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ACA-2 Water Resiliency Act of 2024.(2023-2024)



Current Version: 03/06/24 - Amended Assembly

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ACA2:v98#DOCUMENT

Amended  IN  Assembly  March 06, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Constitutional Amendment
No. 2

Introduced by Assembly Member Alanis

December 05, 2022

A resolution to propose to the people of the State of California an amendment to the Constitution of the State, by adding Section 24 to Article XVI thereof, Article X C thereto, relating to public resources. water.


LEGISLATIVE COUNSEL'S DIGEST


ACA 2, as amended, Alanis. Public resources: Water and Wildfire Resiliency Act of 2023. Water Resiliency Act of 2024.
The California Constitution declares that the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable, and that the right to the use of water does not extend to the waste or unreasonable use, method of use, or method of diversion of water.
This measure would require the Treasurer to annually transfer an amount equal to 1.5% of all state revenues from the General Fund to the California Water Resiliency Trust Fund, which the measure would create. The measure would continuously appropriate moneys in the fund to the California Water Commission for its actual costs of implementing these provisions and for specified water infrastructure projects.
The measure would require the California State Auditor to annually conduct a programmatic review and an audit of expenditures from the California Water Resiliency Trust Fund and to report those findings, as specified. The measure would authorize a project funded pursuant to these provisions to elect to be subject to a streamlined review pursuant to the California Environmental Quality Act, as specified.
The measure would provide that its provisions are severable and would require the Attorney General to defend against any action challenging the validity of the measure, except as provided.

Existing provisions of the California Constitution require the specified use of General Fund revenues, as described.

This measure would establish the Water and Wildfire Resiliency Fund within the State Treasury, and would require the Treasurer to annually transfer an amount equal to 3% of all state revenues that may be appropriated as described from the General Fund to the Water and Wildfire Resiliency Fund. The measure would require the moneys in the fund to be appropriated by the Legislature and would require that 50% of the moneys in the fund be used for water projects, as specified, and that the other 50% of the moneys in the fund be used for forest maintenance and health projects, as specified.

Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

Resolved, That this measure shall be known, and may be cited, as the Water and Wildfire Resiliency Act of 2023; and be it further

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 2023–24 Regular Session commencing on the fifth day of December 2022, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

First—

 This measure shall be known, and may be cited, as the Water Resiliency Act of 2024.

Second—

 That Article X C is added thereto, to read:
Article  X C Water Infrastructure

SECTION 1.
 (a) The Treasurer shall annually transfer an amount equal to 1.5 percent of all state revenues eligible to be appropriated pursuant to Article XIII B from the General Fund to the California Water Resiliency Trust Fund, which is hereby created in the State Treasury. The first annual transfer shall occur in the first fiscal year following the operative date of this section.
(b) Moneys in the California Water Resiliency Trust Fund are hereby continuously appropriated, notwithstanding Section 13340 of the Government Code and without regard to fiscal years, to the California Water Commission for its actual costs of implementing this section and for all of the following project categories:
(1) Development or expansion of groundwater aquifer storage, remediation, and recovery projects.
(2) Recycling, purification, and treatment of stormwater and wastewater to water reuse standards, including, but not limited to, current drinking water standards at the time the project is approved.
(3) Expansion, repair, or replacement of existing surface reservoirs, and construction of new surface reservoirs.
(4) Desalination plants.
(5) Water conveyance development, maintenance, or expansion for the delivery of clean, safe drinking water for homes and businesses, and water for agricultural uses, consistent with area of origin water rights.
(6) Other projects designed to increase the clean, safe, and affordable supply of water to all Californians with emphasis on California’s disadvantaged and rural communities, and other projects designed to increase conservation.
(7) Research and development of new technologies designed to increase the clean, safe, and affordable supply of water to all Californians, subject to an annual limit of no more than 2 percent of available funds in the California Water Resiliency Trust Fund.
(c) The California Water Commission shall allocate and provide funding from the California Water Resiliency Trust Fund for part or all of a project, or, where applicable, additional funding in an amount necessary to complete a project, which will begin delivery of water to California’s urban and agricultural consumers, subject to the following order of priority:
(1) The project has been approved by the California Water Commission as submitted pursuant to subdivisions (b) and (c) of Section 79750 of the Water Code on or before July 1, 2021.
(2) The project is located in a county with a population of not more than 1,000,000 residents.
(3) The applicant is a public agency, special district, joint powers authority, or a public-private partnership for the entitlement, design, construction, operation, and maintenance of the project, and the project will be owned, in whole or in part, by the applicant.
(4) The applicant is ready and able to commence the project immediately upon issuance of all necessary construction permits and will complete the project and begin delivery of water to California’s urban and agricultural consumers within five years of the allocation.
(5) The applicant is ready and able to commence the project immediately upon issuance of all necessary construction permits and will complete the project and begin delivery of water to California’s urban and agricultural consumers within a reasonable period of time.
(d) This section is intended to supplement, and not supplant, existing funding for water infrastructure projects. Therefore, any funding provided for a project by this section shall not preempt, nullify, or in any way impede any existing funding for these projects, to the extent work has begun or will be performed on the projects on or after the operative date of this section.

