AB 311: Environmental quality: Water Quality, Supply, and Infrastructure Improvement Act of 2014.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-04-15
(1)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 and a procedure for the preparation and certification of the record of proceedings upon the filing of an action or proceeding challenging a lead agencys action on the grounds of noncompliance with CEQA.
The Water Quality, Supply, and Infrastructure Improvement Act of 2014 (Proposition 1), approved by the voters on the November 4, 2014, statewide general election, authorizes the issuance of bonds in the amount of $7,120,000,000 pursuant to the State General Obligation Bond Law to finance a water quality, supply, and infrastructure improvement program.
This bill would require the public agency, in certifying the environmental impact report and in granting approvals for specified water storage projects funded, in whole or in part, by Proposition 1, to comply with specified procedures. Because a public agency would be required to comply with those new procedures, this bill would impose a state-mandated local program. The bill would authorize the public agency to concurrently prepare the record of proceedings for the project. The bill would require the Judicial Council, on or before July 1, 2016, to adopt a rule of court to establish procedures applicable to actions or proceedings seeking judicial review of a public agencys action in certifying the environmental impact report and in granting project approval for those projects that require the actions or proceedings, including any appeals therefrom, be resolved, to the extent feasible, within 270 370 days of the certification of the record of proceedings. The bill would prohibit a court from staying or enjoining those projects unless it makes specified findings.
(2)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.
(1)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 and a procedure for the preparation and certification of the record of proceedings upon the filing of an action or proceeding challenging a lead agencys action on the grounds of noncompliance with CEQA.
The Water Quality, Supply, and Infrastructure Improvement Act of 2014 (Proposition 1), approved by the voters on the November 2, 4, 2014, statewide general election, authorizes the issuance of bonds in the amount of $7,120,000,000 pursuant to the State General Obligation Bond Law to finance a water quality, supply, and infrastructure improvement program.
This bill would require the public agency, in certifying the environmental impact report and in granting approvals for specified water storage projects funded, in whole or in part, by Proposition 1, including the concurrent preparation of the record of proceedings and the certification of the record of proceeding within 5 days of the filing of a specified notice, to comply with specified procedures. Because a public agency would be required to comply with those new procedures, this bill would impose a state-mandated local program. The bill would authorize the public agency to concurrently prepare the record of proceedings for the project. The bill would require the Judicial Council, on or before July 1, 2016, to adopt a rule of court to establish procedures applicable to actions or proceedings seeking judicial review of a public agencys action in certifying the environmental impact report and in granting project approval for those projects that require the actions or proceedings, including any appeals therefrom, be resolved, to the extent feasible, within 270 days of the certification of the record of proceedings. The bill would prohibit a court from staying or enjoining those projects unless it makes specified findings.
(2)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.
(1)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 and a procedure for the preparation and certification of the record of proceedings upon the filing of an action or proceeding challenging a lead agencys action on the grounds of noncompliance with CEQA.
The Water Quality, Supply, and Infrastructure Improvement Act of 2014 (Proposition 1), approved by the voters on the November 2, 2014, statewide general election, authorizes the issuance of bonds in the amount of $7,120,000,000 pursuant to the State General Obligation Bond Law to finance a water quality, supply, and infrastructure improvement program.
This bill would require the public agency, in certifying the environmental impact report and in granting approvals for specified water storage projects funded, in whole or in part, by Proposition 1, including the concurrent preparation of the record of proceedings and the certification of the record of proceeding within 5 days of the filing of a specified notice, to comply with specified procedures. Because a public agency would be required to comply with those new procedures, this bill would impose a state-mandated local program. The bill would require the Judicial Council, on or before July 1, 2016, to adopt a rule of court to establish procedures applicable to actions or proceedings seeking judicial review of a public agencys action in certifying the environmental impact report and in granting project approval for those projects that require the actions or proceedings, including any appeals therefrom, be resolved, to the extent feasible, within 270 days of the certification of the record of proceedings. The bill would prohibit a court from staying or enjoining those projects unless it makes specified findings.
(2)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.
(a)For the purposes of this section water storage project means a project described in subdivision (a) of Section 79751 of the Water Code and funded, in whole or in part, with proceeds of bonds sold pursuant to the Water Quality, Supply, and Infrastructure Improvement Act of 2014 (Division 26.7 (commencing with Section 79700) of the Water Code).
