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 exempts specified pipeline projects from the above requirements.

This bill would, until January 1, 2020, additionally exempt from CEQA a project for the construction and installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline, not exceeding 8 miles in length, for the distribution of recycled water within a public street, highway, or right-of-way and would require the lead agency to undertake specified activities, including the filing of a notice of exemption for the project with the Office of Planning and Research and the office of the county clerk of each county in which the project is located. The bill would require the lead agency, before determining the applicability of the exemption, to hold a noticed public hearing to consider and adopt mitigation measures for potential traffic impacts of the project. Because the lead agency would be required to determine whether a project qualifies for that exemption, and undertake specified activities, this bill would impose a state-mandated local program. The bill would require the county clerk to post the notice of exemption within 24 hours of receipt, thereby imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2015 - 2016 Regular

Bill No: AB 2438

SUBJECT: California Environmental Quality Act: exemption: recycled water pipelines.

ANALYSIS:

Existing law, under the California Environmental Quality Act (CEQA):

1. Requires lead agencies with the principal responsibility for carrying out or approving a proposed 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.). Exemptions relating to pipelines include:
   
   1. A project of less than one mile in length within a public street or highway, or another public right-of-way for the installation of a new pipeline or maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline. “Pipeline” means “subsurface pipelines and subsurface or surface accessories or appurtenances to a pipeline, such as mains, traps, vents, cables, conduits, vaults, valves, flanges, manholes and meters.” (§21080.21).
      
      1. Requires a resource agency to consider only the length of pipeline that is within its legal jurisdiction in determining the applicability of this exemption to a natural gas pipeline safety enhancement activity under review by the resource agency. (§21080.21).
         
      2. Defines “natural gas pipeline” to mean a public utility activity as part of a program to enhance the safety of intrastate natural gas pipelines in accordance with a decision, rule, or regulation adopted by the Public Utilities Commission; and defines “resource agency” to mean the State Lands Commission, California Coastal Commission, Department of Fish and Game, or the State Water Resources Control Board, and local or regional agencies with permitting authority under the California Coastal Act of 1976 or regional water quality control board requirements. (§21080.21).
         
      3. Sunsets the provisions above, in §21080.21, on January 1, 2018. (§21080.21).
         
   2. The inspection, repair, restoration, reconditioning, relocation, replacement, or removal of an existing pipeline less than eight miles in length, or any valve, flange, meter, or other equipment directly attached to the pipeline if certain conditions are met (e.g., “pipeline” is covered under the Elder California Pipeline Safety Act of 1981 [for transporting hazardous liquid substances or highly volatile liquid substances], project is not less than eight miles from any section of pipeline that has been subject to this exemption in the past 12 months, certain notice is provided, project is located within an existing right-of-way and restored to its condition prior to the project, and notice requirements). (§21080.23).
      
   3. Development and approval of building standards by state agencies for recycled water systems until July 1, 2017. (§21080.45).
      
   4. During the drought state of emergency proclaimed by the Governor on January 17, 2014, for a public agency to mitigate drought conditions by building or expanding a recycled water pipeline and related groundwater replenishment infrastructure if it is within an existing right-of-way, does not impact wetlands or sensitive habitat, and where the construction impacts are fully mitigated. This authority remains operative until the state of emergency has expired or until January 1, 2017, whichever occurs first. (§21080.08).
      
   5. Operation, repair, maintenance, or minor altercation of existing private or public structures involving negligible or no expansion, including existing facilities of both investor and publicly owned utilities used to provide electric power, natural gas, sewage, or other public utility services. (CEQA Guidelines §15301(b)).
      
   6. Replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity, including replacement or reconstruction of existing utility systems or facilities involving negligible or no expansion of capacity. (CEQA Guidelines §15301(c)).
      
2. Defines “recycled water” to mean water which, as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur and is therefore considered a valuable resource. (Water Code §13050(n)).
   

This bill:

1. Exempts from review under CEQA a project of less than eight miles in length within a public street, highway, or right-of-way for the construction and installation of a new, recycled water pipeline, or maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing recycled water pipeline.
   
2. Defines “pipeline” to include subsurface pipelines and subsurface or surface accessories or appurtenances to a pipeline, such as mains, traps, vents, cables, conduits, vaults, valves, flanges, manholes, and meters.
   
3. Requires the lead agency to do all of the following:
   
   1. Hold a noticed public hearing to consider and adopt mitigation measures for potential traffic impacts of the project.
      
   2. File a notice of exemption with the Office of Planning and Research and in the office of the county clerk of each county in which the project is located within 20 days of the approval of the project.
      
   3. Ensure that the overlaying property owner has given permission to access the property, in the case of a right-of-way over private property, if access is not granted in the express terms of the right-of-way.
      
   4. Ensure the restoration of the public street, highway, or right-of-way to a condition consistent with all applicable local laws or regulations, or a negotiated agreement.
      
4. Requires the project applicant to comply with all applicable laws and regulations, including California Code of Regulations Chapter 3 (commencing with §60301) of Division 4 of Title 22 (i.e., water recycling criteria).
   
5. Provides that the exemption does not apply to any of the following:
   
   1. A project that is a part of a recycled water pipeline project greater than eight miles.
      
   2. A project that is located in a resource area, such as a park, open space, protected habitat areas, or lands subject to a conservation easement.
      
