CEQA 101 Presentation - Northern California Chapter of the

PLANNING COMMISSIONER WORKSHOP
SERIES #4 (APA CALIFORNIA NORTHERN)
CEQA 101 & NEW
BAAQMD CEQA GUIDELINES
June 1, 2013
Lynette Dias, AICP
Principal
■
Urban Planning Partners, Inc.
www.up-partners.com
[email protected]
Colette Meunier, AICP
■
Consulting Planner
[email protected]
CEQA 101
Presentation Overview
■ What is CEQA
o
o
o
o
Introduction
Rules
Participants
Process
■ The EIR
o
o
o
o
Existing conditions and baseline
What is a significant impact
Mitigation measures & alternatives
CEQA & project approvals
■ CEQA Case Law Highlights
Introduction: CEQA Origins
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■
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1969: President Nixon signs
National Environmental Policy Act
1970: Governor Reagan signs
California Environmental Quality Act
CEQA (the Statute): Established by
State Legislature - periodically modified
by Legislature & interpreted by the Courts
Source: Treehugger.com
Source: lakecombie.com
Legislature seeks to
protect California’s natural
and scenic environment
Introduction: CEQA Objectives
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■
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Provide information to the public and decisionmakers about the potential significant environmental
impacts of a proposed project
Identify ways to avoid or reduce significant impact(s)
Minimize significant and avoidable impacts to the
environment by using feasible alternatives and
mitigation
Disclose to the public the reasons a project is
approved even if it will have some significant adverse
impacts
Introduction: CEQA Objectives
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■
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Fullest possible protection to the environment
Decision-making with environmental consequences
in mind
Does not require that projects with significant
impacts be denied. If City finds economic, social or
other conditions, justify approval
Source: SF Gate, February 28, 2011
Introduction: CEQA Acronyms
NOE
NOP
IS
ND
MND
NOI
EIR
NOA
DEIR
FEIR
MMRP
NOD
Notice of Exemption
Notice of Preparation
Initial Study
Negative Declaration
Mitigated Negative Declaration
Notice of Intent
Environmental Impact Report
Notice of Availability
Draft EIR
Final EIR
Mitigation, Monitoring and Reporting Program
Notice of Determination
The Rules
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The Statute
o
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Public Resources Code § 21000-21178
The Guidelines – first issued in 1973
o
California Code of Regulations, Title 14, §15000 et seq.
o
Developed by Office of the Planning and Research
o
Last updated March 2010
The Courts
The Rules
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The City
o
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The BAAQMD
o
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Guidelines and Procedures for
Implementation of CEQA
California Code of Regulations
Title 14, §15000 et seq.
Other local and regional
agencies
The Participants: Key Participants
Agencies with
Jurisdiction
by Law
Concerned
Citizens and
Organizations
Responsible
Agencies
Lead
Agency
Courts
City
Environmental
Consultants
Trustee
Agencies
Trustee Agencies
Project
Applicants
California Department of Fish and Game
(fish and wildlife of the state)
State Lands Commission
(state-owned sovereign lands)
Department of Parks and Recreation
Source: CEQA Deskbook
(units of the state park system)
University of California
(natural land and water reserves system)
The Participants: Regulators
o
Local regulatory agencies (i.e., City)
o
Federal regulatory agencies
o
State regulatory agencies
o
Regional regulatory agencies
The Participants
o
Project sponsors (private and public)
o
Environmental and resource advocates
o
Private property, commercial and labor groups
o
Local interested parties
o
Individuals
The Participants
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Who is Responsible
o
Lead agency
o
Responsible agency
o
Trustee agency
o
Federal agency
Who Prepares Documents
o
o
An agency can obtain information from anyone
Document must reflect lead agency’s independent
judgment
The Process: Key Milestones
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Action proposed
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Decide if action is a project
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Decide if the project is subject to CEQA
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Decide if the project is exempt
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If not exempt, prepare an Initial Study (IS)
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Make an environmental document determination
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Prepare appropriate environmental document
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Public review
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Certify EIR/adopt ND or MND, project approval, findings
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Notice of Determination
The Process: Preliminary Review
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Pre-application consultation
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Application submittal
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Determination that Project is subject to
CEQA
Review for exemptions
The Process: Preliminary Review
Is the action a
discretionary project?
