BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 311


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          Date of Hearing:  March 23, 2015


                       ASSEMBLY COMMITTEE ON NATURAL RESOURCES


                                 Das Williams, Chair


          AB 311  
          (Gallagher) - As Amended March 17, 2015


          SUBJECT:  Environmental quality:  Water Quality, Supply, and  
          Infrastructure Improvement Act of 2014


          SUMMARY:  Establishes special administrative and judicial review  
          procedures under the California Environmental Quality Act (CEQA)  
          for water storage projects funded by the Water Quality, Supply,  
          and Infrastructure Improvement Act of 2014 (Proposition 1).


          EXISTING LAW:  


          1)Requires lead agencies with the principal responsibility for  
            carrying out or approving a proposed project to prepare a  
            negative declaration, mitigated negative declaration, or  
            environmental impact report (EIR) for this action, unless the  
            project is exempt from CEQA (CEQA includes various statutory  
            exemptions, as well as categorical exemptions in the CEQA  
            guidelines).

          2)Authorizes judicial review of CEQA actions taken by public  
            agencies, following the agency's decision to carry out or  
            approve the project.  Challenges alleging improper  
            determination that a project may have a significant effect on  
            the environment, or alleging an EIR doesn't comply with CEQA,  








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            must be filed in the Superior Court within 30 days of filing  
            of the notice of approval.  The courts are required to give  
            CEQA actions preference over all other civil actions.  

          3)Establishes that a record of proceeding includes, but is not  
            limited to, all application materials, staff reports,  
            transcripts or minutes of public proceedings, notices, written  
            comments, and written correspondence prepared by or submitted  
            to the public agency regarding the proposed project.   
            Establishes a procedure for the preparation, certification,  
            and lodging of the record of proceedings.

          4)Provides that the public benefits of the following water  
            storage projects are eligible for funding under Proposition 1:

             a)   Surface storage projects identified in the CALFED  
               Bay-Delta Program Record of Decision, except for projects  
               prohibited by the California Wild and Scenic Rivers Act.

             b)   Groundwater storage projects and groundwater  
               contamination prevention or remediation projects that  
               provide water storage benefits.

             c)   Conjunctive use and reservoir reoperation projects.

             d)   Local and regional surface storage projects that improve  
               the operation of water systems in the state and provide  
               public benefits.



          THIS BILL establishes special CEQA procedures for Proposition  
          1-funded water storage projects, as follows:


          1)Requires Judicial Council to adopt a rule of court, by July 1,  
            2016, requiring lawsuits and any appeals to be resolved, to  
            the extent feasible, within 270 days of certification of the  
            record of proceedings (which must occur within five days of  








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            the lead agency filing the notice of determination on the  
            project).

          2)Requires the project EIR to include a specified notice that  
            the EIR is subject to the provisions of the section added by  
            this bill.

          3)Requires the lead agency to conduct an informational workshop  
            within 10 days of release of the Draft EIR and hold a public  
            hearing within 10 days before close of the public comment  
            period.

          4)Requires the lead agency and applicant to participate in  
            nonbinding mediation with any party who submitted comments on  
            the Draft EIR and requested mediation within five days of the  
            close of the public comment period, with the cost to be paid  
            by the applicant.  Requires mediation to end within 35 days of  
            the close of the public comment period.

          5)Requires the lead agency to adopt any measures agreed upon in  
            mediation.  Prohibits a commenter from raising an issue  
            addressed by that measure in a lawsuit.

          6)Permits the lead agency to ignore written or oral comments  
            submitted after the close of the public comment period, with  
            specified exceptions for materials addressing new information  
            released after the close of the public comment period.

          7)Authorizes the lead agency to prepare and certify the record  
            of proceedings concurrently with the administrative process  
            for environmental documents, and to promptly post all  
            documents on the Internet.  Requires the applicant to pay the  
            lead agency for all costs of preparing and certifying the  
            record of proceedings.

          8)Requires the lead agency to provide all EIR documents and  
            comments in an electronic format (with the exception of  
            certain copyright-protected documents), certify the record  
            within five days of filing the notice of determination,  








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            provide the record to a party upon written request, and  
            provide the record to the superior court within 10 days of the  
            filing of a petition for review.

