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 (EIR) on a project that the lead agency proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA.

This bill would require the Judicial Council to adopt rules of court applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification or adoption of an environmental impact report for specified water conveyance or storage projects, as defined, or the granting of any project approvals, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court to an action or proceeding seeking judicial review of the lead agencys action related to those projects. The bill would require the lead agency to prepare the record of proceedings for a water conveyance or storage project, as provided, and to include a specified notice in the draft EIR and final EIR for the water conveyance or storage project. By imposing additional duties on lead agencies, the bill would impose a state-mandated local program.

This bill would make legislative findings and declarations as to the necessity of a special statute for the unique circumstances of certain water projects in certain counties.

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 (EIR) on a project that the lead agency proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA.

This bill would require the Judicial Council to adopt rules of court applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification or adoption of an environmental impact report for specified water conveyance or storage projects, as defined, or the granting of any project approvals, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court to an action or proceeding seeking judicial review of the lead agencys action related to those projects. The bill would require the lead agency to prepare the record of proceedings for a water conveyance or storage project, as provided, and to include a specified notice in the draft EIR and final EIR for the water conveyance or storage project. By imposing additional duties on lead agencies, the bill would impose a state-mandated local program.

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

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

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 (EIR) on a project that the lead agency proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA.

This bill would require the Judicial Council to adopt rules of court applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification or adoption of an environmental impact report for water conveyance or storage projects, as defined, or the granting of project approvals, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court to an action or proceeding seeking judicial review of the lead agencys action related to those projects. The bill would require the lead agency to prepare the record of proceedings for a water conveyance or storage project, as provided, and to include a specified notice in the draft EIR and final EIR for the water conveyance or storage project. By imposing additional duties on lead agencies, the bill would impose a state-mandated local program.

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

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

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 861 (Dahle) - California Environmental Quality Act: water conveyance or storage projects: judicial review

Bill Summary:

This bill would make certain water projects eligible for expedited administrative and judicial review under the California Environmental Quality Act (CEQA).

Fiscal Impact:

• Unknown but potentially significant cost pressure (General Fund) to the state-funded court system to process and hear challenges to projects eligible for expedited judicial review as a result of this bill. (See staff comments.)
• Potential unknown but likely minor costs (General Fund) to Judicial Council to adopt rules of the court to guide implementation of the provisions of this bill.

Background:

CEQA was enacted by the Legislature and signed into law by Governor Ronald Reagan in 1970. While it has evolved into a very complex Act over the past 53 years, at its core the basic principles of CEQA are relatively simple.

It 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 self-executing statute enforced by civil lawsuits that can challenge any project’s environmental review. Public agencies, as well as private individuals and organizations, can file lawsuits under CEQA.

Proposition 1 of 2014. Voters overwhelmingly approved Proposition 1 in 2014, a $7.5 billion water bond that set aside $2.7 billion for water storage projects. However, because state money can be used only for “public benefits” such as salmon protection, recreation and flood control, the balance of the funding has to come from water users, such as farmers, homeowners, and businesses.

To date, seven water storage projects that could store an estimated 2.77 million acre-feet of water have been approved by the California Water Commission (CWC) for Proposition 1 funding. The projects are led by local – not state – agencies and permitting is required at the local, state, and federal levels.

Expedited CEQA review. In 2011, AB 900 (Buchanan, Chapter 354, Statutes of 2011), and SB 292 (Padilla, Chapter 353, Statutes of 2011), established expedited CEQA judicial review procedures for a limited number of projects.

For AB 900, it was large-scale projects meeting extraordinary environmental standards and providing significant jobs and investment, now referred to as “environmental leadership development projects” (ELDP). For SB 292, it was a proposed downtown Los Angeles football stadium and convention center project that achieved 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. The provision granting original jurisdiction to the Court of Appeal was invalidated in 2013 by a decision in Alameda Superior Court in Planning and Conservation League v. State of California. AB 900 was subsequently revised to restore jurisdiction to superior courts and require lawsuits to be resolved within 270 days, to the extent feasible.

Two years ago, SB 7 (Atkins, Chapter 19, Statutes of 2021), extended the AB 900 process and expanded it to include housing projects that will result in an investment of $15-$100 million, provided at least 15% of the project is affordable to lower income households and the project is not used as a short-term rental. SB 7 sunsets on January 1, 2026.

