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.

This bill would, if certain conditions are met, exempt from the provisions of CEQA the routine maintenance of public stormwater facilities that are fully concrete or that have a conveyance capacity of less than a 100-year storm event. The bill would, if the lead agency determines that a project is not subject to CEQA pursuant to these provisions and determines to approve or carry out the project, require the lead agency to file a notice with the State Clearinghouse in the Office of Planning and Research and with the county clerk in the county in which the project will be located, as provided, thereby imposing a state-mandated local program. Because a lead agency would be required to determine whether a project qualifies for this exemption, the bill would impose a state-mandated local program.

This bill would repeal these provisions on January 1, 2030.

CEQA provides that, if a nonelected decisionmaking body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject to CEQA, the certification, approval, or determination may be appealed to the agencys elected decisionmaking body.

This bill would prohibit the appeal of determinations by nonelected decisionmaking bodies of cities with a population of at least 1,000,000 that those routine maintenance projects of certain public stormwater facilities are exempt from CEQA to the agencys elected decisionmaking body.

This bill would repeal these provisions on January 1, 2030.

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.

This bill would declare that it is to take effect immediately as an urgency statute.

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.

This bill would, if certain conditions are met, exempt from the provisions of CEQA the routine maintenance of public stormwater facilities that are fully concrete or that have a conveyance capacity of less than a 100-year storm event. The bill would, if the lead agency determines that a project is not subject to CEQA pursuant to these provisions and determines to approve or carry out the project, require the lead agency to file a notice with the State Clearinghouse in the Office of Planning and Research and with the county clerk in the county in which the project will be located, as provided, thereby imposing a state-mandated local program. Because a lead agency would be required to determine whether a project qualifies for this exemption, the bill would impose a state-mandated local program.

This bill would repeal these provisions on January 1, 2030.

CEQA provides that, if a nonelected decisionmaking body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject to CEQA, the certification, approval, or determination may be appealed to the agencys elected decisionmaking body.

This bill would prohibit the appeal of determinations by nonelected decisionmaking bodies of cities with a population of at least 1,000,000 that those routine maintenance projects of certain public stormwater facilities are exempt from CEQA to the agencys elected decisionmaking body.

This bill would repeal these provisions on January 1, 2030.

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.

This bill would declare that it is to take effect immediately as an urgency statute.

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.

This bill would, if certain conditions are met, exempt from the provisions of CEQA the routine maintenance of stormwater facilities that are fully concrete or that have a conveyance capacity of less than a 100-year storm event. The bill would, if the lead agency determines that a project is not subject to CEQA pursuant to these provisions and determines to approve or carry out the project, require the lead agency to file a notice with the State Clearinghouse in the Office of Planning and Research and with the county clerk in the county in which the project will be located, as provided, thereby imposing a state-mandated local program. Because a lead agency would be required to determine whether a project qualifies for this exemption, the bill would impose a state-mandated local program.

CEQA provides that that, if a nonelected decisionmaking body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject to CEQA, that the certification, approval, or determination may be appealed to the agencys elected decisionmaking body.

This bill would prohibit the appeal of determinations by nonelected decisionmaking bodies of cities with a population of at least 1,000,000 that those routine maintenance projects of certain stormwater facilities are exempt from CEQA to the agencys elected decisionmaking body.

This bill would repeal these provisions on January 1, 2030.

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.

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. Existing law exempts from the requirements of CEQA specific actions necessary to prevent or mitigate an emergency.

This bill would specify that this exemption includes would, if certain conditions are met, exempt from the provisions of CEQA the routine maintenance of stormwater facilities that are fully concrete or that have a conveyance capacity of less than a 100-year storm event. The bill would, if the lead agency determines that a project is not subject to CEQA pursuant to these provisions and determines to approve or carry out the project, require the lead agency to file a notice with the State Clearinghouse in the Office of Planning and Research and with the county clerk in the county in which the project will be located, as provided, thereby imposing a state-mandated local program. Because a lead agency would be required to determine whether a project qualifies for this exemption, the bill would impose a state-mandated local program.

CEQA provides that if a nonelected decisionmaking body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject to CEQA, that the certification, approval, or determination may be appealed to the agencys elected decisionmaking body.

