AB 311, as introduced, Gallagher. Environmental quality: Water Quality, Supply, and Infrastructure Improvement Act of 2014.
(1) The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA and a procedure for the preparation and certification of the record of proceedings upon the filing of an action or proceeding challenging a lead agency’s action on the grounds of noncompliance with CEQA.
The Water Quality, Supply, and Infrastructure Improvement Act of 2014 (Proposition 1), approved by the voters on the November 2, 2014, statewide general election, authorizes the issuance of bonds in the amount of $7,120,000,000 pursuant to the State General Obligation Bond Law to finance a water quality, supply, and infrastructure improvement program.
This bill would require the public agency, in certifying the environmental impact report and in granting approvals for specified water storage projects funded, in whole or in part, by Proposition 1, including the concurrent preparation of the record of proceedings and the certification of the record of proceeding within 5 days of the filing of a specified notice, to comply with specified procedures. Because a public agency would be required to comply with those new procedures, this bill would impose a state-mandated local program. The bill would require the Judicial Council, on or before July 1, 2016, to adopt a rule of court to establish procedures applicable to actions or proceedings seeking judicial review of a public agency’s action in certifying the environmental impact report and in granting project approval for those projects that require the actions or proceedings, including any appeals therefrom, be resolved, to the extent feasible, within 270 days of the certification of the record of proceedings. The bill would prohibit a court from staying or enjoining those projects unless it makes specified findings.
(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 21168.6.7 is added to the Public
2Resources Code, to read:
(a) For the purposes of this section “water storage
4project” means a project described in Section 79751 of the Water
5Code and funded, in whole or in part, with proceeds of bonds sold
6pursuant to the Water Quality, Supply and Infrastructure
7Improvement Act of 2014 (Division 26.7 (commencing with
8Section 79700) of the Water Code).
P3 1(b) Notwithstanding any other law, the procedures established
2pursuant to subdivision (c) shall apply to an action or proceeding
3brought to attack, review, set aside, void, or annul the certification
4of the environmental impact report for a water storage project or
5the granting of any approvals for a water storage project.
6(c) On or before July 1, 2016, the Judicial Council shall adopt
7a rule of court to establish procedures applicable to actions or
8proceedings brought to attack, review, set aside, void, or annul the
9certification of the environmental impact report for a water storage
10project or the granting of any project approvals that require the
11actions or proceedings, including any potential appeals therefrom,
12be resolved, to the extent feasible, within 270 days of certification
13of the record of proceedings pursuant to subdivision (e).
14(d) (1) The draft and final environmental impact report for a
15water storage project shall include a notice in not less than 12-point
16type stating the following:
17THIS EIR IS SUBJECT TO SECTION
21168.6.7 OF THE
18PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG
19OTHER THINGS, THAT THE LEAD AGENCY NEED NOT
20CONSIDER CERTAIN COMMENTS FILED AFTER THE
21CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE
22DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE
23CERTIFICATION OF THE EIR OR THE APPROVAL OF THE
24PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE
25PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE
26PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7
27OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE
28APPENDIX TO THIS EIR.
29(2) The draft environmental impact report and final
30environmental impact report shall contain, as an appendix, the full
31text of this section.
32(3) Within 10 days after the release of the draft environmental
33impact report, the lead agency shall conduct an informational
34workshop to inform the public of the key analyses and conclusions
35of that report.
36(4) Within 10 days before the close of the public comment
37period, the lead agency shall hold a public hearing to receive
38testimony on the draft environmental impact report. A transcript
39of the hearing shall be included as an appendix to the final
40environmental impact report.
P4 1(5) (A) Within five days following the close of the public
2comment period, a commenter on the draft environmental impact
3report may submit to the lead agency a written request for
4nonbinding mediation. The lead agency and applicant shall
5participate in nonbinding mediation with all commenters who
6submitted timely comments on the draft environmental impact
7report and who requested the mediation. Mediation conducted
8pursuant to this paragraph shall end no later than 35 days after the
9close of the public comment period.
10(B) A request for mediation shall identify all areas of dispute
11raised in the comment submitted by the commenter that are to be
13(C) The lead agency shall select one or more mediators who
14shall be retired judges or recognized experts with at least five years
15experience in land use and environmental law or science, or
16mediation. The applicant shall bear the costs of mediation.
17(D) A mediation session shall be conducted on each area of
18dispute with the parties requesting mediation on that area of
20(E) The lead agency shall adopt, as a condition of approval, any
21measures agreed upon by the lead agency, the applicant, and any
22commenter who requested mediation. A commenter who agrees
23to a measure pursuant to this subparagraph shall not raise the issue
24addressed by that measure as a basis for an action or proceeding
25challenging the lead agency’s decision to certify the environmental
26impact report or to grant one or more initial project approvals.
