CEQA. Procedures, Defensible Analysis and Hot Topics in California. October 7, 2005 Santa Monica, CA

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1 CEQA Procedures, Defensible Analysis and Hot Topics in California October 7, 2005 Santa Monica, CA Von Karman Ave., Suite 1800 Irvine, CA Phone (949) Fax (949) NOSSAMAN.COM Copyright, 2006 Nossaman Guthner Knox & Elliott LLP. All Rights Reserved. The information contained herein does not constitute a legal opinion and should not be relied upon by the reader as legal advice or be regarded as a substitute for legal advice.

2 Introductions Morning Session Carollyn Lobell, Nossaman Guthner Knox & Elliott LLP Rob Balen, LSA Associates, Inc. Afternoon Session Mary Lynn Coffee, Nossaman Guthner Knox & Elliott LLP John J. Flynn III, Nossaman Guthner Knox & Elliott LLP 2

3 Brief Overview of California Environmental Quality Act ( CEQA ) 3

4 Federal Context Brief Overview: Legal Framework National Environmental Policy Act Endangered Species Act National Historic Preservation Act California Context Subdivision Map Act California Endangered Species Act California Planning and Zoning Law 4

5 Brief Overview: Legal Framework Brief History Silent Spring (late 1950s to early 1960s) NEPA (1969) In one of the first cases interpreting NEPA, Justice Skelly Wright wrote: Several recently enacted statutes attest to the commitment of the Government to control, at long last, the destructive engine of material progress. [NEPA] takes the major step of requiring all federal agencies to consider values of environmental preservation in their spheres of activity, and it prescribes certain procedural measures to ensure that those values are in fact fully respected. Calvert Cliffs' Coordinating Committee, Inc. v. United States, 449 F.2d 1109,1111 (1971) 5

6 Brief History (continued) CEQA (1970) Brief Overview: Legal Framework In an era of commercial and industrial expansion in which the environment has been repeatedly violated by those who are oblivious to the ecological well-being of society, the significance of this legislative act cannot be understated. Friends of Mammoth v. Bd. of Supervisors (1972) 8 Cal. 3d 247, 255 CEQA patterned after NEPA 6

7 What is CEQA? Brief Overview: Legal Framework Essentially a procedural statute Public agencies should investigate the environmental consequences of their actions before a project is approved Must document investigation in an environmental impact report Must make certain findings before adopting a project CEQA also has a substantive mandate Must avoid significant environmental impacts through feasible mitigation measures or alternatives 7

8 Brief Overview: Legal Framework What are CEQA s Sources? The Statute Cal. Pub. Resources Code, et seq. State CEQA Guidelines Cal. Code Regs., tit. 14, et seq. Local CEQA Guidelines Case Law CEQA on the Internet 8

9 Brief Overview: Purpose and Policy Policies Underlying CEQA 9

10 Brief Overview: CEQA Policy Protect the environment Avoid significant environmental harm with feasible mitigation or alternatives the Legislature intended [CEQA] to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. Friends of Mammoth Lakes. 10

11 Brief Overview: Objectives and Purposes CEQA Policy (continued) Information Gathering The EIR is to inform other governmental agencies and the public generally of the environmental impact of a proposed project. (No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68.) Ensuring Government Accountability CEQA Requires Agencies to show their work The EIR must effectively disclose to the public the "analytic route the... agency traveled from evidence to action." Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal. App. 4th

12 Brief Overview: Objectives and Purposes CEQA Policy (continued) Ensuring Government Accountability The EIR is to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action. (People ex rel. Department of Public Works v. Bosio, 47 Cal. App. 3d 495.) The EIR process will enable the public to determine the environmental and economic values of their elected and appointed officials thus allowing for appropriate action come election day should a majority of the voters disagree. (People v. County of Kern, 39 Cal. App. 3d 830.) 12

13 Brief Overview: Objectives and Purposes CEQA Policy (continued) The point is not to stop projects CEQA requires that decisions be informed and balanced. It must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development or advancement. (Laurel Heights Improvement Assoc. v. Regents of U.C. (1993) 6 Cal.4th 1112 and Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553) 13

