California-2015-SB127-Introduced

BILL NUMBER: SB 127	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senators Vidak, Fuller, and Nielsen
   (Principal coauthor: Assembly Member Olsen)

                        JANUARY 20, 2015

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


	LEGISLATIVE COUNSEL'S DIGEST


   SB 127, as introduced, Vidak. 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 2, 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 projects
funded, in whole or in part, by Proposition 1, 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, 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 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:

  SECTION 1.  Section 21168.6.7 is added to the Public Resources
Code, to read:
   21168.6.7.  (a) For the purposes of this section "water project"
means a project funded, in whole or in part, with proceeds of bonds
sold pursuant to the Water Quality, Supply and Infrastructure
Improvement Act of 2014 (Division 26.7 (commencing with Section
79700) of the Water Code).
   (b) Notwithstanding any other law, the procedures established
pursuant to subdivision (c) shall apply to an action or proceeding
brought to attack, review, set aside, void, or annul the
certification of the environmental impact report for a water project
or the granting of any approvals for a water project.
   (c) On or before July 1, 2016, the Judicial Council shall adopt a
rule of court to establish procedures applicable to actions or
proceedings brought to attack, review, set aside, void, or annul the
certification of the environmental impact report for a water project
or the granting of any project approvals that require the actions or
proceedings, including any potential appeals therefrom, be resolved,
to the extent feasible, within 270 days of certification of the
record of proceedings pursuant to subdivision (e).
   (d) (1) The draft and final environmental impact report for a
water project shall include a notice in not less than 12-point type
stating the following:
   THIS EIR IS SUBJECT TO SECTION 21168.6.7 OF THE PUBLIC RESOURCES
CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED
NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC
COMMENT PERIOD FOR THE DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE
CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN
THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTION 21168.6.7
OF THE PUBLIC RESOURCES CODE. A COPY OF SECTION 21168.6.7 OF THE
PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.
   (2) The draft environmental impact report and final environmental
impact report shall contain, as an appendix, the full text of this
section.
   (3) Within 10 days after the release of the draft environmental
impact report, the lead agency shall conduct an informational
workshop to inform the public of the key analyses and conclusions of
that report.
   (4) Within 10 days before the close of the public comment period,
the lead agency shall hold a public hearing to receive testimony on
the draft environmental impact report. A transcript of the hearing
shall be included as an appendix to the final environmental impact
report.
   (5) (A) Within five days following the close of the public comment
period, a commenter on the draft environmental impact report may
submit to the lead agency a written request for nonbinding mediation.
The lead agency and applicant shall participate in nonbinding
mediation with all commenters who submitted timely comments on the
draft environmental impact report and who requested the mediation.
Mediation conducted pursuant to this paragraph shall end no later
than 35 days after the close of the public comment period.
   (B) A request for mediation shall identify all areas of dispute
raised in the comment submitted by the commenter that are to be
mediated.
   (C) The lead agency shall select one or more mediators who shall
be retired judges or recognized experts with at least five years
experience in land use and environmental law or science, or
mediation. The applicant shall bear the costs of mediation.
   (D) A mediation session shall be conducted on each area of dispute
with the parties requesting mediation on that area of dispute.
   (E) The lead agency shall adopt, as a condition of approval, any
measures agreed upon by the lead agency, the applicant, and any
commenter who requested mediation. A commenter who agrees to a
measure pursuant to this subparagraph shall not raise the issue
addressed by that measure as a basis for an action or proceeding
challenging the lead agency's decision to certify the environmental
impact report or to grant one or more initial project approvals.
   (6) The lead agency need not consider written comments submitted
after the close of the public comment period, unless those comments
address any of the following:
   (A) New issues raised in the response to comments by the lead
agency.
   (B) New information released by the public agency subsequent to
the release of the draft environmental impact report, such as new
information set forth or embodied in a staff report, proposed permit,
proposed resolution, ordinance, or similar documents.
   (C) Changes made to the project after the close of the public
comment period.
   (D) Proposed conditions for approval, mitigation measures, or
proposed findings required by Section 21081 or a proposed reporting