          9)Generally prohibits a court, in granting relief, from staying  
            or enjoining the construction or operation of an eligible  
            water storage project and provides that a court may only  
            enjoin those specific activities associated with the 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.
          (in effect limiting the equitable powers of the court and  
            prohibiting existing remedies under CEQA such as voiding the  
            lead agency's decision or suspending project activities)

          FISCAL EFFECT:  Unknown






























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          COMMENTS:  


          1)Background.  CEQA provides a process for evaluating the  
            environmental effects of applicable projects undertaken or  
            approved by public agencies.  If a project is not exempt from  
            CEQA, an initial study is prepared to determine whether the  
            project may have a significant effect on the environment.  If  
            the initial study shows that there would not be a significant  
            effect on the environment, the lead agency must prepare a  
            negative declaration.  If the initial study shows that the  
            project may have a significant effect on the environment, the  
            lead agency must prepare an EIR.


            Generally, an EIR must accurately describe the proposed  
            project, identify and analyze each significant environmental  
            impact expected to result from the proposed project, identify  
            mitigation measures to reduce those impacts to the extent  
            feasible, and evaluate a range of reasonable alternatives to  
            the proposed project.  If mitigation measures are required or  
            incorporated into a project, the agency must adopt a reporting  
            or monitoring program to ensure compliance with those  
            measures.


            CEQA actions taken by public agencies can be challenged in  
            Superior Court once the agency approves or determines to carry  
            out the project.  CEQA appeals are subject to unusually short  
            statutes of limitations.  Under current law, court challenges  
            of CEQA decisions generally must be filed within 30-35 days,  
            depending on the type of decision.  The courts are required to  
            give CEQA actions preference over all other civil actions.   
            The petitioner must request a hearing within 90 days of filing  
            the petition and, generally, briefing must be completed within  
            90 days of the request for hearing.  There is no deadline  
            specified for the court to render a decision.









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            In 2011, AB 900 (Buchanan) and SB 292 (Padilla) established  
            expedited judicial review procedures for a limited number of  
            projects.  For AB 900, it was large-scale projects meeting  
            extraordinary environmental standards and providing  
            significant jobs and investment.  For SB 292, it was a  
            proposed downtown Los Angeles football stadium and convention  
            center project achieving specified traffic and air quality  
            mitigations.  For these eligible projects, the bills provided  
            for original jurisdiction by the Court of Appeal and a  
            compressed schedule requiring the court to render a decision  
            on any lawsuit within 175 days.  This promised to reduce the  
            existing judicial review timeline by 100 days or more, while  
            creating new burdens for the courts and litigants to meet the  
            compressed schedule.  AB 900's provision granting original  
            jurisdiction to the Court of Appeal was invalidated in 2013 by  
            a decision in the Alameda Superior Court in Planning and  
            Conservation League v. State of California.  The stadium  
            project subject to SB 292 has not proceeded.  In 2013, SB 743  
            (Steinberg) established special CEQA procedures modeled on SB  
            292 for the proposed Sacramento Kings arena project.  Like SB  
            292, SB 743 applied to a single project and included specified  
            traffic and air quality mitigations.


          2)Should the AB 900/SB 292/SB 743 model be expanded?  It's an  
            open question whether the idea of limiting the scope and time  
            of judicial review of favored projects was ever good policy,  
            even for one project.  The practical benefit of this approach  
            to developers is debatable and it's unclear whether that  
            benefit outweighs the potential sacrifice to effective  
            environmental review and the increased burden on the courts.   
            The only project that seems to have used and possibly  
            benefited from the judicial review procedures enacted since  
            2011 is the Sacramento Kings arena project.  It should be  
            noted that the procedures in SB 743 applied only to the arena  
            project and SB 743 also required the arena to be certified  
            Leadership in Energy and Environmental Design (LEED) Gold, as  
            well as minimize traffic and air quality impacts through  








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            project design or mitigation measures including reducing to at  
            least zero the net greenhouse gas (GHG) emissions from private  
            automobile trips to the arena,  achieve reductions in GHG  
            emissions from automobiles and light trucks that will exceed  
            the GHG emission reduction targets for 2020 and 2035 adopted  
            for the Sacramento region pursuant to SB 375, and achieve a  
            15% reduction in vehicle-miles traveled per attendee.


            This bill applies similar expedited review procedures to any  
            water storage project funded by Proposition 1, but does not  
            include any mitigation measures.  The bill would apply to an  
            unknown number of future water storage projects with unknown  
            impacts.  Since the projects are undefined, it's impossible to  
            evaluate their merits, much less whether those merits justify  
            preferential treatment.  The potential for many projects to  
            qualify also increases the burden on the courts.  Judicial  
            Council indicates that the requirement to resolve lawsuits  
            within 270 days may be unworkable in practice, will likely  
            have an adverse impact on other cases, and undermines equal  
            access to justice.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Chamber of Commerce




          Opposition










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          California League of Conservation Voters


          Judicial Council of California


          Natural Resources Defense Council


          Sierra Club California


          Trout Unlimited







          Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)  
          319-2092