14 Brief Overview What is a Project? 14

15 Project Brief Overview: What is a Project? An activity which may cause either: 1) a direct physical change in the environment, or 2) a reasonably foreseeable indirect physical change in the environment, and which is any of the following: a) An activity directly undertaken by any public agency. b) An activity undertaken by a person which is supported [in some way by] public agencies. c) An activity [permitted by] public agencies. 15

16 Brief Overview: What is a Project? What is NOT a project? Project 1) Proposals for legislation to be enacted by the State Legislature; 2) Continuing administrative or maintenance activities, such as purchases for supplies, personnel-related actions, general policy and procedure making; 3) Voter sponsored initiatives 4) Creation of government funding mechanisms that do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. 5) Organizational or administrative activities of governments 16

17 Brief Overview: What is a Project? Examples Caltrans decides to build a highway. County adopts a general plan. City forms a community services district. 17

18 Brief Overview: What is a Project? Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464 School district formed a community facilities district to fund school site acquisition Court addressed whether formation of a community services district is a project Factors: a) Whether the government action will culminate in physical change to the environment; b) Whether there is a causal link between the governmental action and a significant environmental impact; 18

19 Brief Overview: What is a Project? Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464 (continued) Factors: c) Whether the governmental action is an essential step leading to the ultimate environmental impact; d) Whether the governmental action will change the uses to which land will be put; e) If the governmental action is one relating to financing future projects, does the governmental action dictate how funds will be spent; f) Does the governmental action create a binding commitment to spend funds in a particular manner; and g) Has the governmental action been undertaken to fund a specific project? 19

20 Brief Overview: What is a Project? Kaufman and Broad holding Formation of CFD was not a project. Formation did not dictate any particular course of action. Did not specify how funds would be spent. 20

21 Brief Overview: What is a Project? Kaufman and Broad practice tip: The District adopted a resolution explaining why formation was not a project Resolution was supported with a report from an engineering firm hired to conduct preliminary review. The District showed its work! 21

22 Use and Abuse of CEQA Policy v. Reality Regulated community view vs. environmental community view EIRs on very small projects 22

23 Role of the Consultant in CEQA Document Preparation Who selects the consultants? Public agency must prepare or contract No prohibition on submittal of other information by other parties (P.R.C ) All CEQA documents to reflect independent judgment of agency Consultant s role 23

24 Preliminary Review, Exemptions and Negative Declarations 24

25 Preliminary Review: When to Commence Review? When do you comply with CEQA? Before approval of a project CEQA Guidelines What is approval? the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person. Private Projects: commitment to issue or issuance of: discretionary contract, grant, financial assistance, lease, permit, license or other entitlement for use of the project. (Guidelines 15352) 25

26 Preliminary Review: When to Commence Review? The precise time to commence review involves competing policies: 1) as early as feasible in the planning process to enable environmental considerations to influence project program and design 2) late enough to provide meaningful information for environmental assessment 26

27 Preliminary Review: When to Commence Review? Who make the decision re timing? the timing of an EIR is committed to the discretion and judgment of the agency, whose decision must be respected in the absence of an abuse of discretion manifested by the agency's failure to proceed in the manner required by law. City of Vernon v. Board of Harbor Comm rs (1998) 63 Cal.App.4 th 677,

28 Exemptions When CEQA Review is Not Required 28

29 Exemptions The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. (Bozung v. LAFCO (1975) 13 Cal.3d 263) 15006: Public agencies should reduce delay and paperwork by: (c) Identifying projects which fit within categorical exemptions and are therefore exempt from CEQA processing. 29

30 Exemptions: Types Statutory Exemptions Legislature Categorical Exemptions Resources Agency Common Sense Exemption State or Local Agency Activity Not a Project 30

31 Exemptions: Statutory The Legislature has determined for policy reasons that CEQA review should not be required or should be limited. Statutory exemptions are scattered throughout the Codes Some are collected in the State CEQA Guidelines

32 Example Olympic Games Exemptions: Statutory CEQA review not required for activities or approvals necessary to the bidding for, hosting or staging of, and funding or carrying out of, Olympic Games CEQA review only required for the construction of facilities Agency need not consider No Project Alternative 32

33 Exemptions: Categorical Exemptions Legislature instructed Resources Agency to describe classes of projects that have been determined to not have a significant impact on the environment Found in State CEQA Guidelines sections

