Senate BillNo. 1440


Introduced by Senator Cannella

February 19, 2016


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

LEGISLATIVE COUNSEL’S DIGEST

SB 1440, as introduced, Cannella. 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 at the November 4, 2014, statewide general election, authorizes the issuance of bonds pursuant to the State General Obligation Bond Law to finance a water quality, supply, and infrastructure improvement program.

This bill would require a lead agency, in certifying the environmental impact report and in granting approvals for certain 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 lead agency to concurrently prepare the record of proceedings for the project. The bill would require the Judicial Council, on or before July 1, 2017, to adopt a rule of court to establish procedures applicable to actions or proceedings seeking judicial review of a lead agency’s action in certifying the environmental impact report and in granting approval for those projects that require the actions or proceedings, including any appeals therefrom, be resolved, to the extent feasible, within 370 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 subdivision (a) of Section
579751 of the Water Code and funded, in whole or in part, with
6proceeds of bonds sold pursuant to the Water Quality, Supply, and
7Infrastructure Improvement Act of 2014 (Division 26.7
8(commencing with Section 79700) of the Water Code).

9(b) Notwithstanding any other law, the procedures established
10pursuant to subdivision (c) shall apply to an action or proceeding
11brought to attack, review, set aside, void, or annul the certification
12of the environmental impact report for a water storage project or
13the granting of any approvals for a water storage project.

14(c) On or before July 1, 2017, the Judicial Council shall adopt
15a rule of court to establish procedures applicable to actions or
P3    1proceedings brought to attack, review, set aside, void, or annul the
2certification of the environmental impact report for a water storage
3project or the granting of any project approvals that require the
4actions or proceedings, including any potential appeals therefrom,
5be resolved, to the extent feasible, within 370 days of certification
6of the record of proceedings pursuant to subdivision (e).

7(d) (1) The draft and final environmental impact report for a
8water storage project shall include a notice in not less than 12-point
9type stating the following:

10THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE
11PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG
12OTHER THINGS, THAT THE LEAD AGENCY NEED NOT
13CONSIDER CERTAIN COMMENTS FILED AFTER THE
14CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE
15DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE
16CERTIFICATION OF THE EIR OR THE APPROVAL OF THE
17PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE
18PROCEDURES SET FORTH IN SECTION 21168.6.7 OF THE
19PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7
20OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE
21APPENDIX TO THIS EIR.

22(2) The draft environmental impact report and final
23environmental impact report shall contain, as an appendix, the full
24text of this section.

25(3) Within 10 days after the release of the draft environmental
26impact report, the lead agency shall conduct an informational
27workshop to inform the public of the key analyses and conclusions
28of that report.

29(4) Within 10 days before the close of the public comment
30period, the lead agency shall hold a public hearing to receive
31testimony on the draft environmental impact report. A transcript
32of the hearing shall be included as an appendix to the final
33environmental impact report.

34(5) (A) Within five days following the close of the public
35comment period, a commenter on the draft environmental impact
36report may submit to the lead agency a written request for
37nonbinding mediation. The lead agency and applicant shall
38participate in nonbinding mediation with all commenters who
39submitted timely comments on the draft environmental impact
40report and who requested the mediation. Mediation conducted
P4    1pursuant to this paragraph shall end no later than 35 days after the
2close of the public comment period.

3(B) A request for mediation shall identify all areas of dispute
4raised in the comment submitted by the commenter that are to be
5mediated.

6(C) The lead agency shall select one or more mediators who
7shall be retired judges or recognized experts with at least five years
8experience in land use and environmental law or science, or
9mediation. The applicant shall bear the costs of mediation.

10(D) A mediation session shall be conducted on each area of
11dispute with the parties requesting mediation on that area of
12dispute.

13(E) The lead agency shall adopt, as a condition of approval, any
14measures agreed upon by the lead agency, the applicant, and any
15commenter who requested mediation. A commenter who agrees
16to a measure pursuant to this subparagraph shall not raise the issue
17addressed by that measure as a basis for an action or proceeding
18challenging the lead agency’s decision to certify the environmental
19impact report or to grant one or more initial project approvals.

20(6) The lead agency need not consider written or oral comments
21submitted after the close of the public comment period, unless
22those comments address any of the following:

23(A) New issues raised in the response to comments by the lead
24agency.

25(B) New information released by the public agency subsequent
26to the release of the draft environmental impact report, such as
27new information set forth or embodied in a staff report, proposed
28permit, proposed resolution, ordinance, or similar documents.

29(C) Changes made to the project after the close of the public
30comment period.

31(D) Proposed conditions for approval, mitigation measures, or
32proposed findings required by Section 21081 or a proposed
33reporting and monitoring program required by paragraph (1) of
34subdivision (a) of Section 21081.6, where the lead agency releases
35those documents subsequent to the release of the draft
36environmental impact report.

