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AB-3005 Leroy Anderson Dam and Reservoir: permitting, environmental review, and public contracting.(2019-2020)

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Date Published: 09/05/2020 04:00 AM
AB3005:v94#DOCUMENT

Enrolled  September 04, 2020
Passed  IN  Senate  August 30, 2020
Passed  IN  Assembly  August 31, 2020
Amended  IN  Senate  August 24, 2020
Amended  IN  Senate  August 17, 2020
Amended  IN  Assembly  June 03, 2020
Amended  IN  Assembly  May 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3005

Introduced by Assembly Member Robert Rivas
(Coauthors: Assembly Members Berman, Chu, Gallagher, and Kalra)
(Coauthors: Senators Beall, Caballero, Hill, Monning, and Nielsen)

February 21, 2020

An act to add Section 1602.5 to the Fish and Game Code, to add Section 21163 to the Public Contract Code, to add Chapter 6.8 (commencing with Section 21189.60) to Division 13 of the Public Resources Code, and to add Section 13160.2 to, and to add Part 4 (commencing with Section 6700) to Division 3 of, the Water Code, relating to the Leroy Anderson Dam and Reservoir, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 3005, Robert Rivas. Leroy Anderson Dam and Reservoir: permitting, environmental review, and public contracting.
Existing law prohibits an entity from diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or banks of, a river, stream, or lake, or depositing or disposing of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into a river, stream, or lake, unless the Department of Fish and Wildlife receives written notification regarding the activity and the department either determines that the activity will not substantially adversely affect an existing fish and wildlife resource or, if the department determines that the activity may substantially adversely affect an existing fish and wildlife resource, the department issues a final agreement to the entity that includes reasonable measures necessary to protect the affected resource.
This bill would, if the department determines that the Anderson Dam project, as defined, will substantially adversely affect existing fish and wildlife resources and the Santa Clara Valley Water District completes certain actions for the project, require the department within 180 days of receipt of a notification, as defined, from the district to issue a final agreement with the district that includes reasonable measures necessary to protect the affected resource, unless the department and the district agree to an extension.
The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report (EIR) on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes administrative procedures for the review and certification of the EIR for a project and judicial review procedures for any action or proceeding brought to challenge the lead agency’s decision to certify the EIR or to grant project approvals.
This bill would establish specified procedures for the administrative and judicial review of the environmental review and approvals granted for the Anderson Dam project, as defined. The bill would apply certain rules of court establishing procedures requiring actions or proceedings seeking judicial review pursuant to CEQA or the granting of project approvals, including any appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 business days of the filing of the certified record of proceedings with the court to an action or proceeding seeking judicial review of the lead agency’s action related to the Anderson Dam project under CEQA. The bill would require the Santa Clara Valley Water District, in implementing the project, to comply with certain requirements.
This bill would establish a schedule for the issuance of a draft EIR and the certification of the final EIR for the implementation of measures set forth in a specific settlement agreement to benefit fisheries in the Stevens Creek and the Guadalupe River watersheds, as provided.
Existing law designates the State Water Resources Control Board as that state water pollution control agency for purposes of the Federal Water Pollution Control Act and authorizes the state board to issue a certificate or statement under the federal act that there is reasonable assurance that an activity of a person subject to the jurisdiction of the state board will not reduce water quality below applicable standards.
This bill would prescribe procedures by which the state board is to issue the certification for the Anderson Dam project.
This bill would authorize state agencies with permitting authority over the Anderson Dam project to take certain actions to expedite the permitting process for the project, including entering into an agreement for the recovery of certain costs.
This bill would require the Santa Clara Valley Water District to develop, in consultation with the adaptive management team, as described, the Adaptive Management Program, as described. The bill would require the district, in conjunction with the state board and others, to implement a new flow regime, known as FAHCE+, for the Guadalupe River and Stevens Creek by October 15, 2020. The bill would require the district, by January 1, 2021, to engage and discuss with the Guadalupe River Corridor Restoration Management Team the development of a Guadalupe River Corridor restoration management plan, as provided.
Existing law authorizes certain local entities to select a bidder for a contract on the basis of “best value,” as defined. Existing law governs various types of contract procedures applicable to the Santa Clara Valley Water District and prescribes competitive bidding procedures for any improvement or unit of work over $50,000.
This bill would authorize the district, upon approval by the board of directors of the district, to award contracts on a best value basis for any work of construction to retrofit, repair, or replace the Leroy Anderson Dam and Reservoir, owned by the district and located in the County of Santa Clara. The bill would require the district, if the board elects to award contracts on a best value basis, to comply with specified requirements governing the documents prepared setting forth the scope and estimated price of the project and the request for qualifications. The bill would prohibit a best value contractor from being prequalified, shortlisted, or awarded a contract unless the contractor provides an enforceable commitment to the district that the contractor and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project, in accordance with certain criteria. By requiring certain information of bidders to be certified under penalty of perjury, the bill would expand an existing crime, thereby imposing a state-mandated local program.