This bill would prohibit the appeal of determinations by a nonelected decisionmaking body of a local lead agency that certain emergency repairs to public service facilities and specified actions necessary to prevent or mitigate an emergency nonelected decisionmaking bodies of cities with a population of at least 1,000,000 that those routine maintenance projects of certain stormwater facilities are exempt from CEQA from being appealed to the agencys elected decisionmaking body.

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.

Existing law establishes the State Board of Education consisting of 11 members appointed by the Governor with the advice and consent of ²/₃ of the Senate, as provided.

This bill would make a nonsubstantive change to that provision.

 THIRD READING  

Bill No: AB 3227

Author: Alvarez (D)

Amended: 4/24/24 in Assembly

Vote: 27 - Urgency

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 6/19/24

AYES: Allen, Dahle, Gonzalez, Hurtado, Menjivar, Nguyen, Skinner

SENATE NATURAL RES. & WATER COMMITTEE: 10-0, 6/25/24

AYES: Min, Seyarto, Allen, Dahle, Eggman, Grove, Hurtado, Laird, Padilla, Stern

NO VOTE RECORDED: Limón

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 71-0, 5/16/24 (Consent) - See last page for vote

SUBJECT: California Environmental Quality Act: exemption: stormwater facilities: routine maintenance

SOURCE: City of San Diego

DIGEST:

This bill establishes an exemption from the California Environmental Quality Act (CEQA) for routine maintenance of public stormwater facilities. This bill has an urgency clause.

ANALYSIS:

Existing law:

1. Under CEQA, a lead agency determines whether a project is exempt from CEQA, or if it must do an initial study to determine if a project will have significant effects on the environment. If a project has no effect on the environment or effects that can be mitigated, the lead agency prepares a negative declaration (ND) or mitigated ND (MND). If the project will have significant impacts, the lead agency prepares an environmental impact report (EIR) to evaluate and propose mitigation measures for any effects on the environment, including impacts or likely impacts to land, air, water, minerals, flora, fauna, ambient noise, and historic or aesthetic significance. (Public Resources Code (PRC) §§21000 et seq.)
2. CEQA includes statutory exemptions for emergency projects, as follows:
   1. Emergency repairs to public service facilities necessary to maintain service.
   2. Projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed by the Governor.
   3. Specific actions necessary to prevent or mitigate an emergency. (PRC 21080)
3. The CEQA Guidelines include an exemption for maintenance of existing facilities involving negligible or no expansion of existing or former use. (CEQA Guidelines 15301)
4. Establishes the federal Clean Water Act (CWA) to regulate discharges of pollutants into the waters of the United States and to regulate quality standards for surface waters. (33 United States Code (USC) § 1251 et seq.)
5. Establishes the National Pollution Discharge Elimination System (NPDES) permit program to prescribe waste discharge requirements which, among other things, regulate the discharge of pollutants in stormwater, including municipal stormwater systems; authorizes states to administer their own NPDES permit programs if specified conditions are met. (33 USC § 1342)

This bill:

1. Creates a CEQA exemption with a sunset date of January 1, 2030, for the routine maintenance of public stormwater facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event if all of the following conditions are met:

• 1. The project does not increase the designed conveyance capacity of the stormwater facility.
  2. The project is undertaken or approved by a public agency that has adopted, by ordinance, procedures that apply to the project to minimize the impacts of construction equipment, debris, sediment, and other pollutants.
  3. The project is not likely to result in adverse impacts on tribal cultural resources.

1. Specifies that a determination to use this stormwater maintenance exemption is not eligible for appeal to the agency’s elected decision-making body if the project is approved by the nonelected decision-making body of a city with a population of at least one million.
2. Requires the lead agency claiming exemption to file a notice with the State Clearinghouse in the Office of Planning and Research (OPR) and with the county clerk of the county in which the project is located.

Background

1. The A, B, C’s of CEQA. CEQA is designed to (a) make government agencies and the public aware of the environmental impacts of a proposed project, (b) ensure the public can take part in the review process, and (c) identify and implement measures to mitigate or eliminate any negative impact the project may have on the environment. CEQA is enforced by civil lawsuits that can challenge any project’s environmental review. Nonprofits, private individuals, public agencies, advocacy groups, and other organizations can all file lawsuits under CEQA.

