2016 CEQA Workshop– The adequacy of a CEQA document is not linked to the merits of the project it...

2016 CEQA Workshop

April 16, 2016

CEQA in Brief

California Environmental Quality Act

• CEQA – it’s a process, not a permit • CEQA neither approves, nor denies, a project

– CEQA provides decision‐makers information about a project’s potential to adversely affect the physical environment

– The adequacy of a CEQA document is not linked to the merits of the project it analyzes

• CEQA is not a planning act – Environmental analysis is one means of understanding the outcome of proposed land use changes

• CEQA’s focus is on substantial adverse physical changes

CEQA’s Top 5 Concepts – Disclosure –

• Project, environment, impacts, mitigation.– Good faith effort –

• Not perfection, but doing your best– Analysis –

• Linking facts to conclusions – Comments –

• Consider the public and other agencies – Mitigation –

• All feasible mitigation must be included in the project approval

Planning Commission and CEQA

• CEQA applies to all projects before the Commission • Some projects are exempt:

– Categorical and Statutory Exemptions – Categorical Exemptions have exceptions

• Some projects are subject to a Negative Declaration or Mitigated ND– “Initial Study” analyzes potential impacts – Mitigation measures avoid all significant impacts – Public review required

Planning Commission and CEQA(cont’d)

• Some projects require an EIR– “Fair argument” that project may have a significant effect – EIR includes project alternatives and mitigation measures – Notice of Preparation announces EIR is coming– Public review of draft EIR required – Final EIR includes results of public review – “Findings” must describe the disposition of all potentially

significant effects – “Statement of override” required for effects that are

unavoidable

The CEQA Process

Public Agency determines whether the activity is a project

Public Agencydetermines if the project is exempt

Public Agency evaluates project to determine if there is a possibility

that the project has a significant effect on the environment

Yes = EIR

No = Negative Declaration

Project

Not exempt

Possible significant effect

Not a project

Project is ministerial

No possible significant effect

Statutory exemptionCategorical exemption

No further actionrequired under

CEQA

Notice of Exemption

may be filed

http://ceres.ca.gov/topic/env_law/ceqa/flowchart/index.html

CEQA Process Flow Chart

• A discretionary action by a public agency resulting in physical effects:– Direct effects or reasonably foreseeable indirect effects – Includes construction projects, or general plan and ordinance adoption

• Activities supported through public agency contracts, grants, subsidies, loans, or other assistance

• Activities involving public agency issuance of a lease, permit, license, certificate, or other entitlement

• The public agency must include the “whole of an action” in the project being analyzed

Definition Of A Project

CEQA Guidelines Sec. 15378

An activity undertaken by a public agency, including:

• … is not allowed.• Activities A and B are part of the same project when: – Activity B is a reasonably foreseeable consequence of Activity A,

– Activity B is a future phase of Activity A,– Activity B provides essential public services needed to implement Activity A, or

– Activities A and B are integral parts and lack independent utility

“Piecemealing”

Key Participants in the CEQA Process

Lead Agency

Agencies with

Jurisdictionby Law

Project Applicants

Responsible Agencies Concerned

Citizens and Organizations

Trustee Agencies

Environmental Consultants

CourtsCalifornia Tribes

Lead and Responsible Agencies• Lead agency

– Agency undertaking the project or considering approval of project

– Holds primary responsibility for CEQA process – Liable for any inadequacies

• Responsible agency – Agency approving project AFTER the lead agency – Required to use lead agency’s CEQA document, with some exceptions

– Independently weighs project approval – City does not control the CEQA process when it’s a responsible agency

• AB 52 (2014) creates new consultation process with Native American tribes

• Notice from tribe triggers formal consultation request • New CEQA concern: “tribal cultural resource”

– Adverse effect = significant impact • Lead agency and tribe(s) may consult on impact significance, mitigation, alternatives

• Establishes grounds for ending consultation • Requires mitigation when feasible • Suggests mitigation methods

California Native American Tribal Consultation

• AB 52 consultation occurs early in the CEQA process

• The PC will need to consider the mitigation measures identified in the consultation, if any

• Will also need to adopt a finding regarding the outcome of the consultation

California Native American Tribal Consultation (cont’d)

CEQA Exemptions

• Statutory Exemptions – set out in law• Categorical Exemptions – established by the CEQA Guidelines

Statutory Exemptions

• Various types are established by law • Qualifying project must fit the description in the statute– Some statutory exemptions allow projects with significant effects, others do not

• No public review period is required • File a Notice of Exemption for a 35‐day statute of limitations

CEQA Guidelines sec. 15260, et seq.