This bill would make legislative findings and declarations as to the necessity of a special statute for the Santa Clara Valley Water District.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) The Leroy Anderson Dam and Reservoir, owned by the Santa Clara Valley Water District and located in the County of Santa Clara, is the largest reservoir in the county with a capacity of 89,278 acre-feet, is a critical part of the region’s water supply system, and provides incidental flood protection, as well as environmental and recreational benefits.
(b) A breach of the Leroy Anderson Dam at full capacity could have catastrophic consequences, including inundation of a land area extending more than 30 miles northwest to San Francisco Bay, including the Cities of Milpitas, San Jose, Santa Clara, and Sunnyvale, and more than 40 miles southeast to Monterey Bay, including the Cities of Gilroy, Morgan Hill, and Watsonville. This area includes a significant part of the region known as Silicon Valley and is home to thousands of job-creating businesses that drive the regional, state, and national economies.
(c) The dam has been determined by the Santa Clara Valley Water District, the Department of Water Resources Division of Safety of Dams, and the Federal Energy Regulatory Commission to be at risk of an uncontrolled release of water due to a seismic event. On February 20, 2020, the Federal Energy Regulatory Commission directed the Santa Clara Valley Water District to maintain the reservoir at a level that is equivalent to 35 percent of the reservoir’s capacity, begin draining the reservoir to deadpool by October 1, 2020, and expedite reconstruction and improvement of the dam outlet structure to begin as soon as feasible to allow the deadpool to be maintained. To further protect public safety, the Santa Clara Valley Water District also reduced the reservoir’s storage before the rainy season to decrease the chance that the restricted capacity is exceeded.
(d) Built in 1950 to the seismic and dam safety standards of the day, the dam would not withstand the largest likely earthquake, known as the maximum credible earthquake, on the nearby Calaveras and Coyote Creek faults. A 2008 seismic stability evaluation identified potential embankment instability as a result of seismic shaking and liquefaction. In 2012, voters in the County of Santa Clara approved a parcel tax that paid for the initiation of the Anderson Dam Seismic Retrofit Project, and will pay for a portion of the overall project costs. By 2016, findings from the geotechnical and geologic investigations performed during the project’s design phase led to the conclusion that a more extensive dam retrofit than had originally been envisioned would have to be performed, causing a necessary delay and redesign of the project.
(e) In February 2017, an atmospheric river event, which conveyed a series of wet storms to the region, resulted in flows over the dam’s spillway that, together with heavy flows from surrounding waterways, eventually exceeded the capacity of Coyote Creek. The creek flooded homes and businesses in economically diverse neighborhoods in San Jose, including disadvantaged communities and communities of color, requiring the evacuation of 14,000 people. The dam’s outlet, used to draw down the reservoir in an emergency, is too small by modern standards, and in advance of the 2017 storms, the outlet had been releasing as much water as possible for more than a month.
(f) The Santa Clara Valley Water District’s Anderson Dam Seismic Retrofit Project will remove and replace the dam. It will be constructed to modern seismic and dam safety standards, including increased capacities for the dam’s spillway and outlet to allow a rapid, controlled draw down in an emergency and to enhance incidental flood protection. The project design is now 75 percent complete.
(g) The Anderson Dam Seismic Retrofit Project is complex and must be evaluated under both state and federal environmental laws. To help protect public safety, the environment, and a significant portion of the San Francisco Bay area economy, state permitting agencies should ensure that permit review and approval is completed expeditiously.
(h) The Anderson Dam Seismic Retrofit Project also provides an opportunity to implement portions of the Fish and Aquatic Habitat Collaborative Effort on Coyote Creek. These portions include remediation of barriers to fish passage at the Singleton Road crossing owned by the City of San Jose, the Metcalf Pond/Coyote Percolation Pond operated by the Santa Clara Valley Water District, and the Ogier Ponds owned by the County of Santa Clara, as well as Chinook salmon and steelhead spawning and rearing habitat enhancements and specified flow releases.
(i) The Fish and Aquatic Habitat Collaborative Effort is the efforts of the Santa Clara Valley Water District and the initialing parties of the settlement agreement described in Section 6700 of the Water Code to restore and maintain in good condition fisheries, wildlife, water quality, and other beneficial uses in Coyote Creek, Stevens Creek, and the Guadalupe River. The program implements a settlement agreement initialed in 2003 born from a water rights complaint filed with the State Water Resources Control Board in 1996. It is the intent of the Legislature that the Santa Clara Valley Water District work expeditiously with the Federal Energy Regulatory Commission and other state and federal regulators to release for public comment a draft of the environmental impact report necessary under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) for the removal and replacement of Anderson Dam, including those Coyote Creek-related Phase 1 flow and nonflow measures of the Fish and Aquatic Habitat Collaborative Effort determined to be appropriate through the California Environmental Quality Act and other regulatory processes. The Legislature further intends that the district complete those Coyote Creek-related Phase 1 measures as part of the project, sequenced as necessary for prudent project management and fisheries considerations.
(j) The independent Board of Consultants, convened pursuant to the Federal Energy Regulatory Commission process, has recommended the “best value” procurement method for the Anderson Dam Seismic Retrofit Project due to its complex design, delivery, and installation. Authorizing this project for an alternative method of contract award, similar to other major surface storage projects, is in keeping with construction industry practices and is prudent for a project of this scale and importance.
(k) Timely completion of the Anderson Dam Seismic Retrofit Project will reduce the risks to public safety and the California economy stemming from the outdated design of the existing dam.
(l) The replacement of the Leroy Anderson Dam is of statewide importance and the project warrants expedited permit processing, as well as other actions by the state that will further support the timely delivery of a well-constructed dam replacement to protect public safety.