Under CEQA, projects (unless they have a specific exemption) must undergo environmental analysis. This process starts with an initial study which determines what level of further environmental review is needed for a given project. If a project has no significant effects on the environment, or if those effects can be fully mitigated, the project can move forward with a negative declaration (ND) or mitigated negative declaration (MND). If the initial study finds that the project has potentially significant effects on the environment, then a full EIR is conducted. An EIR provides a thorough environmental review of a proposed project, includes proposed mitigation measures for any significant effects that it identifies, and considers alternatives to the proposed project.

1. CEQA exemptions. Some projects may be eligible for CEQA exemptions. If a project is exempt from CEQA, the lead agency simply identifies which exemption the project is eligible for, and no further environmental review or public engagement is required. There are two types of CEQA exemptions— statutory and categorical. Statutory exemptions are created by the Legislature and apply even if a project has the potential to significantly affect the environment. In contrast, categorical exemptions, which are developed by the Office of Planning and Research and approved by the Secretary of the Natural Resources Agency as part of the CEQA guidelines, generally do not apply if there are significant environmental impacts associated with the project. There are over 120 statutory CEQA exemptions in the Public Resources Code, Water Code, Government Code, Health and Safety Code. There are also 33 categorical CEQA exemptions listed in the CEQA guidelines.

These include exemptions for repairs to public service facilities, for maintenance of existing facilities, for projects to prevent and mitigate disasters, or to repair, restore, or replace facilities that were damaged in a disaster.

1. Stormwater discharge permitting. Stormwater is defined by the United States Environmental Protection Agency (US EPA) as the runoff from rain and snowmelt flows over land or impervious surfaces instead of percolating into the ground. In most cases, stormwater flows through sewer systems into bodies of water. Stormwater can be a major source of pollution to rivers, lakes, and the ocean.

Stormwater discharge in California is regulated through National Pollutant Discharge Elimination System (NPDES) permits. As authorized by the federal CWA, the NPDES Permit Program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Industrial, municipal, and other facilities must obtain an NPDES permit to discharge into surface water. In California, implementation of the NPDES Permit Program has been delegated to the State Water Board and nine Regional Water Boards. The Regional Water Boards issue the vast majority of NPDES permits in the state and ensure compliance with their permits through inspections, monitoring report reviews, and enforcement actions. Municipal storm sewer systems serving a population of 100,000 or more people are regulated by the Regional Water Boards, which adopt NPDES permits to regulate stormwater.

Comments

1. Purpose of the bill. According to the author, “On January 22, 2024, the City of San Diego experienced catastrophic flooding from nearly 3 inches of rain in less than 8 hours, which impacted over 800 households with over five feet of floodwaters in low-lying areas. The cause of the flooding was largely due to stormwater channels that had not been maintained, in part because of administrative delay.

“AB 3227 proposes specific exemptions to CEQA for routine maintenance of storm water channels and facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event. Given the increasing frequency and intensity of rain events in AB 3227 Page 3 California, it is imperative to minimize administrative delays in channel maintenance to prevent catastrophic flooding. This bill will not only ensure the safety and well-being of communities but also facilitate local agencies’ ability to perform required municipal services.

“Local agencies would still be responsible for completing required mitigation to offset impacts as required by CEQA, this measure would simply allow for clearing to occur when notice of a severe storm event is present to better prepare against disasters.”

1. Skipping the administrative remedy. This bill stems from litigation against the City of San Diego dating back more than 10 years when the City was challenged for approving the use of a CEQA exemption for a stormwater maintenance project. Though the litigation was ultimately settled, the lawsuit extended the time on the review and approval process for these maintenance projects, which combined with a lack of attention and funding over the years, has led to a significant backlog in maintenance of stormwater facilities. According to information provided by the author, the city of San Diego is now facing damage claims from flood victims for failure to properly maintain its stormwater facilities as a result of these delays.

To address this historic issue, this bill changes the law in two ways: it creates a narrow and explicit CEQA exemption for routine stormwater maintenance to add legal certainty for lead agencies applying for a CEQA exemption for these projects. It also specifies that the lead agency’s decision to use a CEQA exemption cannot be appealed by the agency’s elected decision-making body for cities with a population of at least 1 million. There are three cities where this limit on appeals could apply: San Diego, Los Angeles, and San Jose.

The elected bodies’ ability to appeal the use of a CEQA exemption can be an important administrative remedy before a challenge to a decision is escalated to a judicial remedy in the courts. However, limiting the administrative appeal process can also reduce the overall review time by moving the challenge straight to the courts.