• Ministerial projects• Emergency projects• Rejected or disapproved projects• Feasibility or planning studies

Common Statutory Exemptions

CEQA Guidelines sec. 15369

• Ministerial means: – The agency applies “little or no personal judgment… as to the wisdom or manner of carrying out the project”

– The agency “merely applies the law to the facts presented” – The decision “involves only the use of fixed standards or objective requirements”

– The agency can’t use “personal, subjective judgment in deciding how the project should be carried out”

• Examples: – Building permits, in most places – Business licenses

Ministerial Exemption


• Sudden unexpected occurrence• Clear and imminent danger to public health and safety

• Immediate action needed to mitigate losses or damages

• Examples: fire, flood, earthquake, riot

Emergency

• CEQA doesn’t apply “where it can be seen with certainty” that no environmental effect may occur – No possibility that project may have a significant effect

• This exemption may apply to any activity – not limited to particular types of projects

General Rule/Common Sense Exemption

Guidelines Section 15061(b)(3))

Categorical Exemptions • CEQA Guidelines: 33 classes • Qualifying project is not subject to CEQA

– Legislature’s granted Natural Resources authority to identify projects that are typically without impacts

• No public review period is required • File an NOE for a 35‐day statute of limitations • Restrictions on Use:

– Qualifying project must fit one or more class of CE – No “exceptions” can apply – No mitigation measures must be necessary

Class 1 Operation, repair, or maintenance of existing structures or facilities Class 2 Replacement or reconstruction of existing structures or facilities Class 3 Construction or conversion of small new facilities Class 4 Minor alterations of land, water, or vegetation Class 5 Minor alterations in land use limitations

Class 6 Data collection, research, experimental management, or resource evaluation

Classes 7 and 8

Public agency maintenance, restoration, or enhancement of environmental or natural resources

Class 9 Inspections of operations or projects

Class 10 Loans under Veterans Farm and Home Purchase Act and mortgages for existing structures

Class 11 Construction or placement of accessory structures Class 12 Surplus government property sales Class 13 Acquisition of lands for wildlife conservation purposes Class 14 Minor additions to existing schools Class 15 Minor land divisions Class 16 Transfer of land ownership to create parks

Categorical Exemptions

CEQA Guidelines secs. 15301‐15315

Class 17 Open space contracts or easements Class 18 Designation of wilderness areas Class 19 Annexations of existing facilities and lots for exempt facilities Class 20 Changes in organization of local agencies Class 21 Enforcement actions by regulatory agencies Class 22 Educational or training programs involving no physical changes Class 23 Normal operations of facilities for public gatherings Class 24 Regulations of employee wages, work hours, or working conditions

Class 25 Transfers of ownership of interest in land to preserve existing natural conditions and historical resources

Class 26 Acquisition of housing for housing assistance programs Class 27 Leasing new facilities exempt from CEQA Class 28 Small hydroelectric projects at existing facilities Class 29 Cogeneration projects at existing facilities Class 30 Minor alterations … hazardous waste or hazardous substances Class 31 Historical resource restoration or rehabilitation Class 32 Infill development projects Class 33 Small habitat restoration projects

Categorical Exemptions

CEQA Guidelines Secs. 15317‐15333


• “… operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment … involving negligible or no expansion of use …”

• Examples: – Existing facilities of both investor and publicly owned utilities used to

provide electric power, natural gas, sewerage, or other public utility services

– Additions to existing structures not exceeding: 50% of the floor area of the structures before the addition, or 2,500 square feet, whichever is less; or 10,000 sq. ft. if public services and facilities are available and the area in which the project is located is not environmentally sensitive

– Addition of safety or health protection devices for use during construction of or in conjunction with existing facilities, or equipment

Class 1 ‐ Existing Facilities


• Construction and location of limited numbers of new, small facilities or structures;

• Installation of small new equipment and facilities in small structures; and

• Conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure

• Examples: – Accessory structures – Utility extensions to serve small structures – Commercial structure not involving the use of significant amounts of

hazardous substances, and not exceeding 2500 square feet in floor area. In urbanized areas, the exemption also applies to up to four such commercial buildings not exceeding 10,000 sq. ft. in total area