   3. A project for which an excavation activity that is more than one-half mile in length at any one time will be undertaken.
      
6. Sunsets January 1, 2020.
   
7. Makes findings related to the drought and the benefits of recycled water.
   

Background

1. Background on CEQA.
   
   1. Overview of CEQA Process. 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.
      
   2. What Is Analyzed In an Environmental Review? Pursuant to CEQA, an environmental review analyzing the significant direct and indirect environmental impacts of a proposed project may include water quality, surface and subsurface hydrology, land use and agricultural resources, transportation and circulation, air quality and greenhouse gas emissions, terrestrial and aquatic biological resources, aesthetics, geology and soils, recreation, public services and utilities such as water supply and wastewater disposal, and cultural resources. The analysis must also evaluate the cumulative impacts of any past, present, and reasonably foreseeable projects/activities within study areas that are applicable to the resources being evaluated. A study area for a proposed project must not be limited to the footprint of the project because many environmental impacts of a development extend beyond the identified project boundary. Also, CEQA stipulates that the environmental impacts must be measured against existing physical conditions within the project area, not future, allowable conditions.
      
   3. CEQA Provides Hub For Multi-Disciplinary Regulatory Process. A CEQA exemption does not alleviate a project proponent from its obligation to obtain mandatory permits or adhere to specified regulatory programs. CEQA assists in moving a project through the multi-disciplinary, regulatory process because responsible agencies rely on the lead agency’s environmental documentation in acting on the aspect of the project that requires its approval and must prepare its own findings regarding the project. A variety of issues, many of which involve permitting and/or regulatory program requirements, should be coordinated and analyzed together as a whole. CEQA provides a comprehensive analysis of a project’s impacts in those subject areas.
      
2. Background: Recycled Water.
   
   1. Overview of Recycled Water. Recycled water is treated wastewater from various sources such as domestic sewage, industrial wastewater, and stormwater runoff, and is conveyed to a water treatment plant. Before recycled water can be used for these beneficial uses, the regional water quality control boards (RWQCBs) and the Department of Public Health (DPH) require treatment to remove pollutants that could be harmful to the beneficial use. Recycled water is used for nonpotable (not for drinking) purposes, such as agriculture, landscape, public parks, and golf course irrigation. Other nonpotable applications include cooling water for power plants and oil refineries, industrial process water for such facilities as paper mills and carpet dyers, toilet flushing, dust control, construction activities, concrete mixing, and artificial lakes.
      
      Recycled water can satisfy many nonpotable water demands, as long as it is adequately treated to ensure water quality appropriate for the use. Most recycled water treatment plants produce tertiary treated water, meaning the water has been through three levels of treatment including filtration and disinfection. In uses where there is a greater chance of human exposure to the water, more treatment is required. As for any water source that is not properly treated, health problems can arise from drinking or being exposed to recycled water if it contains disease-causing organisms or other contaminants.
      
      Although most water recycling projects have been developed to meet nonpotable water demands, a number of projects use recycled water indirectly for potable purposes. These projects include recharging groundwater aquifers and augmenting surface water reservoirs with recycled water. For example, Orange County has a wastewater-recycling program where wastewater is treated to a level meeting state and federal drinking water standards and is then released into local groundwater recharge basins, where it will eventually be re-drawn for municipal or private use.
      
   2. Regulatory Authorities of Recycled Water in California. A number of regulatory agencies have adopted requirements that must be followed when producing, distributing, and using recycled water. DPH has adopted strict public health and safety requirements and guidelines, which help protect the public from any potential risk associated with use of recycled water (Titles 17 and 22 of the California Code of Regulations). The State Water Resources Control Board (SWRCB) and RWQCBs grant permits to oversee production, conveyance, and use of recycled water. Local Departments of Public Health may also have guidelines and inspection requirements for the use of recycled water, such as requirements for the use of backflow devices to prevent mixing of recycled water with potable water. The sanitation districts have adopted ordinances and requirements for recycled water users pertaining to the use of recycled water that incorporate requirements and regulations imposed upon the sanitation districts by other regulatory agencies.

Comments

1. Purpose of Bill. According to the author, “Water recycling has the greatest potential to provide much needed water resources in our state. The problem many communities face when attempting to get the required infrastructure in the ground, even when there is not much of an impact on the environment, is that the project must still comply with the cumbersome CEQA process. In most cases the recycled water pipelines are going in the ground next to existing water pipelines, which are found on streets and roadways in public right-of-ways, but the CEQA process requires a project to comply with numerous potential impacts creating extensive time delays and costs.
   
   “AB 2438 would help increase the accessibility of recycled water for use by farms, industry or landscape irrigators, including CalTrans; would reduce energy costs and environmental impacts from importing water.”
   