34 Exemptions: Categorical Exemptions Commonly Used Exemptions: Existing Facilities Section For minor alterations to existing structures involving negligible or no expansion of use Changing Theme of Dinner Theatre Minor Alterations to Land Section Minor alterations not involving removal of healthy, mature, scenic trees New landscaping, carnivals 34

35 Exemptions: Categorical Exemptions Other Useful Exemptions Conservation Easements, Parks and Open Space Section (Transfer of Ownership of Land in Order to Create Parks) Section (Open Space Contracts or Easements) Section (Designation of Wilderness Areas) Section (Transfer of Ownership to Preserve Existing Natural Conditions) Example - Lumber Company Subdivides Land to Dedicate Parkland 35

36 Exemptions: Categorical Exemptions Other Useful Exemptions Section Normal Operations of Facilities for Public Gatherings Small Power Generators Section Small Hydroelectric Projects Section Cogeneration Projects 36

37 Exemptions: Categorical Exemptions Standard of Review? an agency's categorical exemption determination will be affirmed if supported by substantial evidence that the project fell within the exempt category of projects. Davidon Homes v. City of San Jose (1997) 54 Cal. App. 4th 106,

38 Exemptions: Exceptions to Categorical Exemptions The agency must establish that an activity falls within an exempt category The burden then shifts to the opponent to produce substantial evidence showing a reasonable possibility of adverse environmental impact sufficient to remove the project from the categorically exempt class Davidon Homes v. City of San Jose (1997) 54 Cal. App. 4th 106,

39 Exemptions: Categorical Exemptions Watch Out for the Exceptions! Location 15303, 15304, 15305, and may not apply if in particularly sensitive environments Cumulative Impacts None of the exemptions apply if they involve a significant cumulative impact Significant Effects No exemption applies if there is a reasonable probability that the activity will have a significant effect on the environment due to unusual circumstances. Can t use for projects affecting Scenic Highways, located in Hazardous Waste Sites, or affecting Historical Resources 39

40 Exemptions: Categorical Exemptions The Common Sense Exemption Section 15061(b)(3) Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA 40

41 Exemptions: Common Sense Exemption CAUTION! This exemption is easily attacked. In the case of the common sense exemption... the agency's exemption determination is not supported by an implied finding by the Resources Agency that the project will not have a significant environmental impact. Without the benefit of such an implied finding, the agency must itself provide the support for its decision before the burden shifts to the challenger. The exemption requires the agency to be certain that there is no possibility the project may cause significant environmental impacts. If legitimate questions can be raised about potential impacts, the agency cannot be certain. Davidon Homes v. City of San Jose (1997) 54 Cal. App. 4th 106,

42 Exemptions: Activity is Not a Project An Activity is Not Subject to CEQA If It Is Not a Project Section 15060(c)(3) An activity is not subject to CEQA if the activity is not a project as defined in Section See definition above 42

43 Exemptions What if an activity is a project and none of the exemptions apply? 43

44 The Initial Study Starting point: project, not exempt, the lead agency shall conduct an initial study to determine if the project may have a significant effect on the environment. (CEQA Guidelines 15063). 44

45 The Initial Study Lead Agency has 30 days to complete initial study after project application accepted as complete. May extend 15 days with consent of the agency and applicant. The initial study procedure was established by the CEQA Guidelines to implement CEQA s requirement that an EIR be prepared if a proposed project may have a significant effect on the environment. 45

46 The Initial Study What if an EIR will clearly be required? An initial study is not required May still be desirable (use to focus the EIR) Initial Study serves many purposes, so don t eliminate automatically For EIR, Notice of Preparation must include probable environmental effects of the project (CEQA Guidelines 15082((a)(1)(C) 46

47 The Initial Study Definition: A preliminary analysis prepared by the lead agency to determine whether an EIR or a negative declaration must be prepared or to identify the significant environmental effects to be analyzed in an EIR. (CEQA Guidelines 15365). 47

48 Content: Description of project The Initial Study Identification of the environmental setting Identification of the project s environmental effects Discussion of ways to mitigate the significant effects identified Is project consistent with existing zoning, plans, and other applicable land-use controls, and Names of the persons who prepared or participated in the initial study. (CEQA Guidelines 15063(d)). 48

49 The Initial Study Format: Appendix G is a sample environmental checklist, but agencies can devise their own format. May be appropriate to tailor, adjust initial study format according to the kind of project and issues and add any unique issues not listed in Appendix G. 49