Class 3 ‐ Small New Construction Or Conversion


• Minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes

• Examples: – Grading on land with a slope of less than 10 percent, except that grading shall not be exempt in a waterway, any wetland, an officially designated scenic area, or officially mapped areas of severe geologic hazard

– Minor temporary use of land having negligible or no permanent effects on the environment

– Minor trenching and backfilling where the surface is restored

Class 4 ‐Minor Alterations To Land


• Basic data collection, research, experimental management, and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource. These may be strictly for information gathering purposes, or as part of a study leading to an action which a public agency has not yet approved or funded

Class 6 ‐ Information Collection


• Construction, or placement of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities

• Examples: – On‐premise signs – Small parking lots – Placement of seasonal or temporary items such as lifeguard towers, mobile food units, portable restrooms, or similar items in generally the same locations from time to time in publicly owned parks, stadiums, or other facilities designed for public use

Class 11 ‐ Accessory Structures


• In‐fill development meeting the following conditions: – Located within city limits on a project site of no more than five acres substantially surrounded by urban uses

– Consistent with the applicable general plan designation and policies as well as with applicable zoning regulations

– Site has no value as habitat for endangered, rare or threatened species

– Approval would not result in any significant effects relating to traffic, noise, air quality, or water quality

– Site can be adequately served by all required utilities and public services

• Note, this exemption does not apply to sites located within county jurisdictions

Class 32 ‐ Infill Development Projects

CEQA Guidelines sec. 15300.2

• Reasonably possible the activity may have a significant environmental impact due to unusual circumstances

• Cumulative impacts would be significant• Certain specified sensitive environments would be affected • A project affects scenic resources within official state scenic

highways• A project is located on hazardous waste site list maintained

by the California EPA “Cortese List”• A project causes substantial adverse changes in significant

historic resources

Technical studies can be prepared to support finding that there are no applicable exceptions

Exceptions

Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086

• Exceptions apply only if there are “unusual circumstances” and a potential for significant impact • By itself, a potentially significant environmental effect is not an “unusual circumstance”

• First part: Are there unusual circumstances? – Lead agency determines this based on substantial evidence

– Lead agency has the discretion to consider conditions in the vicinity of the proposed project

• Second part: is there potential for significant impact? – A “fair argument” that project may result in a significant impact is sufficient to demonstrate potential

Two‐Part Test for Exceptions

“Fair Argument” – The Road to EIR‐ville

• An EIR is required when it can be fairly argued, on the basis of substantial evidence in the record, that a project may have a significant effect on the environment. – Fairly argued = issue was raised during the span of the CEQA process by any party (city, commissioners, opponents, proponents, etc.)

– May have a significant effect = absolute proof is not necessary

• A fair argument can be raised at your hearing • Applies to CEs (phase 2 test) and Negative Declarations, not EIRs themselves

What’s “Substantial Evidence?”• Factual evidence in the record that indicates the project may result in an unavoidable significant impact – Facts, expert opinion based on facts, conclusions drawn for factual basis

• It does not include: – Argument, speculation, unsubstantiated opinion, clearly erroneous evidence, or social‐economic impacts not related to a physical change in the environment

• The Challenge: – Recognizing a fair argument when it’s presented


• A CE cannot be used when mitigation measures must be applied to the project in order to avoid environmental impacts – Conditions of approval can be applied to the project, provided that they are not mitigation measures for an environmental impact

• A CE can be used when the project, as submitted, includes design components that will avoid impacts – Requirements added after submittal could be construed as mitigation measures

Categorical Exemptions and Impact Avoidance

“Neg Decs” and EIRs

Negative Declaration

• Negative Declaration or Mitigated Negative Declaration – There is no factual evidence that the project may have a significant effect (Negative Declaration)

– All potential significant effects can be mitigated (Mitigated Negative Declaration)

• “Initial Study” checklist and related studies document absence of impacts – A “fair argument” triggers need for an EIR

• Requires public notice and review prior to adoption – Commission must consider any comments prior to acting on project

IssuesPotentiallySignificant

Impact

Less ThanSignificant

with MitigationIncorporation

Less ThanSignificant

ImpactNo Impact

a) Conflict with or obstructimplementation of theapplicable air qualityplan?

b) Violate any air qualitystandard or contributesubstantially to anexisting or projected airquality violation?

c) Result in cumulativelyconsiderable netincrease in any criteriapollutant for which theproject region isnonattainment?

d) Expose sensitivereceptors to substantialpollutantconcentrations?

e) Create objectionableodors affecting asubstantial number ofpeople?