Is the project
exempt?
Is there a possibility that
the project may have a
significant impact?
What is the
appropriate
document?
The Process: Preliminary Review
The Process: Preliminary Review
The Process: What is a Project
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“Project” means
(PRC 21065)
… an activity which may cause either a direct physical change in
the environment, or a reasonably foreseeable indirect physical
change in the environment
■
Requires agency discretionary vs.
ministerial approval
The Process: What is a Project
“Discretionary Project” means
… a project which requires the exercise of
judgment or deliberation when the public agency or
body decides to approve or disapprove a particular
activity, as distinguished from situations where the
public agency or body merely has to determine
whether there has been conformity with applicable
statutes, ordinances or regulations.
(Guidelines Sec. 15357)
The Process: What is a Project
“Ministerial Project” means
… a project which requires a decision applying
fixed, objective standards with little or no personal
judgment by a public official as to the wisdom or
manner of carrying out the project, such as
conforming with applicable zoning and building
codes, and paying fees.
(Guidelines Secs. 15268, 15369)
The Process: Discretionary vs.
Ministerial
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Discretionary Projects
o
Tentative Maps
o
General Plans
o
Conditional Use Permits
Ministerial Projects
o
Drivers Licenses
o
Demolition Permits
o
Building Permits
The Process: What is a Project
Project
Project
• Build 50 new homes
• Install a new roof
• New big box shopping center
• New lease for big box
use in existing building
The Process: Statutory Exemptions
(Article 18)
o
Ongoing project
o
Feasibility and planning studies
o
Discharge requirements
o
Olympic games
o
Timberland preserves
o
Rates, tolls, fares and charges
Adoption of Coastal plans and
programs
o
Family day care homes
o
Specified mass transit projects
o
o
Early activities related to thermal
power plants
General plan time extension
o
Financial assistance to low or
moderate income housing
o
Projects located outside California
o
Ministerial projects
o
Application of coatings
o
Emergency projects
o
Housing for agricultural employees
o
Projects which are disapproved
o
Low income housing
o
Air quality permits
o
o
State and regional transportation
improvement programs
The Process: Categorical Exemptions
o
Existing facilities
o
Inspection
o
Reconstruction
o
Loans
o
Small structures
o
Accessory structures
o
Minor alterations to land
o
Surplus property sales
o
Minor alterations to land use
o
o
Information collection
o
o
Actions by regulatory agencies for
natural resources protection
Actions by regulatory agencies for
protection of the environment
Land acquisition for wildlife
conservation
o
Minor additions to school
o
Minor land divisions
o
Transfer of ownership for parks
The Process: Exemptions
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Statutory Exemptions are absolute; Categorical exemptions
are not absolute, if there are unusual circumstances
o
Section 15300.2 exceptions:
• Location
• Cumulative Impact
• Significant Effect
• Scenic Highways
• Hazardous Waste Sites
• Historical Resources
■
Filing the NOE shortens the statute from 180 to 35 days
The Process: CEQA Documents
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Environmental Review Documents
o
Initial Studies (IS)
o
Negative Declarations (ND)
o
Mitigated Negative Declarations (MND)
o
Environmental Impact Reports (EIR)
o
Addenda
The Process
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First Question to decide Which Document:
Fair Argument Standard
o
o
o
Legal Standard - EIR is required if fair argument
exists that a project may have a significant effect on
the environment
Fair argument must be backed by substantial
evidence
Generally does not matter how much evidence
supports the opposite conclusion of less than
significant
The Process
Definition of “Significant effect on environment”
…
Substantial, or potentially substantial, adverse change in
any of the physical conditions within the area affected by the
project including land, air, water, minerals, flora, fauna,
ambient noise, and objects of historic or aesthetic significance.
A social or economic change by itself shall not be considered a
significant effect on the environment.
(CCR §15382)
The Process: What is Substantial
Evidence?
