ESP 179- Winter 2012

IS, ND, MNDsJanuary 15, 2012

Instructor: Trevor Macenski

EIR Review AssignmentThe purpose of this exercise is for you to

go through an actual Environmental Impact Report (EIR) and experience first-hand the challenges of gleaning useful information from its pages and analyze the impact assessment methodologies and mitigation strategies presented in the EIR.

Due Feb. 12th 3:10

Initial Study

PurposeComplete a project description

Determine the appropriate CEQA document: Negative Declaration, Mitigated Negative Declaration, or EIR

Refine issues to be addressed in an EIR

ChecklistAppendix G

Initial Study is not required if it is known an EIR will be prepared

Initial Study

Project description - location, project objectives and characteristics

Environmental setting

Discussion of environmental effects using Appendix G checklist or another method

Mitigation measures

Consistency with zoning, plans, and land use controls

List of preparers

Contents of Initial StudiesCCR §15063(d)

Be sure it includes all actionsConstruction and project implementation

Temporary and permanent activities

All discretionary permits and entitlements

Reasonably foreseeable future phases

Be sure it includes all improvementsOn and off site traffic and infrastructure

improvements

Project Description

…although an initial study can identify environmental effects by use of a checklist, it must also disclose the data or evidence upon which the person(s) conducting the study relied. Mere conclusions simply provide no vehicle for judicial review. (No naked checklists!)

Court Case: Citizens Association for Sensible Development of Bishop Area v. County of Inyo

An Initial Study is NOT just an exercise in word processing• Critical thinking is necessary

• Document the thought process

• Just because your IS has a hat on it, doesn’t mean it’s not naked!

Initial Studies

Each question requires an answer regardless of the conclusion (“no impact” vs. “potentially significant”). Must be supported by substantial evidence:

Facts (including technical studies)

Reasonable assumptions based on facts

Expert opinion supported by facts

Initial Studies

Must substantiate every conclusion

Can’t just put off thought process until EIR

IS must have explanations based on substantial evidence why the project might have an impact

Initial Studies

Consider with each question: Facts? What facts do I have to support my conclusion?

Technical study? Do I have a study to support my conclusion?

Substantive evidence? What evidence do I have?

Thought process? Have I shown a logical thought process to the conclusion?

Just rephrasing the question? Don’t do it!

Initial Studies

Hydrology -- Would the project otherwise substantially degrade water quality?

Initial Studies- Hydro

Potentially significant: The proposed project could potentially substantially degrade water quality. The Draft EIR will provide an analysis of the proposed project’s potential to substantially degrade water quality.

Facts? There are no facts given

Technical study? The technical study has not been prepared

Substantive evidence? None given

Thought process? None identifiable

Just rephrasing the question? Yes

Initial Studies- Hydro Sample 1

Potentially significant: The proposed project could potentially substantially degrade water quality as a result of construction activities that could increase the amount of sediments and pollutants in the surface runoff. The on-going operation of the commercial facility could also substantially degrade water quality by increasing the amount of pollutants in the surface runoff due to irrigation and the use of pesticides for landscaping, petroleum products from vehicles, litter, and other waste.

Facts? Construction, irrigation, future pesticide useTechnical study? The technical study has not been preparedSubstantive evidence? None givenThought process? Yes

Initial Studies- Hydro Sample 2

Negative Declarations and Mitigated Negative

Declarations

Negative Declaration 15063Project DescriptionProject LocationIdentification of project proponentProposed Findings of no significant effectAttached copy of the Initial Study

justifying the findingFor Mitigated Negative Declaration

mitigation measures to reduce impacts

MND Definition An ND “for a project when the IS has identified

potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed ND and IS are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (§21064.5)

Mitigated Negative DeclarationWas used in practice frequently

Not approved until the 1993 CEQA Amendments

Must mitigate impacts to a less than significant levelNo overriding considerations

No alternatives analysisNo cumulative analysis– Well….Kind Of

When there is no substantial evidence that a significant effect may occur (CCR §15070[a])

When revisions in a project, made by or agreed to by the applicant, mitigate to a point where “clearly” no significant effect would occur (PRC §21064.5)

As one choice for a subsequent document after a Master EIR (PRC §21157.5)

When tiering from a previously certified EIR (under certain circumstances) (CCR §15152)

Uses of ND/MND

Notice of Intent to Adopt Send to responsible and trustee agencies 15 copies to the State Clearinghouse, if state

agencies Proposed ND for 20- or 30-day public review No public hearing necessary for CEQA Public comments must be considered. No

response necessary, but it is good practice File Notice of Determination (NOD)

