California Legislature—2015–16 Regular Session

Assembly Bill No. 311

Introduced by Assembly Member Gallagher

(Principal coauthor: Senator Vidak)

February 12, 2015

An act to add Section 21168.6.7 to the Public Resources Code, relating to environmental quality.

LEGISLATIVE COUNSEL’S DIGEST

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 1.  

Section 21168.6.7 is added to the Public
Resources Code, to read:

21168.6.7.  

(a) For the purposes of this section “water storage
project” means a project described in Section 79751 of the Water
Code and funded, in whole or in part, with proceeds of bonds sold
pursuant to the Water Quality, Supply and Infrastructure
Improvement Act of 2014 (Division 26.7 (commencing with
Section 79700) of the Water Code).

(b) Notwithstanding any other law, the procedures established
pursuant to subdivision (c) shall apply to an action or proceeding
brought to attack, review, set aside, void, or annul the certification
of the environmental impact report for a water storage project or
the granting of any approvals for a water storage project.

(c) On or before July 1, 2016, the Judicial Council shall adopt
a rule of court to establish procedures applicable to actions or
proceedings brought to attack, review, set aside, void, or annul the
certification of the environmental impact report for a water storage
project or the granting of any project approvals that require the
actions or proceedings, including any potential appeals therefrom,
be resolved, to the extent feasible, within 270 days of certification
of the record of proceedings pursuant to subdivision (e).

(d) (1)   The draft and final environmental impact report for a
water storage project shall include a notice in not less than 12-point
type stating the following:

THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE
PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG
OTHER THINGS, THAT THE LEAD AGENCY NEED NOT
CONSIDER CERTAIN COMMENTS FILED AFTER THE
CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE
DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE
CERTIFICATION OF THE EIR OR THE APPROVAL OF THE
PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE
PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE
PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7
OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE
APPENDIX TO THIS EIR.

(2) The draft environmental impact report and final
environmental impact report shall contain, as an appendix, the full
text of this section.

(3) Within 10 days after the release of the draft environmental
impact report, the lead agency shall conduct an informational
workshop to inform the public of the key analyses and conclusions
of that report.

(4) Within 10 days before the close of the public comment
period, the lead agency shall hold a public hearing to receive
testimony on the draft environmental impact report. A transcript
of the hearing shall be included as an appendix to the final
environmental impact report.

(5) (A)   Within five days following the close of the public
comment period, a commenter on the draft environmental impact
report may submit to the lead agency a written request for
nonbinding mediation. The lead agency and applicant shall
participate in nonbinding mediation with all commenters who
submitted timely comments on the draft environmental impact
report and who requested the mediation. Mediation conducted
pursuant to this paragraph shall end no later than 35 days after the
close of the public comment period.

(B) A request for mediation shall identify all areas of dispute
raised in the comment submitted by the commenter that are to be
mediated.

(C) The lead agency shall select one or more mediators who
shall be retired judges or recognized experts with at least five years
experience in land use and environmental law or science, or
mediation. The applicant shall bear the costs of mediation.

(D) A mediation session shall be conducted on each area of
dispute with the parties requesting mediation on that area of
dispute.

(E) The lead agency shall adopt, as a condition of approval, any
measures agreed upon by the lead agency, the applicant, and any
commenter who requested mediation. A commenter who agrees
to a measure pursuant to this subparagraph shall not raise the issue
addressed by that measure as a basis for an action or proceeding
challenging the lead agency’s decision to certify the environmental
impact report or to grant one or more initial project approvals.

(6) The lead agency need not consider written comments
submitted after the close of the public comment period, unless
those comments address any of the following:

(A) New issues raised in the response to comments by the lead
agency.

(B) New information released by the public agency subsequent
to the release of the draft environmental impact report, such as
new information set forth or embodied in a staff report, proposed
permit, proposed resolution, ordinance, or similar documents.

(C) Changes made to the project after the close of the public
comment period.

(D) Proposed conditions for approval, mitigation measures, or
proposed findings required by Section 21081 or a proposed
reporting and monitoring program required by paragraph (1) of
subdivision (a) of Section 21081.6, where the lead agency releases
those documents subsequent to the release of the draft
environmental impact report.