(b)Notwithstanding any other law, the procedures established pursuant to subdivision (c) shall apply to an action or proceeding brought to attack, review, set aside, void, or annul the certification of the environmental impact report for a water storage project or the granting of any approvals for a water storage project.
(c)On or before July 1, 2016, the Judicial Council shall adopt a rule of court to establish procedures applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification of the environmental impact report for a water storage project or the granting of any project approvals that require the actions or proceedings, including any potential appeals therefrom, be resolved, to the extent feasible, within 270 370 days of certification of the record of proceedings pursuant to subdivision (e).
(d)(1)The draft and final environmental impact report for a water storage project shall include a notice in not less than 12-point type stating the following:
THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.
(2)The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this section.
(3)Within 10 days after the release of the draft environmental impact report, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that report.
(4)Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.
(5)(A)Within five days following the close of the public comment period, a commenter on the draft environmental impact report may submit to the lead agency a written request for nonbinding mediation. The lead agency and applicant shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental impact report and who requested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.
(B)A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.
(C)The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years experience in land use and environmental law or science, or mediation. The applicant shall bear the costs of mediation.
(D)A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.
(E)The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency, the applicant, and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this subparagraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agencys decision to certify the environmental impact report or to grant one or more initial project approvals.
(6)The lead agency need not consider written or oral comments submitted after the close of the public comment period, unless those comments address any of the following:
(A)New issues raised in the response to comments by the lead agency.
(B)New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.
(C)Changes made to the project after the close of the public comment period.
(D)Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting and monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, where the lead agency releases those documents subsequent to the release of the draft environmental impact report.
(E)New information that was not reasonably known and could not have been reasonably known during the public comment period.
(7)The lead agency shall file the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152 within five days after the last initial project approval.
(e)(1)The lead agency may prepare and certify the record of the proceedings in accordance with this subdivision and in accordance with Rule 3.1365 of the California Rules of Court. The applicant shall pay the lead agency for all costs of preparing and certifying the record of proceedings.
(2)No later than three business days following the date of the release of the draft environmental impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental impact report that is a part of the record of the proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is prepared or received by the lead agency.
(3)Notwithstanding paragraph (2), documents submitted to or relied on by the lead agency that were not prepared specifically for the project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright protected documents, the lead agency shall make an index of these documents available in an electronic format no later than the date of the release of the draft environmental impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index shall specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.
(4)The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make those comments available to the public in a readily accessible electronic format within five days of its receipt.
(5)Within seven business days after the receipt of any comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.
(6)The lead agency shall indicate in the record of the proceedings comments received that were not considered by the lead agency pursuant to paragraph (6) of subdivision (d) and need not include the content of the comments as a part of the record.
(7)Within five days after the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152, the lead agency shall certify the record of the proceedings for the approval or determination and shall provide an electronic copy of the record to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.
(8)Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.
(9)Any dispute over the content of the record of the proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record shall file a motion to augment the record at the time it files its initial brief.
(10)The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.
(f)Subdivisions (d) and (e) do not apply to a project for which an environmental review pursuant to this division has commenced on or before December 31, 2015.
(g)(1)(A)In granting relief in an action or proceeding brought pursuant to this division, the court shall not stay or enjoin the construction or operation of a water storage project unless the court finds either of the following:
(i)The continued construction or operation of the water storage project presents an imminent threat to the public health and safety.
(ii)The water storage project site contains unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values that would be materially, permanently, and adversely affected by the continued construction or operation of the water storage project unless the court stays or enjoins the construction or operation of the water storage project.
(B)If the court finds that clause (i) or (ii) of subparagraph (A) is satisfied, the court shall only enjoin those specific activities associated with the water storage 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.
(2)An action or proceeding to attack, set aside, void, or annul a determination, finding, or decision of the lead agency granting a subsequent project approval shall be subject to the requirements of this chapter.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.
(a)For the purposes of this section water storage project means a project described in Section 79751 of the Water Code and funded, in whole or in part, with proceeds of bonds sold pursuant to the Water Quality, Supply Supply, and Infrastructure Improvement Act of 2014 (Division 26.7 (commencing with Section 79700) of the Water Code).
(b)Notwithstanding any other law, the procedures established pursuant to subdivision (c) shall apply to an action or proceeding brought to attack, review, set aside, void, or annul the certification of the environmental impact report for a water storage project or the granting of any approvals for a water storage project.
