Bill Text: CA SB754 | 2013-2014 | Regular Session | Amended
Bill Title: California Environmental Quality Act.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-02-03 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB754 Detail]
Download: California-2013-SB754-Amended.html
BILL NUMBER: SB 754 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 6, 2013
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Evans
FEBRUARY 22, 2013
An act to amend Sections 21082.1, 21083.2, 21094, and 21094.5 of,
and to add Section 21168.10 to, the Public Resources Code, relating
to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 754, as amended, Evans. California Environmental Quality Act.
(1) The California Environmental Quality Act, referred to
an as CEQA, requires a lead agency, as defined,
to prepare, or cause to be prepared, and certify the completion of,
an environmental impact report, referred to as an EIR, 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. If a project is
required to undertake mitigation measures pursuant to an EIR or a
mitigated negative declaration, CEQA requires the lead agency to
adopt a reporting or monitoring program for the project.
This bill would authorize a person meeting specified requirements
to bring an action or proceeding to enforce the implementation of the
mitigation measures specified in a reporting and monitoring program
adopted pursuant to CEQA if a project applicant fails to implement
those measures.
This bill would prohibit a project proponent or environmental
consultant retained by the project proponent to contract for, direct,
or prepare the initial study, EIR, draft EIR, negative declaration,
or mitigated negative declaration.
(2) Where a prior EIR has been certified for a project, CEQA
authorizes the lead agency to rely on the prior EIR by authorizing
the preparation of a tiered EIR for a later project if the lead
agency makes a specified determination. If a prior EIR has been
certified for a planning level decision, CEQA limits the
environmental review of an infill project to those effects that are
specific to the project that were not addressed in the prior EIR or,
if substantial new information shows that the effects will be more
significant, those effects that were considered in the prior EIR.
This bill would prohibit the use of a prior EIR for the
above-described purposes if the EIR was certified more than 7 years
prior to the issuance of a notice of preparation of an EIR for the
later project or infill project or the commencement of the
environmental review of the later project or infill project,
whichever is earlier. By prohibiting the use of those prior EIRs,
this bill would increase the level of service provided by the lead
agency, thereby imposing a state-mandated local program.
(3) CEQA caps the amount a project applicant is required to pay
for mitigation measures to avoid or mitigate the project's impact on
archaeological resources to a specified amount.
This bill would repeal the cap on that amount.
(4) 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.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
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. (a) The Legislature finds and declares all of the
following:
(1) For more than 40 years, the California Environmental Quality
Act (CEQA) has served to protect California's environment and provide
a more transparent and informed decisionmaking process on
construction and other projects that can impact public health, the
environment, and cultural resources.
(2) CEQA has been modified through legislative and judicial action
throughout the act's existence, ensuring that it has remained
useful.
(3) Additional modifications would ensure CEQA continues to
fulfill its critical functions and meet its purpose of ensuring that
projects are properly analyzed for environmental and cultural
impacts; that those impacts are fully disclosed to the public; that
significant impacts are reduced and mitigated to the extent feasible;
and that the public's ability to enforce CEQA is maintained.
(b) It is the intent of the Legislature to provide limited
modifications to improve CEQA function by requiring translation of
initial notices and executive summaries in certain circumstances,
providing clear procedures for enforcement of mitigation measures,
clarifying that the baseline from which to assess environmental
impacts cannot be based on unpermitted activity, prohibiting a
project applicant from overseeing or directing preparation of its
environmental review documents, limiting an agency's ability to
charge for administrative record costs where a petitioner elects to
prepare the administrative record, and removing outdated restrictions
on mitigation fees for certain archaeological resource impacts.
SEC. 2. Section 21082.1 of the Public Resources Code is amended to
read:
21082.1. (a) Any draft environmental impact report, environmental
impact report, negative declaration, or mitigated negative
declaration prepared pursuant to the requirements of this division
shall be prepared directly by a public agency or by environmental
consultants under direct contract with and supervision of the lead
agency.
(b) A project applicant or a consultant retained by the project
applicant shall not contract for, direct, or prepare the lead agency'
s initial study, environmental impact report, draft environmental
impact report, negative declaration, or mitigated negative
declaration.