50 The Initial Study Initial Study not intended or required to include the level of detail included in an EIR 50

51 The Initial Study IMPORTANT: Explain conclusions Disclose the data or evidence relied on 51

52 Initial Study Conclusion: Negative Declaration or EIR? Low threshold for preparation of an Environmental Impact Report (EIR) If a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though there may be evidence that the project will not have a significant effect. Even if overall effect of the project is beneficial, if any aspect of the project may result in a significant effect on the environment, must prepare an EIR. 52

53 Initial Study Conclusion: Negative Declaration or EIR? Based on substantial evidence in light of the whole record. Substantial evidence: Facts, reasonable assumptions predicated upon facts, and expert opinion support by facts. NOT: argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous or not credible. Public controversy over the environmental effect of a project will not require preparation of an EIR. (If no substantial evidence before the agency that the project may have a significant effect on the environment). Political and public perception issue. 53

54 Significant Effect on the Environment A substantial, or potentially substantial Adverse change in the environment (CEQA 21068). 54

55 Significant Effect on the Environment CEQA Guidelines expands the definition: a 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. an economic or social change by itself shall not be considered a significant effect on the environment. A social or economic change related to a physical change may be considered in determining whether the physical change is significant. 55

56 Mandatory Findings of Must prepare an EIR: Significance Has the potential to degrade substantially the quality of the environment. CEQA 21083(a); Guidelines 15065(a). Has the potential to achieve short-term environmental goals tot he disadvantage of long-term environmental goals. CEQA 21083(b)(1); Guidelines 15065(b). Has possible environmental effects that are individually limited but cumulatively considerable. CEQA 21083(b)(2); Guidelines 15065(c). Has environmental effects that will cause substantial adverse effects on human beings, either directly or indirectly. CEQA 21083(b)(3); Guidelines 15065(d). 56

57 Mandatory Findings of Significance Must prepare an EIR: (continued) Has the potential to eliminate important examples of major periods of California history or prehistory. Guidelines 15065(a). May cause a substantial adverse change in the significance of a designated historical resource. CEQA May adversely affect plants or animals because, under Guidelines 15065(a), it has the potential to: Substantially reduce the habitat of a fish or wildlife species; Cause a fish or wildlife population to drop below selfsustaining level; Threaten the elimination of a plant or animal community; or 57

58 Mandatory Findings of Significance Must prepare an EIR: (continued) Substantially reduce the number or restrict the range of an endangered, rare, or threatened species*. *Note that CEQA definition of endangered, rare, or threatened does not require that species be listed. (CEQA Guidelines 15380) 58

59 Mandatory Findings of Significance The lead agency need not prepare an EIR solely because of such an effect, if: A. the project proponent is bound to implement mitigation requirements relating to such species and habitat pursuant to an approved habitat conservation plan or natural community conservation plan; B. the state or federal agency approved the habitat conservation plan or natural community conservation plan in reliance on an environmental impact report or environmental impact statement; and C. 1. such requirements avoid any net loss of habitat and net reduction in number of the affected species, or 2. such requirements preserve, restore, or enhance sufficient habitat to mitigate the reduction in habitat and number of the affected species to below a level of significance. 59

60 Mandatory Findings of Significance EIR required by statute: type of project CEQA selection of a campus, long range development plan ( ) Guidelines: certain hazardous waste facilities, open pit mining utilizing a cyanide heap-leaching process, initial base reuse plan. ( ) 60

61 Mandatory Findings of Significance If determination is that project would not have a significant effect on the environment, lead agency shall adopt a negative declaration to that effect. (CEQA 21080(c)). Prepare negative declaration when: no substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment. significant effects identified, but, before public review, revisions made/agreed to by applicant, would avoid or mitigate the effects (= no significant effect). 61

62 Contents of Negative Declaration Brief description of project Location of project A proposed finding that the project will not have a significant effect on the environment An attached copy of the initial study documenting reasons to support the finding, and Mitigation measures, if any, included in the project to avoid potentially significant effects (CEQA Guidelines 15071) 62