(c)On or before July 1, 2016, the Judicial Council shall adopt a rule of court to establish procedures applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification of the environmental impact report for a water storage project or the granting of any project approvals that require the actions or proceedings, including any potential appeals therefrom, be resolved, to the extent feasible, within 270 days of certification of the record of proceedings pursuant to subdivision (e).
(d)(1)The draft and final environmental impact report for a water storage project shall include a notice in not less than 12-point type stating the following:
THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.
(2)The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this section.
(3)Within 10 days after the release of the draft environmental impact report, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that report.
(4)Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.
(5)(A)Within five days following the close of the public comment period, a commenter on the draft environmental impact report may submit to the lead agency a written request for nonbinding mediation. The lead agency and applicant shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental impact report and who requested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.
(B)A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.
(C)The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years experience in land use and environmental law or science, or mediation. The applicant shall bear the costs of mediation.
(D)A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.
(E)The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency, the applicant, and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this subparagraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agencys decision to certify the environmental impact report or to grant one or more initial project approvals.
(6)The lead agency need not consider written or oral comments submitted after the close of the public comment period, unless those comments address any of the following:
(A)New issues raised in the response to comments by the lead agency.
(B)New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.
(C)Changes made to the project after the close of the public comment period.
(D)Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting and monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, where the lead agency releases those documents subsequent to the release of the draft environmental impact report.
(E)New information that was not reasonably known and could not have been reasonably known during the public comment period.
(7)The lead agency shall file the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152 within five days after the last initial project approval.
(e)(1)The lead agency shall may prepare and certify the record of the proceedings in accordance with this subdivision and in accordance with Rule 3.1365 of the California Rules of Court. The applicant shall pay the lead agency for all costs of preparing and certifying the record of proceedings.
(2)No later than three business days following the date of the release of the draft environmental impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental impact report that is a part of the record of the proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is prepared or received by the lead agency.
(3)Notwithstanding paragraph (2), documents submitted to or relied on by the lead agency that were not prepared specifically for the project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright protected documents, the lead agency shall make an index of these documents available in an electronic format no later than the date of the release of the draft environmental impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index must shall specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.
(4)The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make any such comment those comments available to the public in a readily accessible electronic format within five days of its receipt.
(5)Within seven business days after the receipt of any comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.
(6)The lead agency shall indicate in the record of the proceedings comments received that were not considered by the lead agency pursuant to paragraph (6) of subdivision (d) and need not include the content of the comments as a part of the record.
(7)Within five days after the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152, the lead agency shall certify the record of the proceedings for the approval or determination and shall provide an electronic copy of the record to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.
(8)Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.
(9)Any dispute over the content of the record of the proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record shall file a motion to augment the record at the time it files its initial brief.
(10)The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.
(f)Subdivisions (d) and (e) do not apply to a project for which an environmental review pursuant to this division has commenced on or before December 31, 2015.
(f)
(g)(1)(A)In granting relief in an action or proceeding brought pursuant to this division, the court shall not stay or enjoin the construction or operation of a water storage project unless the court finds either of the following:
(i)The continued construction or operation of the water storage project presents an imminent threat to the public health and safety.
(ii)The water storage project site contains unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values that would be materially, permanently, and adversely affected by the continued construction or operation of the water storage project unless the court stays or enjoins the construction or operation of the water storage project.
(B)If the court finds that clause (i) or (ii) of subparagraph (A) is satisfied, the court shall only enjoin those specific activities associated with the water storage 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.
(2)An action or proceeding to attack, set aside, void, or annul a determination, finding, or decision of the lead agency granting a subsequent project approval shall be subject to the requirements of Chapter 6 (commencing with Section 21165). this chapter.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.
(a)For the purposes of this section water storage project means a project described in Section 79751 of the Water Code and funded, in whole or in part, with proceeds of bonds sold pursuant to the Water Quality, Supply and Infrastructure Improvement Act of 2014 (Division 26.7 (commencing with Section 79700) of the Water Code).
(b)Notwithstanding any other law, the procedures established pursuant to subdivision (c) shall apply to an action or proceeding brought to attack, review, set aside, void, or annul the certification of the environmental impact report for a water storage project or the granting of any approvals for a water storage project.
(c)On or before July 1, 2016, the Judicial Council shall adopt a rule of court to establish procedures applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification of the environmental impact report for a water storage project or the granting of any project approvals that require the actions or proceedings, including any potential appeals therefrom, be resolved, to the extent feasible, within 270 days of certification of the record of proceedings pursuant to subdivision (e).