SEC. 2.
 (a) (1) Projects allocated funding in whole or in part by this article may elect to be subject to streamlined review of an agency’s compliance with Division 13 (commencing with Section 21000) of the Public Resources Code as follows:
(2) For projects electing to be governed by this section, within 10 days of the project’s allocation of funding or certification as described in subdivision (a), the lead agency shall issue a public notice providing the following:
“THE APPLICANT HAS ELECTED TO PROCEED UNDER SECTION 2 OF ARTICLE X C OF THE CALIFORNIA CONSTITUTION, WHICH PROVIDES, AMONG OTHER THINGS, THAT ANY JUDICIAL ACTION CHALLENGING AN AGENCY’S COMPLIANCE WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (DIVISION 13 (COMMENCING WITH SECTION 21000) OF THE PUBLIC RESOURCES CODE) OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE ENVIRONMENTAL DETERMINATION IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTION 2 OF ARTICLE X C OF THE CALIFORNIA CONSTITUTION. A COPY OF SECTION 2 OF ARTICLE X C OF THE CALIFORNIA CONSTITUTION IS INCLUDED BELOW.”
(3) The public notice shall be distributed by the lead agency as required for public notices issued pursuant to paragraph (3) of subdivision (b) of Section 21092 of the Public Resources Code.
(b) Notwithstanding any other law, the procedures set forth in this section shall apply to any action or proceeding brought to attack, review, set aside, void, or annul the certification or approval of any environmental determination or granting of project approvals for a project electing to be governed by this section.
(c) (1) Rules 3.2220 to 3.2237, inclusive, of the California Rules of Court, as may be amended by the Judicial Council, shall apply to an action or proceeding brought to attack, review, set aside, void, or annul the certification or approval of an environmental determination or granting of project approvals for a project electing to be governed by this section, to require the action or proceeding, including any potential appeals therefrom, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court.
(2) For purposes of this section, “environmental determination” means an environmental impact report, mitigated negative declaration, negative declaration, categorical exclusion, a determination that the project is not subject to Division 13 (commencing with Section 21000) of the Public Resources Code, or a determination that no additional environmental review is required.
(d) Notwithstanding any other law, in connection with any environmental review following allocation of funding or certification for a project electing to be governed by this section, the preparation and certification of the administrative record shall be performed in the following manner at the applicant’s expense:
(1) The lead agency or responsible state agency shall prepare the record of proceedings pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code concurrently with the administrative process.
(2) All documents and other materials placed in the record of proceedings after the project’s allocation of funding under this article shall be posted on, and be downloadable from, an internet website maintained by the agency commencing with the date of the release of the project’s draft environmental impact report or other environmental determination.
(3) The agency shall make available to the public in a readily accessible electronic format the project’s draft environmental impact report or other environmental determination and all other documents submitted to, or relied on by, the agency in the preparation of the project’s draft environmental impact report or other environmental determination.
(4) A document prepared by the agency or submitted by the applicant after the date of the release of the project’s draft environmental impact report or other environmental determination that is a part of the record of the proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is released or received by the agency.
(5) The agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make any comment available to the public in a readily accessible electronic format within five business days of receipt.
(6) Within seven business days of receipt of a comment that is not in an electronic format, the agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.
(7) Notwithstanding paragraphs (2) to (6), inclusive, documents submitted to or relied on by the agency that were not prepared specifically for the project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright-protected documents, the agency shall make an index of these documents available in an electronic format no later than the date of the release of the project’s draft environmental impact report or other environmental determination, or within five business days if the document is received or relied on by the agency after the release of the project’s draft environmental impact report or other environmental determination. The index shall specify the libraries or agency offices in which hard copies of the copyrighted materials are available for public review.
(8) The agency shall certify the final record of proceedings within five days of its approval of the project.
(9) Any dispute arising from 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 shall file a motion to augment the record at the time the party files its initial brief.
(10) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6 of the Public Resources Code.
(e) (1) In granting relief in an action or proceeding subject to this section, the court shall not stay or enjoin the construction or operation of a project described in subdivision (a) unless the court finds either that the continued construction or operation of the project presents an imminent threat to public health and safety or that the project site contains unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values that would be materially, permanently, and adversely affected by the continued construction or operation of the project unless the court stays or enjoins the construction or operation of the project.
(2) If the court finds that either condition in paragraph (1) is satisfied, the court shall only enjoin those specific activities associated with the project that present an imminent threat to public health and safety or that materially, permanently, and adversely affect unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values.
(f) With respect to projects described in subdivision (a), for a period of five years after the certification or adoption of the project’s most recent environmental determination, subdivisions (b) and (c) of Section 21166 of the Public Resources Code shall not apply and “substantial changes” as used in subdivision (a) of Section 21166 of the Public Resources Code shall only mean changes to the project that result in more than a 5-percent increase in the project’s total floor area or production capacity, beyond the scope of the project analyzed in the project’s environmental determination.
(g) This section applies prospectively and retroactively to any approvals by a lead agency or a responsible agency for a project electing to proceed pursuant to this section. This section also applies prospectively and retroactively to any such project with any causes of action and claims that are pending as of the operative date of this section and for which no final nonappealable judgment has been entered before the operative date of this section.