Proposed Law:

This bill would make certain water projects eligible for expedited administrative and judicial review under CEQA. Specifically, this bill would:

1. Require the Judicial Council to adopt a rule of court to establish procedures that require actions or proceedings brought to attack, review, set aside, void, or annul the certification of an environmental impact report for a project or the granting of any project approvals that require the actions or proceedings, including any potential appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court.
2. Define a “project” to mean one of the following projects approved by the California Water Commission:
   1. The Chino Basin Conjunctive Use Environmental Water Storage/Exchange Program in the County of San Bernardino
   2. The Harvest Water Program in the County of Sacramento
   3. The Kern Fan Groundwater Storage Project in the County of Kern
   4. The Los Vaqueros Reservoir Expansion Project in the County of Contra Costa
   5. The Willow Springs Water Bank Conjunctive Use Project in the County of Kern
3. Specify how the preparation and certification of the record of proceedings for a water conveyance or storage project shall be performed.
4. State the Legislature finds and declares that a special statute is necessary and a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the unique circumstances facing California’s water infrastructure.

Related Legislation:

AB 1488 (Wallis & Fong 2023) is virtually identical to this bill.

SB 420 (Becker 2023) would add certain clean energy and transmission projects to the list of ELDPs, making them eligible for the 270-day CEQA court resolution process available to ELDPs.

AB 1774 (Seyarto 2022) was virtually identical to this bill. AB 1774 was referred to the Assembly Natural Resources Committee but was never heard.

SB 7 (Atkins, Chapter 19, Statutes of 2021), re-enacted and revised the expedited CEQA administrative and judicial review procedures for ELDPs. For these projects, a 270-day judicial review deadline would apply and includes appeals to the Court of Appeal and the Supreme Court. It also extended eligibility to housing projects that will result in an investment of $15-$100 million, provided at least 15% of the project is affordable to lower income households and the project is not used as a short-term rental.

SB 239 (Dahle 2023) would, among other provisions, require any action – including appeals to the Court of Appeal or the Supreme Court – challenging the decision of the lead agency to certify the project EIR or grant project approvals in violation of CEQA to be resolved, to the extent feasible, within 365 days of the filing of the record of proceedings with the court.

SB 794 (Niello 2023) would, among other provisions, require, to the extent feasible, any actions challenging under CEQA a commercial, housing, or public works project that has at least $25 million invested in it to be resolved within 365 days of filing.

Staff Comments:

This bill would result in potential cost pressure of an unknown amount to the state-funded court system to process and hear challenges under CEQA to certain water projects that would be eligible for expedited administrative and judicial review as a result of this bill. It is possible that, absent this bill, the state would face similar costs resulting from challenges to a project that would occur over a period longer than timeframes prescribed by this bill. However, the acceleration of some cases due to this bill could result in the need for extra personnel and resources in order for the courts to hear them within the required period.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 861 (Author:Dahle)

Version: April 10, 2023

Hearing Date: April 18, 2023

Fiscal: Yes

Urgency: No

Consultant: AM

SUBJECT

California Environmental Quality Act: water conveyance or storage projects: judicial review

DIGEST

This bill makes certain water conveyance or storage projects eligible for expedited administrative and judicial review under the California Environmental Quality Act (CEQA).

EXECUTIVE SUMMARY

For a handful of major projects that meet certain environmental standards, existing law provides for accelerated CEQA review and requires courts, to the extent feasible, to resolve judicial challenges arising from that process within 270 days of the filing of the administrative record. These provisions are intended to expedite beneficial development but entail potential tradeoffs with respect to the sufficiency of environmental review, the burden on courts, and access to justice for other litigants, a concern magnified by the judicial backlog arising from the COVID-19 pandemic.

This bill provides for expedited CEQA administrative and 270-day judicial review, including all appeals, for five specified projects approved by the California Water Commission to be built with Proposition 1 funding.^[1] The bill is author sponsored and supported by Valley Ag Water Coalition and the California Farm Bureau Federation. The bill is opposed by the Judicial Council of California, the Sierra Club California, and Silicon Valley Youth Climate Action. The Senate Environmental Quality Committee passed the bill by a vote of 7-0.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Requires lead agencies with the principal responsibility for carrying out or approving a proposed discretionary project to prepare a negative declaration, mitigated declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA Guidelines). (Pub. Res. Code § 21100 et seq.)^[2]
   