63 Contents of Negative Declaration In many cases, the ND will include expanded discussion and analysis, and technical studies to support the conclusion. Cumulative impacts should be considered in the determination of significance, even though a separate section on cumulative impacts is not required. The topical areas (aesthetics, traffic, etc.) are the same as those in an EIR, and the analysis of those sections may be similar in content to an EIR. But, there is no requirement to address alternatives or growth inducing effects in an ND. 63

64 Process Provide notice of intent to adopt ND to the public, responsible agencies, trustee agencies, county clerk. Mail to those who previously requested such notice. Notice of intent also by either: publication in newspaper, posting, direct mailing to owners/occupants of adjacent property. Project of statewide, regional, or areawide significance, provide notice to transportation planning agencies and to State Clearinghouse. 64

65 Process Statewide, regional or areawide significance: Potential for significant effects on the environment extending beyond the city or county in which the project would be located. Size of project. Examples: more than 500 dwelling units, shopping center or business 250,000 square feet, hotel more than 500 rooms. Cancellation of Williamson Act contract. Environmental sensitivity (CEQA Guidelines 15206) 65

66 Public Review 20 days 30 days if submitted to State Clearinghouse Must be sent to State Clearinghouse if statewide, regional or areawide significance or, a State Agency will be a responsible agency or a trustee agency or will exercise jurisdiction by law over natural resources affected by the project. 66

67 Comments on Proposed Negative Declaration Must consider agency and public comments on negative declaration. Not required to prepare responses to such comments. Good idea to prepare responses; establish record for consultation and substantial evidence for conclusion that negative declaration is the correct document. Overall good practice. 67

68 Adoption of Negative Declaration Prior to approving project, decisionmaking body shall consider the proposed ND or MND together with any comments received during the public review process. Lead Agency shall adopt the ND/MND only if it finds on the basis of the whole record before it that there is no substantial evidence that the project will have a significant effect on the environment and the ND/MND reflects the agency s independent judgment and analysis. 68

69 Adoption of Negative Declaration Specify the location and custodian of the document/material = record of proceedings upon which its decision is based. Adopt a mitigation monitoring program. File Notice of Determination within 5 working days after deciding to carry out or approve the project. 69

70 Recirculation Required to recirculate when the document must be substantially revised after public notice of availability, but before adoption. Substantial revision = a) new, avoidable effect, mitigation or project revisions must be added to reduce effects to insignificance, b) proposed measures/revisions won t reduce effects to less than significant, and new measures or revisions needed. Focus is on substantive issues; clarifications, etc. do not require recirculation. 70

71 Mitigated Negative Declarations Drafting Effective Mitigation Measures What, how, when, who? 1) Certainty will or shall instead of may or should. Avoid where feasible. 2) Performance specific minimum measurable standards in all quantitative measures. Contingency plans if performance standards not met. 3) Feasibility consider implementation issues 4) Authority enforceability 5) Nexus 71

72 Deferred Mitigation Issues What if you don t know/can t know, all the details of the mitigation? What is Required? Commitment to mitigate Performance standard Mitigate to a certain level of service, noise standard, ratio of replacement habitat Menu of options 72

73 Mitigation Monitoring and/or Reporting Plans or Program Must adopt program to ensure compliance during project implementation. Provide that measures are fully enforceable through permit conditions, agreements, or other measures (CEQA ) 73

74 Mitigation Monitoring and/or Reporting Plans or Program Typically formatted as a chart Key Information: Timing of implementation (prior to grading permit) Responsible Parties May Include: Method of implementation Method of verification 74

75 Substitution of Mitigation Measures Prior to approving the project, may delete measures (infeasible, undesirable) and substitute them for other measures agency determines are: Equivalent or More effective 75

76 Must: EIR Substitution of Mitigation Hold public hearing Measures Adopt written finding new measure is: Equivalent or more effective in mitigating or avoiding potential significant effects Will not cause significant effect. No recirculation needed 76

77 Subsequent Negative Declaration Where ND adopted for a project, no subsequent ND for project unless ( 15162): Substantial changes in project: Require major revisions of ND, and New significant effects, or Substantial increase in severity of effects. Changes in circumstances New information 77

78 Subsequent Negative Declaration If meet test, and EIR not triggered, determine whether a subsequent negative declaration (or other document) should be prepared. Test switches to substantial evidence Evidence in record to support finding that none of the three conditions warrant preparation of a subsequent EIR. 78