SEC. 3.
 (a) The California State Auditor shall annually conduct a programmatic review and an audit of expenditures from the California Water Resiliency Trust Fund created pursuant to this article.
(b) Notwithstanding Section 10231.5 of the Government Code, the California State Auditor shall report its findings under subdivision (a) annually on or before March 1 to the Governor, and to the Legislature in compliance with Section 9795 of the Government Code, and shall publish the findings publicly on its internet website.
(c) If an audit of an entity that receives funding pursuant to this article reveals any impropriety, the California State Auditor or the Controller may conduct a full audit of any or all of the activities of that entity. If the audit reveals erroneous or inappropriate spending of funding received under this article by a public agency, the public agency shall, if the California Water Commission determines the erroneous or inappropriate spending was intentional, repay the moneys to the California Water Commission for deposit into the California Water Resiliency Trust Fund.

Third—

 (a) The provisions of this measure are severable. If any provision of this measure or its application is for any reason held to be invalid or unconstitutional by a final judgment of a court of competent jurisdiction, that decision shall not affect any other provision or application that can be given effect without the invalid provision or application. The Legislature hereby finds and declares that it would have adopted this measure and each and every portion, section, subdivision, paragraph, clause, sentence, phrase, word, and application not declared invalid or unconstitutional irrespective of whether any portion of this measure, or application thereof, is subsequently declared invalid or unconstitutional.
(b) This measure is intended to be comprehensive. It is the intent of the Legislature that if this measure, and acts relating to the same subject, appear on the same statewide election ballot, the provisions of the other act or acts shall be deemed to be in conflict with this measure. If this measure, and one or more conflicting acts, are adopted by the voters in the same election, and this measure receives a greater number of affirmative votes, the provisions of this measure shall prevail in their entirety, and all provisions of the conflicting acts shall be null and void.
(c) (1) Except as provided in paragraph (2), the Attorney General shall defend against any action challenging, in whole or in part, the validity of this measure, and shall have an unconditional right to intervene in any action to defend the validity of this measure.
(2) If the Attorney General declines to defend the validity of this measure in any action, the Attorney General shall nonetheless file an appeal from, or seek review of, any judgment of any court that determines that this measure is invalid, in whole or in part, if necessary or appropriate to preserve the state’s standing to defend the law in conformity with the Attorney General’s constitutional duty to see that the laws of the state are adequately enforced.
(3) Nothing in this section precludes other public officials from asserting the state’s interest in the validity of this measure.
(4) This measure shall be broadly construed, interpreted, and implemented in order to achieve the purposes set forth in this measure.
That Section 24 is added to Article XVI thereof, to read:
SEC. 24.

(a)The Treasurer shall annually transfer an amount equal to 3 percent of all state revenues that may be appropriated pursuant to Article XIII B, from the General Fund to the Water and Wildfire Resiliency Fund, which is hereby created within the State Treasury. The first annual transfer shall occur in the first fiscal year following the effective date of this section.

(b)Moneys in the Water and Wildfire Resiliency Fund are hereby continuously appropriated, notwithstanding Section 13340 of the Government Code, in each fiscal year exclusively for the purposes specified in this subdivision and shall not be appropriated for any other purpose and shall not supplant existing state or local funds used for those purposes. Moneys in the fund shall be appropriated by the Legislature as follows:

(1)Fifty percent of the moneys in fund shall be used for water projects, including, but not limited to, water supply projects, water conveyance projects, water recycling projects, flood safety projects and levy maintenance, seismic retrofitting of existing facilities, desalination, habitat restoration projects, and projects that improve the quality of drinking water.

(2)Fifty percent of the moneys in the fund shall be used for forest maintenance and health projects, including, but not limited to, forest thinning and fuel reduction projects, projects that protect threatened communities, including, but not limited to, home hardening, defensible space, and fuel breaks, and workforce development programs for forest maintenance and fire protection.