2. Sets requirements relating to the preparation, review, comment, approval and certification of environmental documents, as well as procedures relating to an action or proceeding to attack, review, set aside, void, or annul various actions of a public agency on the grounds of noncompliance with CEQA. (§ 21165 et seq.)
3. Requires both the superior court and the court of appeal to give CEQA lawsuits preference over all other civil actions. Requires, if feasible, the court of appeal to hear a CEQA appeal within one year of filing. (§ 21167.1(a)).
4. Establishes the Jobs and Economic Improvement through Environmental Leadership Act of 2021 (SB 7 (Atkins), Ch. 19, Stats. 2021).
   1. Requires, the Judicial Council, on or before January 1, 2023, to adopt rules of court establishing procedures requiring actions or proceedings seeking judicial review of the certification of an environmental impact report for an environmental leadership development project certified by the Governor under the Act or the granting of any project approvals that require the actions or proceedings, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 calendar days of the filing of the certified record of proceedings with the court.
   2. The Act sunsets on January 1, 2026. (§ 21178 et seq.)
5. Requires, the Judicial Council, on or before January 1, 2023, to adopt rules of court establishing procedures requiring actions or proceedings seeking judicial review pursuant to CEQA or the granting of project approvals, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 365 calendar days of the filing of the certified record of proceedings with the court to an action or proceeding seeking judicial review of the lead agency’s action related to an environmental leadership transit project. This provisions sunsets on January 1, 2025. (§ 21168.6.9 et seq.)

This bill:

1. Requires the Judicial Council to adopt a rule of court to establish procedures that require actions or proceedings brought to attack, review, set aside, void, or annul the certification of an environmental impact report for a water conveyance or storage project or the granting of any project approvals that require the actions or proceedings, including any potential appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court.
2. Defines a “water conveyance or storage facility” to mean a facility used for the conveyance or storage of water for beneficial uses.
3. Defines a “water conveyance or storage project” or “project” to mean a project to repair or expand an existing water conveyance or storage facility or to develop and build a new water conveyance or storage facility.
4. Specifies how the preparation and certification of the record of proceedings for a water conveyance or storage project shall be performed.
5. Specifies that the above provisions only apply to the following projects approved by the California Water Commission:
   1. The Chino Basin Conjunctive Use Environmental Water Storage/Exchange Program in the County of San Bernardino;
   2. The Harvest Water Program in the County of Sacramento;
   3. The Kern Fan Groundwater Storage Project in the County of Kern;
   4. The Los Vaqueros Reservoir Expansion Project in the County of Contra Costa; and
   5. The Willow Springs Water Bank Conjunctive Use Project in the County of Kern.
6. States the Legislature finds and declares that a special statute is necessary and a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the unique circumstances facing California’s water infrastructure.

COMMENTS

1. Stated need for the bill

The author writes:

California’s drought is only worsened by our own water policies. In recent years, we have prioritized using less water rather than saving and storing more water. Given the high demand for both commercial and residential uses, California needs to start focusing on storing as much water as possible. This accomplishes two major things: it protects water reliability and access in the future and it also allows the state to be more flexible with the release of water - depending on drought and flood conditions, to ensure the health and safety of our natural waterways. When we receive historic levels of rain and snowfall like we have been getting since early January 2023, California must be able to capture and store some of that water for future use. Streamlining the environmental review process for water projects is essential to securing reliable and consistent access to water for all Californians. As our climate continues to change, California water policy must change with it. We need to be smarter with our water and the first step in that process is clearing the way for more water storage to be built throughout the state.

1. CEQA generally

Enacted in 1970, CEQA requires state and local agencies to follow a set protocol to disclose and evaluate the significant environmental impacts of proposed projects and to adopt feasible measures to mitigate those impacts. CEQA itself applies to projects undertaken or requiring approval by public agencies, and, if more than one agency is involved, CEQA requires one of the agencies to be designated as the “lead agency.” The environmental review process required by CEQA consists of: (1) determining if the activity is a project; (2) determining if the project is exempt from CEQA; and (3) performing an initial study to identify the environmental impacts and, depending on the findings, prepare either a Negative Declaration (for projects with no significant impacts), a Mitigated Negative Declaration (for projects with significant impacts but that are revised in some form to avoid or mitigate those impacts), or an EIR (for projects with significant impacts).

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. Before approving any project that has received environmental review, an agency must make certain findings pertaining to the project’s environmental impact and any associated mitigation measures. If mitigation measures are required or incorporated into a project, the public agency must adopt a reporting or monitoring program to ensure compliance with those measures. To enforce the requirements of CEQA, a civil action may be brought under several code sections to attack, review, set aside, void, or annul the acts or decisions of a public agency for noncompliance with the act.

“CEQA operates, not by dictating proenvironmental outcomes, but rather by mandating that ‘decision makers and the public’ study the likely environmental effects of contemplated government actions and thus make fully informed decisions regarding those actions. … In other words, CEQA does not care what decision is made as long as it is an informed one.” (Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal. App. 5th 561, 577.)