2. Concerns regarding recycled water. The author states, “Water recycling has the greatest potential to provide much-needed new water resources for communities throughout California. The public and private sector, including agriculture, would benefit greatly from the availability of more reclaimed water.” Although recycled water is generally understood to be a positive means for supplementing/increasing water supply in the state, it has its share of concerns that could benefit from being analyzed and addressed in a project’s environmental review. For example:
   
   1. Corrosion of water system pipes. The recent water crisis in Flint, Michigan, serves as a strong reminder that water infrastructure can have many vulnerabilities, such as corrosion. Recycled water can corrode pipes. Corrosion is an electro-chemical reaction on metallic surfaces caused by the presence of highly reactive ions in recycled water, such as chloride, sulfide, or sulfate, and can be increased by high pH levels, alkalinity, and reduced oxygen concentrations. The rate of corrosion is related to factors, such as: pH of the water, amount of oxygen in the water, chemical makeup of the water, temperature of the water, velocity/pressure of water in the pipe. The internal corrosion of piping systems may raise health concerns including the negative impacts associated with the leaching of lead, copper and other harmful metals from water pipes into the drinking water supply.
      
   2. Natural contaminants, e.g. arsenic, are contaminants nonetheless. According to the United States Geological Survey (USGS), natural contaminants, such as arsenic, occur at high concentrations in about 20% of the groundwater resources used for supply in California. Groundwater provides about one-third of California’s drinking supply in a typical year, but more during drought conditions. According to USGS, 11% of groundwater used by public water operators shows arsenic levels exceeding the 10 parts per billion arsenic threshold.
      
      According to the World Health Organization (WHO), arsenic is one of WHO’s ten chemicals of major public health concern. Inorganic arsenic is acutely toxic. Intake of inorganic arsenic over a long period can lead to chronic arsenic poisoning. Effects, which can take years to develop depending on the exposure level, include skin lesions, peripheral neuropathy, diabetes, cardiovascular diseases, and cancer. Human exposure to elevated levels of inorganic arsenic occurs mainly through the consumption of groundwater containing naturally high levels of inorganic arsenic, food prepared with this water, and food crops irrigated with high arsenic water sources. For example, in one estimate, arsenic-contaminated, potable groundwater in Bangladesh alone was attributed 9,100 deaths and 125,000 Disability Adjusted Life Years in 2001.
      
      As mentioned above, Orange County has a wastewater-recycling program where wastewater is treated to a level meeting state and federal drinking water standards and is then released into local groundwater recharge basins, where it will eventually be re-drawn for municipal or private use. In August 2015, Scott Fendorf, a biogeochemist at Stanford University published a study and found that when highly purified wastewater was stored in an Orange County aquifer, the water caused arsenic to escape from clay sediments in a way that naturally infiltrating water did not. In some instances, researchers said that arsenic concentrations exceeded the drinking water limit of 10 micrograms per liter; the increases were temporary and levels eventually returned to normal. According to the researchers at Stanford University and the Orange County Water District’s Groundwater Replenishment System, the root of the problem was that the purified, recycled water lacked the minerals that native water acquires as it soaks into the earth or flows along rivers. Professor Fendorf said that this may be the first time highly purified water was identified as a trigger by which arsenic can contaminate groundwater. (Monte Morin, “Purified wastewater triggers release of arsenic within aquifer, study finds,” The Los Angeles Times, September 4, 2015.)
      
   3. A side of pharmaceuticals with your vegetables. Studies have found a variety of drugs in crops, such as cholesterol medications, caffeine, and triclosan. In a recent study, researchers found that the anticonvulsive epilepsy drug, carbamazepine, which is released in urine, can accumulate in crops irrigated with recycled water and end up in the urine of produce-eaters not on the drug. Pharmaceuticals may get trapped in an infinite urine-to-vegetable-to-urine cycle, which exposes consumers to drug doses with unknown health effects. (Beth Mole, “Prescription meds get trapped in disturbing pee-to-food-to-pee loop,” Environmental Science & Technology, April 20, 2016). The researchers found that while the amounts of the drug in a produce-eater’s urine were four orders of magnitude lower than what is seen in the urine of patients purposefully taking the drug, there is a possibility that trace amounts could still have health effects in some people, such as those with a genetic sensitivity to the drugs, pregnant women, children, and those who eat a lot of produce, such as vegetarians. With the growing practice of reclaiming wastewater for crop irrigation, the produce contamination could become more common and more potent. California, which grows a large portion of US produce, currently uses reclaimed water for 6% of its irrigation needs, but as noted by the author of this bill, the increase in usage is being encouraged.
      

As mentioned above, although recycled water is an important component in addressing water supply issues in this state, recycled water is not without its concerns and should be analyzed and addressed to ensure public health and environmental safety.

1. Is ignoring impacts prudent? In addition to public health and environmental impacts, there may be other significant impacts that would not be addressed with an exemption as proposed by this bill. For example, such a pipeline exemption may adversely affect roads and may cause conflicts with entrances to nearby homes and businesses considering a right-of-way can be fairly expansive such as 50 feet or more in width. There may also be adverse noise and air quality impacts for area residents, or sensitive uses such as schools, senior centers, and hospitals. Eight miles of new pipeline carrying recycled water may also have long-term, growth-inducing impacts. With a CEQA exemption, as provided by this bill, there would be no consideration of these and other impacts under the Act.
   
   The CEQA review process provides an avenue for decisionmakers to make informed decisions. Does bypassing CEQA potentially create more of a liability for those decisionmakers who should have known about potential impacts, but chose not to? Also, does the short-term benefit of expediency justify potentially long-term, permanent consequences/damages to the community?
   
