.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Temperance Flat Reservoir.

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 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 The act 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 The act establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA. the act.

This bill would prohibit the court, in an action or proceeding alleging a violation of CEQA, the act, from staying or enjoining the construction or operation of the Temperance Flat Reservoir unless the court makes certain findings.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Temperance Flat Reservoir.

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 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 establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA.

This bill would prohibit the court, in an action or proceeding brought alleging a violation of CEQA, from staying or enjoining the construction or operation of the Temperance Flat Reservoir unless the court makes certain findings.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Temperance Flat Reservoir.

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 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 establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA.

This bill would prohibit the court, in an action or proceeding brought alleging a violation of CEQA, from staying or enjoining the construction or operation of the Temperance Flat Reservoir unless the court makes certain findings.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Temperance Flat Reservoir.

Date of Hearing: April 4, 2016

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Das Williams, Chair

ABPCA Bill Id:AB 1586 (

Author:Mathis) – As Amended Ver:March 28, 2016

SUBJECT: California Environmental Quality Act: Temperance Flat Reservoir

SUMMARY: Generally prohibits a court, in granting relief in an action or proceeding challenging the Temperance Flat Reservoir under the California Environmental Quality Act (CEQA), from staying or enjoining the construction or operation of the project.

EXISTING LAW:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative 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).
   
2. Authorizes judicial review of CEQA actions taken by public agencies, following the agency's decision to carry out or approve the project. Challenges alleging improper determination that a project may have a significant effect on the environment, or alleging an EIR doesn't comply with CEQA, must be filed in the Superior Court within 30 days of filing of the notice of approval. The courts are required to give CEQA actions preference over all other civil actions.
   

THIS BILL generally prohibits a court, in granting relief, from staying or enjoining the construction or operation of the Temperance Flat Reservoir project, except that a court may enjoin those specific activities associated with the project that present an imminent threat to public health and safety or that materially, permanently, and adversely affect unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values (in effect limiting the equitable powers of the court and prohibiting existing remedies under CEQA such as voiding the lead agency's decision or suspending project activities).

FISCAL EFFECT: Non-fiscal

COMMENTS:

1. Background. CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, an initial study is prepared to determine whether the 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. 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.

CEQA actions taken by public agencies can be challenged in Superior Court once the agency approves or determines to carry out the project. CEQA appeals are subject to unusually short statutes of limitations. Under current law, court challenges of CEQA decisions generally must be filed within 30-35 days, depending on the type of decision. The courts are required to give CEQA actions preference over all other civil actions. The petitioner must request a hearing within 90 days of filing the petition and, generally, briefing must be completed within 90 days of the request for hearing. There is no deadline specified for the court to render a decision.

In 2011, AB 900 (Buchanan) and SB 292 (Padilla) established expedited CEQA judicial review procedures for a limited number of projects. For AB 900, it was large-scale projects meeting extraordinary environmental standards and providing significant jobs and investment. For SB 292, it was a proposed downtown Los Angeles football stadium and convention center project achieving specified traffic and air quality mitigations. For these eligible projects, the bills provided for original jurisdiction by the Court of Appeal and a compressed schedule requiring the court to render a decision on any lawsuit within 175 days. This promised to reduce the existing judicial review timeline by 100 days or more, while creating new burdens for the courts and litigants to meet the compressed schedule. AB 900's provision granting original jurisdiction to the Court of Appeal was invalidated in 2013 by a decision in the Alameda Superior Court in Planning and Conservation League v. State of California. The stadium project subject to SB 292 has not proceeded. In 2013, SB 743 (Steinberg) established special CEQA procedures modeled on SB 292 for the Sacramento Kings arena project. Like SB 292, SB 743 applied to a single project and included specified traffic and air quality mitigations. SB 743 included a provision limiting injunctive relief which is nearly identical to the provision in this bill.

1. Should the AB 900/SB 292/SB 743 model be expanded? It's an open question whether the idea of limiting the scope and time of judicial review of favored projects was ever good policy, even for one project. The practical benefit of this approach to developers is debatable, and it's unclear whether that benefit outweighs the potential sacrifice to effective environmental review and the increased burden on the courts. The only project that seems to have used and possibly benefited from the judicial review procedures enacted since 2011 is the Sacramento Kings arena project. It should be noted that SB 743 required the arena to be certified Leadership in Energy and Environmental Design (LEED) Gold, as well as minimize traffic and air quality impacts through project design or mitigation measures, including reducing to at least zero the net greenhouse gas (GHG) emissions from private automobile trips to the arena, achieve reductions in GHG emissions from automobiles and light trucks that will exceed the GHG emission reduction targets for 2020 and 2035 adopted for the Sacramento region pursuant to SB 375, and achieve a 15% reduction in vehicle-miles traveled per attendee.
2. Author's statement:

Current law requires an EIR be conducted by a lead agency on any project which may have significant effects on the environment. The agency must also prepare a plan to mitigate all environmental impacts prior to the start of the project. If any organization sues the validity of the EIR, the project must cease during the proceedings. Presently, there are select projects which receive exemption from (CEQA), streamlining the projects enactment. These projects are required to submit their EIR, but they are exempt from ceasing construction and maintenance of the project. Unfortunately, there is no such exemption for the construction of the Temperance Flat Reservoir, which was established in the 2014 Water Bond.

Temperance Flat Reservoir is a proposed dam project on the San Joaquin River, west of Auberry, California. The dam's main purpose would be to supplement storage capacity in the upper San Joaquin River basin. Under the current proposal, Temperance Flat would more than double water storage on the San Joaquin River from below Friant Reservoir. The total water acreage capacity of Temperance Flat Reservoir would equal approximately 1.25 million acre feet.

The Temperance Flat Project will provide necessary water storage to mitigate the effects of future droughts in the state. However, the progress of this project remains in question, because the discretion of organizations which may wish to stall or hinder the construction of the reservoir. Should the EIR be challenged within the courts, the state cannot guarantee the completion of the reservoir prior to the next severe drought.

AB 1586 will ensure that the Temperance Flat Reservoir is completed and operational before the next drought impacts the state. California cannot delay this opportunity to capture more water during future wet years. By exempting the reservoir from CEQA lawsuits, AB 1586 will guarantee an additional 1.25 million acre feet to California’s annual water supply for our people, agriculture, and environmental protection projects.

1. Temperance movement. The Temperance Flat project is highly controversial because it would flood scenic canyons and historic sites along the San Joaquin River, and impact upstream hydroelectricity generation. Estimated construction costs are $2.6 billion or more.  The projected date for start of construction is 2021, with operation by 2030.

Water Quality, Supply, and Infrastructure Improvement Act of 2014 (Proposition 1) provides $2.7 billion to fund the public benefits of a range of water storage projects, including surface storage projects, which may include Temperance Flat. Under Proposition 1, the California Water Commission will decide which projects get funded.

1. Prior legislation. AB 311 (Gallagher, 2014) established special administrative and judicial review procedures under the CEQA, including limited injunctive relief, for water storage projects funded by Proposition 1. AB 311 failed twice in this Committee, on March 23 and April 27, 2015.
2. Double referral. This bill has been double-referred to the Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Association of California Water Agencies

California Chamber of Commerce

San Joaquin Valley Water Infrastructure Authority

Valley Ag Water Coalition

Opposition

Judicial Council

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. / (916) 319-2092