ND/MND Process Highlights

Brief description of the project, location, and proponent’s name

Proposed finding that the project will have no significant effect

Initial study documenting reasons supporting the finding

Mitigation measures to avoid potentiallysignificant effects (MND only)

Mitigation Monitoring & Reporting Plan (MND only)

Required Contents of an ND/MND

Detailed environmental setting andimpacts discussion (unless necessaryto support reasoning)

Alternatives analysisGrowth-inducing impacts, per se, but be

sure to consider indirect effects of growthUnavoidable significant or irreversible

effects (Inherently these effects should not exist!)

Statement of Overriding Considerations

Contents Not in an ND

Practical Reasons for ND or MNDs Environmental planning as part of project design is the

best approach

Minimize mitigation

Facilitate better design

Can “reward” good environmental planning with streamlined process

Less issues that require mitigation quicker the process.

Lead agency can require applicant commitment to mitigation before MND release

Time to complete can be quick (3 - 5 months)

Determining Significance

Significant Effect on the Environment: “Substantial or potentially substantial adverse

change to any of the physical conditions within the area affected by the project…” Impacts=Effects Thresholds and analysis determine significance.

“An economic or social change by itself shall not be considered a significant effect on the environment.” CCR §15382

Fair Argument Standard

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 an MND, when a “fair argument” exists

If competing evidence exists, lead agency must prepare an EIR

Substantial Evidence Supporting the ND or MND

ND or MND is the CEQA documentInitial Study is the main source of

evidence supporting environmental analysis

Those documents, and everything else the Lead Agency uses to support them, make up the administrative record

Administrative record must support the ND or MND conclusions

Practice Pointers for IS/MNDs Use current Appendix G - address the topics in

checklist questions at least, but feel free to tailor, add relevant questions

Include discussion to support all but the most obvious “no impact” conclusions

Maintain a good in-house information base and complete administrative record

Include CCR §15063 content requirements for Initial Study, such as zoning and plan consistency

No need to overdo it. Skinny NDs/MNDs can work when there is no controversy and a limited set of potentially significant issues

Mitigation Measures

CCR §15370 definition:

Avoiding the impact altogether

Minimizing impacts by limiting the magnitude

Rectifying by repairing, rehabilitating, restoring

Reducing or eliminating over time

Compensating by replacing or providing substitute resources

Mitigation to a point where clearly no significant impact would occur from implementation of the project, as revised

Mitigation is the Key Ingredient

Adequate Mitigation Physically modifying the project, such as design

changes to avoid or substantially reduce an effect Limiting project activities, such as operational

limits like seasonal or daily time restrictions Constructing improvements intended for

mitigation, such as BMPs Compensatory actions, such as replacement of

lost habitat through restoration or enhancement

Mitigation measures feasible measures required for significant effects

if impact below significant, no duty but not prohibited

proposed by project or recommended by environmental document (but in MND must be included before public review)

consider significant effects of mitigation measures

measures must be fully enforceable

must be essential nexus (Nollan v. CCC), and roughly proportional to impacts (Dolan v. Tigard)

Mitigation Measures

Capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors (CCR §15364)

Feasible Mitigation

Public agency shall adopt a “reporting or monitoring program” at project approval to ensure compliance during project implementation (PRC § 21081.6)

MMRP must be enforceable through permit conditions, agreements or other measures

MMRP required for EIR and MND

MMRP can be provided as part of Final EIR (good practice)

Mitigation Monitoring and Reporting Program (MMRP)

MM 5-1: Oak Tree Replacement Plan (short title) Objective: …to compensate for the significant loss of oak

trees on the project site… Description: specific actions or types of actions, location,

how they reduce/compensate for impact Performance Criteria: ... no net reduction in number of

trees after five years ... Timing: …prior to grading permit… Responsible Party: Project proponent Significance After Mitigation: Less than significant (and

provide a statement supporting why)

Sample Mitigation Structure

ONLY include mitigation for significant effects

Generally use “commitment” verbs (like, ‘will’ or ‘shall,’ not ‘may’ or ‘should’), but lead agency may have standards or preferences

Measures linked to conditions of approval

Use a numbering or notation system to clearly link impacts and mitigation

Provide evidence about how measures reduce or avoid the impact in the description

Mitigation Practice Pointers

Questions?

Thank You