BILL NUMBER: SB 226 CHAPTERED
BILL TEXT
CHAPTER 469
FILED WITH SECRETARY OF STATE OCTOBER 4, 2011
APPROVED BY GOVERNOR OCTOBER 4, 2011
PASSED THE SENATE SEPTEMBER 9, 2011
PASSED THE ASSEMBLY SEPTEMBER 9, 2011
AMENDED IN ASSEMBLY SEPTEMBER 9, 2011
AMENDED IN ASSEMBLY SEPTEMBER 6, 2011
AMENDED IN ASSEMBLY SEPTEMBER 1, 2011
AMENDED IN ASSEMBLY AUGUST 23, 2011
AMENDED IN ASSEMBLY AUGUST 17, 2011
AMENDED IN ASSEMBLY JULY 14, 2011
INTRODUCED BY Senators Simitian and Vargas
(Coauthor: Senator Rubio)
(Coauthors: Assembly Members Perea and Solorio)
FEBRUARY 9, 2011
An act to amend Section 65919.10 of the Government Code, and to
amend Sections 21083.9 and 21084 of, and to add Sections 21080.35,
21094.5, 21094.5.5, and 25500.1 to, the Public Resources Code,
relating to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 226, Simitian. Environmental quality.
(1) The California Environmental Quality Act (CEQA) requires a
lead agency to prepare, or cause to be prepared, and certify the
completion of, an environmental impact report (EIR) on a project, as
defined, that it proposes to carry out or approve that may have a
significant effect on the environment, as defined, or to adopt a
negative declaration if it finds that the project will not have that
effect.
This bill would exempt from the requirements of CEQA the
installation of a solar energy system, including associated
equipment, on the roof of an existing building or an existing parking
lot meeting specified conditions. Because a lead agency would be
required to determine whether a project would be exempt under this
provision, this bill would impose a state-mandated local program.
(2) CEQA requires a lead agency to call a scoping meeting for a
project of statewide, regional, or areawide significance, and
requires the lead agency to provide notice of at least one of those
scoping meetings to specified entities, including a county or city
that borders on a county or city within which the project is located,
unless otherwise designated annually by agreement between the lead
agency and county or city. Existing law requires, prior to action by
a legislative body to adopt or substantially amend a general plan,
the planning agency to refer the proposed action to a city or county
within or abutting the area covered by the proposal.
This bill would authorize this referral of a proposed action to
adopt or substantially amend a general plan of a city or county to be
conducted concurrently with the scoping meeting. The city or county
would be authorized to submit specified comments at the scoping
meeting.
(3) CEQA authorizes the Secretary of the Natural Resources Agency
to certify and adopt guidelines to include a list of classes of
projects that have been determined not to have a significant effect
on the environment and are exempted from the requirements of CEQA
(categorical exemption).
This bill would provide that a project's greenhouse gas emissions
are not, in and of themselves, deemed to cause the exemption to be
inapplicable under specified conditions.
This bill would require the Office of Planning and Research, on or
before July 1, 2012, to prepare, develop, and transmit to the
Natural Resources Agency, and the Secretary of the Natural Resources
Agency, on or before January 1, 2013, to certify and adopt guidelines
for statewide standards for infill projects that would promote
specified goals and priorities.
(4) CEQA limits its application, in the case of the approval of a
subdivision map or a project that is consistent with the zoning or
community plan for which an EIR was certified, to effects upon the
environment that are peculiar to the parcel on which the project is
located and were not addressed as significant effects in the EIR or
if new information shows the effects upon the environment will be
more significant than described in the prior EIR.
This bill would similarly limit the application of CEQA in the
case of the approval of an infill project, as defined, that satisfies
all applicable statewide standards established in the guidelines
under (3) above if an EIR was certified for a planning level
decision, as defined. Because this bill would require a lead agency
to determine whether a project qualifies under this provision, this
bill would impose a state-mandated local program.
(5) Existing law authorizes a county and a city to agree upon a
procedure for referral to, and comment by, the city or county
concerning the other entity's proposals to adopt or amend all or part
of a general or specific plan or zoning ordinance, as specified.
This bill would make a technical, nonsubstantive change to this
authorization.
(6) Existing law vests the State Energy Resources Conservation and
Development Commission with the exclusive power to certify thermal
powerplants. Under CEQA, the thermal powerplants certification
process is a certified regulatory program and is therefore exempt
from certain requirements under CEQA.
The bill would provide that the thermal powerplants certification
process would be applicable to owners of specified proposed solar
thermal powerplants who are proposing to convert the facility from
solar thermal technology to photovoltaic technology.
(7) 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 PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) In 2008, the Legislature passed and the Governor signed Senate
Bill 375, which was chaptered as Chapter 726 of the Statutes of
2008, requiring metropolitan planning organizations to adopt a
sustainable community strategy that will comprehensively integrate
land use planning, transportation investments, and climate policy.