1. Expedited judicial review under CEQA

There are several existing statutes that provide for a 270-day judicial review period, if feasible, for environmental leadership projects,^[3] for environmental leadership transit projects,^[4] as well as for specified stadium projects.^[5]

Unlike other environmental laws specific to air resources, water resources, or the control of toxic substances, there is no statewide bureaucracy charged with enforcement of CEQA. Rather, it is enforced through citizen participation and litigation if necessary. Arguably, this makes the implementation of CEQA more efficient and expeditious than if a state agency were created to administer the law. Thus, CEQA litigation could more appropriately be characterized as mere enforcement.

Several provisions streamline judicial review of challenges to projects under CEQA, including:

• discovery is generally not allowed, as CEQA cases are generally restricted to review of the record;^[6]
• concurrent preparation of the record of proceedings to enable judicial review to occur sooner;^[7]
• counties with a population of over 200,000 must designate one or more judges to develop expertise on CEQA and hear CEQA cases (§ 21167.1 (b));
• both the Superior Court and the Court of Appeal must give CEQA lawsuits preference over all other civil actions (§ 21167.1(a));
• if feasible, the Court of Appeal must hear a CEQA appeal within one year of filing (§ 21167.1(a)); and

Additionally, several bills have provided for a 270-day judicial review period for environmental leadership projects,^[8] as well as for specified stadium projects,^[9] and a San Diego transit and transportation facilities project.^[10] The principal framework associated with these provisions is AB 900 (§ 21178 et seq.), which established procedures for 270-day expedited judicial review for “environmental leadership” projects with a minimum investment of $100,000,000 that are certified by the Governor and meet specified conditions. Such projects include clean renewable energy projects, clean energy manufacturing projects, and LEED Gold-certified infill site projects with transportation efficiency 15 percent greater than comparable projects and zero net additional GHG emissions. To date, 19 projects have been certified under this process. AB 900 sunset January 1, 2021, but was renewed under SB 7 (Atkins, Ch. 19, Stats. 2021) to include housing development projects with a minimum investment of $15,000,000.

A 2019 report entitled Review of Environmental Leadership Development Projects from the Senate Office of Research reviewed litigation under AB 900 and SB 743 (Steinberg, Ch. 386, Stats. 2013), which provided for 270-day review for the Sacramento Kings arena. The report found the following timelines, which under then-existing law began when the administrative record was certified^[11] and include the trial court, court of appeal, and the Supreme Court’s denial of review, for those cases:

The report concludes that these projects were reviewed under a faster timeline than normally would apply, benefiting the developers and providing upfront financial security. The report also states that “the impacts to the court from such a short timeline also should be taken into consideration when determining how fast the Legislature would like [AB 900] cases resolved,” and suggests a longer timeline may be appropriate.^[12]

1. Expedited judicial review for certain water conveyance or storage projects

This bill would provide for expedited review for five specified water conveyance or storage projects approved by the California Water Commission to be built with Proposition 1 funding:

• 1. the Chino Basin Conjunctive Use Environmental Water Storage/Exchange Program in the County of San Bernardino;
  2. the Harvest Water Program in the County of Sacramento;
  3. the Kern Fan Groundwater Storage Project in the County of Kern;
  4. the Los Vaqueros Reservoir Expansion Project in the County of Contra Costa; and
  5. the Willow Springs Water Bank Conjunctive Use Project in the County of Kern.

As the Senate Environmental Quality Committee analysis notes:

Voters overwhelmingly approved Proposition 1 in 2014, a $7.5 billion water bond that set aside $2.7 billion for water storage projects. However, because state money can be used only for “public benefits” such as salmon protection, recreation and flood control, the balance of the funding has to come from water users, such as farmers, homeowners, and businesses.

To date, seven water storage projects that could store an estimated 2.77 million acre-feet of water have been approved by the California Water Commission (CWC) for Proposition 1 funding. The projects are led by local – not state – agencies and permitting is required at the local, state, and federal levels. […] According to the CWC’s website, the Kern Fan Groundwater Storage Project is the first of those seven projects that will break ground sometime this year, with full operations beginning in mid-2029.

The bill sets up a nearly identical program for water conveyance and water storage facilities as for environmental leadership development projects, including requiring he lead agency for the project to prepare the record of proceedings under CEQA concurrently with the administrative process and requiring any dispute arising from the record of proceedings to be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record must file a motion to augment the record at the time it files its initial brief.

1. Statements in support

The Valley Ag Water Coalition (VAWC) writes in support stating:

California has consistently struggled with droughts, including significant multi-year droughts in the last two decades from 2007-2009 and from 2012-2016. California must prepare for such droughts; to do so requires significant investments in the development of water storage projects. Recently, California received historic amounts of rain and snow. It is necessary to take advantage of the record snowpack and build necessary water storage to capture that water before it flows needlessly into the ocean. Proposition 1 of 2014 dedicated $2.7 billion for investments in water storage projects. Unfortunately, those funds have not been efficiently allocated to allow for the construction of these projects.

