Somach Simmons & Dunn | Attorneys at Law
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The 2023 California legislative session concluded on September 14, 2023. This article highlights new bills pertaining to water rights, the California Environmental Quality Act (CEQA), and emissions on the consumer and industry levels, as well as bills that are being held over.
Under the existing law, the State Water Resources Control Board (“Board”) is authorized to regulate post-1914 appropriated water within the state and prevent waste and unreasonable use of water, including issuing curtailment orders to promote water recycling and conservation, and enforce the priority system of water rights. This bill seeks to amend Water Code section 1052 by expanding the instances when the diversion of water is considered a trespass, and authorizes the Board to issue a curtailment order for any diversion, regardless of basis of right, when water is not available under the diverter’s priority of right. At the conclusion of this legislative session, AB 1337 remains in committee, and it may return to the floor in the next session.
AB 460 adds Water Code section 1115 authorizing the Board to issue, on its own motion or upon the petition of an interested party, an interim relief order halting water use practices violating the Constitution, water quality objectives, water right permits and licenses, and fish and wildlife protections. The bill provides that a person or entity who violates an interim relief order issued by the Board may be liable to the Board for a civil penalty in an amount not to exceed the sum of $10,000 for each day in which a violation occurs and $5,000 for each acre-foot of water diverted in violation of the interim relief order. AB 460 requires these penalty funds to be deposited in the Water Rights Fund. AB 460 remains in committee as the 2023 legislative session closes.
SB 389 amends Water Code section 1051 to authorize the Board to: (1) investigate a diversion and use of water from a stream system to determine whether the diversion and use are based upon a valid right; (2) to issue an information order seeking specified information as part of its investigation; (3) to issue a decision or order that determines the water right, whether limited in scope or wholly invalid; and (4) find forfeiture even without a conflicting claim by another water user.
At the end of the legislative session, SB 389 was passed by the Legislature and sent to the Governor for his signature. To learn more about the impact and significance of this bill, see Somach Simmons & Dunn’s previous law and policy alert discussing it.
CEQA requires a lead agency to prepare and certify the completion of an environmental impact report (EIR) for a project it proposes to carry out or approve that may have a significant effect on the environment. Alternatively, lead agencies must adopt a negative declaration if it finds that a proposed project will not have such effect. Furthermore, specified public agencies must perform an environmental analysis of the reasonably foreseeable methods of compliance at the time of adoption of a rule or regulation requiring the installation of pollution control equipment or a performance standard or treatment requirement.
The Governor signed SB 149 into law in July 2023. Taking effect immediately, this bill amended sections 21167.6, 21181, 21183, 21189.1, and 21189.3 of the Public Resources Code, and to add Chapter 7 (commencing with section 21189.80) to Division 13 of the Public Resources Code. This bill expedites preparation of the administrative record in CEQA cases, which typically constitutes the totality of evidence at trial. Preparing records can be stalled for two main reasons: (1) petitioners can decide to prepare the record themselves, even though public agencies are in physical possession of record documents, and (2) the parties dispute which documents should or should not be included.
SB 149 would authorize the public agency to deny the request of the plaintiff or petitioner to prepare the record of proceedings. In the instance of an approval, this bill would require the public agency or the real party in interest to bear the costs of preparation and certification of the record of proceedings, and would prohibit the recovery of those costs from the plaintiff or petitioner.
The bill requires the court to schedule a case management conference within 30 days of the filing of an action to review the scope, timing, and cost of the record of proceedings, and requires that an electronic copy of the certified record of proceedings be lodged with the court.
On September 7, 2023, AB 1307 became law and it is to take effect immediately as an urgency statute. This bill specifies that the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment for residential projects for purposes of CEQA. It also specifies that in an EIR for a residential or mixed-use housing project, institutions of public higher education are not required to consider alternatives to the location of the proposed project if certain requirements are met.
SB 422 would require public agencies to perform an environmental analysis of the reasonably foreseeable methods of compliance at the time of adoption of a rule or regulation requiring the reduction in emissions of greenhouse gases, criteria air pollutants, or toxic air contaminants. By imposing additional requirements on air districts, this bill would impose a state-mandated local program. This bill was moved to inactive status but may be reactivated in the 2024-2025 session.
On September 12, 2023, the Legislature passed SB 253 adding Health and Safety Code section 38532 entitled the “Climate Corporate Data Accountability Act.” Not yet signed by the Governor, SB 253 is the first bill of its kind, seeking to bring greater accountability to the impact corporations make on the climate. This bill requires the California Air Resources Board to develop and adopt emissions disclosure requirements for any business entities with total annual revenues exceeding $1 billion. Upon disclosure, SB 253 requires a reporting entity to pay the Board an annual fee which will contribute to the Climate Accountability and Emissions Disclosure Fund for use as a continuously appropriated fund.
The bill states that the annual reporting requirement is an effort to bring greater transparency to corporate emissions. Last year, a similar bill failed in the state Assembly on the last night of the legislative session.
This bill continues the increased vehicle registration fees collected under Vehicle Code section 99250 which are set to expire on January 1, 2024. Under this bill, those increased fees will continue until July 1, 2035. The Air Quality Improvement Program under the administration of the California Air Resources Board was created for the purpose of funding air quality improvement projects relating to fuel and vehicle technologies. AB 126 revises the program to fund air quality improvement projects relating to zero-emission fuel and vehicle technologies, in particular hydrogen-fueling stations, and provides that the primary purpose of the program is “to fund projects to reduce criteria air pollutants in the logistics, goods movement, off-road, warehouse, and port sectors; improve air quality in nonattainment basins, with a priority for projects located in the areas of extreme nonattainment; and improve the air quality impacts of zero-emission transportation fuels and vehicles, vessels, and equipment technologies.” As of September 13, 2023, the bill passed the Assembly and was sent to the Senate Budget and Fiscal Review Committee for consideration.
For additional information on these issues please contact:
Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
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