BILL ANALYSIS Ó AB 311 Page 1 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, AB 311 Page 2 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 AB 311 Page 3 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, AB 311 Page 4 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 AB 311 Page 5 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. AB 311 Page 6 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 AB 311 Page 7 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 AB 311 Page 8 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