VAWC supports SB 861 as the bill seeks to streamline the approval process by requiring the Judicial Council to adopt rules of court applicable to actions or proceedings brought to attack, review, set aside, void, or annul the certification or adoption of an environmental impact report for water conveyance or storage projects, or the granting of project approvals, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 days. Expediting judicial review would not exempt projects from CEQA standards; however, streamlining the timeline for review keeps court costs low, prevents delays, and ensures these necessary projects meet their deadlines for approval.

1. Statements in opposition

The Sierra Club California writes in opposition stating:

Water storage and conveyance projects are not harmless and applying this framework to them is inappropriate. New proposals, including construction of Sites Reservoir or the Delta Conveyance Project, are likely to reduce freshwater flows, significantly impact endangered and threatened species, and have not demonstrated that they can provide reliable water supplies under changing climate conditions without negative impacts to the environment. Attempting to rush the planning and environmental review process for these projects will result in poorly thought out projects with potentially significant implications for California’s water future.

Water storage and conveyance projects have significant impacts and must undergo full and robust CEQA review, including the full judicial review process.

The Judicial Council of California writes in opposition to the bill unless amended to remove the 270-day expedited review provision and the related rulemaking requirement. They note that their concerns are limited solely to its impacts on the courts and express no views to the underlying merits of any potential projects covered by the bill. They write:

The requirement in SB 861 to ensure a water conveyance or storage project challenged under CEQA be resolved in 270 days, to the extent feasible, including appeals to the Court of Appeal and the Supreme Court is problematic. CEQA actions are already entitled under current law to calendar preference “over all other civil actions” in both the superior courts and the Courts of Appeal pursuant to section 21167.1(a) of the Public Resources Code. Imposing a 270-day timeline for review, on top of existing CEQA calendar preferences, even with language that references “to the extent feasible,” is an arbitrary and unrealistically short timeframe for California’s trial courts to address all the issues each CEQA case is likely to present.

They further elaborate that reasons why this expedited time frame is not feasible are:

• CEQA cases are complex and time-consuming;
• active CEQA cases often include ancillary administrative and non-CEQA judicial causes of action; and
• expediting CEQA cases means further delays for other cases

1. Proposed amendments

The author may wish to amend the bill to remove references to water conveyance of storage facility and water conveyance or storage project as they are superfluous now that the bill only applies to five specified projects.

SUPPORT

California Farm Bureau Federation

Valley Ag Water Coalition

OPPOSITION

Judicial Council of California

Sierra Club California

Silicon Valley Youth Climate

RELATED LEGISLATION

Pending Legislation:

AB 1488 (Wallis and Fong, 2023) would extend the Jobs and Economic Improvement Through Environmental Leadership Act of 2021 to water storage projects, water conveyance projects, and groundwater recharge projects that provide public benefits and drought preparedness. This bill is currently pending in the Assembly Committee on Natural Resources.

Prior Legislation: See comment 3.

PRIOR VOTES:

Senate Environmental Quality Committee (Ayes 7, Noes 0)

**************

1. Prop. 1 of 2014 was a $7.5 billion water bond that set aside $2.7 billion for water storage projects. ↑

2. All further references are to the Public Resources Code unless otherwise indicated. ↑

3. AB 900 (Buchanan, Ch. 354, Stats. 2011); SB 7 (Atkins, Ch. 19, Stats. 2021). ↑

4. SB 44 (Allen, Ch. 44, Stats. 2021). ↑

5. SB 292 (Padilla, Ch. 353, Stats. 2011); SB 743 (Steinberg, Ch. 386, Stats. 2013) (see Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 855-856); AB 734 (Bonta, Ch. 959, Stats. 2018); AB 987 (Kamlager-Dove, Ch. 961, Stats. 2018). ↑

6. See Cadiz Land Co. v. Rail Cycle, LP (2000) 83 Cal.App.4th 74, 122. ↑

7. SB 122 (Jackson, Ch. 476, Stats. 2016). ↑

8. AB 900 (Buchanan, 2011), Ch. 354, Stats. 2011. ↑

9. SB 292 (Padilla, Ch. 353, Stats. 2011); SB 743 (Steinberg, Ch. 386, Stats. 2013); (see Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 855-856); AB 734 (Bonta, Ch. 959, Stats. 2018) AB 987 (Kamlager-Dove, Ch. 961, Stats. 2018). ↑

10. AB 2731 (Gloria, Ch. 291, Stats. 2020). ↑

11. Review of Environmental Leadership Development Projects, Cal. Sen. Office of Research (Apr. 2019) at pp. 6-8 (noting some uncertainties in the calculation methodology). ↑

12. Id. at p. 15. ↑

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2023 - 2024 Regular

Bill No: SB 861

SUBJECT: California Environmental Quality Act (CEQA): water conveyance or storage projects: judicial review

DIGEST: This bill requires CEQA actions involving water conveyance and storage projects to be resolved by the courts, to the extent feasible, within 270 days. It also requires lead agencies to prepare the record of proceedings for a water conveyance or storage project and to include a specific notice in the draft environmental impact report (EIR) and final EIR.

