planning commissioner workshop series #4 (apa...

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

■ What is CEQA o Introduction

o Rules

o Participants

o Process

■ The EIR

o Existing conditions and baseline

o What is a significant impact

o Mitigation measures & alternatives

o CEQA & project approvals

■ CEQA Case Law Highlights

Presentation Overview

■ 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

Legislature seeks to

protect California’s natural

and scenic environment

Source: Treehugger.com

Source: lakecombie.com

Introduction: CEQA Origins

Introduction: CEQA Objectives

■ Provide information to the public and decision-

makers 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

■ 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 Objectives

NOE Notice of Exemption

NOP Notice of Preparation

IS Initial Study

ND Negative Declaration

MND Mitigated Negative Declaration

NOI Notice of Intent

EIR Environmental Impact Report

NOA Notice of Availability

DEIR Draft EIR

FEIR Final EIR

MMRP Mitigation, Monitoring and Reporting Program

NOD Notice of Determination

Introduction: CEQA Acronyms

■ The Statute

o 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

The Rules

■ The City

o Guidelines and Procedures for

Implementation of CEQA

■ The BAAQMD

o California Code of Regulations

Title 14, §15000 et seq.

■ Other local and regional

agencies

Lead

Agency

City

Concerned

Citizens and

Organizations

Agencies with

Jurisdiction

by Law

Responsible

Agencies

Trustee

Agencies

Environmental

Consultants

Project

Applicants

Courts

Trustee Agencies

California Department of Fish and Game (fish and wildlife of the state)

State Lands Commission (state-owned sovereign lands)

Department of Parks and Recreation (units of the state park system)

University of California (natural land and water reserves system)

Source: CEQA Deskbook

The Participants: Key Participants

o Local regulatory agencies (i.e., City)

o Federal regulatory agencies

o State regulatory agencies

o Regional regulatory agencies

The Participants: Regulators

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

■ Who is Responsible

o Lead agency

o Responsible agency

o Trustee agency

o Federal agency

■ Who Prepares Documents

o An agency can obtain information from anyone

o Document must reflect lead agency’s independent

judgment

The Participants

■ Action proposed

■ Decide if action is a project

■ Decide if the project is subject to CEQA

■ Decide if the project is exempt

■ If not exempt, prepare an Initial Study (IS)

■ Make an environmental document determination

■ Prepare appropriate environmental document

■ Public review

■ Certify EIR/adopt ND or MND, project approval, findings

■ Notice of Determination

The Process: Key Milestones

■ Pre-application consultation

■ Application submittal

■ Determination that Project is subject to

CEQA

■ Review for exemptions

The Process: Preliminary Review


Is the action a discretionary project?

What is the appropriate document?

Is there a possibility that the project may have a

significant impact?

Is the project exempt?

The Process: What is a Project

■ “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


“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)


“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

■ Discretionary Projects

o Tentative Maps

o General Plans

o Conditional Use Permits

■ Ministerial Projects

o Drivers Licenses

o Demolition Permits

o Building Permits


Project

Project • Build 50 new homes

• New big box shopping center

• Install a new roof

• 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 Timberland preserves

o Adoption of Coastal plans and

programs

o General plan time extension

o Financial assistance to low or

moderate income housing

o Ministerial projects

o Emergency projects

o Projects which are disapproved

o Early activities related to thermal

power plants

o Olympic games

o Rates, tolls, fares and charges

o Family day care homes

o Specified mass transit projects

o State and regional transportation

improvement programs

o Projects located outside California

o Application of coatings

o Housing for agricultural employees

o Low income housing

o Air quality permits

The Process: Categorical Exemptions

o Existing facilities

o Reconstruction

o Small structures

o Minor alterations to land

o Minor alterations to land use

o Information collection

o Actions by regulatory agencies for

natural resources protection

o Actions by regulatory agencies for

protection of the environment

o Inspection

o Loans

o Accessory structures

o Surplus property sales

o Land acquisition for wildlife

conservation

o Minor additions to school

o Minor land divisions

o Transfer of ownership for parks

The Process: Exemptions

■ 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

■ Environmental Review Documents

o Initial Studies (IS)

o Negative Declarations (ND)

o Mitigated Negative Declarations (MND)

o Environmental Impact Reports (EIR)

o Addenda

■ First Question to decide Which Document:

Fair Argument Standard

o Legal Standard - EIR is required if fair argument

exists that a project may have a significant effect on

the environment

o Fair argument must be backed by substantial

evidence

o 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

The Process: What is Substantial Evidence?