SEC. 2.

 Section 1602.5 is added to the Fish and Game Code, to read:

1602.5.
 (a) For purposes of this section, the following definitions apply:
(1) “Anderson Dam project” or “project” has the same meaning as set forth in Section 6700 of the Water Code.
(2) “District” means the Santa Clara Valley Water District.
(3) “Notification” means the documents described in subparagraphs (A) to (E), inclusive, of paragraph (1) of subdivision (a) of Section 1602.
(b) Notwithstanding any other law, if the department determines that the Anderson Dam project will substantially adversely affect an existing fish and wildlife resource and the district completes the actions described in subdivision (c), the department shall, within 180 days of receipt of a notification from the district, issue the final agreement that includes any reasonable measures mutually agreed to by the district and the department pursuant to subdivision (a) of Section 1603. If the department and the district are not able to reach a final agreement on all measures, then the district may proceed in accordance with a final agreement issued by an arbitration panel pursuant to subdivision (b) of Section 1603, including reasonable measures necessary to protect the existing fish and wildlife resources substantially adversely affected by the Anderson Dam project.
(c) Subdivision (b) applies after the district does both of the following:
(1) Submits a complete notification for the project.
(2) Completes and certifies the adequacy of environmental documentation for the activity in the notification, required under Division 13 (commencing with Section 21000) of the Public Resources Code.
(d) The 180-day time period specified in subdivision (b) does not apply if the department and the district mutually agree to an extension.

SEC. 3.

 Section 21163 is added to the Public Contract Code, to read:

21163.
 (a) As used in this section:
(1) “Anderson Dam project” or “project” has the same meaning as set forth in Section 6700 of the Water Code.
(2) “Best value” means a procurement process whereby the selected bidder may be selected on the basis of objective criteria for evaluating the qualifications of bidders with the resulting selection representing the best combination of price and qualifications.
(3)  “Best value contract” means a competitively bid contract entered into pursuant to this section.
(4) “Best value contractor” means a properly licensed person, firm, or corporation that submits a bid for, or is awarded, a best value contract.
(5) “District” means the Santa Clara Valley Water District.
(6) “Project labor agreement” has the same meaning as in paragraph (1) of subdivision (b) of Section 2500.
(b) Upon the approval of the board, the district may award contracts on a best value basis for any work for the Anderson Dam project.
(c) If the board elects to award a contract on a best value basis pursuant to the authorization in subdivision (b), the district shall comply with both of the following:
(1) The district shall prepare a set of documents setting forth the scope and estimated price of the project. The documents may include, but need not be limited to, the size, type, and desired design character of the project, performance specifications covering the quality of materials, equipment, workmanship, preliminary plans or layouts, or any other information deemed necessary to adequately describe the district’s needs. The performance specifications and any plans shall be prepared by a design professional who is duly licensed and registered in California.
(2) The district shall prepare and issue a request for qualifications in order to prequalify or short-list the entities, including subcontractors and suppliers, whose bids shall be evaluated for final selection. The request for qualifications shall include, but need not be limited to, all of the following elements:
(A) Identification of the basic scope and needs of the project or contract, the expected cost range, the methodology that will be used by the district to evaluate bids, the procedure for final selection of the bidder, and any other information deemed necessary by the district to inform interested parties of the contracting opportunity.
(B) Significant factors that the district reasonably expects to consider in evaluating qualifications, including technical design-related expertise, construction expertise, acceptable safety records, and all other non-price-related factors.
(C) A standard template request for statements of qualifications prepared by the district. In preparing the standard template, the district may consult with the construction industry, the building trades and surety industry, and other local agencies with experience awarding a contract on a best value basis. The template shall require all of the following information:
(i) If the bidder is a privately held corporation, limited liability company, partnership, or joint venture, composed of privately held entities, a listing of all of the shareholders, partners, or members known at the time of statement of qualification submission who will perform work on the project.
(ii) Evidence that the members of the contracting team have completed, or demonstrated the experience, competency, capability, and capacity to complete, projects of similar size, scope, or complexity and that proposed key personnel have sufficient experience and training to competently manage and complete the project, and a financial statement that ensures that the bidder has the capacity to complete the project.
(iii) The licenses, registration, and credentials required for the project, including, but not limited to, information on the revocation or suspension of any license, credential, or registration.
(iv) Evidence that establishes that the bidder has the capacity to obtain all required payment and performance bonding, liability insurance, and errors and omissions insurance.
(v) Information concerning workers’ compensation experience history and a worker safety program.
(vi) An acceptable safety record. “Safety record” means the prior history concerning the safe performance of construction contracts. The criteria used to evaluate a bidder’s safety record shall include, at a minimum, its experience modification rate for the most recent three-year period, and its average total recordable injury or illness rate and average lost work rate for the most recent three-year period.
(vii) The information required under this subparagraph shall be certified under penalty of perjury by the bidder and its general partners or joint venture members.
(d) (1) A best value contractor shall not be prequalified, shortlisted, or awarded a contract, regardless of whether the best value process is used, unless the contractor provides an enforceable commitment to the district that the contractor and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project or contract that falls within an apprenticeable occupation in the building and construction trades, in accordance with Chapter 2.9 (commencing with Section 2600) of Part 1.
(2) Paragraph (1) shall not apply if either of the following requirements are met:
(A) The district has entered into a project labor agreement that will bind all contractors and subcontractors performing work on the project or contract to use a skilled and trained workforce, and the contractor agrees to be bound by that project labor agreement.
(B) The contractor has entered into a project labor agreement that will bind the contractor and all its subcontractors at every tier performing the project or contract to use a skilled and trained workforce.

SEC. 4.

 Chapter 6.8 (commencing with Section 21189.60) is added to Division 13 of the Public Resources Code, to read:
CHAPTER  6.8. Anderson Dam Seismic Retrofit Project

21189.60.
 For purposes of this chapter, the following definitions apply:
(a) “Anderson Dam project” or “project” has the same meaning as set forth in Section 6700 of the Water Code.
(b) “District” means the Santa Clara Valley Water District.
(c) “Permit” means a permit, agreement, certification, approval, authorization, permission, notice to proceed, or directive, or issuance of this document, from a state agency that is necessary for the project to proceed.
(d) “Project labor agreement” has the same meaning as in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(e) “State agency” means a state agency, board, commission, or department with the authority to issue permits that would authorize the project or project-related work.

