If you want to know what the environmental provisions in our initiative actually do, refer to Sections 5 and Section 6 within the full text of the initiative, then read this Q&A. You will see these provisions offer thoughtful, measured revisions to existing state environmental law that are necessary to ensure additional decades are not squandered at the same time as California’s water infrastructure continues to deteriorate. These provisions are based on existing precedents that have been applied in other priority policy areas such as building low income housing. They are necessary and appropriate if Californians expect to be prepared for prolonged drought and climate change.
This initiative aims to alleviate the legal and bureaucratic obstacles to getting water projects approved and funded. The measure would streamline the process for judicial review if water projects are challenged under the California Environmental Quality Act. The measure would not exempt water supply projects from substantive CEQA review. The measure also sets time limits for the Coastal Commission to act on eligible water projects, and adds an appeal process to the California Secretary of Natural Resources. The language strikes a delicate balance. It leaves protections in place for the environment, but streamlines the process.
Frequently Asked Questions
Question 1 – The initiative creates a mechanism to use public funds to subsidize private, for-profit enterprises such as Poseidon desal. Why should the public fund such a project when Poseidon has indicated they are able to proceed without additional subsidies (they are counting on an annual operating subsidy from the Metropolitan Water district)?
Answer – The California Water Commission will have the discretion to allocate funding to eligible projects pursuant to a set of criteria and priorities set forth in the measure. Section 3 of the measure provides that projects proposed by public agencies should be prioritized. Thus, the ultimate funding determinations will be made by the Water Commission in accordance with the goal of the measure—completing projects to begin delivery of water to California’s urban and agricultural consumers. There is no guarantee that any private projects would receive funding under the measure. And if a project does not need funding, it will not get funding.
Question 2 – Why is the streamlining of environmental review necessary?
Answer – There is NO streamlining of CEQA proposed. Section 5 of the measure provides for streamlined review of judicial CEQA challenges to eligible water projects. Currently, important water projects can be and are stalled through litigation that can last for many years. Under the measure, any challenge to an eligible water supply project is to be resolved (e.g., decided by a court) within 270 days after the certified administrative record is filed with the court. This is substantially similar to previously adopted legislation including AB 900 and subsequent acts based on AB 900 (which expedited treatment of various projects—See California Office of Planning and Research website), and various other statues providing for litigation streamlining (see also SB 9 Atkins – Jobs and Economic Improvement Through Environmental Leadership Act of 2021 -adopted this year). Water projects must still comply with ALL CEQA substantive reviews.
Question 3 – Specifically, why should the Coastal Commission rely on the EIR submitted to the lead agency without the ability to require “new or revised environmental review”? (First paragraph, p. 15).
Answer – First, the Coastal Commission is a responsible agency under CEQA and can fully participate in the CEQA process of any agency involved in a project in the Coastal zone. The Coastal Commission nearly always acts on a project after local agency has completed a full CEQA review and approvals have been issued. The Coastal Commission then has a certified regulatory process that operates as a functional equivalent of CEQA. This provision would avoid delays associated with “re-creating the wheel” late in the permitting process.
Question 4 – Also, why should the secretary of natural resources’ override authority be applied retroactively?
Answer – This provision allows flexibility to address any project that receives funding or is certified as a drought resiliency project may be reviewed, without imposing an arbitrary deadline.
Question 5 – Coastal Commission Executive Director Jack Ainsworth said, ” “This is an insidious maneuver that could allow wealthy corporations to overturn Coastal Commission actions protecting California’s precious coastal resources, public access and coastal communities. Drought in California is our new normal and the Commission understands that responsibly designed desalination facilities will be an important part of California’s water portfolio going forward. We don’t need to gut the Coastal Act in order to provide safe, reliable, affordable drinking water.” Would you respond to that?
Answer – We view the Coastal Commission as playing an essential role in projects that are located along California’s coast. That is why Coastal Commission process is retained in the measure, rather than exempt water supply projects which are crucial to the State from Coastal Commission review entirely. The measure simply provides some timelines for the Commission to act on drought resiliency projects and clarifies the environmental review process before the Commission. The measure also provides for an administrative appeal process to the Secretary of Natural Resources. This is very similar to the appeals process within other agencies, such as the Regional Water Board, whose decisions can be appealed to the State Water Board.
Question 6 – What CEQA protections remain if eligible projects are “exempt from CEQA.” Is there a contradiction between what the campaign is saying about the CEQA provisions and what the CEQA provisions actually say? In the language of the initiative at the top of page 14, it says: “(b) Notwithstanding subdivision (a), the Water Commission’s determination to (1) allocate funding pursuant to Section 2.5 of Article X of the Constitution or the Water Supply Infrastructure Bond Act of 2022 or (2) certify a project as a drought resiliency project pursuant to Section 21159.52 shall not constitute a “project” pursuant to Section 21065 of the Public Resources Code and shall be exempt from CEQA.” How does this initiative still incorporate “substantive CEQA review?”
Answer – The initiative does not exempt water supply projects from substantive CEQA review. The initiative exempts certain funding and certification processes at the Water Commission from CEQA review – namely, the Water Commissions’ decision to provide funding to an eligible water supply project or certify an eligible water supply project as a “drought resiliency project.” However, the initiative does not eliminate CEQA review triggered by other discretionary actions, such as local or state permitting processes. For example, a water supply project requiring a discretionary city or county approval would still undergo CEQA review in connection with that approval. As for “drought resiliency projects,” they are any projects that fall within the definition of eligible projects in Section 3 (b) on page 2.
Question 7 – If the California Water Commission were the only agency approving a project funded under this measure, then it would be exempt from CEQA, but if the project required other approvals, like from a city, a county, a regional water board, the state EPA or Department of Fish and Wildlife, it would be subject to CEQA?
Answer – Yes. If a project required a discretionary approval from any other agency, it would be subject to CEQA (unless some other CEQA exemption applied independent of the measure). The chances that a water supply project of any size would not require at least one discretionary approval is very remote. Virtually any project involving water resources will trigger a local review and a review from various state agencies including the California Department of Fish and Wildlife. For example, a water project impacting a stream or river would require permitting from the California Department of Fish and Wildlife.
Question 8 – Can you explain the streamlining of filing lawsuits? It appears that after a project is approved, opponents have 270 days to file a lawsuit under CEQA. Is that right? Or does the ballot language say a court must decide the appeal within 270 days?
Answer – Any challenge to an eligible water supply project is to be resolved (e.g., decided by a court) within 270 days after the certified administrative record is filed with the court. This is substantially similar to previously adopted legislation including AB 900 and subsequent acts based on AB 900 (which expedited treatment of various projects—See CA Office of Planning and Research Website), and various other statues providing for litigation streamlining (see also SB & Atkins – Jobs and Economic Improvement Through Environmental Leadership Act of 2021 -adopted this year).
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