1. Are stormwater exemptions water under the bridge? Routine maintenance of public stormwater facilities may be eligible for several existing CEQA exemptions, including the Class 1 categorical “existing facilities” exemption. A review of CEQAnet, the State database of CEQA documents, finds that a number of routine stormwater maintenance projects have proceeded under Class 1 “existing facilities” exemption. However, the database also contains a number of stormwater management projects that have proceeded with NDs or MNDs. Given that some projects proceed under CEQA exemptions and others do not, creating a specific CEQA exemption with set eligibility requirements may add clarity for lead agencies on when a CEQA exemption is appropriate for stormwater maintenance projects.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 8/6/24)

City of San Diego (source)

OPPOSITION: (Verified 8/6/24)

None received

ASSEMBLY FLOOR: 71-0, 5/16/24

AYES: Aguiar-Curry, Alanis, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Grayson, Haney, Hart, Holden, Hoover, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Addis, Alvarez, Cervantes, Megan Dahle, Flora, Vince Fong, Gipson, Irwin, Mathis

Prepared by:

8/7/24 14:34:46

**** END ****

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: AB 3227 Hearing Date: June 25, 2024

Subject: California Environmental Quality Act: exemption: stormwater facilities: routine maintenance

SUMMARY

This bill would establish an exemption from the California Environmental Quality Act (CEQA) for routine maintenance of public stormwater facilities, as specified.

BACKGROUND AND EXISTING LAW

Background:

CEQA. 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 the project would not have 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, the lead agency must prepare an Environmental Impact Report (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.

Existing law:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or EIR for this action, unless the project is exempt from CEQA. Public Resources Code (PRC) §§21000 et seq..
   
2. CEQA includes statutory exemptions for emergency projects, as follows:
   1. Emergency repairs to public service facilities necessary to maintain service;
   2. Projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed by the Governor; and
   3. Specific actions necessary to prevent or mitigate an emergency. PRC §21080.
3. The CEQA Guidelines include a “categorical” exemption for maintenance of existing facilities involving negligible or no expansion of existing or former use. CEQA Guidelines §15301.
   1. This exemption does not apply for activities where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. CEQA Guidelines §15300.2.

PROPOSED LAW

This bill would:

1. Provide that CEQA does not apply to routine maintenance of public stormwater facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event if all of the following conditions are met:
   1. The project does not increase the designed conveyance capacity of the stormwater facility;
   2. The project is undertaken or approved by a public agency that has adopted, by ordinance, procedures that apply to the project to minimize the impacts of construction equipment, debris, sediment, and other pollutants; and
   3. The project is not likely to result in adverse impacts to tribal cultural resources.
2. Provide that a determination that a stormwater maintenance project is exempt is not eligible for appeal to the agency’s elected decisionmaking body if the project is approved by the nonelected decisionmaking body of a city with a population of at least 1,000,000.
3. Require the lead agency claiming exemption to file a notice with the State Clearinghouse in the Office of Planning and Research and with the county clerk of the county in which the project is located.
4. Sunset the exemption January 1, 2030.

ARGUMENTS IN SUPPORT

According to the author, “On January 22, 2024, the City of San Diego experienced catastrophic flooding from nearly 3 inches of rain in less than 8 hours, which impacted over 800 households with over five-plus feet of floodwaters in low-lying areas. The cause of the flooding was largely due to storm water channels that had not been maintained, in part because of administrative delays.”

“AB 3227 proposes specific exemptions to CEQA for routine maintenance of storm water channels and facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event. Given the increasing frequency and intensity of rain events in California, it is imperative to minimize administrative delays in channel maintenance to prevent catastrophic flooding.”

“This bill will not only ensure the safety and well-being of communities but also facilitate local agencies’ ability to perform required municipal services. Local agencies would still be responsible for completing required mitigation to offset impacts as required by CEQA, this measure would simply allow for clearing to occur when notice of a severe storm event is present to better prepare against disasters.”

ARGUMENTS IN OPPOSITION

None Received

COMMENTS

Dual referral. This bill was referred to the Senate Environmental Quality Committee and this Committee. The former committee passed the bill 7-0 on June 19, 2024, without amendments on the consent calendar.