21189.61.
 In implementing the Anderson Dam project, the district shall comply with all of the following requirements:
(a) (1) The Anderson Dam project shall not result in any net additional emission of greenhouse gases as determined by the State Air Resources Board, pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code. The State Air Resources Board shall determine if the measures proposed by the district comply with this subdivision and is encouraged to make its determination no later than 120 days after receiving a completed application, as determined by the State Air Resources Board, for review of the methodology and calculations of the project’s greenhouse gas emissions and the measures to address them. The baseline for determining the emissions of the project for the purposes of this section shall be the dam and reservoir operated at its location since 1950, and the anticipated duration of project operations shall be 75 years based on the project’s engineering design life. The State Air Resources Board’s determination is not subject to judicial review.
(2) To comply with paragraph (1), the district may directly reduce the project’s emissions of greenhouse gases onsite, make local direct investments in actions to reduce emissions of greenhouse gases, invest in measures supported by mitigation or conservation banks, or purchase emissions offset credits. To avoid double counting, emission reductions or offset credits claimed as mitigation for purposes of this section shall be attributable to the Anderson Dam project, and shall not be claimed as mitigation by any other plan or project. The district shall enter into any contracts or make any district board approvals necessary to reduce project emissions not more than two years after the occurrence of the emissions and fully implement the measures not more than eight years after the occurrence of the emissions. Each year following the start of construction and for the life of the obligation, the district shall post an annual report on the progress of greenhouse gas mitigation measures on its internet website and provide the report to the State Air Resources Board.
(A) No less than 50 percent of the emissions reduction measures necessary to achieve the requirements of this subdivision shall be from any of the following:
(i) Local measures directly implemented by the district on the project site or within the district’s jurisdiction, and measures implemented locally by other governmental agencies, special districts, or nongovernmental partners.
(ii) Reductions in emissions of greenhouse gases from any part of the water supply systems in the County of Alameda, Contra Costa, Merced, Sacramento, San Benito, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Solano, or Stanislaus, that provide water to the County of Santa Clara.
(iii) Emissions reductions achieved through wetland restoration or rice cultivation programs of the Sacramento-San Joaquin Delta Conservancy.
(B) The district may obtain offset credits for up to 50 percent of the reductions in emissions of greenhouse gases necessary to achieve the requirement of this subdivision. To the extent feasible, the highest priority shall be placed on the purchase of offset credits that produce emission reductions within the Counties of Alameda, Contra Costa, Merced, Sacramento, San Benito, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Solano, and Stanislaus and offset credits shall be issued by a recognized and reputable voluntary carbon registry. Offset credits generated by a project located outside the United States shall not be used pursuant to this paragraph.
(3) In recognition of the fact that the environmental review of the project may be sequenced for prudent project management, the environmental impact report for the project to remove and reconstruct Anderson Dam shall comply with the following:
(A) The environmental impact report shall not be certified by the lead agency before the State Air Resources Board determination required by this section and covering the project as defined in this section is completed.
(B) The environmental mitigation measures required by this section, shall be incorporated into the environmental impact report, shall be fully enforceable by the lead agency or another agency designated by the lead agency, and shall be monitored and enforced by the lead agency for the life of the obligation.
(4) The district shall enter into a binding and enforceable agreement with the State Air Resources Board regarding the implementation of all greenhouse gas emissions reduction measures required pursuant to paragraphs (1) and (2).
(5) To cover its costs of making the determination described in paragraph (1), the State Air Resources Board shall do one of the following:
(A) Adopt a fee to be paid by the district sufficient to cover its costs. A fee adopted for this purpose shall not be subject to the requirements of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(B) Enter into an agreement with the district to recover its costs of making the determination in an expeditious manner, including any costs to hire or compensate staff or contract for services. This agreement shall not limit the authority or discretion of the State Air Resources Board to make the determination described in paragraph (1).
(b) The district shall provide both of the following amenities to improve recreational opportunities at the project site:
(1) A net increase in parking spaces at Anderson Reservoir.
(2) A boat ramp allowing public access when the reservoir level is low.
(c) (1) A contractor shall not be prequalified, shortlisted, or awarded a contract unless the contractor provides an enforceable commitment to the district that the contractor and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project or contract that falls within an apprenticeable occupation in the building and construction trades, in accordance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code.
(2) Paragraph (1) shall not apply if either of the following requirements are met:
(A) The district has entered into a project labor agreement that will bind all contractors and subcontractors performing work on the project or contract to use a skilled and trained workforce, and the contractor agrees to be bound by that project labor agreement.
(B) The contractor has entered into a project labor agreement that will bind the contractor and all its subcontractors at every tier performing the project or contract to use a skilled and trained workforce.

21189.62.
 (a) Rules 3.2220 to 3.2237, inclusive, of the California Rules of Court, as may be amended by the Judicial Council, shall apply to any action or proceeding brought to attack, review, set aside, void, or annul the certification of any environmental impact report for the project or granting of any project approvals to require the actions or proceeding, including any potential appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 270 business days of the filing of the certified record of proceedings with the court. On or before October 1, 2021, the Judicial Council shall amend the California Rules of Court, as necessary, to implement this subdivision.
(b) Notwithstanding any other law, the procedures set forth in this chapter shall apply to an action or proceeding brought pursuant to this division to attack, review, set aside, void, or annul the certification of the environmental impact report for the Anderson Dam project or the granting of any project approvals.

