Amended in Assembly March 17, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 311


Introduced by Assembly Member Gallagher

(Principal coauthor: Senator Vidak)

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(Coauthors: Assembly Members Travis Allen, Bigelow, and Harper)

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(Coauthor: Senator Bates)

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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 amended, 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 Novemberbegin delete 2,end deletebegin insert 4,end insert 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,begin delete 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,end delete 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.begin insert The bill would authorize the public agency to concurrently prepare the record of proceedings for the project.end insert 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:

P2    1

SECTION 1.  

Section 21168.6.7 is added to the Public
2Resources Code
, to read:

3

21168.6.7.  

(a) For the purposes of this section “water storage
4project” means a project described in Section 79751 of the Water
P3    1Code and funded, in whole or in part, with proceeds of bonds sold
2pursuant to the Water Quality,begin delete Supplyend deletebegin insert Supply,end insert and Infrastructure
3Improvement Act of 2014 (Division 26.7 (commencing with
4Section 79700) of the Water Code).

5(b) Notwithstanding any other law, the procedures established
6pursuant to subdivision (c) shall apply to an action or proceeding
7brought to attack, review, set aside, void, or annul the certification
8of the environmental impact report for a water storage project or
9the granting of any approvals for a water storage project.

10(c) On or before July 1, 2016, the Judicial Council shall adopt
11a rule of court to establish procedures applicable to actions or
12proceedings brought to attack, review, set aside, void, or annul the
13certification of the environmental impact report for a water storage
14project or the granting of any project approvals that require the
15actions or proceedings, including any potential appeals therefrom,
16be resolved, to the extent feasible, within 270 days of certification
17of the record of proceedings pursuant to subdivision (e).

18(d) (1) The draft and final environmental impact report for a
19water storage project shall include a notice in not less than 12-point
20type stating the following:

21THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE
22PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG
23OTHER THINGS, THAT THE LEAD AGENCY NEED NOT
24CONSIDER CERTAIN COMMENTS FILED AFTER THE
25CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE
26DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE
27CERTIFICATION OF THE EIR OR THE APPROVAL OF THE
28PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE
29PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE
30PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7
31OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE
32APPENDIX TO THIS EIR.

33(2) The draft environmental impact report and final
34environmental impact report shall contain, as an appendix, the full
35text of this section.

36(3) Within 10 days after the release of the draft environmental
37impact report, the lead agency shall conduct an informational
38workshop to inform the public of the key analyses and conclusions
39of that report.

P4    1(4) Within 10 days before the close of the public comment
2period, the lead agency shall hold a public hearing to receive
3testimony on the draft environmental impact report. A transcript
4of the hearing shall be included as an appendix to the final
5environmental impact report.

6(5) (A) Within five days following the close of the public
7comment period, a commenter on the draft environmental impact
8report may submit to the lead agency a written request for
9nonbinding mediation. The lead agency and applicant shall
10participate in nonbinding mediation with all commenters who
11submitted timely comments on the draft environmental impact
12report and who requested the mediation. Mediation conducted
13pursuant to this paragraph shall end no later than 35 days after the
14close of the public comment period.

15(B) A request for mediation shall identify all areas of dispute
16raised in the comment submitted by the commenter that are to be
17mediated.

18(C) The lead agency shall select one or more mediators who
19shall be retired judges or recognized experts with at least five years
20experience in land use and environmental law or science, or
21mediation. The applicant shall bear the costs of mediation.

22(D) A mediation session shall be conducted on each area of
23dispute with the parties requesting mediation on that area of
24dispute.

25(E) The lead agency shall adopt, as a condition of approval, any
26measures agreed upon by the lead agency, the applicant, and any
27commenter who requested mediation. A commenter who agrees
28to a measure pursuant to this subparagraph shall not raise the issue
29addressed by that measure as a basis for an action or proceeding
30challenging the lead agency’s decision to certify the environmental
31impact report or to grant one or more initial project approvals.

32(6) The lead agency need not consider writtenbegin insert or oralend insert comments
33submitted after the close of the public comment period, unless
34those comments address any of the following:

35(A) New issues raised in the response to comments by the lead
36agency.

37(B) New information released by the public agency subsequent
38to the release of the draft environmental impact report, such as
39new information set forth or embodied in a staff report, proposed
40permit, proposed resolution, ordinance, or similar documents.

P5    1(C) Changes made to the project after the close of the public
2comment period.

3(D) Proposed conditions for approval, mitigation measures, or
4proposed findings required by Section 21081 or a proposed
5reporting and monitoring program required by paragraph (1) of
6subdivision (a) of Section 21081.6, where the lead agency releases
7those documents subsequent to the release of the draft
8environmental impact report.

9(E) New information that was not reasonably known and could
10not have been reasonably known during the public comment period.