(d)(1) The draft and final environmental impact report for a water storage project shall include a notice in not less than 12-point type stating the following:
THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.
(2)The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this section.
(3)Within 10 days after the release of the draft environmental impact report, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that report.
(4)Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.
(5)(A) Within five days following the close of the public comment period, a commenter on the draft environmental impact report may submit to the lead agency a written request for nonbinding mediation. The lead agency and applicant shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental impact report and who requested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.
(B)A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.
(C)The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years experience in land use and environmental law or science, or mediation. The applicant shall bear the costs of mediation.
(D)A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.
(E)The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency, the applicant, and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this subparagraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agencys decision to certify the environmental impact report or to grant one or more initial project approvals.
(6)The lead agency need not consider written comments submitted after the close of the public comment period, unless those comments address any of the following:
(A)New issues raised in the response to comments by the lead agency.
(B)New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.
(C)Changes made to the project after the close of the public comment period.
(D)Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting and monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, where the lead agency releases those documents subsequent to the release of the draft environmental impact report.
(E)New information that was not reasonably known and could not have been reasonably known during the public comment period.
(7)The lead agency shall file the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152 within five days after the last initial project approval.
(e)(1) The lead agency shall prepare and certify the record of the proceedings in accordance with this subdivision and in accordance with Rule 3.1365 of the California Rules of Court. The applicant shall pay the lead agency for all costs of preparing and certifying the record of proceedings.
(2)No later than three business days following the date of the release of the draft environmental impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental impact report that is a part of the record of the proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is prepared or received by the lead agency.
(3)Notwithstanding paragraph (2), documents submitted to or relied on by the lead agency that were not prepared specifically for the project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright protected documents, the lead agency shall make an index of these documents available in an electronic format no later than the date of the release of the draft environmental impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index must specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.
(4)The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make any such comment available to the public in a readily accessible electronic format within five days of its receipt.
(5)Within seven business days after the receipt of any comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.
(6)The lead agency shall indicate in the record of the proceedings comments received that were not considered by the lead agency pursuant to paragraph (6) of subdivision (d) and need not include the content of the comments as a part of the record.
(7)Within five days after the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152, the lead agency shall certify the record of the proceedings for the approval or determination and shall provide an electronic copy of the record to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.
(8)Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.
(9)Any dispute over the content of the record of the proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record shall file a motion to augment the record at the time it files its initial brief.
(10)The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.
(f)(1) (A) In granting relief in an action or proceeding brought pursuant to this division, the court shall not stay or enjoin the construction or operation of a water storage project unless the court finds either of the following:
(i)The continued construction or operation of the water storage project presents an imminent threat to the public health and safety.
(ii)The water storage project site contains unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values that would be materially, permanently, and adversely affected by the continued construction or operation of the water storage project unless the court stays or enjoins the construction or operation of the water storage project.
(B)If the court finds that clause (i) or (ii) of subparagraph (A) is satisfied, the court shall only enjoin those specific activities associated with the water storage 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.
(2)An action or proceeding to attack, set aside, void, or annul a determination, finding, or decision of the lead agency granting a subsequent project approval shall be subject to the requirements of Chapter 6 (commencing with Section 21165).
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.
|
Date
|
Status
|
|---|---|
| Feb 12, 2015 | Read first time. To print. |
| Feb 13, 2015 | From printer. May be heard in committee March 15. |
| Feb 23, 2015 | Referred to Coms. on NAT. RES. and W., P., & W. |
| Mar 17, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on NAT. RES. Read second time and amended. |
| Mar 18, 2015 | Re-referred to Com. on NAT. RES. |
| Mar 23, 2015 | In committee: Set, first hearing. Failed passage. Reconsideration granted. |
| Apr 15, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on NAT. RES. Read second time and amended. |
| Apr 16, 2015 | Re-referred to Com. on NAT. RES. |
| Apr 27, 2015 | In committee: Set, second hearing. Failed passage. |
| Apr 29, 2015 | From committee: Without further action pursuant to Joint Rule 62(a). |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Apr 27, 2015 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Natural Resources |
Failed |
|
| Mar 23, 2015 | Reconsideration. | Assembly Standing Committee on Natural Resources |
Passed |
|
| Mar 23, 2015 | Do pass and be re-referred to the Committee on [Water, Parks, and Wildlife] | Assembly Standing Committee on Natural Resources |
Failed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California Chamber Of Commerce | ** Support | Apr 27, 2015 |
| California League Of Conservation Voters | ** Against | Apr 27, 2015 |
| Judicial Council of California | ** Against | Apr 27, 2015 |
| NAT. RES. | ** Against | Apr 27, 2015 |
| Natural Resources Defense Council | ** Against | Apr 27, 2015 |
| Sierra Club California | ** Against | Apr 27, 2015 |
| Trout Unlimited | ** Against | Apr 27, 2015 |
AB 311
Page 4
Date of Hearing: March 23, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 311
(Gallagher) – As Amended March 17, 2015
SUBJECT: Environmental quality: Water Quality, Supply, and Infrastructure Improvement Act of 2014
SUMMARY: Establishes special administrative and judicial review procedures under the California Environmental Quality Act (CEQA) for water storage projects funded by the Water Quality, Supply, and Infrastructure Improvement Act of 2014 (Proposition 1).