21189.63.
 (a) The lead agency shall prepare and certify the record of proceedings in accordance with this section and in accordance with Rule 3.1365 of the California Rules of Court.
(b) No later than three business days following the date of the release of the draft environmental impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency after the date of the release of the draft environmental impact report that is a part of the record of proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is prepared or received by the lead agency.
(c) Notwithstanding subdivision (b), documents submitted to or relied on by the lead agency that cannot lawfully be released to the public pursuant to law or that were not prepared specifically for the Anderson Dam project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright protected documents, the lead agency shall make an index of these documents available in an electronic format no later than the date of the release of the draft environmental impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index must specify the libraries or lead agency offices in which hard copies of the copyrighted materials are available for public review.
(d) The lead agency shall encourage written comments on the project, to be submitted in a readily accessible electronic format, and shall make any such comment available to the public in a readily accessible electronic format within five days of its receipt.
(e) Within seven business days after the receipt of any comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.
(f) The lead agency shall indicate in the record of proceedings comments received that were not considered by the lead agency pursuant to subdivision (d) of Section 21189.65 and need not include the content of the comments as a part of the record of proceedings.
(g) Within five days after the filing of the notice required by subdivision (a) of Section 21152, the lead agency shall certify the record of proceedings for the approval or determination and shall provide an electronic copy of the record of proceedings to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record of proceedings for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.
(h) Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.
(i) Any dispute over the content of the record of proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record of proceedings shall file a motion to augment the record of proceedings at the time it files its initial brief.
(j) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.

21189.64.
 (a) The draft and final environmental impact report shall include a notice in not less than 12-point type stating the following:

THIS ENVIRONMENTAL IMPACT REPORT (EIR) IS SUBJECT TO CHAPTER 6.8 (COMMENCING WITH SECTION 21189.60) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTIONS 21189.62 TO 21189.65, INCLUSIVE, OF THE PUBLIC RESOURCES CODE. A COPY OF CHAPTER 6.8 (COMMENCING WITH SECTION 21189.60) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.

(b) The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this chapter.

21189.65.
 (a) Within 10 days after the release of the draft environmental impact report, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that report.
(b) Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.
(c) (1) Within five days following the close of the public comment period, a commenter on the draft environmental impact report may submit to the lead agency a written request for nonbinding mediation. The lead agency shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental impact report and who requested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.
(2) A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.
(3) The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years of experience in land use and environmental law or science, or mediation.
(4) A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.
(5) The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this paragraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agency’s decision to certify the environmental impact report or to grant one or more initial project approvals.
(d) The lead agency need not consider written comments submitted after the close of the public comment period, unless those comments address any of the following:
(1) New issues raised in the response to comments by the lead agency.
(2) New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.
(3) Changes made to the project after the close of the public comment period.
(4) Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting or monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, where the lead agency releases those documents subsequent to the release of the draft environmental impact report.
(5) New information that was not reasonably known and could not have been reasonably known during the public comment period.

21189.66.
 Except as otherwise provided expressly in this chapter, nothing in this chapter affects the duty of any party to comply with this division.

21189.67.
 The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 5.

 Part 4 (commencing with Section 6700) is added to Division 3 of the Water Code, to read:

PART 4. Anderson Dam

6700.
 (a) For purposes of this part, the following definitions apply:
(1) (A) “Anderson Dam project” or “project” means any activity or work of construction to retrofit, repair, replace, or improve the safety of the Leroy Anderson Dam and Reservoir, owned by the Santa Clara Valley Water District and located in the County of Santa Clara, including any upstream or downstream construction, improvements, changes in operational activities, and flood protection measures that may be required to implement that activity or work.
(B) The “Anderson Dam project” or “project” includes any avoidance, minimization, or mitigation measures, including the Coyote Creek-related Phase 1 measures of the Fish and Aquatic Habitat Collaborative Effort, as described in the settlement agreement, determined to be appropriate by the district, in consultation with state and federal agencies identified as “responsible agencies” or “trustee agencies” pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code.
(2) “District” means the Santa Clara Valley Water District.
(3) “Fish and Aquatic Habitat Collaborative Effort” or “FAHCE” means to the negotiations, begun in 1997, that resulted in the settlement agreement.
(4) “Guadalupe River Flood Control Project Adaptive Management Team” means the team established pursuant to state and federal permits for the Downtown Guadalupe River Flood Control Project, Lower Guadalupe River Flood Control Project, and Upper Guadalupe River Flood Control Project.
(5) “Permit” means a permit, agreement, certification, approval, authorization, permission, notice to proceed, or directive, or issuance of this document, from a state agency that is necessary for the project to proceed.
(6) “Science Panel Recommendations of 2011” means those recommendations contained in “Guadalupe River Adaptive Management Team Science Panel Issues and Recommendations Key Outcomes Memorandum” dated June 1, 2011.
(7) “Settlement agreement” means the agreement titled “Settlement Agreement Regarding Water Rights of the Santa Clara Valley Water District on Coyote, Guadalupe, and Stevens Creeks” initialed on May 27, 2003, by the district, the United States Department of the Interior, United States Fish and Wildlife Service, the United States Department of Commerce, National Marine Fisheries Service, the California Department of Fish and Game, the Guadalupe-Coyote Resource Conservation District, Trout Unlimited, the Pacific Coast Federation of Fishermen’s Associations, and California Trout, Incorporated.
(8) “State agency” means a state agency, board, commission, or department with the authority to issue permits that would authorize the project or project-related work.
(b) A state agency may do any of the following:
(1) Enter into an agreement with the district to recover costs for actions authorized by this section that are above the usual level of service provided by the state agency to expedite the review of environmental documents prepared pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code or permit processing and approval for the Anderson Dam project with the goal of completing permit review and approval in an expeditious manner.
(2) Hire or compensate staff or contract for services needed to achieve the goal described in paragraph (1).
(3) Work collaboratively with local, state, and federal agencies on an integrated regulatory approach similar to efforts implemented by the state permitting agencies for projects funded by the San Francisco Bay Area Measure AA, the San Francisco Bay Clean Water, Pollution Prevention and Habitat Restoration Program.
(c) (1) This section does not limit or expand the authority or discretion of a state agency with regards to processing a permit application, the issuance of a permit, or any conditions that may be required in conjunction with the issuance of a permit.
(2) This section does not affect the district’s ability to phase the permitting or construction of the Anderson Dam project.
(d) The Federal Energy Regulatory Commission, the United States Army Corps of Engineers, the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the United States Environmental Protection Agency may, and are encouraged to, participate in any integrated regulatory approach authorized by this section.
(e) (1) The district shall issue an environmental impact report pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code for the implementation of measures set forth in the settlement agreement to benefit fisheries in the Stevens Creek and the Guadalupe River watersheds as follows:
(A) The draft environmental impact report shall be issued not later than April 15, 2021.
(B) The final environmental impact report shall be certified no later than six months after the close of public comments.
(2) The district shall petition the State Water Resources Control Board, not more than 60 days following the issuance of the draft environmental impact report, to amend the district’s water rights to implement the settlement agreement to benefit the fisheries in Stevens Creek and the Guadalupe River. The measures implemented by the district to benefit fisheries in Stevens Creek and the Guadalupe River shall be consistent with measures included in the final environmental impact report and with applicable permits.
(3) The district shall cooperate with the State Water Resources Control Board in the completion of the environmental impact report and the water rights petition.
(f) (1) The district shall work expeditiously to issue a draft environmental impact report pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code for the removal and replacement of the Anderson Dam, including those Coyote Creek-related Phase 1 flow and nonflow measures of the settlement agreement deemed appropriate.
(2) The district shall complete those Coyote Creek-related Phase 1 measures as part of the project, sequenced as necessary for prudent project management and fisheries considerations.
(g) (1) The district shall convene the parties of the adaptive management team described in Article VII of the settlement agreement by November 1, 2020.
(2) The district shall develop, in consultation with the adaptive management team, the Adaptive Management Program as described in Article VII of the settlement agreement, and begin implementation of that program by January 31, 2022, or within one month of completion of state and federal regulatory approvals that may be necessary to commence the program.
(h) The district, by October 15, 2020, in conjunction with the State Water Resources Control Board and the initialing parties of the settlement agreement, and within the requirements of applicable law and the district’s existing water rights, shall implement a pilot project to implement a new flow regime, known as FAHCE+, in the Guadalupe River and Stevens Creek. The pilot project shall include monitoring of the effects of those flow releases on physical habitat and biological resources.
(i) The district, by January 1, 2021, shall work with interested stakeholders, including the initialing parties of the settlement agreement, to engage and discuss with the Guadalupe River Flood Control Project Adaptive Management Team the development of a Guadalupe River Corridor Restoration Management Plan pursuant to the Science Panel Recommendations of 2011. By January 1, 2022, the district shall complete its evaluation of the proposal and make a recommendation to the district’s board regarding implementation of the plan development.

SEC. 6.