2. What kind of recycled water does this exemption apply? This bill exempts from CEQA the construction and installation of recycled water pipeline. The bill is silent on the nature/use of recycled water, such as potable or nonpotable use, or the degree/type of treatment to which this exemption applies. Current law provides no definition of “recycled water” in CEQA. Recycled water is treated to a level that is appropriate for its intended beneficial use. For example, recycled water for landscape irrigation water is treated at a lower level than recycled water meant for indirect potable use. Is it the intent of the authors for this exemption to apply to recycled water for all beneficial uses or only nonpotable ones?
   
3. SWRCB’s recycled water policy and compliance with CEQA. SWRCB’s report, Policy for Water Quality Control for Recycled Water (last revised in January 2013), states, “We strongly encourage local and regional water agencies to move toward clean, abundant, local water for California by emphasizing appropriate water recycling, water conservation, and maintenance of supply infrastructure and the use of stormwater (including dry-weather urban runoff) in these plans; these sources of supply are drought-proof, reliable, and minimize our carbon footprint and can be sustained over the long-term.” Among the goals adopted, is to “increase the use of recycled water over 2002 levels by at least one million acre-feet per year (afy) by 2020 and by at least two million afy by 2030…Included in these goals is the substitution of as much recycled water for potable water as possible by 2030.” (SWRCB, Policy for Water Quality Control for Recycled Water, p. 1).
   
   SWRCB’s Recycled Water Policy includes ways to expedite the implementation of recycled water projects. The report makes no mention that CEQA is an impediment to either reaching these goals or increasing the use of recycled water in the state, but rather encourages public agencies to use the presumption that recycled water has a beneficial impact “in evaluating the impacts of recycled water projects on the environment as required by [CEQA].” (Ibid, p. 3).
   
4. Recycled water projects complying with CEQA. The State Clearinghouse’s CEQA database shows that in the past few years, there have been multiple recycled water pipeline projects that involve constructing recycled water pipeline and have complied with CEQA. Many of these projects required a mitigated negative declaration (MND) as opposed to an EIR.
   
   CEQA provides that if an initial study shows that there would not be a significant effect on the environment, then the lead agency must prepare a negative declaration (ND) or MND. The lead agency then prepares a draft ND/MND and publishes the document for public review for at least 21 days. After comments are considered, the lead agency can either recirculate the ND/MND if public comments required the project scope to change, or the lead agency can adopt the document. The lead agency must file a Notice of Determination after adopting the document and there is a 30-day statute of limitations for legal challenge.
   
   The benefit to the project proponent, by complying with CEQA and preparing an ND/MND when there is no significant impact, is that these environmental documents can be completed more quickly, at less cost, and have a shorter statute of limitations for legal challenge than an EIR. The benefit to the public is transparency, informed decisionmaking, public comment, and the knowledge that the project’s impacts are less than significant.
   
5. EIGHT miles of pipeline? To help put in perspective how long eight miles of pipeline is, consider the following:

• The City of San Francisco is seven miles from east to west. This bill would allow for new pipeline to be built across the entire city plus an additional mile without an environmental review.
• The Golden Gate Bridge is 1.7 miles – Eight miles is the equivalent in distance to more than 4.5 Golden Gate Bridges placed end-to-end.
• Yosemite Valley stretches for 7.5 miles in a roughly east-west direction.
• The approximate distance between Santa Monica Pier and Beverly Hills Blvd. in Beverly Hills is eight miles.
• The length of 140.8 football fields placed end-to-end is equal to eight miles.

Taking into account the sheer distance of a project that would have no environmental review pursuant to this bill, do the ends justify the means? Is it prudent to ignore up to eight miles worth of potentially significant impacts?

1. Segmenting a project. Considering that AB 2438 exempts up to eight miles of new pipeline, it is possible that this may be part of a larger water recycling project. CEQA requires that a project must be treated and analyzed as a whole and not segmented into multiple, individual projects. So, for example, if a new pipeline is connected to a new wastewater facility, the AB 2438 proposed exemption would not apply – The new pipeline cannot be segmented as a separate project and must be considered as part of the project as a whole.
   
2. What do we lose with a CEQA exemption? It is not unusual for certain interests to assert that CEQA impedes on a project coming to fruition or that a particular exemption will expedite construction of a particular type of project and reduce costs. This, however, frequently overlooks the benefits of environmental review: 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 may not get addressed. For example:
   

• How can decisionmakers and the public be aware of impacts, mitigation measures, and alternatives of an exempt pipeline?
  
• Is it appropriate for the public to live with the consequences of exempt projects where impacts are not mitigated and alternatives are not considered regarding certain matters, such as air quality, water quality, noise, cumulative impacts, and growth inducing impacts?
  
• Because adverse project impacts do not disappear when they are not identified and mitigated with an exemption, does the exemption result in a direct transfer of responsibility for mitigating impacts from the project applicant/developer to the public (i.e., taxpayers) if impacts are ultimately addressed after completion of the project?
  
• If taxpayers, rather than a developer, are ultimately responsible for mitigating impacts of an exempt project after project completion, what assessments or taxes will be increased to fund mitigation or pay for alternatives at a later date?