(c) This section is not intended to prohibit, and shall not be
construed as prohibiting, any person from submitting information or
other comments to the public agency responsible for preparing an
initial study, environmental impact report, draft environmental
impact report, negative declaration, or mitigated negative
declaration. The information or other comments may be submitted in
any format, shall be considered by the public agency, and may be
included, in whole or in part, in any report or declaration.
(d) The lead agency shall do all of the following:
(1) Independently review and analyze any report or declaration
required by this division.
(2) Circulate draft documents that reflect its independent
judgment.
(3) As part of the adoption of a negative declaration or a
mitigated negative declaration, or certification of an environmental
impact report, find that the report or declaration reflects the
independent judgment of the lead agency.
(4) Submit a sufficient number of copies of the draft
environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration, and a copy of the report or
declaration in an electronic form as required by the guidelines
adopted pursuant to Section 21083, to the State Clearinghouse for
review and comment by state agencies, if any of the following apply:
(A) A state agency is any of the following:
(i) The lead agency.
(ii) A responsible agency.
(iii) A trustee agency.
(B) A state agency otherwise has jurisdiction by law with respect
to the project.
(C) The proposed project is of sufficient statewide, regional, or
areawide environmental significance as determined pursuant to the
guidelines certified and adopted pursuant to Section 21083.
SEC. 3. Section 21083.2 of the Public Resources Code is amended to
read:
21083.2. (a) As part of the determination made pursuant to
Section 21080.1, the lead agency shall determine whether the project
may have a significant effect on archaeological resources. If the
lead agency determines that the project may have a significant effect
on unique archaeological resources, the environmental impact report
shall address the issue of those resources. An environmental impact
report, if otherwise necessary, shall not address the issue of
nonunique archaeological resources. A negative declaration shall be
issued with respect to a project if, but for the issue of nonunique
archaeological resources, the negative declaration would be otherwise
issued.
(b) If it can be demonstrated that a project will cause damage to
a unique archaeological resource, the lead agency may require
reasonable efforts to be made to permit any or all of these resources
to be preserved in place or left in an undisturbed state. Examples
of that treatment, in no order of preference, may include, but are
not limited to, any of the following:
(1) Planning construction to avoid archaeological sites.
(2) Deeding archaeological sites into permanent conservation
easements.
(3) Capping or covering archaeological sites with a layer of soil
before building on the sites.
(4) Planning parks, greenspace, or other open space to incorporate
archaeological sites.
(c) To the extent that unique archaeological resources are not
preserved in place or not left in an undisturbed state, mitigation
measures shall be required as provided in this subdivision. The
project applicant shall provide a guarantee to the lead agency to pay
one-half the estimated cost of mitigating the significant effects of
the project on unique archaeological resources. In determining
payment, the lead agency shall give due consideration to the in-kind
value of project design or expenditures that are intended to permit
any or all archaeological resources or California Native American
culturally significant sites to be preserved in place or left in an
undisturbed state. When a final decision is made to carry out or
approve the project, the lead agency shall, if necessary, reduce the
specified mitigation measures to those which can be funded with the
money guaranteed by the project applicant plus the money voluntarily
guaranteed by any other person or persons for those mitigation
purposes. In order to allow time for interested persons to provide
the funding guarantee referred to in this subdivision, a final
decision to carry out or approve a project shall not occur sooner
than 60 days after completion of the recommended special
environmental impact report required by this section.
(d) Excavation as mitigation shall be restricted to those parts of
the unique archaeological resource that would be damaged or
destroyed by the project. Excavation as mitigation shall not be
required for a unique archaeological resource if the lead agency
determines that testing or studies already completed have adequately
recovered the scientifically consequential information from and about
the resource, if this determination is documented in the
environmental impact report.
(e) Unless special or unusual circumstances warrant an exception,
the field excavation phase of an approved mitigation plan shall be
completed within 90 days after final approval necessary to implement
the physical development of the project or, if a phased project, in
connection with the phased portion to which the specific mitigation
measures are applicable. However, the project applicant may extend
that period if he or she so elects. Nothing in this
This section shall not nullify
protections for Indian cemeteries under any other provision of law.
(f) As used in this section, "unique archaeological resource"
means an archaeological artifact, object, or site about which it can
be clearly demonstrated that, without merely adding to the current
body of knowledge, there is a high probability that it meets any of
the following criteria:
(1) Contains information needed to answer important scientific
research questions and that there is a demonstrable public interest
in that information.