ANALYSIS:

Existing law:

1. CEQA requires lead agencies with the principal responsibility for carrying out or approving a project to prepare a negative declaration (ND), mitigated negative declaration (MND), or EIR for the project, unless the project is exempt from CEQA. (Public Resources Code (PRC) §21000 et seq.). If a project may have a significant effect on the environment, the lead agency must prepare a draft EIR. (CEQA Guidelines §15064(a)(1), (f)(1)).
2. Establishes various timelines under which a person has a right to bring an action under CEQA. (PRC §21167).
3. Requires counties with a population of over 200,000 to designate one or more judges to develop expertise on CEQA and hear CEQA cases. (PRC §21167.1 (b))
4. Requires both the superior court and the court of appeal to give CEQA lawsuits preference over all other civil actions. (PRC §21167.1(a))
5. Requires, if feasible, the court of appeal to hear a CEQA appeal within one year of filing. (PRC §21167.1(a)).
6. Requires an “environmental leadership development project” (ELDP), which includes certain housing projects, challenged under CEQA to be resolved in 270 days, including appeals to the court of appeal and the Supreme Court. (PRC §21185).
7. Requires for ELDPs:
   1. The lead agency for the project to prepare the record of proceedings under CEQA concurrently with the administrative process.
   2. All documents and other materials placed in the record of proceedings to be posted on, and be downloadable from, an internet website maintained by the lead agency.
   3. The lead agency to make available to the public – in a readily accessible electronic format – the draft EIR and all other documents submitted to, or relied on by, the lead agency in preparing the draft EIR.
   4. Any document prepared by the lead agency or submitted by the applicant after the date of the release of the draft EIR that is a part of the record of the proceedings to be made available to the public in a readily accessible electronic format within five days after the document is released or received by the lead agency.
   5. The lead agency to encourage written comments on the project to be submitted in a readily accessible electronic format, and to make any comment available to the public in a readily accessible electronic format within five days of receiving it.
   6. Within seven days after receiving any comment that is not in an electronic format, the lead agency to convert that comment into a readily accessible electronic format and make it available to the public in that format.
   7. 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 documents, the lead agency must make an index of them available in an electronic format no later than the date of the release of the draft EIR, or within five days if the document is received or relied on by the lead agency after the release of the draft EIR. The index must specify the libraries or lead agency offices where hardcopies of the copyrighted materials are available for public review.
   8. The lead agency to certify the final record of proceedings within five days of approving the project.
   9. Any dispute arising from the record of 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. Within 10 days of the Governor certifying an ELDP project under this chapter, a lead agency shall, at the applicant’s expense, issue a public notice in no less than 12-point type stating the accelerated judicial timeline. (PRC 21186)

This bill:

1. Defines a “water conveyance or storage facility” to mean a facility used for the conveyance or storage of water for beneficial uses.
2. Defines a “water conveyance or storage project” or “project” to mean a project to repair or expand an existing water conveyance or storage facility or to develop and build a new water conveyance or storage facility.
3. Requires the Judicial Council to adopt a rule of court to ensure a water conveyance or storage project challenged under CEQA be resolved in 270 days, including appeals to the court of appeal and the Supreme Court.
4. Mirrors the language described in (7)(a)-(j) above that applies to ELDPs and applies it to water conveyance and storage projects.

Background

1. The A, B, C’s of CEQA. CEQA was enacted by the Legislature and signed into law by Governor Ronald Reagan in 1970. While it has evolved into a very complex Act over the past 53 years, at its core the basic principles of CEQA are relatively simple.

It 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 self-executing statute enforced by civil lawsuits that can challenge any project’s environmental review. Public agencies, as well as private individuals and organizations, can file lawsuits under CEQA.

1. Proposition 1 of 2014. Voters overwhelmingly approved Proposition 1 in 2014, a $7.5 billion water bond that set aside $2.7 billion for water storage projects. However, because state money can be used only for “public benefits” such as salmon protection, recreation and flood control, the balance of the funding has to come from water users, such as farmers, homeowners, and businesses.