Regardless of the merits of any project, short-term, long-term, and/or permanent consequences of a project should be known by the decisionmakers, the project proponent, and the public before a project is approved, and mitigated or avoided if possible before it is too late – CEQA specifically provides for that informed decisionmaking. Recycled water projects, including constructing up to eight miles of new pipeline, pose challenges, risks, and serious consequences, such as the potential for urban sprawl, that should be assessed and subject to environmental review.

1. CEQA litigation.
   
   It is not unusual for certain interests to blame CEQA lawsuits for causing problems to a project. However, it should be noted that the only tool for enforcing CEQA is litigation. Those citing CEQA litigation as a problem do not indicate the result of that litigation. For example, 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)?
   
   The total number of CEQA cases filed averages about 200 cases per year statewide and make up approximately 0.02% of 1,100,000 civil cases filed annually in California.
   
   The California Attorney General’s office conducted a case study of CEQA challenges in the City and County of San Francisco from July 2011 through December 2011 and found that 18 lawsuits were filed out of 5,203 projects considered under CEQA.
   
   According to the Natural Resources Defense Council, a review of CEQA challenges in the City of Los Angeles from January 2011 through July 20, 2012, shows that of 1,182 projects reviewed under CEQA, 18 were challenged, which is a litigation rate of 1.5%.
   
   Although certain interests believe CEQA litigation to be a swathing impediment to some projects, the numbers above seem to indicate otherwise. And if a project is the subject of litigation, perhaps the cause of action has merit and ensures compliance with the law. The volume of CEQA litigation is low considering the thousands of projects subject to CEQA each year as well as the volume of civil litigation in general statewide.
   
2. Conclusion. CEQA compels public agencies, in a public setting, with public participation, to consider and decide on projects with full knowledge about the environmental conditions and consequences of their actions; and a CEQA environmental review document, which is the result of a meticulous and methodical process, compiles all of the necessary facts in one place. Bearing in mind that a project may have long-term or permanent environmental impacts, is it not prudent for these determinations to be made in a thoughtful, transparent manner, and that environmental damage caused by a project be minimized when feasible?
   
   Considering the multiple issues raised above, the Committee may wish to consider if this bill adds significant enough benefit to warrant the potential known significant harms.
   

Related/Prior Legislation

AB 1749 (Mathis) exempts from CEQA a water treatment project as determined by the City of Porterville. AB 1749 will be heard by the Senate Environmental Quality Committee on June 29, 2016.

SB 88 (Budget and Fiscal Review Committee, Chapter 27, Statutes of 2015), exempts recycled water projects to mitigate drought conditions for which a state of emergency was proclaimed by the Governor on January 17, 2014, if the project consists of construction or expansion of recycled water pipeline and directly related infrastructure within existing rights-of-way and directly related groundwater replenishment, if the project does not affect wetlands or sensitive habitat, and where the construction impacts are fully mitigated consistent with applicable law. This exemption remains operative until the current drought state of emergency expires or until January 1, 2017, whichever occurs first.

AB 2417 (Nazarian, 2014) exempted from CEQA the installation of new, and maintenance of existing, recycled water pipelines less than eight miles in length. AB 2417 was held in Senate Environmental Quality Committee.

AB 83 (Jeffries, 2011) provided an exemption from CEQA for installation of a new recycled water pipeline less than eight miles in length within a paved public street highway, or right-of-way. AB 83 failed in the Assembly Natural Resources Committee.

SOURCE:

Author

SUPPORT:

American Council of Engineering Companies

California Chamber of Commerce

California Farm Bureau Federation

Castaic Lake Water Agency

City of Camarillo, Mayor Mike Morgan

City of Santa Barbara, Mayor Helene Schneider

County of Riverside

Grangetto Ranches, Inc.

Mountain Counties Water Resources Association

Rainbow Municipal Water District

Rincon del Diablo Municipal Water District

San Diego County Farm Bureau

San Diego County Water Authority

San Diego Unincorporated Communities Governmental Affairs Committee

San Gabriel Valley Water Association

Santa Margarita Water District

South Coast Water District

South Tahoe Public Utility District

Southwest California Legislative Council

Valley Center Municipal Water District

OPPOSITION:

California League of Conservation Voters

Sierra Club California

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:

Author:(Waldron and Nazarian)

As Introduced Ver:February 19, 2016

Majority vote

SUMMARY: Establishes an exemption from the California Environmental Quality Act (CEQA) for installation of new, and maintenance of existing, recycled water pipelines less than eight miles in length. Specifically, this bill:

1. Exempts from review under CEQA a project of less than eight miles in length within a public street, highway, or right-of-way for the construction and installation of a new recycled water pipeline, or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing recycled water pipeline.
2. Defines "pipeline" to include subsurface pipelines and subsurface or surface accessories or appurtenances to a pipeline, such as mains, traps, vents, cables, conduits, vaults, valves, flanges, manholes, and meters.
3. Requires the lead agency to do all of the following:
   1. Hold a noticed public hearing to consider and adopt mitigation measures for potential traffic impacts of the project.
   2. File a notice of exemption with the Office of Planning and Research (OPR) and in the office of the county clerk of each county in which the project is located within 20 days of the approval of the project.
   3. Ensure that the overlaying property owner has given permission to access the property, in the case of a right-of-way over private property, if access is not granted in the express terms of the right-of-way.
   4. Ensure the restoration of the public street, highway, or right-of-way to a condition consistent with all applicable local laws or regulations, or a negotiated agreement.
4. Requires the project applicant to comply with all applicable laws and regulations, including Code of Regulations Chapter 3 (commencing with Section 60301) of Division 4 of Title 22 (i.e., water recycling criteria).
5. Provides that the exemption does not apply to any of the following:
   1. A project that is a part of a recycled water pipeline project greater than eight miles.
   2. A project that is adjacent to another project for which a claim of exemption has been made.
   3. A project that is located in a resource area, such as a park, open space, protected habitat areas, or lands subject to a conservation easement.
   4. A project for which an excavation activity that is more than one-half mile in length at any one time will be undertaken.
6. Sunsets January 1, 2020.
7. Makes findings related to the drought and the benefits of recycled water.