■ 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

(30 days)

Prepare Draft

ND/MND

Independent review

By Lead Agency

Public Review

File Notice of

Determinatio

n

Adoption of

ND/MND

Opportunity for Public/Agency

Input

Project

Approval

Findings

adopted

Prepare Final

ND/MND

■ Notice of Intent to Adopt

■ Send to responsible and trustee agencies

■ 15 copies to clearinghouse, if state agencies involved

■ 20 or 30 day public review

■ No public hearing necessary for CEQA

■ Public comments must be considered. No written response

necessary, but it is good practice

■ Adoption of ND/MND

■ Project approval

■ File Notice of Determination

ND/MND Process Highlights

The Process: Overview of EIR Process

Prepare

Initial Study

(optional)

& Notice of

Preparation Distribute Notice

of Preparation

(30 days)

Scoping

Meeting

Public & Agency Review

of Draft EIR (45 days)

Prepare

Draft EIR

Independent review

By Lead Agency

Public Meeting on

Draft EIR (optional)

Prepare Final EIR

Including Response

to Comments

Review of Responses

by Commenters

Public Hearings/

Decisions

File Notice of

Determinatio

n

EIR

Certification

Opportunity for Public/Agency Input

Project

Approval

Findings

adopted

MMRP

adopted

The EIR: Preparing the Document

■ Draft EIR

o Identify project objectives

o Define project

o Develop alternatives

Aesthetics

Agriculture & Forestry

Resources

Air quality

Biology

Cultural Resources

Energy

Geology/Soils/Seismicity

Greenhouse Gas Emissions

Hazards & Hazardous Materials

Hydrology/Water Quality

Land Use & Planning

Mineral Resources

Noise

Population & Housing

Public Services & Utilities

Recreation

Transportation/Traffic

The EIR: Typical Impact Analysis Issues

The EIR: Preparing the Draft EIR

■ Environmental Setting and Baseline

o Describe existing physical conditions

o Normally baseline for environmental analysis are the

conditions at time of NOP

o A different baseline defined by past conditions may be

permitted in certain situations

o The setting description should be no longer than

necessary to support an analysis of the significant effects

of the proposed project


■ Impact Analysis

o Determine significance criteria

o Evaluate impacts

o Identify and recommend feasible mitigation measures

for each impact


Significance Threshold

Less than significant

Mitigation required

Degre

e o

f Im

pact

■ Impact Analysis: How is it determined if the

change is substantial?

o Define threshold

o Determine net change

o Assess if the change will exceed threshold


■ Impact Analysis: How is it determined if the

change is substantial?

LOS A

Source: Fehr & Peers


■ Impact Analysis: Consider short- and long-

term impacts for all phases:

o Direct

- Increased traffic

- Increased emissions

o Indirect

- Increase park use due to improved access

o Growth-inducing

- Access to previously undeveloped property

o Cumulative

Short-term: Construction

Long-term: Project Operation


■ Impact Analysis: Substantial Evidence

o Must be based on

• facts

• reasonable assumptions based on facts

• expert opinion based on facts

o 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


■ Mitigation– required for all significant

environmental impacts

o Avoid

o Minimize

o Reduce or eliminate over time

o Compensate

- Mitigation Bank

Source: peninsulaclarion.com


■ 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


■ Project Alternatives

o Consider range of reasonable alternatives

- Avoids or lessens an impact

- Feasible

- Meet most of the project’s objectives

o Mandatory alternatives

- No Project alternative

- Identify Environmentally Superior alternative


■ Cumulative Effects

o Incremental impact of the project when

added to other closely related past, present,

and reasonably foreseeable probable future

projects

o Effects that are individually limited but

cumulatively considerable

The EIR: Responses to Comments and Final EIR

■ 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

■ Mitigation Monitoring and Reporting Program (MMRP)

o Reporting or monitoring program required to ensure compliance

during project implementation

o MMRP must be enforceable through permit conditions,

agreements or other measures

o MMRP provided as part of Final EIR, not required to be circulated

with Draft EIR

o Lead Agency must adopt MMRP

o Adoption of MMRP is done in conjunction with approval of project

- EIR/MND can be certified but action not taken on project itself

o 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 Distribute Notice

of Preparation

(30 days)

Scoping

Meeting

Public & Agency

Review

of Draft EIR (45 days)

Prepare

Draft EIR

Independent review

By Lead Agency

Public Meeting on

Draft EIR (optional)

Prepare Final EIR

Including Response

to Comments

Review of Responses

by Commenters

Public Hearings/

Decisions

File Notice of

Determination

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 Is in compliance with CEQA

o Was reviewed and considered by the decision-

making body

o Represents the lead agency’s independent

judgment and analysis

The EIR: Project Approval

■ Statement of Overriding Considerations

o Reasons to approve a project where significant

environmental impacts are not avoided or

substantially lessened below significance

o Supported by substantial evidence in the record

o Reasons can be economic, legal, social,

technological or other

Notice of Determination (NOD)

■ 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

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 Case Law Highlights

CEQA Modernization Act of 2013

Senator Steinberg’s CEQA bill – Senate

Bill No. 731

CEQA Reform ? ? ?

CEQA Statutes & Guidelines searchable interface

http://ceres.ca.gov/ceqa/

California Governor’s Office of Planning and Research (OPR)

http://www.opr.ca.gov/

Association of Environmental Professionals

CEQA Deskbook: A Step-by-Step approach

For More Information

Acknowledgments

THANK YOU FOR ATTENDING