To date, seven water storage projects that could store an estimated 2.77 million acre-feet of water have been approved by the California Water Commission (CWC) for Proposition 1 funding. The projects are led by local – not state – agencies and permitting is required at the local, state, and federal levels.

Those seven projects are:

• 1. The Chino Basin Conjunctive Use Environmental Water Storage/Exchange Program in San Bernardino County. It will build an advanced water treatment and distribution facility to store up to 15 thousand acre-feet (TAF) per year of treated wastewater in the Chino Basin Water Bank.
  2. The Harvest Water Program in Sacramento County. It will store and manage groundwater while improving stream flow, enhancing groundwater-dependent riparian habitats, sustaining prime agricultural lands, and improving regional water supply reliability.
  3. The Kern Fan Groundwater Storage Project in Kern County. It will develop a regional water bank in the Kern Fan area to recharge and store up to 100 TAF of water in the Kern County Groundwater Sub-basin of the San Joaquin Valley Groundwater Basin.
  4. The Los Vaqueros Reservoir Expansion Project in Contra Costa County. It will enlarge the existing off-stream reservoir from 160 TAF to 275 TAF by upgrading existing conveyance facilities, building new conveyance, and re-opening some existing facilities.
  5. The Willow Springs Water Bank Conjunctive Use Project in Los Angeles County. It is a conjunctive use and reservoir re-operation project using the existing Willow Springs Water Bank to integrate the State Water Project (SWP) reservoir and conveyance system with south‐of‐Delta groundwater storage. The project will leverage 500 TAF of existing groundwater storage facilities and operate conjunctively with the SWP and provide ecosystem benefits north of the Delta.
  6. The Pacheco Reservoir Expansion Project in Santa Clara County. It will enlarge the existing reservoir from 6 TAF to 141.6 TAF.
  7. The Sites Reservoir Project in Colusa County. This is a new 1.5 million acre-foot off-stream surface storage reservoir.

According to the CWC’s website, the Kern Fan Groundwater Storage Project is the first of those seven projects that will break ground sometime this year, with full operations beginning in mid-2029. The largest proposed project, the Sites Reservoir, is estimated to break ground in late 2024 and begin operating in early 2030 – nearly 16 years after voters approved Proposition 1.

1. Let’s Pick Up The Pace. In 2011, AB 900 (Buchanan, Chapter 354, Statutes of 2011), and SB 292 (Padilla, Chapter 353, Statutes of 2011), established expedited CEQA judicial review procedures for a limited number of projects.

For AB 900, it was large-scale projects meeting extraordinary environmental standards and providing significant jobs and investment, now referred to as “environmental leadership development projects” (ELDP). For SB 292, it was a proposed downtown Los Angeles football stadium and convention center project that achieved 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. The provision granting original jurisdiction to the Court of Appeal was invalidated in 2013 by a decision in Alameda Superior Court in Planning and Conservation League v. State of California. AB 900 was subsequently revised to restore jurisdiction to superior courts and require lawsuits to be resolved within 270 days, to the extent feasible.

Two years ago, SB 7 (Atkins, Chapter 19, Statutes of 2021), extended the AB 900 process and expanded it to include housing projects that will result in an investment of $15-$100 million, provided at least 15% of the project is affordable to lower income households and the project is not used as a short-term rental. SB 7 sunsets on January 1, 2026.

Comments

1. Purpose of Bill. According to the author, “California’s drought is only worsened by our own water policies. In recent years, we have prioritized using less water rather than saving and storing more water. Given the high demand for both commercial and residential uses, California needs to start focusing on storing as much water as possible.

“This accomplishes two major things: it protects water reliability and access in the future and it also allows the state to be more flexible with the release of water - depending on drought and flood conditions, to ensure the health and safety of our natural waterways. When we receive historic levels of rain and snowfall like we have been getting since early January 2023, California must be able to capture and store some of that water for future use.

“Streamlining the environmental review process for water projects is essential to securing reliable and consistent access to water for all Californians. As our climate continues to change, California water policy must change with it. We need to be smarter with our water and the first step in that process is clearing the way for more water storage to be built throughout the state.”

1. Limiting The Court’s Review Time. Current law requires every party filing a CEQA lawsuit to report to the Attorney General and according to the Attorney General’s website, the number of CEQA lawsuits filed each year has averaged just under 196 between 2002 and 2021.

As noted earlier, exiting law requires counties with a population of over 200,000 (28 of California’s 58 counties) to designate one or more judges to develop expertise on CEQA and hear CEQA cases, and requires both the superior court and the Court of Appeal to give CEQA lawsuits preference over all other civil actions. It also requires all ELDPs to be resolved within 270 days, if feasible.