37(E) New information that was not reasonably known and could
38not have been reasonably known during the public comment period.

P5    1(7) The lead agency shall file the notice required by subdivision
2(a) of Section 21108 or subdivision (a) of Section 21152 within
3five days after the last initial project approval.

4(e) (1) The lead agency may prepare and certify the record of
5the proceedings in accordance with this subdivision and in
6accordance with Rule 3.1365 of the California Rules of Court. The
7applicant shall pay the lead agency for all costs of preparing and
8certifying the record of proceedings.

9(2) No later than three business days following the date of the
10release of the draft environmental impact report, the lead agency
11shall make available to the public in a readily accessible electronic
12format the draft environmental impact report and all other
13documents submitted to or relied on by the lead agency in the
14preparation of the draft environmental impact report. A document
15prepared by the lead agency or submitted by the applicant after
16the date of the release of the draft environmental impact report
17that is a part of the record of the proceedings shall be made
18available to the public in a readily accessible electronic format
19within five business days after the document is prepared or received
20by the lead agency.

21(3) Notwithstanding paragraph (2), documents submitted to or
22relied on by the lead agency that were not prepared specifically
23for the project and are copyright protected are not required to be
24made readily accessible in an electronic format. For those copyright
25protected documents, the lead agency shall make an index of these
26documents available in an electronic format no later than the date
27of the release of the draft environmental impact report, or within
28five business days if the document is received or relied on by the
29lead agency after the release of the draft environmental impact
30report. The index shall specify the libraries or lead agency offices
31in which hardcopies of the copyrighted materials are available for
32public review.

33(4) The lead agency shall encourage written comments on the
34project to be submitted in a readily accessible electronic format,
35and shall make those comments available to the public in a readily
36accessible electronic format within five days of their receipt.

37(5) Within seven business days after the receipt of any comment
38that is not in an electronic format, the lead agency shall convert
39that comment into a readily accessible electronic format and make
40it available to the public in that format.

P6    1(6) The lead agency shall indicate in the record of the
2proceedings comments received that were not considered by the
3lead agency pursuant to paragraph (6) of subdivision (d) and need
4not include the content of the comments as a part of the record.

5(7) Within five days after the filing of the notice required by
6subdivision (a) of Section 21108 or subdivision (a) of Section
721152, the lead agency shall certify the record of the proceedings
8for the approval or determination and shall provide an electronic
9copy of the record to a party that has submitted a written request
10for a copy. The lead agency may charge and collect a reasonable
11fee from a party requesting a copy of the record for the electronic
12copy, which shall not exceed the reasonable cost of reproducing
13that copy.

14(8) Within 10 days after being served with a complaint or a
15petition for a writ of mandate, the lead agency shall lodge a copy
16of the certified record of proceedings with the superior court.

17(9) Any dispute over the content of the record of the proceedings
18shall be resolved by the superior court. Unless the superior court
19directs otherwise, a party disputing the content of the record shall
20file a motion to augment the record at the time it files its initial
21brief.

22(10) The contents of the record of proceedings shall be as set
23forth in subdivision (e) of Section 21167.6.

24(f) Subdivisions (d) and (e) do not apply to a project for which
25an environmental review pursuant to this division has commenced
26before January 1, 2017.

27(g) (1) (A) In granting relief in an action or proceeding brought
28pursuant to this division, the court shall not stay or enjoin the
29construction or operation of a water storage project unless the court
30finds either of the following:

31(i) The continued construction or operation of the water storage
32project presents an imminent threat to the public health and safety.

33(ii) The water storage project site contains unforeseen important
34Native American artifacts or unforeseen important historical,
35archaeological, or ecological values that would be materially,
36permanently, and adversely affected by the continued construction
37or operation of the water storage project unless the court stays or
38enjoins the construction or operation of the water storage project.

39(B) If the court finds that clause (i) or (ii) of subparagraph (A)
40is satisfied, the court shall only enjoin those specific activities
P7    1associated with the water storage project that present an imminent
2threat to public health and safety or that materially, permanently,
3and adversely affect unforeseen important Native American
4artifacts or unforeseen important historical, archaeological, or
5ecological values.

6(2) An action or proceeding to attack, set aside, void, or annul
7a determination, finding, or decision of the lead agency granting
8a subsequent project approval shall be subject to the requirements
9of this chapter.

10

SEC. 2.  

No reimbursement is required by this act pursuant to
11Section 6 of Article XIII B of the California Constitution because
12a local agency or school district has the authority to levy service
13charges, fees, or assessments sufficient to pay for the program or
14level of service mandated by this act, within the meaning of Section
1517556 of the Government Code.



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