Part of Chapter 726 of the Statutes of 2008 includes incentives under
the California Environmental Quality Act (Division 13 (commencing
with Section 21000) of the Public Resources Code) to encourage
development patterns that would help implement the sustainable
communities strategy.
(b) Metropolitan planning organizations will begin adopting these
strategies in 2011, but adoption will not be complete until 2013.
(c) One of the incentives created under Chapter 726 of the
Statutes of 2008 is the sustainable communities environmental
assessment that provides a more expeditious review under the
California Environmental Quality Act for residential and mixed-use
residential projects that have a proximity to transit.
(d) Because of the severe recession that continues to impact
California and because of the need to promote jobs in the
construction industry, it is important to make the sustainable
communities assessment available as early as possible in order to
promote the construction of projects that will foster the use of
transit.
SEC. 2. Section 65919.10 of the Government Code is amended to
read:
65919.10. If the proposed action is a change in a zoning
ordinance, the county or city need not refer the zoning proposal to
an affected city or county, as the case may be, if the zoning
proposal is consistent with the general plan and the general plan
proposal was referred and acted upon pursuant to this chapter.
SEC. 3. Section 21080.35 is added to the Public Resources Code, to
read:
21080.35. (a) Except as provided in subdivision (d), this
division does not apply to the installation of a solar energy system
on the roof of an existing building or at an existing parking lot.
(b) For the purposes of this section, the following terms mean the
following:
(1) "Existing parking lot" means an area designated and used for
parking of vehicles as of the time of the application for the solar
energy system and for at least the previous two years.
(2) "Solar energy system" includes all associated equipment.
Associated equipment consists of parts and materials that enable the
generation and use of solar electricity or solar-heated water,
including any monitoring and control, safety, conversion, and
emergency responder equipment necessary to connect to the customer's
electrical service or plumbing and any equipment, as well as any
equipment necessary to connect the energy generated to the electrical
grid, whether that connection is onsite or on an adjacent parcel of
the building and separated only by an improved right-of-way.
"Associated equipment" does not include a substation.
(c) (1) Associated equipment shall be located on the same parcel
of the building, except that associated equipment necessary to
connect the energy generated to the electrical grid may be located
immediately adjacent to the parcel of the building or immediately
adjacent to the parcel of the building and separated only by an
improved right-of-way.
(2) Associated equipment shall not occupy more than 500 square
feet of ground surface and the site of the associated equipment shall
not contain plants protected by the Native Plant Protection Act
(Chapter 10 (commencing with Section 1900) of Division 2 of the Fish
and Game Code).
(d) This section does not apply if the associated equipment would
otherwise require one of the following:
(1) An individual federal permit pursuant to Section 401 or 404 of
the federal Clean Water Act (33 U.S.C. Sec. 1341 or 1344) or waste
discharge requirements pursuant to the Porter-Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code).
(2) An individual take permit for species protected under the
federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.)
or the California Endangered Species Act (Chapter 1.5 (commencing
with Section 2050) of Division 3 of the Fish and Game Code).
(3) A streambed alteration permit pursuant to Chapter 6
(commencing with Section 1600) of Division 2 of the Fish and Game
Code.
(e) This section does not apply if the installation of a solar
energy system at an existing parking lot involves either of the
following:
(1) The removal of a tree required to be planted, maintained, or
protected pursuant to local, state, or federal requirements, unless
the tree dies and there is no requirement to replace the tree.
(2) The removal of a native tree over 25 years old.
(f) This section does not apply to any transmission or
distribution facility or connection.
SEC. 4. Section 21083.9 of the Public Resources Code is amended to
read:
21083.9. (a) Notwithstanding Section 21080.4, 21104, or 21153, a
lead agency shall call at least one scoping meeting for either of the
following:
(1) A proposed project that may affect highways or other
facilities under the jurisdiction of the Department of Transportation
if the meeting is requested by the department. The lead agency shall
call the scoping meeting as soon as possible, but not later than 30
days after receiving the request from the Department of
Transportation.
(2) A project of statewide, regional, or areawide significance.
(b) The lead agency shall provide notice of at least one scoping
meeting held pursuant to paragraph (2) of subdivision (a) to all of
the following:
(1) A county or city that borders on a county or city within which
the project is located, unless otherwise designated annually by
agreement between the lead agency and the county or city.
(2) A responsible agency.
(3) A public agency that has jurisdiction by law with respect to
the project.
(4) A transportation planning agency or public agency required to
be consulted pursuant to Section 21092.4.
(5) An organization or individual who has filed a written request
for the notice.
(c) For an entity, organization, or individual that is required to
be provided notice of a lead agency public meeting, the requirement
for notice of a scoping meeting pursuant to subdivision (b) may be
met by including the notice of a scoping meeting in the public
meeting notice.
