Chapter 27 (Stats. 2015):  CEQA Waiver

Earlier, we outlined several water laws enacted by the “budget trailer bill,” Chapter 27.  We explained the consolidation provisions in a subsequent post. We now address the CEQA waiver introduced by Chapter 27.

As you know, public agencies must conduct a review of the environmental impact of projects they propose to undertake.  This review can be costly and take years to complete.

Section 6 of Chapter 27 allows agencies to avoid CEQA review for projects involving drought mitigation and to possibly curtail review for recycled water and groundwater replenishment projects.  This provision says:

“This division [containing CEQA] does not apply to a project that satisfies both of the following:  (1) The project is approved or carried out by a public agency for the purpose of mitigating drought conditions for which a state of emergency was proclaimed by the governor on January 17…(2) The project consists of the construction or expansion of recycled water pipe line and directly related infrastructure within the existing rights-of-way, if the project does not affect wetlands or sensitive habitat, and where the construction impacts are fully mitigated consistent with applicable law.” (Public Resources Code section 21080.08(A).)”

This provision remains effective during the governor’s state of emergency or until January 1, 2017, whichever occurs first. The exemption from CEQA review is comprehensive for drought mitigation projects. The exemption for recycled water projects or groundwater replenishment projects is less than appears.  Assuming the project will not impact wetlands for sensitive habitat, the agency must nonetheless adopt what amounts to a mitigated negative declaration.

Another exemption from CEQA is granted for building standards by state agencies for recycled water systems.  (Section 21080.45.) This exemption is effective July 1, 2017, and is repealed July 1, 2018. The exemption for building standards for recycled water systems seems insignificant because it will not be operable for two years and will expire a year later.

Finally, a CEQA exemption is granted to cities and counties for laws that “limit or prohibit the drilling of new or deeper groundwater wells” or “limit or prevent increased extractions from existing groundwater wells” by conditioning well permits or changing the intensity of land use that would increase the water demand.  (Section 21080.46.)  This exemption is effective during the governor’s state of emergency or until July 1, 2017, whichever occurs first, but remains operative until January 1, following the last date.

This last exemption is troubling.  In 1994, the California Supreme Court upheld the County of Tehama’s prohibition against exporting local groundwater based on the county’s land-use powers.  Since then, some cities and counties have taken a very expansive view of their land-use powers and others have even decided they can regulate groundwater without regard to land-use powers. Chapter 27 does not address whether land-use powers can be used to regulate a groundwater basin.  However, waiving CEQA review will encourage cities and counties to aggressively pursue groundwater regulation with or without reliance on their land use powers.  The Tehama decision created more problems than it solved. For example, cities and counties often overlie the same basin. These cities and counties can reach different conclusions on how to manage the basin.

By Wayne K. Lemieux

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