Stormwater facility wetlands. According to the US Environmental Protection Agency, stormwater wetlands (or constructed wetlands) are structural post-construction stormwater controls similar to wet ponds whose design incorporates shallow zones and vegetation. As stormwater flows through the wetland, it removes pollutants through settling and biological uptake. Wetlands are among the most effective postconstruction stormwater controls in terms of pollutant removal and also offer aesthetic and habitat value. Stormwater wetlands are fundamentally different from natural wetland systems. Engineers design them specifically to treat stormwater, and they typically have less biodiversity than natural wetlands in terms of both plant and animal life. Several variations of stormwater wetlands exist, differing in relative amounts of dry, shallow and deep water zones.

An exception to an exemption. While most of the projects covered by this bill would likely be categorically exempt through the CEQA Guidelines, a categorical exemption is not absolute and can be denied or challenged if certain exceptions apply. These are known as “exceptions to the exemption.” If an exception applies, the project is ineligible for the categorical exemption and CEQA applies. One such exception is when there is a reasonable possibility that the activity would result in a significant effect on the environment due to unusual circumstances. In the context of this bill, this exception likely applies when the stormwater facilities are connected to constructed wetlands. Litigation against the City of San Diego dating back more than 10 years has led to a significant backlog in maintenance of stormwater facilities. This bill would statutorily exempt these maintenance activities if certain conditions are met, for a limited time, so the City could address these essential activities in a timely manner. However, unlike categorical exemptions, statutory exemptions do not contain “exceptions.” If the statutory exemption applies, the activity is exempt from CEQA along with its requirement to mitigate significant environmental impacts. Thus, statutorily exempting these maintenance activities could leave constructed wetlands that are associated with stormwater facilities vulnerable to significant impacts. It is noted that the bill does require, in order for the exemption to apply, that the public agency has adopted procedures that would minimize the impacts of construction equipment, debris, sediment, and other pollutants. However, generally-adopted procedures may not be as effective in mitigating significant environmental impacts as specifically-tailored mitigation measures that would have otherwise been required under CEQA.

Protecting constructed wetlands. The author’s statement indicates that “Local agencies would still be responsible for completing required mitigation to offset impacts as required by CEQA, this measure would simply allow for clearing to occur when notice of a severe storm event is present to better prepare against disasters.” However, it is not clear that the bill supports this statement. The Committee may wish to ask the author to clarify how the conditions in the bill will protect potential impacts to constructed wetlands associated with stormwater facilities.

SUPPORT

City of San Diego (sponsor)

Councilmember Vivian Moreno, City of San Diego, Council District 8

OPPOSITION

None Received

-- END --

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2023 - 2024 Regular

SUBJECT: California Environmental Quality Act: exemption: stormwater facilities: routine maintenance

DIGEST: Establishes an exemption from the California Environmental Quality Act (CEQA) for routine maintenance of public stormwater facilities.

ANALYSIS:

Existing law:

1. Under CEQA, a lead agency determines whether a project is exempt from CEQA, or if it must do an initial study to determine if a project will have significant effects on the environment. If a project has no effect on the environment or effects that can be mitigated, the lead agency prepares a negative declaration (ND) or mitigated ND (MND). If the project will have significant impacts, the lead agency prepares an environmental impact report (EIR) to evaluate and propose mitigation measures for any effects on the environment, including impacts or likely impacts to land, air, water, minerals, flora, fauna, ambient noise, and historic or aesthetic significance. (Public Resources Code (PRC) §§21000 et seq.)
2. CEQA includes statutory exemptions for emergency projects, as follows:
   1. Emergency repairs to public service facilities necessary to maintain service.
   2. Projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed by the Governor.
   3. Specific actions necessary to prevent or mitigate an emergency. (PRC 21080)
3. The CEQA Guidelines include an exemption for maintenance of existing facilities involving negligible or no expansion of existing or former use. (CEQA Guidelines 15301)
4. Establishes the federal Clean Water Act (CWA) to regulate discharges of pollutants into the waters of the United States and to regulate quality standards for surface waters. (33 United States Code (USC) § 1251 et seq.)
5. Establishes the National Pollution Discharge Elimination System (NPDES) permit program to prescribe waste discharge requirements which, among other things, regulate the discharge of pollutants in stormwater, including municipal stormwater systems; authorizes states to administer their own NPDES permit programs if specified conditions are met. (33 USC § 1342)

This bill:

1. Creates a CEQA exemption with a sunset date of January 1, 2030, for the routine maintenance of public stormwater facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event if all of the following conditions are met:
   1. The project does not increase the designed conveyance capacity of the stormwater facility.
   2. The project is undertaken or approved by a public agency that has adopted, by ordinance, procedures that apply to the project to minimize the impacts of construction equipment, debris, sediment, and other pollutants.
   3. The project is not likely to result in adverse impacts on tribal cultural resources.
2. Specifies that a determination to use this stormwater maintenance exemption is not eligible for appeal to the agency’s elected decision-making body if the project is approved by the nonelected decision-making body of a city with a population of at least one million.
3. Requires the lead agency claiming exemption to file a notice with the State Clearinghouse in the Office of Planning and Research (OPR) and with the county clerk of the county in which the project is located.