(d) A scoping meeting that is held in the city or county within
which the project is located pursuant to the federal National
Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.) and
the regulations adopted pursuant to that act shall be deemed to
satisfy the requirement that a scoping meeting be held for a project
subject to paragraph (2) of subdivision (a) if the lead agency meets
the notice requirements of subdivision (b) or subdivision (c).
(e) The referral of a proposed action to adopt or substantially
amend a general plan to a city or county pursuant to paragraph (1) of
subdivision (a) of Section 65352 of the Government Code may be
conducted concurrently with the scoping meeting required pursuant to
this section, and the city or county may submit its comments as
provided pursuant to subdivision (b) of that section at the scoping
meeting.
SEC. 5. Section 21084 of the Public Resources Code is amended to
read:
21084. (a) The guidelines prepared and adopted pursuant to
Section 21083 shall include a list of classes of projects that have
been determined not to have a significant effect on the environment
and that shall be exempt from this division. In adopting the
guidelines, the Secretary of the Natural Resources Agency shall make
a finding that the listed classes of projects referred to in this
section do not have a significant effect on the environment.
(b) A project's greenhouse gas emissions shall not, in and of
themselves, be deemed to cause an exemption adopted pursuant to
subdivision (a) to be inapplicable if the project complies with all
applicable regulations or requirements adopted to implement
statewide, regional, or local plans consistent with Section 15183.5
of Title 14 of the California Code of Regulations.
(c) A project that may result in damage to scenic resources,
including, but not limited to, trees, historic buildings, rock
outcroppings, or similar resources, within a highway designated as an
official state scenic highway, pursuant to Article 2.5 (commencing
with Section 260) of Chapter 2 of Division 1 of the Streets and
Highways Code, shall not be exempted from this division pursuant to
subdivision (a). This subdivision does not apply to improvements as
mitigation for a project for which a negative declaration has been
approved or an environmental impact report has been certified.
(d) A project located on a site that is included on any list
compiled pursuant to Section 65962.5 of the Government Code shall not
be exempted from this division pursuant to subdivision (a).
(e) The changes made to this section by Chapter 1212 of the
Statutes of 1991 apply only to projects for which applications have
not been deemed complete on or before January 1, 1992, pursuant to
Section 65943 of the Government Code.
(f) A project that may cause a substantial adverse change in the
significance of an historical resource, as specified in Section
21084.1, shall not be exempted from this division pursuant to
subdivision (a).
SEC. 6. Section 21094.5 is added to the Public Resources Code, to
read:
21094.5. (a) (1) If an environmental impact report was certified
for a planning level decision of a city or county, the application of
this division to the approval of an infill project shall be limited
to the effects on the environment that (A) are specific to the
project or to the project site and were not addressed as significant
effects in the prior environmental impact report or (B) substantial
new information shows the effects will be more significant than
described in the prior environmental impact report. A lead agency's
determination pursuant to this section shall be supported by
substantial evidence.
(2) An effect of a project upon the environment shall not be
considered a specific effect of the project or a significant effect
that was not considered significant in a prior environmental impact
report, or an effect that is more significant than was described in
the prior environmental impact report if uniformly applicable
development policies or standards adopted by the city, county, or the
lead agency, would apply to the project and the lead agency makes a
finding, based upon substantial evidence, that the development
policies or standards will substantially mitigate that effect.
(b) If an infill project would result in significant effects that
are specific to the project or the project site, or if the
significant effects of the infill project were not addressed in the
prior environmental impact report, or are more significant than the
effects addressed in the prior environmental impact report, and if a
mitigated negative declaration or a sustainable communities
environmental assessment could not be otherwise adopted, an
environmental impact report prepared for the project analyzing those
effects shall be limited as follows:
(1) Alternative locations, densities, and building intensities to
the project need not be considered.
(2) Growth inducing impacts of the project need not be considered.
(c) This section applies to an infill project that satisfies both
of the following:
(1) The project satisfies any of the following:
(A) Is consistent with the general use designation, density,
building intensity, and applicable policies specified for the project
area in either a sustainable communities strategy or an alternative
planning strategy for which the State Air Resources Board, pursuant
to subparagraph (H) of paragraph (2) of subdivision (b) of Section
65080 of the Government Code, has accepted a metropolitan planning
organization's determination that the sustainable communities
strategy or the alternative planning strategy would, if implemented,
achieve the greenhouse gas emission reduction targets.
(B) Consists of a small walkable community project located in an
area designated by a city for that purpose.
(C) Is located within the boundaries of a metropolitan planning
organization that has not yet adopted a sustainable communities
strategy or alternative planning strategy, and the project has a
residential density of at least 20 units per acre or a floor area
ratio of at least 0.75.
