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
Colette Meunier, AICP
■ Consulting Planner
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
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: Preliminary Review
The Process: Preliminary Review
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
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
■ 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
• 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
The EIR: Preparing the Draft EIR
■ 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
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
The EIR: Preparing the Draft EIR
■ 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 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
The EIR: Preparing the Draft EIR
■ 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
The EIR: Preparing the Draft EIR
■ 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
■ 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
■ 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
The EIR: Preparing the Draft EIR
■ 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