This bill requires the Judicial Council to adopt a rule of court to ensure a water conveyance or storage project challenged under CEQA be resolved in 270 days, if feasible, including appeals to the Court of Appeal and the Supreme Court – the same standard that applies to ELDPs.

1. If It Works Over There, Let’s Try It Over Here. All ELDPs currently qualify for the 270-day court resolution process this bill seeks to use for water conveyance and water storage projects. To be designated as an ELDP, a project must be:
   1. A residential, retail, commercial, sports, cultural, entertainment, or recreational use project that is certified as Leadership in Energy and Environmental Design (LEED) gold or better by the United States Green Building Council, achieves a certain transportation efficiency standard, is located on an infill site, and meets other criteria,
   2. A clean renewable energy project that generates electricity exclusively through wind or solar,
   3. A clean energy manufacturing project that manufactures products, equipment, or components used for renewable energy generation, energy efficiency, or for the production of clean alternative fuel vehicles, or
   4. A housing development project that meets certain conditions.

This bill does not classify a water conveyance or a water storage project as an ELDP, but it does take the same 270-day court resolution process that ELDP’s are entitled to use and applies it to water conveyance and water storage projects.

1. Does It Work? In April 2019, the Senate Office of Research (SOR) published a review of ELDPs certified under AB 900. Although the shortened judicial review timeline of 270 days was not always met, the SOR report found these projects have moved through the litigation process much faster than normal timelines.

The ELDPs have likely received a significant streamlining benefit largely due to the concurrent preparation of the administrative record (something SB 861 requires as well), along with judicial deference to meeting the timeline and establishing streamlined court procedures. Additionally, the report noted all of the petitioners for the three ELDP CEQA cases stated the shortened judicial review timeline did not adversely affect their ability to present their issues before the court.

1. Sunset Blvd. As noted in the Background section, AB 900 of 2011 created the ELDP concept, but that bill was enacted with a sunset clause to end the program on January 1, 2015. Subsequent legislation was enacted to extend the sunset clause, the most recent being SB 7 (Atkins), which expanded the program and extended the sunset to January 1, 2026.

While this bill does not touch the ELDP program, it does set up a nearly identical program for water conveyance and water storage facilities. Given that the ELDP legislation has a sunset attached to it, the author and committee may wish to consider including the functional equivalent of a sunset clause in this measure by limiting its application to one or more of the seven projects that have been approved by the CWC.

This “project specific” approach would be similar to the approach taken in SB 292 (Padilla) of 2011, which provided an ELDP approach for a proposed downtown Los Angeles football stadium and convention center project. AB 734 (Bonta, Chapter 959, Statutes of 2018), and AB 987 (Kamlager, Chapter 961, Statutes of 2018), followed the SB 292 model to provide expedited judicial review for projects involving the Oakland A’s and Los Angeles Clippers, respectively.

1. Committee amendments. Staff recommends the committee adopt the suggested amendment in Comments 5 to limit the application of the bill to projects (a)-(e) listed on Page 4 of the analysis.

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 Judiciary Committee.

Related/Prior Legislation

AB 1488 (Wallis & Fong) of 2023 is virtually identical to this bill. AB 1488 is pending in the Assembly Natural Resources Committee.

SB 420 (Becker) of 2023 adds certain clean energy and transmission projects to the list of ELDPs, making them eligible for the 270-day CEQA court resolution process available to ELDPs. SB 420 is pending in the Senate Environmental Quality Committee.

AB 1774 (Seyarto) of 2022 was virtually identical to this bill. AB 1774 was referred to the Assembly Natural Resources Committee but was never heard.

SB 7 (Atkins, Chapter 19, Statutes of 2021), re-enacted and revised the expedited CEQA administrative and judicial review procedures for ELDPs. For these projects, a 270-day judicial review deadline would apply and includes appeals to the Court of Appeal and the Supreme Court. It also extended eligibility to housing projects that will result in an investment of $15-$100 million, provided at least 15% of the project is affordable to lower income households and the project is not used as a short-term rental.

SB 239 (Dahle) of 2023, among other provisions, requires any action – including appeals to the Court of Appeal or the Supreme Court – challenging the decision of the lead agency to certify the project EIR or grant project approvals in violation of CEQA to be resolved, to the extent feasible, within 365 days of the filing of the record of proceedings with the court. SB 239 is pending in the Senate Environmental Quality Committee.

SB 794 (Niello) of 2023, among other provisions, requires, to the extent feasible, any actions challenging under CEQA a commercial, housing, or public works project that has at least $25 million invested in it to be resolved within 365 days of filing. SB 794 is pending in the Senate Environmental Quality Committee.

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