EXISTING LAW:

1. 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. Provides that CEQA does not apply to a pipeline project less than one mile in length within a public street or highway or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline. Excludes any surface facility related to the operation of the underground pipeline.
3. Provides that CEQA does not apply to a pipeline project less than eight miles in length consisting of inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing intrastate liquid pipeline subject to the Pipeline Safety Act, subject to specified conditions, including:
   1. Construction and excavation activities are not undertaken over more than one half mile at a time.
   2. The section of pipeline is not less than eight miles from any section that has received an exemption in the past 12 months.
   3. Project activities are undertaken within an existing right-of-way and the right-of-way is restored to its pre-project condition.
   4. The diameter of the pipeline is not increased.
4. Exempts recycled water projects to mitigate drought conditions for which a state of emergency was proclaimed by the Governor on January 17, 2014, if the project consists of construction or expansion of recycled water pipeline and directly related infrastructure within existing rights of way, and directly related groundwater replenishment, if the project does not affect wetlands or sensitive habitat, and where the construction impacts are fully mitigated consistent with applicable law. This exemption remains operative until the current drought state of emergency has expired or until January 1, 2017, whichever occurs first (SB 88 (Budget and Fiscal Review Committe), Chapter 27, Statutes of 2015).
5. Defines "recycled water" as water which, as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur and is therefore considered a valuable resource.

FISCAL EFFECT: According to the Assembly Appropriations Committee, no additional state costs.

COMMENTS: 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. 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.

CEQA includes limited exemptions for relatively small-scale pipeline maintenance and installation projects. A general exemption is available for projects under one mile in length. A more specific exemption is available for projects up to eight miles in length involving maintenance and replacement, but not expansion, of pipelines regulated under the Pipeline Safety Act (e.g., petroleum pipelines). This bill proposes an exemption for pipeline projects significantly broader than any existing exemption. It would apply to both existing and new pipelines.

According to the author:

Water recycling has the greatest potential to provide much needed water resources in our state. The problem many communities face when attempting to get the required infrastructure in the ground, even when there is not much of an impact to the environment, is that the project must still comply with the cumbersome CEQA process. In most cases the recycled water pipelines are going in the ground next to existing water pipelines, which are found on streets and roadways in public right-of-ways, but the CEQA process requires a project to comply with numerous potential impacts creating extensive time delays and costs.

There is no evidence that CEQA is an unreasonable impediment to recycled water projects. A review of CEQA notices submitted to OPR shows that recycled water projects have been routinely approved via exemption or negative declaration. This bill exempts pipeline projects within existing rights of way. All such projects are exempt under current law if they are under one mile. Categorical exemptions are available for maintenance, replacement and reconstruction of existing public utility facilities, involving negligible or no expansion of capacity. In June 2015, SB 88, a drought relief budget trailer bill, added an exemption for recycled water projects to mitigate drought conditions under the current drought state of emergency.

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. / (916) 319-2092 FN: 0002780

Date of Hearing: April 20, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2438

Author:(Waldron) – As Introduced Ver:February 19, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill exempts, until January 1, 2020, the installation and maintenance of existing recycled water pipelines less than eight miles in length from the California Environmental Quality Act (CEQA) but requires a lead agency to file a Notice of Exemption (NOE) with the Office of Planning and Research. This bill prohibits specified projects from qualifying for the exemption.

Before determining if a project is eligible for exemption, this bill requires a lead agency to hold a noticed public hearing to consider and adopt mitigation measures for potential traffic impacts.

FISCAL EFFECT:

No additional state costs.

COMMENTS:

1. Purpose. According to the author, in most cases the recycled water pipelines are going in the ground next to existing water pipelines, which are found on streets and roadways in public right-of-ways. However, the CEQA process requires a project to comply with numerous potential impacts creating extensive time delays and costs.

This bill provides a short-term, narrow CEQA exemption to help expedite projects.

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 environmental impact report (EIR).

There is currently a CEQA exemption for relatively small-scale pipeline maintenance and installation projects less than one mile in length. A more specific exemption is available for projects up to eight miles in length involving maintenance and replacement, but not expansion, of pipelines, such as petroleum pipelines regulated under the Pipeline Safety Act.

1. Prior legislation. This bill is identical to AB 2417 (Nazarian) of 2014 which was held in the Senate Environmental Quality Committee.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 11, 2016

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Das Williams, Chair

ABPCA Bill Id:AB 2438 (

Author:Waldron) – As Introduced Ver:February 19, 2016

SUBJECT: California Environmental Quality Act: exemption: recycled water pipelines

SUMMARY: Establishes an exemption from the California Environmental Quality Act (CEQA) for installation of new, and maintenance of existing, recycled water pipelines less than eight miles in length.