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Includes facts, reasonable assumptions
based on facts, expert opinion based on
facts
Does not include argument, speculation,
unsubstantiated opinion, erroneous
information
PRC §21080(e) statutory description
ND/MNDs: Overview
Prepare
Initial Study
(optional)
& Notice of
Preparation
Distribute Notice
of Preparation Independent review
By Lead Agency
(30 days)
Prepare Draft
ND/MND
Prepare Final
ND/MND
Public Review
Adoption of
ND/MND
Opportunity for Public/Agency
Input
Project
Approval
Findings
adopted
File Notice of
Determinatio
n
ND/MND Process Highlights
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Notice of Intent to Adopt
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Send to responsible and trustee agencies
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15 copies to clearinghouse, if state agencies involved
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20 or 30 day public review
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No public hearing necessary for CEQA
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Public comments must be considered. No written response
necessary, but it is good practice
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Adoption of ND/MND
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Project approval
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File Notice of Determination
The Process: Overview of EIR Process
Prepare
Initial Study
(optional)
& Notice of
Preparation
Scoping
Meeting
Distribute Notice
of Preparation
(30 days)
Independent review Public Meeting on
Draft EIR (optional)
By Lead Agency
Prepare
Draft EIR
Review of Responses
by Commenters
Public & Agency Review Prepare Final EIR
of Draft EIR (45 days) Including Response
to Comments
Public Hearings/
Decisions
EIR
Certification
Opportunity for Public/Agency Input
Findings
adopted
File Notice of
Determinatio
n
Project
Approval
MMRP
adopted
The EIR: Preparing the Document
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Draft EIR
o
Identify project objectives
o
Define project
o
Develop alternatives
The EIR: Typical Impact Analysis Issues
Aesthetics
Hazards & Hazardous Materials
Agriculture & Forestry
Resources
Hydrology/Water Quality
Air quality
Biology
Cultural Resources
Energy
Geology/Soils/Seismicity
Greenhouse Gas Emissions
Land Use & Planning
Mineral Resources
Noise
Population & Housing
Public Services & Utilities
Recreation
Transportation/Traffic
The EIR: Preparing the Draft EIR
Environmental Setting and Baseline
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o
o
o
o
Describe existing physical conditions
Normally baseline for environmental analysis are the
conditions at time of NOP
A different baseline defined by past conditions may be
permitted in certain situations
The setting description should be no longer than
necessary to support an analysis of the significant effects
of the proposed project
The EIR: Preparing the Draft EIR
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Impact Analysis
o
Determine significance criteria
o
Evaluate impacts
o
Identify and recommend feasible mitigation measures
for each impact
The EIR: Preparing the Draft EIR
Impact Analysis: How is it determined if the
change is substantial?
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Define threshold
o
Determine net change
o
Assess if the change will exceed threshold
Mitigation required
Significance Threshold
Less than significant
Degree of Impact
o
The EIR: Preparing the Draft EIR
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Impact Analysis: How is it determined if the
change is substantial?