(2) Satisfies all applicable statewide performance standards
contained in the guidelines adopted pursuant to Section 21094.5.5.
(d) This section applies after the Secretary of the Natural
Resources Agency adopts and certifies the guidelines establishing
statewide standards pursuant to Section 21094.5.5.
(e) For the purposes of this section, the following terms mean the
following:
(1) "Infill project" means a project that meets the following
conditions:
(A) Consists of any one, or combination, of the following uses:
(i) Residential.
(ii) Retail or commercial, where no more than one-half of the
project area is used for parking.
(iii) A transit station.
(iv) A school.
(v) A public office building.
(B) Is located within an urban area on a site that has been
previously developed, or on a vacant site where at least 75 percent
of the perimeter of the site adjoins, or is separated only by an
improved public right-of-way from, parcels that are developed with
qualified urban uses.
(2) "Planning level decision" means the enactment or amendment of
a general plan, community plan, specific plan, or zoning code.
(3) "Prior environmental impact report" means the environmental
impact report certified for a planning level decision, as
supplemented by any subsequent or supplemental environmental impact
reports, negative declarations, or addenda to those documents.
(4) "Small walkable community project" means a project that is in
an incorporated city, which is not within the boundary of a
metropolitan planning organization and that satisfies the following
requirements:
(A) Has a project area of approximately one-quarter mile diameter
of contiguous land completely within the existing incorporated
boundaries of the city.
(B) Has a project area that includes a residential area adjacent
to a retail downtown area.
(C) The project has a density of at least eight dwelling units per
acre or a floor area ratio for retail or commercial use of not less
than 0.50.
(5) "Urban area" includes either an incorporated city or an
unincorporated area that is completely surrounded by one or more
incorporated cities that meets both of the following criteria:
(A) The population of the unincorporated area and the population
of the surrounding incorporated cities equal a population of 100,000
or more.
(B) The population density of the unincorporated area is equal to,
or greater than, the population density of the surrounding cities.
SEC. 7. Section 21094.5.5 is added to the Public Resources Code,
to read:
21094.5.5. (a) On or before July 1, 2012, the Office of Planning
and Research shall prepare, develop, and transmit to the Natural
Resources Agency for certification and adoption guidelines for the
implementation of Section 21094.5 and the Secretary of the Natural
Resources Agency, on or before January 1, 2013, shall certify and
adopt the guidelines.
(b) The guidelines prepared pursuant to this section shall include
statewide standards for infill projects that may be amended from
time to time and promote all of the following:
(1) The implementation of the land use and transportation policies
in the Sustainable Communities and Climate Protection Act of 2008
(Chapter 728 of the Statutes of 2008).
(2) The state planning priorities specified in Section 65041.1 of
the Government Code and in the most recently adopted Environmental
Goals and Policy Report issued by the Office of Planning and Research
supporting infill development.
(3) The reduction of greenhouse gas emissions under the California
Global Warming Solutions Act of 2006 (Division 25.5 (commencing with
Section 38500) of the Health and Safety Code).
(4) The reduction in per capita water use pursuant to Section
10608.16 of the Water Code.
(5) The creation of a transit village development district
consistent with Section 65460.1 of the Government Code.
(6) Substantial energy efficiency improvements, including
improvements to projects related to transportation energy.
(7) Protection of public health, including the health of
vulnerable populations from air or water pollution, or soil
contamination.
(c) The standards for projects on infill sites shall be updated as
frequently as necessary to ensure the protection of the environment.
SEC. 8. Section 25500.1 is added to the Public Resources Code, to
read:
25500.1. (a) The owner of a proposed solar thermal powerplants,
for which an application for certification was filed with the
commission after August 15, 2007, and certified by the commission
and, of a project on federal land, for which a record of decision was
issued by the Department of the Interior or the Bureau of Land
Management before September 1, 2011, may petition the commission not
later than June 30, 2012, to review an amendment to the facility's
certificate to convert the facility, in whole or in part, from solar
thermal technology to photovoltaic technology, without the need to
file an entirely new application for certification or notice of
intent pursuant to Section 25502, provided that the commission
prepares supplemental environmental review documentation, provides
for public notice and comment on the supplemental environmental
review, and holds at least one public hearing on the proposal.
(b) The Department of Fish and Game and the State Water Resources
Board shall provide comments to the commission on the water resource
and water quality effects of the proposed powerplants. The commission
shall incorporate all feasible mitigation measures identified by the
department and the board.
(c) For a facility specified in subdivision (a), this chapter
shall continue to apply, notwithstanding that the facility or part of
the facility would otherwise be excluded pursuant to Section 25120.
(d) The commission shall process a petition submitted under this
section pursuant to Section 1769 of Title 20 of the California Code
of Regulations.
(e) This section shall not apply to any project if the project's
certificate was timely challenged pursuant to Section 25531.
SEC. 9. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.