(2) Has a special and particular quality such as being the oldest
of its type or the best available example of its type.
(3) Is directly associated with a scientifically recognized
important prehistoric or historic event or person.
(g) As used in this section, "nonunique archaeological resource"
means an archaeological artifact, object, or site which does not meet
the criteria in subdivision (f). A nonunique archaeological resource
need be given no further consideration, other than the simple
recording of its existence by the lead agency if it so elects.
(h) As part of the objectives, criteria, and procedures required
by Section 21082 or as part of conditions imposed for mitigation, a
lead agency may make provisions for archaeological sites accidentally
discovered during construction. These provisions may include an
immediate evaluation of the find. If the find is determined to be a
unique archaeological resource, contingency funding and a time
allotment sufficient to allow recovering an archaeological sample or
to employ one of the avoidance measures may be required under the
provisions set forth in this section. Construction work may continue
on other parts of the building site while archaeological mitigation
takes place.
(i) This section does not apply to any project described in
subdivision (a) or (b) of Section 21065 if the lead agency elects to
comply with all other applicable provisions of this division. This
section does not apply to any project described in subdivision (c) of
Section 21065 if the applicant and the lead agency jointly elect to
comply with all other applicable provisions of this division.
(j) Any additional costs to any local agency as a result of
complying with this section with respect to a project of other than a
public agency shall be borne by the project applicant.
(k) This section is not intended to affect or modify the
requirements of Section 21084 or 21084.1.
SEC. 4. Section 21094 of the Public Resources Code, as amended by
Section 9 of Chapter 548 of the Statutes of 2012, is amended to read:
21094. (a) (1) If a prior environmental impact report has been
prepared and certified for a program, plan, policy, or ordinance, the
lead agency for a later project that meets the requirements of this
section shall examine significant effects of the later project upon
the environment by using a tiered environmental impact report, except
that the report on the later project is not required to examine
those effects that the lead agency determines were either of the
following:
(A) Mitigated or avoided pursuant to paragraph (1) of subdivision
(a) of Section 21081 as a result of the prior environmental impact
report.
(B) Examined at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated
or avoided by site-specific revisions, the imposition of conditions,
or by other means in connection with the approval of the later
project.
(2) If a prior environmental impact report has been prepared and
certified for a program, plan, policy, or ordinance, and the lead
agency makes a finding of overriding consideration pursuant to
subdivision (b) of Section 21081, the lead agency for a later project
that uses a tiered environmental impact report from that program,
plan, policy, or ordinance may incorporate by reference that finding
of overriding consideration if all of the following conditions are
met:
(A) The lead agency determines that the project's significant
impacts on the environment are not greater than or different from
those identified in the prior environmental impact report.
(B) The lead agency incorporates into the later project all the
applicable mitigation measures identified by the prior environmental
impact report.
(C) The prior finding of overriding considerations was not based
on a determination that mitigation measures should be identified and
approved in a subsequent environmental review.
(D) The prior environmental impact report was certified not more
than three years before the date findings are made pursuant to
Section 21081 for the later project.
(E) The lead agency has determined that the mitigation measures or
alternatives found to be infeasible in the prior environmental
impact report pursuant to paragraph (3) of subdivision (a) of Section
21081 remain infeasible based on the criteria set forth in that
section.
(b) This section applies only to a later project that the lead
agency determines is all of the following:
(1) Consistent with the program, plan, policy, or ordinance for
which an environmental impact report has been prepared and certified.
(2) Consistent with applicable local land use plans and zoning of
the city, county, or city and county in which the later project would
be located.
(3) Not subject to Section 21166.
(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.
(d) All public agencies that propose to carry out or approve the
later project may utilize the prior environmental impact report and
the environmental impact report on the later project to fulfill the
requirements of Section 21081.
(e) (1) If a lead agency determines pursuant to this subdivision
that a cumulative effect has been adequately addressed in a prior
environmental impact report, that cumulative effect is not required
to be examined in a later environmental impact report, mitigated
negative declaration, or negative declaration for purposes of
subparagraph (B) of paragraph (1) of subdivision (a).
(2) When assessing whether there is new significant cumulative
effect, the lead agency shall consider whether the incremental
effects of the project are cumulatively considerable.
(3) (A) For purposes of paragraph (2), if the lead agency
determines the incremental effects of the project are significant
when viewed in connection with the effects of past, present, and
probable future projects, the incremental effects of a project are
cumulatively considerable.