EXISTING LAW:
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).
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.
Establishes that a record of proceeding includes, but is not limited to, all application materials, staff reports, transcripts or minutes of public proceedings, notices, written comments, and written correspondence prepared by or submitted to the public agency regarding the proposed project. Establishes a procedure for the preparation, certification, and lodging of the record of proceedings.
Provides that the public benefits of the following water storage projects are eligible for funding under Proposition 1:
Surface storage projects identified in the CALFED Bay-Delta Program Record of Decision, except for projects prohibited by the California Wild and Scenic Rivers Act.
Groundwater storage projects and groundwater contamination prevention or remediation projects that provide water storage benefits.
Conjunctive use and reservoir reoperation projects.
Local and regional surface storage projects that improve the operation of water systems in the state and provide public benefits.
THIS BILL establishes special CEQA procedures for Proposition 1-funded water storage projects, as follows:
Requires Judicial Council to adopt a rule of court, by July 1, 2016, requiring lawsuits and any appeals to be resolved, to the extent feasible, within 270 days of certification of the record of proceedings (which must occur within five days of the lead agency filing the notice of determination on the project).
Requires the project EIR to include a specified notice that the EIR is subject to the provisions of the section added by this bill.
Requires the lead agency to conduct an informational workshop within 10 days of release of the Draft EIR and hold a public hearing within 10 days before close of the public comment period.
Requires the lead agency and applicant to participate in nonbinding mediation with any party who submitted comments on the Draft EIR and requested mediation within five days of the close of the public comment period, with the cost to be paid by the applicant. Requires mediation to end within 35 days of the close of the public comment period.
Requires the lead agency to adopt any measures agreed upon in mediation. Prohibits a commenter from raising an issue addressed by that measure in a lawsuit.
Permits the lead agency to ignore written or oral comments submitted after the close of the public comment period, with specified exceptions for materials addressing new information released after the close of the public comment period.
Authorizes the lead agency to prepare and certify the record of proceedings concurrently with the administrative process for environmental documents, and to promptly post all documents on the Internet. Requires the applicant to pay the lead agency for all costs of preparing and certifying the record of proceedings.
Requires the lead agency to provide all EIR documents and comments in an electronic format (with the exception of certain copyright-protected documents), certify the record within five days of filing the notice of determination, provide the record to a party upon written request, and provide the record to the superior court within 10 days of the filing of a petition for review.
Generally prohibits a court, in granting relief, from staying or enjoining the construction or operation of an eligible water storage project and provides that a court may only 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: Unknown
COMMENTS:
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 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 proposed Sacramento Kings arena project. Like SB 292, SB 743 applied to a single project and included specified traffic and air quality mitigations.
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 the procedures in SB 743 applied only to the arena project and SB 743 also 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.
This bill applies similar expedited review procedures to any water storage project funded by Proposition 1, but does not include any mitigation measures. The bill would apply to an unknown number of future water storage projects with unknown impacts. Since the projects are undefined, it's impossible to evaluate their merits, much less whether those merits justify preferential treatment. The potential for many projects to qualify also increases the burden on the courts. Judicial Council indicates that the requirement to resolve lawsuits within 270 days may be unworkable in practice, will likely have an adverse impact on other cases, and undermines equal access to justice.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chamber of Commerce
Opposition
California League of Conservation Voters
Judicial Council of California
Natural Resources Defense Council
Sierra Club California
Trout Unlimited
Analysis Prepared by: Lawrence Lingbloom / NAT. RES. / (916) 319-2092
Discussed in Hearing
3MIN
Assembly Standing Committee on Natural Resources
Bill Author
