"In With A Roar, Out with a Meow" - The California Legislature Passes A Few Minor CEQA Changes As The 2013 Session Closes

Author(s): Michael H. Zischke

Source: CCN Client Alert

9/25/2013

As California’s 2013 legislative session opened, many observers thought that the Legislature would enact some changes to streamline or modernize CEQA, to reduce permitting and litigation delay. By the time the session concluded in early September, however, a few bills were passed, with proposed changes in CEQA that would make only minor and incremental changes. The following discussion first summarizes two bills that were not enacted, but that are likely to shape the Legislative debate over CEQA in 2014 and beyond. The discussion also summarizes the CEQA changes that are included in bills that were sent to the Governor for signature. Two of these bills have been signed, and the Governor has 30 days from the close of the session to act on the others.

CEQA Proposals that Died but May be Reborn

In the final days and weeks of the legislative session, two CEQA bills were being seriously negotiated by various stakeholders in the Capitol. During the final week of the session, both of these became “two year bills,” and were put over for further consideration in 2014.

Modernizing CEQA. The effort to “modernize” CEQA was kickstarted by now-former Senator Michael Rubio, who proposed a bill to give more weight in the CEQA process to existing environmental standards and to adopted plans. After Rubio resigned in February, Senate President Pro Tem Darrell Steinberg proposed a more limited CEQA modernization or reform proposal, in SB 731. SB 731 was tabled in the final week of the legislative session, and Senator Steinberg has said he does not intend to pursue it in 2014. Many other legislators, however, have indicated their ongoing desire to “modernize” the 40 plus year old statute. Either way, many expect that SB 731’s content and related ideas will continue to be front and center as part of an ongoing CEQA reform effort in Sacramento in 2014 and beyond.

Expanding Protection for Tribal Cultural Resources. AB 52 was introduced as a bill that would have dramatically increased the complexity of the CEQA process as it relates to tribal cultural resources, taking substantial authority away from local governments in making CEQA decisions. As it went through the legislative process, a number of changes were made in response to business and local government concerns, so that the bill would increase tribal participation in the process without substantially changing CEQA’s definitions of affected resources or the role of local lead agencies. Several of the concerns regarding the bill were not resolved before the end of the session, however, so the bill was deferred until 2014.

CEQA Legislation Sent to the Governor

In-fill projects, Sacramento Kings Arena. While it was becoming clear that more substantial CEQA changes would not be approved, Senator Steinberg proposed and the Legislature approved SB 743, a bill that primarily seeks to expedite a new basketball arena in Sacramento. The bill also includes several changes that seek to improve the CEQA process for in-fill development projects, although these changes apply only to limited classes of projects or in limited areas, which substantially reduces their impact. Among the changes included in this bill are the following:

• Limiting the applicability of traffic level of service standards in in-fill opportunity zones that have been designated by local governments. There are few such zones in existence now.
• Directing the Office of Planning & Research to prepare new CEQA Guidelines on traffic standards, both in general and within transit priority areas (basically within a half-mile of a rail station, ferry terminal, or major bus lines with frequent peak hour service).
• Specifying that aesthetic and parking impacts of infill projects within transit priority areas are not environmental effects requiring CEQA review.
• A new statutory exemption for projects located in transit priority areas and consistent with both a specific plan and adopted sustainable communities policies. This exemption would be in addition to the existing exemption for residential projects consistent with specific plans set forth in the Government Code (that exemption is limited to residential projects, but is otherwise much more flexible than this new exemption).
• Provisions to expedite any CEQA litigation challenging the new Sacramento arena, and to impose green building requirements on the arena.
• New provisions to expedite litigation challenging environmental leadership projects certified by the Governor. These provisions respond to a trial court decision which found that AB 900, which sent litigation over such projects directly to the court of appeal, was unconstitutional. The new provisions direct the state’s Judicial Council to establish new rules so that litigation over such projects, in both the trial and appellate courts, is concluded within 270 days after the lead agency certifies the administrative record.

Expanded CEQA Exemptions for Bicycle Plans and Bike Lane Restriping. Last year the Legislature enacted a CEQA exemption for bicycle restriping pursuant to adopted bicycle plans. This year the Legislature passed AB 417, which would add an exemption for bicycle transportation plans, provided such plans assess and mitigate vehicle traffic impacts and bicycle and pedestrian safety impacts. This bill would also streamline the existing exemption. Both exemptions expire in 2018.

CEQA Legislation Signed by the Governor

State to Prepare EIR on Fracking. SB 4 is a compromise bill on hydraulic fracturing and other techniques to enhance oil production, generally requiring additional disclosure of fracking operations, allowing fracking to continue with permitting and additional requirements, and requiring an independent study of fracking impacts. The bill includes two CEQA provisions, one of which requires the Division of Oil, Gas & Geothermal Resources (the division of the Department of Conservation that regulates drilling) to prepare an EIR evaluating the impacts of fracking in the state (this EIR would be certified after the independent study is prepared). The bill also specifies that, if fracking is part of an activity already reviewed under CEQA, further CEQA review is not required in connection with a permit.

Governor Brown issued a signing statement on the fracking bill, indicating that he would work with the author next year on cleanup legislation. He also stated that he would direct the Department of Conservation to implement the permitting program so that permits can be grouped together based on geologic conditions and environmental impacts, with more particularized review in other situations when needed.

CEQA Exemption for Prison Housing Contracts. SB 105 was a compromise bill to resolve California’s prison overcrowding problem. Among other things, it authorizes the Department of Corrections to contract for prison space, in and outside of California, and it includes a CEQA exemption for any such contracts. This bill has been signed by the Governor, so this statutory exemption will go into effect. (Penal Code §2915, Statutes 2013, Chapter 310).

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