Background

1. The A, B, C’s of CEQA. CEQA is designed to (a) make government agencies and the public aware of the environmental impacts of a proposed project, (b) ensure the public can take part in the review process, and (c) identify and implement measures to mitigate or eliminate any negative impact the project may have on the environment. CEQA is enforced by civil lawsuits that can challenge any project’s environmental review. Nonprofits, private individuals, public agencies, advocacy groups, and other organizations can all file lawsuits under CEQA.

Under CEQA, projects (unless they have a specific exemption) must undergo environmental analysis. This process starts with an initial study which determines what level of further environmental review is needed for a given project. If a project has no significant effects on the environment, or if those effects can be fully mitigated, the project can move forward with a negative declaration (ND) or mitigated negative declaration (MND). If the initial study finds that the project has potentially significant effects on the environment, then a full EIR is conducted. An EIR provides a thorough environmental review of a proposed project, includes proposed mitigation measures for any significant effects that it identifies, and considers alternatives to the proposed project.

1. CEQA exemptions. Some projects may be eligible for CEQA exemptions. If a project is exempt from CEQA, the lead agency simply identifies which exemption the project is eligible for, and no further environmental review or public engagement is required. There are two types of CEQA exemptions— statutory and categorical. Statutory exemptions are created by the Legislature and apply even if a project has the potential to significantly affect the environment. In contrast, categorical exemptions, which are developed by the Office of Planning and Research and approved by the Secretary of the Natural Resources Agency as part of the CEQA guidelines, generally do not apply if there are significant environmental impacts associated with the project. There are over 120 statutory CEQA exemptions in the Public Resources Code, Water Code, Government Code, Health and Safety Code. There are also 33 categorical CEQA exemptions listed in the CEQA guidelines.

These include exemptions for repairs to public service facilities, for maintenance of existing facilities, for projects to prevent and mitigate disasters, or to repair, restore, or replace facilities that were damaged in a disaster.

1. Stormwater discharge permitting. Stormwater is defined by the United States Environmental Protection Agency (US EPA) as the runoff from rain and snowmelt flows over land or impervious surfaces instead of percolating into the ground. In most cases, stormwater flows through sewer systems into bodies of water. Stormwater can be a major source of pollution to rivers, lakes, and the ocean.

Stormwater discharge in California is regulated through National Pollutant Discharge Elimination System (NPDES) permits. As authorized by the federal CWA, the NPDES Permit Program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Industrial, municipal, and other facilities must obtain an NPDES permit to discharge into surface water. In California, implementation of the NPDES Permit Program has been delegated to the State Water Board and nine Regional Water Boards. The Regional Water Boards issue the vast majority of NPDES permits in the state and ensure compliance with their permits through inspections, monitoring report reviews, and enforcement actions. Municipal storm sewer systems serving a population of 100,000 or more people are regulated by the Regional Water Boards, which adopt NPDES permits to regulate stormwater.

Comments

1. Purpose of Bill. According to the author, “On January 22, 2024, the City of San Diego experienced catastrophic flooding from nearly 3 inches of rain in less than 8 hours, which impacted over 800 households with over five feet of floodwaters in low-lying areas. The cause of the flooding was largely due to stormwater channels that had not been maintained, in part because of administrative delay.

“AB 3227 proposes specific exemptions to CEQA for routine maintenance of storm water channels and facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event. Given the increasing frequency and intensity of rain events in AB 3227 Page 3 California, it is imperative to minimize administrative delays in channel maintenance to prevent catastrophic flooding. This bill will not only ensure the safety and well-being of communities but also facilitate local agencies’ ability to perform required municipal services.

Local agencies would still be responsible for completing required mitigation to offset impacts as required by CEQA, this measure would simply allow for clearing to occur when notice of a severe storm event is present to better prepare against disasters.”