27(6) The lead agency need not consider written comments
28submitted after the close of the public comment period, unless
29those comments address any of the following:
30(A) New issues raised in the response to comments by the lead
32(B) New information released by the public agency subsequent
33to the release of the draft environmental impact report, such as
34new information set forth or embodied in a staff report, proposed
35permit, proposed resolution, ordinance, or similar documents.
36(C) Changes made to the project after the close of the public
38(D) Proposed conditions for approval, mitigation measures, or
39proposed findings required by Section 21081 or a proposed
40reporting and monitoring program required by paragraph (1) of
P5 1subdivision (a) of Section 21081.6, where the lead agency releases
2those documents subsequent to the release of the draft
3environmental impact report.
4(E) New information that was not reasonably known and could
5not have been reasonably known during the public comment period.
6(7) The lead agency shall file the notice required by subdivision
7(a) of Section 21108 or subdivision (a) of Section 21152 within
8five days after the last initial project approval.
9(e) (1) The lead agency shall prepare and certify the record of
10the proceedings in accordance with this subdivision and in
11accordance with Rule 3.1365 of the California Rules of Court. The
12applicant shall pay the lead agency for all costs of preparing and
13certifying the record of proceedings.
14(2) No later than three business days following the date of the
15release of the draft environmental impact report, the lead agency
16shall make available to the public in a readily accessible electronic
17format the draft environmental impact report and all other
18documents submitted to or relied on by the lead agency in the
19preparation of the draft environmental impact report. A document
20prepared by the lead agency or submitted by the applicant after
21the date of the release of the draft environmental impact report
22that is a part of the record of the proceedings shall be made
23available to the public in a readily accessible electronic format
24within five business days after the document is prepared or received
25by the lead agency.
26(3) Notwithstanding paragraph (2), documents submitted to or
27relied on by the lead agency that were not prepared specifically
28for the project and are copyright protected are not required to be
29made readily accessible in an electronic format. For those copyright
30protected documents, the lead agency shall make an index of these
31documents available in an electronic format no later than the date
32of the release of the draft environmental impact report, or within
33five business days if the document is received or relied on by the
34lead agency after the release of the draft environmental impact
35report. The index must specify the libraries or lead agency offices
36in which hardcopies of the copyrighted materials are available for
38(4) The lead agency shall encourage written comments on the
39project to be submitted in a readily accessible electronic format,
P6 1and shall make any such comment available to the public in a
2readily accessible electronic format within five days of its receipt.
3(5) Within seven business days after the receipt of any comment
4that is not in an electronic format, the lead agency shall convert
5that comment into a readily accessible electronic format and make
6it available to the public in that format.
7(6) The lead agency shall indicate in the record of the
8proceedings comments received that were not considered by the
9lead agency pursuant to paragraph (6) of subdivision (d) and need
10not include the content of the comments as a part of the record.
11(7) Within five days after the filing of the notice required by
12subdivision (a) of Section 21108 or subdivision (a) of Section
1321152, the lead agency shall certify the record of the proceedings
14for the approval or determination and shall provide an electronic
15copy of the record to a party that has submitted a written request
16for a copy. The lead agency may charge and collect a reasonable
17fee from a party requesting a copy of the record for the electronic
18copy, which shall not exceed the reasonable cost of reproducing
20(8) Within 10 days after being served with a complaint or a
21petition for a writ of mandate, the lead agency shall lodge a copy
22of the certified record of proceedings with the superior court.
23(9) Any dispute over the content of the record of the proceedings
24shall be resolved by the superior court. Unless the superior court
25directs otherwise, a party disputing the content of the record shall
26file a motion to augment the record at the time it files its initial
28(10) The contents of the record of proceedings shall be as set
29forth in subdivision (e) of Section 21167.6.
30(f) (1) (A) In granting relief in an action or proceeding brought
31pursuant to this division, the court shall not stay or enjoin the
32construction or operation of a water storage project unless the court
33finds either of the following:
34(i) The continued construction or operation of the water storage
35project presents an imminent threat to the public health and safety.
36(ii) The water storage project site contains unforeseen important
37Native American artifacts or unforeseen important historical,
38archaeological, or ecological values that would be materially,
39permanently, and adversely affected by the continued construction
P7 1or operation of the water storage project unless the court stays or
2enjoins the construction or operation of the water storage project.
3(B) If the court finds that clause (i) or (ii) of subparagraph (A)
4is satisfied, the court shall only enjoin those specific activities
5associated with the water storage project that present an imminent
6threat to public health and safety or that materially, permanently,
7and adversely affect unforeseen important Native American
8artifacts or unforeseen important historical, archaeological, or
10(2) An action or proceeding to attack, set aside, void, or annul
11a determination, finding, or decision of the lead agency granting
12a subsequent project approval shall be subject to the requirements
13of Chapter 6 (commencing with Section 21165).
No reimbursement is required by this act pursuant to
15Section 6 of Article XIII B of the California Constitution because
16a local agency or school district has the authority to levy service
17charges, fees, or assessments sufficient to pay for the program or
18level of service mandated by this act, within the meaning of Section
1917556 of the Government Code.