EXISTING LAW:

1. 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. Provides that CEQA does not apply to a pipeline project less than one mile in length within a public street or highway or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline. Excludes any surface facility related to the operation of the underground pipeline.
   
3. Provides that CEQA does not apply to a pipeline project less than eight miles in length consisting of inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing intrastate liquid pipeline subject to the Pipeline Safety Act, subject to specified conditions, including:
   1. Construction and excavation activities are not undertaken over more than one half mile at a time.
      
   2. The section of pipeline is not less than 8 miles from any section that has received an exemption in the past 12 months.
      
   3. Project activities are undertaken within an existing right-of-way and the right-of-way is restored to its pre-project condition.
      
   4. The diameter of the pipeline is not increased.
4. Exempts recycled water projects to mitigate drought conditions for which a state of emergency was proclaimed by the Governor on January 17, 2014, if the project consists of construction or expansion of recycled water pipeline and directly related infrastructure within existing rights of way, and directly related groundwater replenishment, if the project does not affect wetlands or sensitive habitat, and where the construction impacts are fully mitigated consistent with applicable law. This exemption remains operative until the current drought state of emergency has expired or until January 1, 2017, whichever occurs first (SB 88, Chapter 27, Statutes of 2015).
5. Defines “recycled water” as water which, as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur and is therefore considered a valuable resource.

THIS BILL:

1. Exempts from review under CEQA a project of less than eight miles in length within a public street, highway, or right-of-way for the construction and installation of a new recycled water pipeline, or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing recycled water pipeline.
2. Defines "pipeline" to include subsurface pipelines and subsurface or surface accessories or appurtenances to a pipeline, such as mains, traps, vents, cables, conduits, vaults, valves, flanges, manholes, and meters.
3. Requires the lead agency to do all of the following:
   1. Hold a noticed public hearing to consider and adopt mitigation measures for potential traffic impacts of the project.
   2. File a notice of exemption with the Office of Planning and Research (OPR) and in the office of the county clerk of each county in which the project is located within 20 days of the approval of the project.
   3. Ensure that the overlaying property owner has given permission to access the property, in the case of a right-of-way over private property, if access is not granted in the express terms of the right-of-way.
   4. Ensure the restoration of the public street, highway, or right-of-way to a condition consistent with all applicable local laws or regulations, or a negotiated agreement.
4. Requires the project applicant to comply with all applicable laws and regulations, including California Code of Regulations Chapter 3 (commencing with Section 60301) of Division 4 of Title 22 (i.e., water recycling criteria).
5. Provides that the exemption does not apply to any of the following:
   1. A project that is a part of a recycled water pipeline project greater than eight miles.
   2. A project that is adjacent to another project for which a claim of exemption has been made.
   3. A project that is located in a resource area, such as a park, open space, protected habitat areas, or lands subject to a conservation easement.
   4. A project for which an excavation activity that is more than one-half mile in length at any one time will be undertaken.
6. Sunsets January 1, 2020.
7. Makes findings related to the drought and the benefits of recycled water.

FISCAL EFFECT: Unknown

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. 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.

CEQA includes limited exemptions for relatively small-scale pipeline maintenance and installation projects. A general exemption is available for projects under one mile in length. A more specific exemption is available for projects up to eight miles in length involving maintenance and replacement, but not expansion, of pipelines regulated under the Pipeline Safety Act (e.g., petroleum pipelines). This bill proposes an exemption for pipeline projects significantly broader than any existing exemption. It would apply to both existing and new pipelines.

1. Author's statement:

Water recycling has the greatest potential to provide much needed water resources in our state. The problem many communities face when attempting to get the required infrastructure in the ground, even when there is not much of an impact to the environment, is that the project must still comply with the cumbersome CEQA process. In most cases the recycled water pipelines are going in the ground next to existing water pipelines, which are found on streets and roadways in public right-of-ways, but the CEQA process requires a project to comply with numerous potential impacts creating extensive time delays and costs.

1. No evidence that CEQA is an unreasonable impediment to recycled water projects. A review of CEQA notices submitted to OPR shows that recycled water projects have been routinely approved via exemption or negative declaration. This bill exempts pipeline projects within existing rights of way. All such projects are exempt under current law if they are under one mile. Categorical exemptions are available for maintenance, replacement and reconstruction of existing public utility facilities, involving negligible or no expansion of capacity. In June 2015, SB 88, a drought relief budget trailer bill, added an exemption for recycled water projects to mitigate drought conditions under the current drought state of emergency.
2. Prior legislation. This bill is identical to AB 2417 (Nazarian), which passed this Committee on April 28, 2014 by a vote of 7-1. AB 2417 was later held in the Senate Environmental Quality Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Chamber of Commerce

Los Angeles County Economic Development Corporation

Rincon del Diablo Municipal Water District

San Diego County Water Authority

San Diego Unincorporated Communities

Southwest California Legislative Council

Valley Center Municipal Water District

Opposition

California League of Conservation Voters

Sierra Club California

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

Date of Hearing: April 4, 2016

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Das Williams, Chair

ABPCA Bill Id:AB 2438 (

Author:Waldron) – As Introduced Ver:February 19, 2016

SUBJECT: California Environmental Quality Act: exemption: recycled water pipelines

SUMMARY: Establishes an exemption from the California Environmental Quality Act (CEQA) for installation of new, and maintenance of existing, recycled water pipelines less than eight miles in length.