LOS A
Source: Fehr & Peers
The EIR: Preparing the Draft EIR
Impact Analysis: Consider short- and longterm impacts for all phases:
Short-term:
■
o
o
Direct
-
Increased traffic
-
Increased emissions
Indirect
-
o
Long-term:
Project Operation
Increase park use due to improved access
Growth-inducing
-
o
Construction
Access to previously undeveloped property
Cumulative
The EIR: Preparing the Draft EIR
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Impact Analysis: Substantial Evidence
o
o
Must be based on
•
facts
•
reasonable assumptions based on facts
•
expert opinion based on facts
Does not include
•
argument
•
speculation
•
unsubstantiated opinion
•
erroneous information
•
NIMBY
■
Ms. Pink does not think solar
panels should be developed
■
Mr. Smith does not think a
stop light should be installed
The EIR: Preparing the Draft EIR
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Mitigation– required for all significant
environmental impacts
o
Avoid
o
Minimize
o
Reduce or eliminate over time
o
Compensate
- Mitigation Bank
Source: peninsulaclarion.com
The EIR: Preparing the Draft EIR
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Mitigation Measures
o
Nexus
o
In the public interest
o
Roughly proportional to impact
o
Feasible
100 new homes
= New tot lot
= New stop light
≠ New Art Museum
The EIR: Preparing the Draft EIR
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Project Alternatives
o
o
Consider range of reasonable alternatives
-
Avoids or lessens an impact
-
Feasible
-
Meet most of the project’s objectives
Mandatory alternatives
-
No Project alternative
-
Identify Environmentally Superior alternative
The EIR: Preparing the Draft EIR
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Cumulative Effects
o
o
Incremental impact of the project when
added to other closely related past, present,
and reasonably foreseeable probable future
projects
Effects that are individually limited but
cumulatively considerable
The EIR:
Responses to Comments and Final EIR
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List of commenters
Written responses to comments received that address
the adequacy of the Draft EIR
■
Responses must include good-faith reasoned analysis
■
Text revisions to Draft EIR
■
No separate review period required
■
Provide written response to commenting agencies 10
days prior to certification
The EIR: MMRP
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Mitigation Monitoring and Reporting Program (MMRP)
o
o
o
o
o
o
Reporting or monitoring program required to ensure compliance
during project implementation
MMRP must be enforceable through permit conditions,
agreements or other measures
MMRP provided as part of Final EIR, not required to be circulated
with Draft EIR
Lead Agency must adopt MMRP
Adoption of MMRP is done in conjunction with approval of project
- EIR/MND can be certified but action not taken on project itself
MMRP may be delayed to be acted upon at time of project
approval
The EIR: Certification and Project
Approval
Prepare
Initial Study
& Notice of
Preparation
Scoping
Meeting
Independent review Public Meeting on
Draft EIR (optional)
By Lead Agency
Review of Responses
by Commenters
File Notice of
Determination
Distribute Notice
of Preparation
(30 days)
Prepare
Draft EIR
Prepare Final EIR
Public & Agency
Including Response
Review
of Draft EIR (45 days) to Comments
Public Hearings/
Decisions
EIR
Certification
Opportunity for Public/Agency Input
Project
Approval
Findings
adopted
MMRP
adopted
The EIR: Certification and Findings
■
EIR Certification—Before approving a project,
a Lead Agency must certify that the Final EIR:
o
o
o
Is in compliance with CEQA
Was reviewed and considered by the decisionmaking body
Represents the lead agency’s independent
judgment and analysis
The EIR: Project Approval
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Statement of Overriding Considerations
o
o
o
Reasons to approve a project where significant
environmental impacts are not avoided or
substantially lessened below significance
Supported by substantial evidence in the record
Reasons can be economic, legal, social,
technological or other
Notice of Determination (NOD)
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Must file with County Clerk (and with OPR if
state discretionary approval is required)
Must contain a statement that EIR or MND
was prepared and certified or adopted
pursuant to CEQA
Filing and posting of NOD commences
running of 30 day statute of limitations
CEQA Case Law Highlights
Cases of Interest
Three Cases On The Outer Edges
CEQA Case Law Highlights
5 Cases pending before the California Supreme Court
•
unusual circumstances limitation on exemptions (Berkeley
Hillside Preservation v. City of Berkeley)
•
setting the baseline (Neighbors for Smart Rail v. Exposition
Metro Line Construction Authority)
•
•
application of CEQA to council enactment of measures
which qualify as initiatives on local ballots (Tuolumne Jobs &
Small Business Alliance v. Superior Court); and
mitigation requirements (City of San Diego v. Board of
Trustees, and City of Hayward v. Board of Trustees.)
CEQA Reform ? ? ?

CEQA Modernization Act of 2013
Senator Steinberg’s CEQA bill – Senate
Bill No. 731
For More Information
CEQA Statutes & Guidelines searchable interface
http://ceres.ca.gov/ceqa/
California Governor’s Office of Planning and Research (OPR)
http://www.opr.ca.gov/
Acknowledgments
Association of Environmental Professionals
CEQA Deskbook: A Step-by-Step approach
THANK YOU FOR
ATTENDING