Air Quality (Excerpt from Appendix G)

Significance criteria established by air quality management or air pollution control district may

be relied upon. Would the project:

• SVJAPCD has adopted thresholds for air quality impacts

• Sample “criteria pollutant” thresholds now in effect: – Thresholds for construction and operations are the same

Air Quality – thresholds

Pollutant Tons/year

ROG 10

CO 100

NOx 10

SOx 27

PM10 and PM2.5 15

• The IS checklist conclusions must be supported by evidence/facts

• “Initial Study” may include technical studies in addition to the checklist, where pertinent:– Traffic study, biological survey, archaeological survey, etc.

• The checklist in Appendix G can be revised to meet agency’s needs

• Show your analysis ‐ bridge the gap between data and conclusions

Avoid The “Naked Checklist”

• The four possible answers to checklist questions carry specific meanings – No impact: the project would not result in any impact– Less than significant impact: the impact of the project is not a substantial adverse change in the environment

– Less than significant impact with mitigation incorporation: any potentially significant impact is reduced to a less‐than‐significant level by specific mitigation measures

– Potentially significant impact: the impact cannot be mitigated below a level of significance – an EIR is required

Checklist Translation

More about the “Fair Argument”

• Another way to think of a “fair argument” is a disagreement among experts – each of whom is supported by factual evidence

• Be careful: the record of defending ND/MND in the face of a fair argument is poor – May be better to switch to an EIR and go from there

• Fair argument does not apply when an EIR is prepared – EIR can present disagreement among experts, provided that its conclusions are supported

What’s “mitigation?”• Mitigation is a feasible, enforceable action that will:

– Avoid the prospective impact,– Minimize the impact, – Rectify the impact,– Reduce or eliminate the impact over time, or– Compensate for the impact

• Mitigation cannot be deferred when adopting an MND– Further study isn’t mitigation – Consulting with other agencies isn’t mitigation by itself

• Mitigation must be made a condition of approval• Must adopt a mitigation monitoring or reporting program (MMRP) to ensure implementation

Mitigation • Lead Agency must adopt mitigation for all significant impacts, unless infeasible – Mitigation outside the Lead Agency’s boundaries is not infeasible or unenforceable if another agency can and will implement it

• Mitigation must be reflected in the conditions of approval

• Must adopt a separate Mitigation Monitoring or Reporting Program with project approval

Deferred Mitigation• Deferred mitigation:

– Only allowed when an EIR is prepared – Cannot defer mitigation, can only defer details of the mitigation measure

• A properly deferred mitigation measure must include: – Agency’s commitment to mitigate – Performance standards describing what the measure will require and ensuring its effectiveness

• If the measure requires future study, that study must lead to specific actions taken to mitigate the impact – If X, then Y.


• Project description• Project location• Identification of project proponent• Proposed finding of no significant effect• Attached copy of Initial Study justifying finding:

– The “Negative Declaration” is a couple pages long; the IS can be 100 or more pages long

• For MNDs, mitigation measures that will avoid significant effects

Contents Of An ND/MND

• Proposed ND or MND (and associated IS and studies) must be circulated for public review and comment before it is adopted:– 30‐day review for most projects – 20‐day review for local projects with no state agencies

• Public notice announces availability for review:– Copies must be sent to responsible agencies and to the State Clearinghouse for certain projects (30‐day review)

• Lead Agency must consider the comments before adoption

• Fair argument may be raised in the comments

Public Review Of The Negative Declaration

Environmental Impact Report (EIR) • Prepared for projects with the potential for significant unavoidable environmental impacts

• Typical contents: – Executive summary– Project description– Environmental analyses by resource type (air quality, agriculture, etc. )

• Environmental and regulatory settings• Determinations of significance • Mitigation measures

– Analysis of alternatives to the project – Analysis of growth‐inducing and cumulative impacts

EIR (cont’d)• Notice of Preparation

– Pre‐notice to agencies and public of the coming EIR (30‐day review period)

• Draft EIR – Subject to public review and comment (45‐day review period)

– All comments become part of the administrative record• Final EIR includes:

– Draft EIR, comments, written responses to comments, any revisions to the Draft EIR, list of commenters

– May be two volumes – Final EIR and Draft EIR • Project Approval Actions:

– Findings, Statement of Overriding Considerations, and MMRP

Common Types of EIRs • Program EIR: analyzes a large or phased project at a

general level of detail. Impacts of later activities consistent with the program are examined in light of the PEIR.

