Amended in Assembly April 15, 2015

Amended in Assembly March 17, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 311


Introduced by Assembly Member Gallagher

(Principal coauthor: Senator Vidak)

(Coauthors: Assembly Members Travis Allen,begin insert Baker,end insert Bigelow,begin delete andend deletebegin insert Brough, Chang, Grove,end insert Harperbegin insert, Lackey, Mayes, and Olsenend insert)

(Coauthor: Senator Bates)

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 November 4, 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, 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 authorize the public agency to concurrently prepare the record of proceedings for the project. 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, withinbegin delete 270end deletebegin insert 370end insert 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 inbegin insert subdivision (a) ofend insert Section
P3    179751 of the Water Code and funded, in whole or in part, with
2proceeds of bonds sold pursuant to the Water Quality, Supply, and
3Infrastructure Improvement Act of 2014 (Division 26.7
4(commencing with Section 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, withinbegin delete 270end deletebegin insert 370end insert days of
17certification of the record of proceedings pursuant to subdivision
18(e).

19(d) (1) The draft and final environmental impact report for a
20water storage project shall include a notice in not less than 12-point
21type stating the following:

22THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE
23PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG
24OTHER THINGS, THAT THE LEAD AGENCY NEED NOT
25CONSIDER CERTAIN COMMENTS FILED AFTER THE
26CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE
27DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE
28CERTIFICATION OF THE EIR OR THE APPROVAL OF THE
29PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE
30PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE
31PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7
32OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE
33APPENDIX TO THIS EIR.

34(2) The draft environmental impact report and final
35environmental impact report shall contain, as an appendix, the full
36text of this section.

37(3) Within 10 days after the release of the draft environmental
38impact report, the lead agency shall conduct an informational
39workshop to inform the public of the key analyses and conclusions
40of 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 written or oral 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 agency may prepare and certify the record of
15the 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 index shall specify the libraries or lead agency offices
P6    1in which hardcopies of the copyrighted materials are available for
2public review.

3(4) The lead agency shall encourage written comments on the
4project to be submitted in a readily accessible electronic format,
5and shall make those comments available to the public in a readily
6accessible electronic format within five days of its receipt.

7(5) Within seven business days after the receipt of any comment
8that is not in an electronic format, the lead agency shall convert
9that comment into a readily accessible electronic format and make
10it available to the public in that format.

11(6) The lead agency shall indicate in the record of the
12proceedings comments received that were not considered by the
13lead agency pursuant to paragraph (6) of subdivision (d) and need
14not include the content of the comments as a part of the record.

15(7) Within five days after the filing of the notice required by
16subdivision (a) of Section 21108 or subdivision (a) of Section
1721152, the lead agency shall certify the record of the proceedings
18for the approval or determination and shall provide an electronic
19copy of the record to a party that has submitted a written request
20for a copy. The lead agency may charge and collect a reasonable
21fee from a party requesting a copy of the record for the electronic
22copy, which shall not exceed the reasonable cost of reproducing
23that copy.

24(8) Within 10 days after being served with a complaint or a
25petition for a writ of mandate, the lead agency shall lodge a copy
26of the certified record of proceedings with the superior court.

27(9) Any dispute over the content of the record of the proceedings
28shall be resolved by the superior court. Unless the superior court
29directs otherwise, a party disputing the content of the record shall
30file a motion to augment the record at the time it files its initial
31brief.

32(10) The contents of the record of proceedings shall be as set
33forth in subdivision (e) of Section 21167.6.

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

37(g) (1) (A) In granting relief in an action or proceeding brought
38pursuant to this division, the court shall not stay or enjoin the
39construction or operation of a water storage project unless the court
40finds either of the following:

P7    1(i) The continued construction or operation of the water storage
2project presents an imminent threat to the public health and safety.

3(ii) The water storage project site contains unforeseen important
4Native American artifacts or unforeseen important historical,
5archaeological, or ecological values that would be materially,
6permanently, and adversely affected by the continued construction
7or operation of the water storage project unless the court stays or
8enjoins the construction or operation of the water storage project.

9(B) If the court finds that clause (i) or (ii) of subparagraph (A)
10is satisfied, the court shall only enjoin those specific activities
11associated with the water storage project that present an imminent
12threat to public health and safety or that materially, permanently,
13and adversely affect unforeseen important Native American
14artifacts or unforeseen important historical, archaeological, or
15ecological values.

16(2) An action or proceeding to attack, set aside, void, or annul
17a determination, finding, or decision of the lead agency granting
18a subsequent project approval shall be subject to the requirements
19of this chapter.

20

SEC. 2.  

No reimbursement is required by this act pursuant to
21Section 6 of Article XIII B of the California Constitution because
22a local agency or school district has the authority to levy service
23charges, fees, or assessments sufficient to pay for the program or
24level of service mandated by this act, within the meaning of Section
2517556 of the Government Code.



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