11(7) The lead agency shall file the notice required by subdivision
12(a) of Section 21108 or subdivision (a) of Section 21152 within
13five days after the last initial project approval.

14(e) (1) The lead agencybegin delete shallend deletebegin insert mayend insert prepare and certify the record
15of the proceedings in accordance with this subdivision and in
16accordance with Rule 3.1365 of the California Rules of Court. The
17applicant shall pay the lead agency for all costs of preparing and
18certifying the record of proceedings.

19(2) No later than three business days following the date of the
20release of the draft environmental impact report, the lead agency
21shall make available to the public in a readily accessible electronic
22format the draft environmental impact report and all other
23documents submitted to or relied on by the lead agency in the
24preparation of the draft environmental impact report. A document
25prepared by the lead agency or submitted by the applicant after
26the date of the release of the draft environmental impact report
27 that is a part of the record of the proceedings shall be made
28available to the public in a readily accessible electronic format
29within five business days after the document is prepared or received
30by the lead agency.

31(3) Notwithstanding paragraph (2), documents submitted to or
32relied on by the lead agency that were not prepared specifically
33for the project and are copyright protected are not required to be
34made readily accessible in an electronic format. For those copyright
35protected documents, the lead agency shall make an index of these
36documents available in an electronic format no later than the date
37of the release of the draft environmental impact report, or within
38five business days if the document is received or relied on by the
39lead agency after the release of the draft environmental impact
40report. The indexbegin delete mustend deletebegin insert shallend insert specify the libraries or lead agency
P6    1offices in which hardcopies of the copyrighted materials are
2available for public review.

3(4) The lead agency shall encourage written comments on the
4project to be submitted in a readily accessible electronic format,
5and shall makebegin delete any such commentend deletebegin insert those commentsend insert available to
6the public in a readily accessible electronic format within five days
7of its receipt.

8(5) Within seven business days after the receipt of any comment
9that is not in an electronic format, the lead agency shall convert
10that comment into a readily accessible electronic format and make
11it available to the public in that format.

12(6) The lead agency shall indicate in the record of the
13proceedings comments received that were not considered by the
14lead agency pursuant to paragraph (6) of subdivision (d) and need
15not include the content of the comments as a part of the record.

16(7) Within five days after the filing of the notice required by
17subdivision (a) of Section 21108 or subdivision (a) of Section
1821152, the lead agency shall certify the record of the proceedings
19for the approval or determination and shall provide an electronic
20copy of the record to a party that has submitted a written request
21for a copy. The lead agency may charge and collect a reasonable
22fee from a party requesting a copy of the record for the electronic
23copy, which shall not exceed the reasonable cost of reproducing
24that copy.

25(8) Within 10 days after being served with a complaint or a
26petition for a writ of mandate, the lead agency shall lodge a copy
27of the certified record of proceedings with the superior court.

28(9) Any dispute over the content of the record of the proceedings
29shall be resolved by the superior court. Unless the superior court
30directs otherwise, a party disputing the content of the record shall
31file a motion to augment the record at the time it files its initial
32brief.

33(10) The contents of the record of proceedings shall be as set
34forth in subdivision (e) of Section 21167.6.

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35(f) Subdivisions (d) and (e) do not apply to a project for which
36an environmental review pursuant to this division has commenced
37on or before December 31, 2015.

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38(f) 

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39begin insert(g)end insertbegin insertend insert(1) (A) In granting relief in an action or proceeding brought
40pursuant to this division, the court shall not stay or enjoin the
P7    1construction or operation of a water storage project unless the court
2finds either of the following:

3(i) The continued construction or operation of the water storage
4project presents an imminent threat to the public health and safety.

5(ii) The water storage project site contains unforeseen important
6Native American artifacts or unforeseen important historical,
7archaeological, or ecological values that would be materially,
8permanently, and adversely affected by the continued construction
9or operation of the water storage project unless the court stays or
10enjoins the construction or operation of the water storage project.

11(B) If the court finds that clause (i) or (ii) of subparagraph (A)
12is satisfied, the court shall only enjoin those specific activities
13associated with the water storage project that present an imminent
14threat to public health and safety or that materially, permanently,
15and adversely affect unforeseen important Native American
16artifacts or unforeseen important historical, archaeological, or
17ecological values.

18(2) An action or proceeding to attack, set aside, void, or annul
19a determination, finding, or decision of the lead agency granting
20a subsequent project approval shall be subject to the requirements
21ofbegin delete Chapter 6 (commencing with Section 21165).end deletebegin insert this chapter.end insert

22

SEC. 2.  

No reimbursement is required by this act pursuant to
23Section 6 of Article XIII B of the California Constitution because
24a local agency or school district has the authority to levy service
25charges, fees, or assessments sufficient to pay for the program or
26level of service mandated by this act, within the meaning of Section
2717556 of the Government Code.



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