In an effort to modernize infrastructure development in California, the state Legislature passed three bills in 2023 aimed at reforming the regulatory framework governing the design-build procurement process and environmental review procedures. Senate Bill 706 (Caballero) (“SB 706”), Assembly Bill 400 (Rubio) (“AB 400”), and Senate Bill 149 (Caballero) (“SB 149”).
SB 706: Enhancement of the Progressive Design Build Process
SB 706 represents a significant expansion of Progressive Design-Build (“PDB”) authority for local agencies. PDB’s procurement process involves selecting a single entity, typically a design-build team, based on qualifications rather than traditional bidding methods. This organization is tasked with overseeing both the design and construction phases of the project.
The new law expands and expands the use of the PDB process throughout California. SB 706 would give additional authority to local agencies, such as cities, counties, cities and counties, or special districts, to use the PDB process for up to 10 public projects over $5 million. Specifically, the bill extends the sunset date to January 1, 2030.
Additionally, the bill expands the scope of eligible projects and is not limited to water-related projects, unlike Senate Bill 991 (Newman) for the 2021-2022 session. These changes will give local agencies the flexibility to utilize the PDB process for a variety of public works initiatives, making it more adaptable to meet the diverse needs of communities across California.
AB 400: Expansion of Transportation Development
AB 400 expands the scope of eligible entities authorized to utilize design-build contracts for public works projects under Sections 22160 et seq. of the Public Contracts Act. This legislation revises the definition of “local agency” for purposes of design-build contract procurements in Section 22161(f)(3) of the Public Contracts Act. AB 400 expanded this definition to include any joint powers authority responsible for the construction of a transportation project. This is a change from the previous wording “any joint powers authority established for the provision of transport services”.
The complete list of local agencies authorized to use design-build authority is currently compromised by:
- City, county, or city and county.
- Special districts that operate wastewater facilities, solid waste management facilities, water recycling facilities, or fire protection facilities.
- Transportation districts, including transportation districts, municipal operators, municipal operators, consolidated agencies, joint powers authorities, counties established pursuant to Section 130050 of the Public Utilities Code, as described in Section 132353.1 of the Public Utilities Code. A transportation commission or other local or regional agency responsible for the construction of a transportation project.
- San Diego Association of Governments, by reference to the San Diego Regional Transportation Integration Act (Chapter 3 (commencing with Section 132350) of Article 12.7 of the Public Utilities Code).
- Stanislaus Regional Water District.
AB 400 also extends the repeal date for these provisions to January 1, 2031.
SB 149: Streamlining CEQA procedures
In an effort to streamline the environmental review process and expedite project approvals, SB 149 introduced significant reforms to the California Environmental Quality Act (“CEQA”) administrative and judicial procedures. This legislation is intended to streamline the process of creating dockets and facilitate expedited judicial proceedings on certain projects certified by the Governor.
CEQA requires lead agencies to prepare and certify the completion of environmental impact reports (“EIRs”) for projects that have potentially significant environmental impacts. In addition, a mitigated negative declaration can be made if modifications to the project could avoid or reduce significant environmental impacts. SB 149 authorizes a public agency to create a record of action even if the petitioner elects to create a record of action and provides notice of such election. Upon receipt of the claimant’s notification, the public authority must notify the claimant or claimant of this decision and cover the preparation costs within five working days, regardless of the outcome of the case. Additionally, SB 149 requires courts to schedule a case management conference within 30 days of filing a case to review the scope, timing, and cost of the docket.
Extensions to the 60-day deadline for production of records may only be granted by agreement of all parties or by court order. Additionally, the law requires records to be submitted in electronic format and clarifies that certain logistics communications, such as meeting invitations and scheduling communications, are excluded from the scope of “internal agency communications.” I am.
This legislation extends the Governor’s authority to certify projects under the Environmental Leadership Act of 2021 Jobs and Economic Improvement Act (the “Leadership Act”) until January 1, 2032. If the lead agency does not approve her Governor-certified project by January 1, 2033, the certificate will be invalidated. The Leadership Act is scheduled to be repealed on January 1, 2034.
Additionally, SB 149 establishes procedures for creating a record of proceedings for projects certified by the Governor as infrastructure projects. Public Resources Code Section 21189.81 defines an “infrastructure project” as: (1) an energy infrastructure project, (2) a semiconductor or microelectronics project, (3) a transportation-related project, or (4) a water-related project . . Any lawsuit or proceeding challenging the certification of an EIR or project approval must be resolved within 270 days after the record of the proceeding is filed with the court. This allows project applicants to seek certification from the governor for infrastructure projects, and requires lead agencies to publicize project certification within 10 days. Similar to the changes in the Leadership Act, if the lead agency does not approve he certified infrastructure project by January 1, 2033, the certification will become invalid. These provisions are scheduled to be repealed on January 1, 2034.
Additionally, SB 149 appropriates $1,000,000 from the General Fund to the Judicial Council for the training of judicial officers to implement these provisions.
If you have further questions about the new changes, we strongly recommend that you contact your legal advisor for advice.
Special thanks to Farrah Ghaffarirafi, FCPPG Legal Secretary, for her extensive work on this alert.