California Senators Darrel Steinberg (D-Sacramento) and Noreen Evans (D-Santa Rosa) have each introduced legislation to amend the California Environmental Quality Act ("CEQA").
Senator Steinberg's bill, SB 731, introduced on February 22, 2013, at present contains only an outline detailing the intent of the bill, which will take shape in the coming weeks. According to Senator Steinberg's website, key elements of SB 731 include the following:
• Update CEQA to encourage and expand infill developments to reduce urban sprawl. This will help jump start the state's housing market while promoting development consistent with state climate and planning laws like SB 375.
• Expedite the CEQA process, without compromising underlying public disclosure or environmental protection, for new investments in clean energy, bike lanes and transportation projects that help California meet its renewable energy, clean air, jobs, and transit goals.
• Modernize CEQA and its implementing regulations to set clear minimum thresholds for impacts like parking, traffic, noise and aesthetics to allow local agencies to standardize mitigation of those impacts. This change would preserve local control to set more stringent thresholds where communities choose to do so.
• Reduce duplication in Environmental Impact Report filings by expanding the use of "tiering." This streamlines and limits further paperwork whereby local land use plans that have sufficient detail and recently completed EIRs can be used by people building projects within those plans.
• Where Environmental Impact Reports have been successfully challenged, allow the courts to send back for repair only the portion of the EIR that is found to be incomplete or lacking required specificity. This would eliminate the need for the entire EIR to be recirculated for public comment which can create additional delays.
• In those cases where project developers and agencies haven't made any substantive change to a project and the public has already had time to comment on it, limit or prohibit so-called "late hits" and "document dumps" designed solely to delay projects late in the environmental review process.
• Appropriate $30 million in new funding to local governments to update their general, area, and specific plans so that they can be better used to "tier" and streamline environmental review of projects built pursuant to those plans.
Senator Evans' bills, SB 617 and SB 764, were introduced on February 25, 2013. The full text of SB 617 can be found here. The full text of SB 754 is not yet available. Each bill can be summarized as follows, according to the Senator's website:
• Mandates that notices during the environmental review process be posted concurrently online and at the county recorder's office in the affected county;
• Clarifies that project reviews must examine the impacts of the physical environment on the project, in addition to the project's impacts on the physical environment, legislatively reversing the recent appeals court decision in Ballona Wetlands Trust. See Court Clarifies that CEQA is a One-Way Street: EIRs Need Not Analyze Impact of Global Climate Change on Proposed Projects.
• Provides that electronic records of proceedings be posted concurrently with their preparation;
• Removes several mooted provisions from CEQA.
• Mandates translation of initial notices and executive summaries where there is a significant Limited English Proficient population;
• Ensures that illegal actions undertaken to change the land prior to an environmental review do not get to reset the baseline of review;
• Implements controls on administrative record costs;
• Prohibits a developer from directly contracting for and overseeing the preparation of the environmental review;
• Limits the "shelf-life" of Environmental Impact Reports (EIRs) that may be used in assessing a project to seven years;
• Reinforces archaeological resource protections by raising the ceiling on mitigation; and
• Provides enforcement for mitigation measures.
Senator Steinberg's legislation contains a number of CEQA cleanups that have been discussed in recent years. For example, the development community has been long sought to impose limitations or prohibitions on a commonly used tactic known as "document dumping," which is often designed solely to delay projects late in the environmental review process.
With respect to Senator Evans' proposals, three provisions are particularly noteworthy. The first is the anticipated provision under SB 617 that would legislatively reverse the California Second District Court of Appeal's decision in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. The decision in Ballona Wetlands clarified that CEQA does not require lead agencies to identify or analyze impacts that the environment may have on a proposed project. Instead, according to the Court, CEQA requires lead agencies to identify and analyze the potential impacts a proposed project may have on the environment. Senator Evans' proposal would reverse the Ballona Wetlands decision and instead require lead agencies to identify and analyze impacts that the environment may have on a proposed project, effectively reversing CEQA's fundamental focus. Senator Evans' proposal would thus significantly expand the scope of review under CEQA.
The second is the anticipated provision under SB 754 that would prohibit project developers from directly contracting for and overseeing the preparation of environmental review documents. Project developers often participate in the environmental review process to address comments or questions the lead agency may have throughout the environmental review process. Frequently, lead agencies rely on project developers to help address complex land use and environmental issues for which the lead agencies lack expertise. Although the details of Senator Evans' proposal are unknown at this time, Senator Evans' proposal seems to cut off lead agencies' ability to communicate with project developers.
The third is the anticipated provision under SB 754 that would limit the "shelf-life" of an EIR that may be used in assessing a project. After an EIR is certified, project changes may occur which require the lead agency to reopen the previously certified EIR and conduct additional review. CEQA currently allows the lead agency to rely on the previously certified EIR to determine whether additional analysis is necessary in such circumstances. Under Senator Evans' proposal, however, the lead agency would be required to start the CEQA process anew for any project change, no matter how insignificant, if more than seven years have elapsed since the EIR's original certification.
We will be sure to provide regular updates regarding these bills, as well as any additional developments regarding CEQA reform in this legislative session.
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