1. Skipping the administrative remedy. AB 3227 stems from litigation against the City of San Diego dating back more than 10 years when the City was challenged for approving the use of a CEQA exemption for a stormwater maintenance project. Though the litigation was ultimately settled, the lawsuit extended the time on the review and approval process for these maintenance projects, which combined with a lack of attention and funding over the years, has led to a significant backlog in maintenance of stormwater facilities. According to information provided by the author, the city of San Diego is now facing damage claims from flood victims for failure to properly maintain its stormwater facilities as a result of these delays.

To address this historic issue, AB 3227 changes the law in two ways: it creates a narrow and explicit CEQA exemption for routine stormwater maintenance to add legal certainty for lead agencies applying for a CEQA exemption for these projects. It also specifies that the lead agency’s decision to use a CEQA exemption cannot be appealed by the agency’s elected decision-making body for cities with a population of at least 1 million. There are three cities where this limit on appeals could apply: San Diego, Los Angeles, and San Jose.

The elected bodies’ ability to appeal the use of a CEQA exemption can be an important administrative remedy before a challenge to a decision is escalated to a judicial remedy in the courts. However, limiting the administrative appeal process can also reduce the overall review time by moving the challenge straight to the courts. The author and committee may wish to clarify that removing the option for administrative appeal does not limit the ability of any person to challenge the application of a CEQA exemption.

1. Are stormwater exemptions water under the bridge? Routine maintenance of public stormwater facilities may be eligible for several existing CEQA exemptions, including the Class 1 categorical “existing facilities” exemption. A review of CEQAnet, the State database of CEQA documents, finds that a number of routine stormwater maintenance projects have proceeded under Class 1 “existing facilities” exemption. However, the database also contains a number of stormwater management projects that have proceeded with NDs or MNDs. Given that some projects proceed under CEQA exemptions and others do not, creating a specific CEQA exemption with set eligibility requirements may add clarity for lead agencies on when a CEQA exemption is appropriate for stormwater maintenance projects.

DOUBLE REFERRAL:

If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer the bill to the Senate Natural Resources and Water Committee.

SOURCE:

City of San Diego

SUPPORT:

City of San Diego

OPPOSITION:

None received

Positions reflect letters received by noon one week prior to the hearing.

-- END –

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 3227

Author:(Alvarez) – As Amended Ver:April 24, 2024

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

SUMMARY:

This bill establishes an exemption from the California Environmental Quality Act (CEQA) for routine maintenance of public stormwater facilities, as specified.

Specifically, this bill:

1. Provides that CEQA does not apply to routine maintenance of public stormwater facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event if all of the following conditions are met:
   1. The project does not increase the designed conveyance capacity of the stormwater facility.
   2. The project is undertaken or approved by a public agency that has adopted, by ordinance, procedures that apply to the project to minimize the impacts of construction equipment, debris, sediment, and other pollutants.
   3. The project is not likely to result in adverse impacts to tribal cultural resources.
2. Provides that a determination that a stormwater maintenance project is exempt is not eligible for appeal to the agency’s elected decisionmaking body if the project is approved by the nonelected decisionmaking body of a city with a population of at least one million.
3. Requires the lead agency claiming exemption to file a notice with the State Clearinghouse in the Office of Planning and Research and with the county clerk of the county in which the project is located.
4. Sunsets the exemption on January 1, 2030.

FISCAL EFFECT:

Negligible, if any, state costs.

COMMENTS:

1) Purpose. According to the author:

On January 22, 2024, the City of San Diego experienced catastrophic flooding from nearly 3 inches of rain in less than 8 hours, which impacted over 800 households with over five feet of floodwaters in low-lying areas. The cause of the flooding was largely due to storm water channels that had not been maintained, in part because of administrative delays. AB 3227 proposes specific exemptions to CEQA for routine maintenance of storm water channels and facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event. Given the increasing frequency and intensity of rain events in California, it is imperative to minimize administrative delays in channel maintenance to prevent catastrophic flooding.

2) 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, the lead agency prepares an initial study to determine whether the project may have a significant effect on the environment. If the initial study shows the project would not have a significant effect on the environment, the lead agency must prepare a negative declaration. If the initial study shows that project may have a significant effect, the lead agency must prepare an environmental impact report (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, the lead agency must make certain findings. If mitigation measures are required or incorporated into a project, the lead agency must adopt a reporting or monitoring program to ensure compliance with those measures.