(B) If the lead agency determines incremental effects of a project
are cumulatively considerable, the later environmental impact
report, mitigated negative declaration, or negative declaration shall
examine those effects.
(4) If the lead agency makes one of the following determinations,
the cumulative effects of a project are adequately addressed for
purposes of paragraph (1):
(A) The cumulative effect has been mitigated or avoided as a
result of the prior environmental impact report and findings adopted
pursuant to paragraph (1) of subdivision (a) of Section 21081 as a
result of the prior environmental impact report.
(B) The cumulative effect has been examined at a sufficient level
of detail in the prior environmental impact report to enable the
effect to be mitigated or avoided by site-specific revisions, the
imposition of conditions, or by other means in connection with the
approval of the later project.
(f) If tiering is used pursuant to this section, an environmental
impact report prepared for a later project shall refer to the prior
environmental impact report and state where a copy of the prior
environmental impact report may be examined.
(g) A prior environmental impact report shall not be used for
tiering under this section if it was certified more than seven years
prior to the issuance of a notice of preparation of an environmental
impact report for the later project or the commencement of the
environmental review of the later project, whichever is earlier.
(h) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 5. Section 21094 of the Public Resources Code, as added by
Section 4 of Chapter 496 of the Statutes of 2010, is amended to read:
21094. (a) Where a prior environmental impact report has been
prepared and certified for a program, plan, policy, or ordinance, the
lead agency for a later project that meets the requirements of this
section shall examine significant effects of the later project upon
the environment by using a tiered environmental impact report, except
that the report on the later project is not required to examine
those effects that the lead agency determines were either of the
following:
(1) Mitigated or avoided pursuant to paragraph (1) of subdivision
(a) of Section 21081 as a result of the prior environmental impact
report.
(2) Examined at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated
or avoided by site-specific revisions, the imposition of conditions,
or by other means in connection with the approval of the later
project.
(b) This section applies only to a later project that the lead
agency determines is all of the following:
(1) Consistent with the program, plan, policy, or ordinance for
which an environmental impact report has been prepared and certified.
(2) Consistent with applicable local land use plans and zoning of
the city, county, or city and county in which the later project would
be located.
(3) Not subject to Section 21166.
(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.
(d) All public agencies that propose to carry out or approve the
later project may utilize the prior environmental impact report and
the environmental impact report on the later project to fulfill the
requirements of Section 21081.
(e) When tiering is used pursuant to this section, an
environmental impact report prepared for a later project shall refer
to the prior environmental impact report and state where a copy of
the prior environmental impact report may be examined.
(f) A prior environmental impact report shall not be used for
tiering under this section if it was certified more than seven years
prior to the issuance of a notice of preparation of an environmental
impact report for the later project or the commencement of the
environmental review of the later project, whichever is earlier.
(g) This section shall become operative on January 1, 2016.
SEC. 6. Section 21094.5 of the Public Resources Code is amended to
read:
21094.5. (a) (1) If an environmental impact report was certified
for a planning level decision of a city or county, the application of
this division to the approval of an infill project shall be limited
to the effects on the environment that (A) are specific to the
project or to the project site and were not addressed as significant
effects in the prior environmental impact report or (B) substantial
new information shows the effects will be more significant than
described in the prior environmental impact report. A lead agency's
determination pursuant to this section shall be supported by
substantial evidence.
(2) An effect of a project upon the environment shall not be
considered a specific effect of the project or a significant effect
that was not considered significant in a prior environmental impact
report, or an effect that is more significant than was described in
the prior environmental impact report if uniformly applicable
development policies or standards adopted by the city, county, or the
lead agency, would apply to the project and the lead agency makes a
finding, based upon substantial evidence, that the development
policies or standards will substantially mitigate that effect.
(3) The environmental impact report for a planning level decision
of a city or county may not be used under this section if it was
certified more than seven years prior to the issuance of a notice of
preparation of an environmental impact report for the infill project
or the commencement of environmental review of the infill project,
whichever is earlier.
(b) If an infill project would result in significant effects that
are specific to the project or the project site, or if the
significant effects of the infill project were not addressed in the
prior environmental impact report, or are more significant than the
effects addressed in the prior environmental impact report, and if a
mitigated negative declaration or a sustainable communities
environmental assessment could not be otherwise adopted, an
environmental impact report prepared for the project analyzing those
effects shall be limited as follows:
(1) Alternative locations, densities, and building intensities to
the project need not be considered.