EXISTING LAW:

1. 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. Provides that CEQA does not apply to a pipeline project less than one mile in length within a public street or highway or any other public right-of-way for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline. Excludes any surface facility related to the operation of the underground pipeline.
   
3. Provides that CEQA does not apply to a pipeline project less than eight miles in length consisting of inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing intrastate liquid pipeline subject to the Pipeline Safety Act, subject to specified conditions, including:
   1. Construction and excavation activities are not undertaken over more than one half mile at a time.
      
   2. The section of pipeline is not less than 8 miles from any section that has received an exemption in the past 12 months.
      
   3. Project activities are undertaken within an existing right-of-way and the right-of-way is restored to its pre-project condition.
      
   4. The diameter of the pipeline is not increased.
4. Exempts recycled water projects to mitigate drought conditions for which a state of emergency was proclaimed by the Governor on January 17, 2014, if the project consists of construction or expansion of recycled water pipeline and directly related infrastructure within existing rights of way, and directly related groundwater replenishment, if the project does not affect wetlands or sensitive habitat, and where the construction impacts are fully mitigated consistent with applicable law. This exemption remains operative until the current drought state of emergency has expired or until January 1, 2017, whichever occurs first (SB 88, Chapter 27, Statutes of 2015).
5. Defines “recycled water” as water which, as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur and is therefore considered a valuable resource.

THIS BILL:

1. Exempts from review under CEQA a project of less than eight miles in length within a public street, highway, or right-of-way for the construction and installation of a new recycled water pipeline, or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing recycled water pipeline.
2. Defines "pipeline" to include subsurface pipelines and subsurface or surface accessories or appurtenances to a pipeline, such as mains, traps, vents, cables, conduits, vaults, valves, flanges, manholes, and meters.
3. Requires the lead agency to do all of the following:
   1. Hold a noticed public hearing to consider and adopt mitigation measures for potential traffic impacts of the project.
   2. File a notice of exemption with the Office of Planning and Research (OPR) and in the office of the county clerk of each county in which the project is located within 20 days of the approval of the project.
   3. Ensure that the overlaying property owner has given permission to access the property, in the case of a right-of-way over private property, if access is not granted in the express terms of the right-of-way.
   4. Ensure the restoration of the public street, highway, or right-of-way to a condition consistent with all applicable local laws or regulations, or a negotiated agreement.
4. Requires the project applicant to comply with all applicable laws and regulations, including California Code of Regulations Chapter 3 (commencing with Section 60301) of Division 4 of Title 22 (i.e., water recycling criteria).
5. Provides that the exemption does not apply to any of the following:
   1. A project that is a part of a recycled water pipeline project greater than eight miles.
   2. A project that is adjacent to another project for which a claim of exemption has been made.
   3. A project that is located in a resource area, such as a park, open space, protected habitat areas, or lands subject to a conservation easement.
   4. A project for which an excavation activity that is more than one-half mile in length at any one time will be undertaken.
6. Sunsets January 1, 2020.
7. Makes findings related to the drought and the benefits of recycled water.

FISCAL EFFECT: Unknown

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. 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.

CEQA includes limited exemptions for relatively small-scale pipeline maintenance and installation projects. A general exemption is available for projects under one mile in length. A more specific exemption is available for projects up to eight miles in length involving maintenance and replacement, but not expansion, of pipelines regulated under the Pipeline Safety Act (e.g., petroleum pipelines). This bill proposes an exemption for pipeline projects significantly broader than any existing exemption. It would apply to both existing and new pipelines.

1. Author's statement:

Water recycling has the greatest potential to provide much needed water resources in our state. The problem many communities face when attempting to get the required infrastructure in the ground, even when there is not much of an impact to the environment, is that the project must still comply with the cumbersome CEQA process. In most cases the recycled water pipelines are going in the ground next to existing water pipelines, which are found on streets and roadways in public right-of-ways, but the CEQA process requires a project to comply with numerous potential impacts creating extensive time delays and costs.

1. No evidence that CEQA is an unreasonable impediment to recycled water projects. A review of CEQA notices submitted to OPR shows that recycled water projects have been routinely approved via exemption or negative declaration. This bill exempts pipeline projects within existing rights of way. All such projects are exempt under current law if they are under one mile. Categorical exemptions are available for maintenance, replacement and reconstruction of existing public utility facilities, involving negligible or no expansion of capacity. In June 2015, SB 88, a drought relief budget trailer bill, added an exemption for recycled water projects to mitigate drought conditions under the current drought state of emergency.
2. Prior legislation. This bill is identical to AB 2417 (Nazarian), which passed this Committee on April 28, 2014 by a vote of 7-1. AB 2417 was later held in the Senate Environmental Quality Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Chamber of Commerce

San Diego County Water Authority

Southwest California Legislative Council

Opposition

California League of Conservation Voters

Sierra Club California

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