(E) New information that was not reasonably known and could
not have been reasonably known during the public comment period.

(7) The lead agency shall file the notice required by subdivision
(a) of Section 21108 or subdivision (a) of Section 21152 within
five days after the last initial project approval.

(e) (1)   The lead agency shall prepare and certify the record of
the proceedings in accordance with this subdivision and in
accordance with Rule 3.1365 of the California Rules of Court. The
applicant shall pay the lead agency for all costs of preparing and
certifying the record of proceedings.

(2) No later than three business days following the date of the
release of the draft environmental impact report, the lead agency
shall make available to the public in a readily accessible electronic
format the draft environmental impact report and all other
documents submitted to or relied on by the lead agency in the
preparation of the draft environmental impact report. A document
prepared by the lead agency or submitted by the applicant after
the date of the release of the draft environmental impact report
that is a part of the record of the proceedings shall be made
available to the public in a readily accessible electronic format
within five business days after the document is prepared or received
by the lead agency.

(3) Notwithstanding paragraph (2), documents submitted to or
relied on by the lead agency that were not prepared specifically
for the project and are copyright protected are not required to be
made readily accessible in an electronic format. For those copyright
protected documents, the lead agency shall make an index of these
documents available in an electronic format no later than the date
of the release of the draft environmental impact report, or within
five business days if the document is received or relied on by the
lead agency after the release of the draft environmental impact
report. The index must specify the libraries or lead agency offices
in which hardcopies of the copyrighted materials are available for
public review.

(4) The lead agency shall encourage written comments on the
project to be submitted in a readily accessible electronic format,
and shall make any such comment available to the public in a
readily accessible electronic format within five days of its receipt.

(5) Within seven business days after the receipt of any comment
that is not in an electronic format, the lead agency shall convert
that comment into a readily accessible electronic format and make
it available to the public in that format.

(6) The lead agency shall indicate in the record of the
proceedings comments received that were not considered by the
lead agency pursuant to paragraph (6) of subdivision (d) and need
not include the content of the comments as a part of the record.

(7) Within five days after the filing of the notice required by
subdivision (a) of Section 21108 or subdivision (a) of Section
21152, the lead agency shall certify the record of the proceedings
for the approval or determination and shall provide an electronic
copy of the record to a party that has submitted a written request
for a copy. The lead agency may charge and collect a reasonable
fee from a party requesting a copy of the record for the electronic
copy, which shall not exceed the reasonable cost of reproducing
that copy.

(8) Within 10 days after being served with a complaint or a
petition for a writ of mandate, the lead agency shall lodge a copy
of the certified record of proceedings with the superior court.

(9) Any dispute over the content of the record of the proceedings
shall be resolved by the superior court. Unless the superior court
directs otherwise, a party disputing the content of the record shall
file a motion to augment the record at the time it files its initial
brief.

(10) The contents of the record of proceedings shall be as set
forth in subdivision (e) of Section 21167.6.

(f) (1)   (A)   In granting relief in an action or proceeding brought
pursuant to this division, the court shall not stay or enjoin the
construction or operation of a water storage project unless the court
finds either of the following:

(i) The continued construction or operation of the water storage
project presents an imminent threat to the public health and safety.

(ii) The water storage project site contains unforeseen important
Native American artifacts or unforeseen important historical,
archaeological, or ecological values that would be materially,
permanently, and adversely affected by the continued construction
or operation of the water storage project unless the court stays or
enjoins the construction or operation of the water storage project.

(B) If the court finds that clause (i) or (ii) of subparagraph (A)
is satisfied, the court shall only enjoin those specific activities
associated with the water storage project that present an imminent
threat to public health and safety or that materially, permanently,
and adversely affect unforeseen important Native American
artifacts or unforeseen important historical, archaeological, or
ecological values.

(2) An action or proceeding to attack, set aside, void, or annul
a determination, finding, or decision of the lead agency granting
a subsequent project approval shall be subject to the requirements
of Chapter 6 (commencing with Section 21165).

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article 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.