• Tiered EIR: general term for several options for applying a previously certified EIR to a new project that’s related to the project for which that EIR was prepared.

• Subsequent EIR: analyzes impacts of an activity that were not covered in a previously certified EIR for the same project. Analysis limited by law to new or substantially more severe impacts of the activity. Each of these has its own specific requirements and

limitations

EIRs and Fair Argument

• When an EIR is prepared, its determinations are not subject to fair argument

• The EIR’s conclusions must be based on substantial evidence – Evidence must be in the administrative record (not limited to just the EIR): staff report, testimony, special study, etc.

• Disagreement among experts is acceptable • So, why not prepare an EIR for every project?

– Not the intent of CEQA – why have NDs and MNDs? – Projects that won’t have significant effects have a more streamlined approach

Mitigation

• Mitigation cannot be deferred to later environmental analyses – “Tiering” is no excuse for failing to mitigate

• An EIR may defer describing mitigation in detail if: – City adopts a mitigation measure – The measure contains performance standards or a menu of options that will ensure mitigation

• Mitigation measures must be specific enough to allow implementation – If monitoring is needed to ensure mitigation, include it in the mitigation measure

A Word on Subsequent EIRs • Once an EIR or Neg Dec has been certified, CEQA statute and Guidelines limit the analysis of later activities covered by that document.

• The later activity will be analyzed under one of the following, in decreasing level of impacts: – Subsequent EIR – Supplement to the EIR – Subsequent Mitigated Negative Declaration – Addendum to EIR or Mitigated Negative Declaration

Planning Commission’s Responsibilities • For projects that the Commission alone approves

– Adopt the Exemption or ND/MND, or – Certify the Final EIR and make necessary findings, etc.

• These are your documents –– You represent the city/county – The city/county is responsible for a good faith effort to comply with CEQA

– Your hearing is part of the administrative record

• Review and familiarize yourself with the CEQA documents before the Commission meeting – Advise staff of questions or concerns before the meeting

Topic 1‐1/2. What to Look For

Planning Commissioner: What to Look for

• Is the CEQA approach appropriate? – If a categorical exemption:

• the project fits within the exemption• There are no “unusual circumstances”

– If an ND/MND: • the initial study includes sufficient analysis to support its conclusions

• there’s no fair argument for a significant impact – If an EIR:

• all the required EIR parts are there • it provides a “good faith” effort at disclosure


• Final EIR: – the analysis is objective – the project description is consistent across the environmental issues

– there’s more than one alternative analyzed • the alternatives reduce or avoid one or more project impacts

– CEQA comments have been responded to– Any mitigation or alternatives suggested by commenters have been addressed in the written responses to comments


• Is the mitigation adequate? – There’s a mitigation measure for each potentially significant impact

• If not, there’s a reasonable explanation of why mitigation is infeasible

– The mitigation measure fits the significant impact • The mitigation addresses an impact of this project • It’s proportional to the project’s share of the impact

– Specific enough to implement as conditions of approval• Who, what, where, when, and how


• When the Commission has the final decision on a project: – You should be comfortable with adopting an exemption– You should be satisfied with the adequacy of the CEQA document before adopting a Neg Dec, or certifying an EIR with the related findings

• It isn’t your role to write the CEQA document • It is your role to review it for adequacy

That’s All Folks!

CEQA Workshop

Presented byTerry Rivasplata, AICP

ICF International

Information on CEQA

• California Natural Resources Agency – Website with basic information on CEQA and the CEQA Guidelines

– http://ceres.ca.gov/ceqa/• Office of Planning and Research

– Technical advisories on CEQA and planning – http://opr.ca.gov/index.php?a=planning/publications.html

• Planning and Conservation League – Community Guide to CEQA – A basic primer on CEQA – http://www.pclfoundation.org/events/ceqaguide.html

2016 CEQA Workshop– The adequacy of a CEQA document is not linked to the merits of the project it...

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