and monitoring program required by paragraph (1) of subdivision (a)
of Section 21081.6, where the lead agency releases those documents
subsequent to the release of the draft environmental impact report.
   (E) New information that was not reasonably known and could not
have been reasonably known during the public comment period.
   (7) The lead agency shall file the notice required by subdivision
(a) of Section 21108 or subdivision (a) of Section 21152 within five
days after the last initial project approval.
   (e) (1) The lead agency shall prepare and certify the record of
the proceedings in accordance with this subdivision and in accordance
with Rule 3.1365 of the California Rules of Court. The applicant
shall pay the lead agency for all costs of preparing and certifying
the record of proceedings.
   (2) No later than three business days following the date of the
release of the draft environmental impact report, the lead agency
shall make available to the public in a readily accessible electronic
format the draft environmental impact report and all other documents
submitted to or relied on by the lead agency in the preparation of
the draft environmental impact report. A document prepared by the
lead agency or submitted by the applicant after the date of the
release of the draft environmental impact report that is a part of
the record of the proceedings shall be made available to the public
in a readily accessible electronic format within five business days
after the document is prepared or received by the lead agency.
   (3) Notwithstanding paragraph (2), documents submitted to or
relied on by the lead agency that were not prepared specifically for
the project and are copyright protected are not required to be made
readily accessible in an electronic format. For those copyright
protected documents, the lead agency shall make an index of these
documents available in an electronic format no later than the date of
the release of the draft environmental impact report, or within five
business days if the document is received or relied on by the lead
agency after the release of the draft environmental impact report.
The index must specify the libraries or lead agency offices in which
hardcopies of the copyrighted materials are available for public
review.
   (4) The lead agency shall encourage written comments on the
project to be submitted in a readily accessible electronic format,
and shall make any such comment available to the public in a readily
accessible electronic format within five days of its receipt.
   (5) Within seven business days after the receipt of any comment
that is not in an electronic format, the lead agency shall convert
that comment into a readily accessible electronic format and make it
available to the public in that format.
   (6) The lead agency shall indicate in the record of the
proceedings comments received that were not considered by the lead
agency pursuant to paragraph (6) of subdivision (d) and need not
include the content of the comments as a part of the record.
   (7) Within five days after the filing of the notice required by
subdivision (a) of Section 21108 or subdivision (a) of Section 21152,
the lead agency shall certify the record of the proceedings for the
approval or determination and shall provide an electronic copy of the
record to a party that has submitted a written request for a copy.
The lead agency may charge and collect a reasonable fee from a party
requesting a copy of the record for the electronic copy, which shall
not exceed the reasonable cost of reproducing that copy.
   (8) Within 10 days after being served with a complaint or a
petition for a writ of mandate, the lead agency shall lodge a copy of
the certified record of proceedings with the superior court.
   (9) Any dispute over the content of the record of the proceedings
shall be resolved by the superior court. Unless the superior court
directs otherwise, a party disputing the content of the record shall
file a motion to augment the record at the time it files its initial
brief.
   (10) The contents of the record of proceedings shall be as set
forth in subdivision (e) of Section 21167.6.
   (f) (1) (A) In granting relief in an action or proceeding brought
pursuant to this division, the court shall not stay or enjoin the
construction or operation of a water project unless the court finds
either of the following:
   (i) The continued construction or operation of the water project
presents an imminent threat to the public health and safety.
   (ii) The water project site contains unforeseen important Native
American artifacts or unforeseen important historical,
archaeological, or ecological values that would be materially,
permanently, and adversely affected by the continued construction or
operation of the water project unless the court stays or enjoins the
construction or operation of the water project.
   (B) If the court finds that clause (i) or (ii) is satisfied, the
court shall only enjoin those specific activities associated with the
water 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.
   (2) An action or proceeding to attack, set aside, void, or annul a
determination, finding, or decision of the lead agency granting a
subsequent project approval shall be subject to the requirements of
Chapter 6 (commencing with Section 21165).
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.