(2) Growth inducing impacts of the project need not be considered.
(c) This section applies to an infill project that satisfies both
of the following:
(1) The project satisfies any of the following:
(A) Is consistent with the general use designation, density,
building intensity, and applicable policies specified for the project
area in either a sustainable communities strategy or an alternative
planning strategy for which the State Air Resources Board, pursuant
to subparagraph (H) of paragraph (2) of subdivision (b) of Section
65080 of the Government Code, has accepted a metropolitan planning
organization's determination that the sustainable communities
strategy or the alternative planning strategy would, if implemented,
achieve the greenhouse gas emission reduction targets.
(B) Consists of a small walkable community project located in an
area designated by a city for that purpose.
(C) Is located within the boundaries of a metropolitan planning
organization that has not yet adopted a sustainable communities
strategy or alternative planning strategy, and the project has a
residential density of at least 20 units per acre or a floor area
ratio of at least 0.75.
(2) Satisfies all applicable statewide performance standards
contained in the guidelines adopted pursuant to Section 21094.5.5.
(d) This section applies after the Secretary of the Natural
Resources Agency adopts and certifies the guidelines establishing
statewide standards pursuant to Section 21094.5.5.
(e) For the purposes of this section, the following terms mean the
following:
(1) "Infill project" means a project that meets the following
conditions:
(A) Consists of any one, or combination, of the following uses:
(i) Residential.
(ii) Retail or commercial, where no more than one-half of the
project area is used for parking.
(iii) A transit station.
(iv) A school.
(v) A public office building.
(B) Is located within an urban area on a site that has been
previously developed, or on a vacant site where at least 75 percent
of the perimeter of the site adjoins, or is separated only by an
improved public right-of-way from, parcels that are developed with
qualified urban uses.
(2) "Planning level decision" means the enactment or amendment of
a general plan, community plan, specific plan, or zoning code.
(3) "Prior environmental impact report" means the environmental
impact report certified for a planning level decision, as
supplemented by any subsequent or supplemental environmental impact
reports, negative declarations, or addenda to those documents.
(4) "Small walkable community project" means a project that is in
an incorporated city, which is not within the boundary of a
metropolitan planning organization and that satisfies the following
requirements:
(A) Has a project area of approximately one-quarter mile diameter
of contiguous land completely within the existing incorporated
boundaries of the city.
(B) Has a project area that includes a residential area adjacent
to a retail downtown area.
(C) The project has a density of at least eight dwelling units per
acre or a floor area ratio for retail or commercial use of not less
than 0.50.
(5) "Urban area" includes either an incorporated city or an
unincorporated area that is completely surrounded by one or more
incorporated cities that meets both of the following criteria:
(A) The population of the unincorporated area and the population
of the surrounding incorporated cities equal a population of 100,000
or more.
(B) The population density of the unincorporated area is equal to,
or greater than, the population density of the surrounding cities.
SEC. 7. Section 21168.10 is added to the Public Resources Code, to
read:
21168.10. (a) If a project applicant or other responsible person
or entity identified in a reporting or monitoring program adopted
pursuant to Section 21081.6 fails to implement any mitigation measure
specified in that reporting or monitoring program, a person may
bring an action or proceeding to require the implementation of the
mitigation measure, if the private action is commenced more
than 60 days after the date that the person has given
notice of the alleged failure to the project applicant or other
responsible person or entity, the public agency that adopted the
mitigation measure for the project project,
and the Attorney General General. The
private action may be filed concurrently with the notice required in
subdivision (b) .
(b) The action described in subdivision (a) may be filed
concurrently with the required notice to the public agency and the
Attorney General, if the person filing the action includes detailed
allegations in the petition demonstrating that the environmental harm
the mitigation measure or measures are intended to reduce or avoid
is reasonably likely to be incurred before the 60-day waiting period
has lapsed, and seeks a restraining order, a preliminary injunction,
or other interim relief to prevent the damage when filing the action.
(c)
(b) A person bringing an action or proceeding pursuant
to this section shall notify the public agency and the Attorney
General that the action or proceeding has been filed.
SEC. 8. 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.