According to the Assembly Natural Resources Committee analysis of this bill, this bill stems from litigation against the City of San Diego dating back more than 10 years, which challenged the city’s approval of stormwater maintenance projects via a CEQA exemption. Though the litigation was ultimately settled, the result was a lengthier review and approval process for these maintenance projects, which combined with a lack of attention and funding over the years, has led to a significant backlog in maintenance of stormwater facilities. Now the city is facing damage claims from flood victims for failure to properly maintain its stormwater facilities. The City of San Diego writes in support of this bill:

This measure provides a solution to this pressing issue by eliminating time-consuming administrative delays and providing clear and certain mitigation requirements. AB 3227 will not only ensure the safety and well-being of our communities but also facilitate local agencies' ability to perform required municipal services. This legislation is a proactive step towards protecting our state from the adverse impacts of climate change and improving the overall resilience of our storm water infrastructure.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: April 22, 2024

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Isaac G. Bryan, Chair

ABPCA Bill Id:AB 3227 (

Author:Alvarez) – As Amended Ver:April 15, 2024

SUBJECT: California Environmental Quality Act: exemption: stormwater facilities: routine maintenance

SUMMARY: Establishes an exemption from the California Environmental Quality Act (CEQA) for routine maintenance of public stormwater facilities, as specified.

EXISTING LAW:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA. (Public Resources Code (PRC) 21000 et seq.)
   
2. CEQA includes statutory exemptions for emergency projects, as follows:
   1. Emergency repairs to public service facilities necessary to maintain service.
   2. Projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed by the Governor.
   3. Specific actions necessary to prevent or mitigate an emergency.

(PRC 21080)

1. The CEQA Guidelines include an exemption for maintenance of existing facilities involving negligible or no expansion of existing or former use. (CEQA Guidelines 15301)

THIS BILL:

1. Provides that CEQA does not apply to routine maintenance of public stormwater facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event if all of the following conditions are met:
   1. The project does not increase the designed conveyance capacity of the stormwater facility.
   2. The project is undertaken or approved by a public agency that has adopted, by ordinance, procedures that apply to the project to minimize the impacts of construction equipment, debris, sediment, and other pollutants.
   3. The project is not likely to result in adverse impacts to tribal cultural resources.
2. Provides that a determination that a stormwater maintenance project is exempt is not eligible for appeal to the agency’s elected decisionmaking body if the project is approved by the nonelected decisionmaking body of a city with a population of at least 1,000,000.
3. Requires the lead agency claiming exemption to file a notice with the State Clearinghouse in the Office of Planning and Research and with the county clerk of the county in which the project is located.
4. Sunsets the exemption January 1, 2030.

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 the project would not have 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, 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.

This bill stems from litigation against the City of San Diego dating back more than 10 years, which challenged the City’s approval of stormwater maintenance projects via exemption. Though the litigation was ultimately settled, the result was a lengthier review and approval process for these maintenance projects, which combined with a lack of attention and funding over the years, has led to a significant backlog in maintenance of stormwater facilities. Now the City is facing damage claims from flood victims for failure to properly maintain its stormwater facilities.

1. Author’s statement:

On January 22, 2024, the City of San Diego experienced catastrophic flooding from nearly 3 inches of rain in less than 8 hours, which impacted over 800 households with over five feet of floodwaters in low-lying areas. The cause of the flooding was largely due to storm water channels that had not been maintained, in part because of administrative delays.

AB 3227 proposes specific exemptions to CEQA for routine maintenance of storm water channels and facilities that are fully concrete or have a conveyance capacity of less than a 100-year storm event. Given the increasing frequency and intensity of rain events in California, it is imperative to minimize administrative delays in channel maintenance to prevent catastrophic flooding.

This bill will not only ensure the safety and well-being of communities but also facilitate local agencies’ ability to perform required municipal services. Local agencies would still be responsible for completing required mitigation to offset impacts at required by CEQA, this measure would simply allow for clearing to occur when notice of a severe storm event is present to better prepare against disasters.

1. Urgency please. Pending approval by the Rules Committee, the author proposes to add an urgency clause to this bill.

REGISTERED SUPPORT / OPPOSITION:

Support

City of San Diego (sponsor)

Opposition

None on file

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. /