 Section 13160.2 is added to the Water Code, to read:

13160.2.
 (a) For purposes of this section, the following definitions apply:
(1) “Anderson Dam project” or “project” has the same meaning as set forth in Section 6700.
(2) “District” means the Santa Clara Valley Water District.
(3) “Project certification” means water quality certification issued under Section 13160 for any federal permit or license for the Anderson Dam project.
(b) Before filing an application for project certification in accordance with Section 3855 of Title 23 of the California Code of Regulations, the district shall consult with the state board and the San Francisco Bay Regional Water Quality Control Board. The district shall initiate consultation within 60 days after the effective date of the act that added this section and meetings pursuant to the consultation shall occur no less frequently than once every 60 days thereafter until the project is fully certified.
(c) Notwithstanding any other law, the state board shall issue project certification within 180 days after the district does all of the following:
(1) Files a complete application for project certification.
(2) (A) Files a complete application or petition for all water rights approvals necessary to implement the Anderson Dam project.
(B) Subparagraph (A) does not apply to any project certification for the public safety measures ordered by the Federal Energy Regulatory Commission on February 20, 2020.
(3) Completes and certifies the adequacy of environmental documentation for the project certification required under Division 13 (commencing with Section 21000) of the Public Resources Code.
(d) The following procedures and requirements shall govern the determination of whether an application is complete for purposes of subdivision (c):
(1) (A) The state board shall notify the district in writing whether the submittal is complete not later than 30 days after the submittal of an application or petition under paragraph (1) or (2) of subdivision (c). If the submittal is determined to be incomplete, the state board shall provide the district with a written notification that includes an exhaustive list of specific items that were complete and that were incomplete, and indicates the manner in which incompleted items can be made complete, including a list and thorough description of the specific information needed to complete the application or petition. The list shall be limited to those items actually required by the state board under applicable law. After the list is issued, the state board shall not request or require the district to provide any new or additional information that was not specifically identified in the initial list of items found to be incomplete. No list shall include an extension or waiver of any of the time periods prescribed by this section.
(B) If the state board does not provide the district with a written notification that includes a list of specific items that are complete and incomplete within 30 days after receipt of the initial application or petition, the application or petition shall be deemed complete.
(2) If the state board provides the written notification required by paragraph (1) determining that the application or petition is incomplete, the district shall act within 45 days to submit supplemental materials in order to complete the application or petition or to appeal the determination, in whole or in part, pursuant to paragraph (4).
(3) (A) Upon receipt of any supplemental materials from the district, the state board shall, within 30 days of receipt, determine the completeness of the application or petition as supplemented with the supplemental material, and whether to issue the notification required by this section. In making this determination, the state board is limited to determining whether the application or petition as supplemented includes the information specified in the state board’s prior notification of incompleteness.
(B) If the supplemented application or petition is again determined not to be complete, the state board shall provide the district with a written notification specifying those parts of the supplemented application or petition that are still incomplete and indicate the manner in which they can be made complete, including a list and thorough description of the specific information needed to complete the application or petition.
(C) If the state board determines that the application or petition as supplemented is still incomplete and provides the written notification required by this paragraph, the district shall act within 30 days to submit additional supplemental materials in order to complete the application or petition, or to appeal the determination, in whole or in part, pursuant to paragraph (4).
(D) If the state board does not, within 30 days, provide the district with a written notification specifying those parts of the supplemented application or petition that are still incomplete and indicating the manner in which they can be made complete, the application or petition as supplemented shall be deemed complete for purposes of this section.
(E) If the district elects to supplement a previously supplemented application or petition, the deadlines and obligations set forth in this paragraph shall also apply to any supplemented application or petition.
(F) The state board may, in the course of processing the application, request the district to clarify, amplify, correct, or otherwise supplement the information required for the application under subparagraph (A) of paragraph (1). A request for information under this subparagraph shall not affect the deadlines under this subdivision or subdivision (c).
(4) The district may appeal, in whole or in part, any state board determination under paragraph (1) or (3) to the state board and the state board shall act on the appeal in accordance with subdivision (c) of Section 65943 of the Government Code. Within 30 days of the timely issuance by the state board of its final written determination of appeal, the district may challenge the determination in court.
(e) This section does not supersede or otherwise amend any deadlines set forth by or in the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.).

SEC. 7.

 The Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the findings set forth in Section 1 of this act.

SEC. 8.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 9.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 10.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
The Leroy Anderson Dam, located in the County of Santa Clara, has been determined by local, state, and federal officials to be at risk of an uncontrolled release of water caused by an earthquake. A breach of the dam at full capacity would have catastrophic consequences for life and property, inundating an area extending more than 30 miles northwest to San Francisco Bay, including the Cities of Milpitas, San Jose, Santa Clara, and Sunnyvale, and more than 40 miles southeast to Monterey Bay, including the Cities of Gilroy, Morgan Hill, and Watsonville. Expedited action by state government is necessary in order to reduce the risk to life and property and the state and national economies. Therefore, it is necessary that this act take effect immediately.