79 Negative Declaration Defensibility Points Is an ND/MND the right document? Initial Study documentation of conclusions Procedural steps Consideration of whole record before adopting ND/MND 79

80 Environmental Impact Reports 80

81 When to Prepare an Environmental Impact Report (EIR) Project subject to CEQA Not exempt Preliminary review determine EIR will be required Initial Study = substantial evidence that a project may have a significant effect >>shall prepare a Draft EIR 81

82 Types of EIRs Program EIR Project EIR Combined Program/Project EIR 82

83 Types of EIRs More types of EIRs Focused EIR Master EIR Subsequent EIR Supplemental EIR Tiering (will cover later) 83

84 Overview of EIRS POLICY Public Agencies should not approve projects as proposed if there are feasible alternatives or mitigation measures available which would substantially lessen the significant environmental effects of such projects. In the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects. 84

85 Overview of EIRS The EIR requirement is the heart of CEQA. (County of Inyo v. Yorty, 32 Cal. App. 3d 795) The EIR serves not only to protect the environment but also to demonstrate to the public that it is being protected. (County of Inyo v. Yorty, 32 Cal. App. 3d 795) The EIR process will enable the public to determine the environmental and economic values of their elected and appointed officials thus allowing for appropriate action come election day should a majority of the voters disagree. (People v. County of Kern, Cal. App. 3d 830) 85

86 Purpose of an EIR Identify the significant effects on the environment of a project Identify alternatives to the project Indicate the manner in which significant effects can be mitigated or avoided *An EIR is an informational document. 86

87 Procedural Requirements of EIRs Notice of Preparation Scoping/Consultation with Public and Responsible/Trustee Agencies Public scoping meeting required for any project of statewide, regional or areawide significance Good practice even if not required Meetings with Responsible/Trustee Agencies 87

88 Procedural Requirements of EIRs City or County Consultation with Water Agencies Check triggers in Guidelines Generally larger projects, same as statewide, regional or areawide significance Plus, any mixed-use project that would demand an amount of water equal to or greater than amount of water needed to serve a 500-dwelling unit project. And requires amendment or revision to General Plan land use element or a specific plan with net increase in population density or building intensity Or the adoption of a specific plan, unless previously complied With Notice of Preparation, send request to water system about demand: included in urban water management plan, total water supplies available will meet project demand in addition to the system s existing and planned future uses. 88

89 Procedural Requirements of EIRs Prepare the Draft EIR (more detail later) Notice of Completion 89

90 Completing the EIR Process: Public Review and Comment Public Review Purposes Disclose analysis Share information Check for accuracy Airing public concerns 90

91 Completing the EIR Process: Public Review and Comment How Made Available Notice of Completion of Draft EIR (Appendices C & L) Internet if possible (15201) Available in lead agency s office and local libraries How Long? No less than 30 days 45 days if requires state agency review 91

92 Completing the EIR Process: Public Review and Comment Who can comment? Anyone! Responsible Agencies: Should review and comment on draft EIRs and Negative Declarations for projects that the Responsible Agency will later be asked to approve. Comments should be as specific as possible and supported by either oral or written documentation. 92

93 Completing the EIR Process: Public Review and Comment When can they comment? During the public review periods or before the close of the public hearing. How can they comment? May submit oral or written comments to a Lead Agency concerning any environmental effects of a project being considered by the Lead Agency. (State CEQA Guidelines, 15044) Lead Agency must accept comments via and must treat comments as equivalent to written comments. (Public Resources Code, 21091[d][3]) 93

94 Completing the EIR Process: Public Review and Comment How do you respond? - Section Evaluate each comment and prepare a written response. Describe how the agency responded to the comment, or explain why suggestion not taken. If involves conflicting expert opinions, explain the conflict and the side the agency takes. Good faith, reasoned analysis. Maintain concerned, respectful tone. Carefully label comments and responses, including attachments to comments. 94

95 Completing the EIR Process: Public Review and Comment Responses to Comments Example Santa Clarita Comments questioned water supply calculations Response 100% of entitlement in wet years, 50% in dry Court: Inadequate Did not include estimates of DWR s ability to deliver in wet, dry, normal years If information not available, response should say so The requirement of a detailed analysis in response [to comments] ensures that stubborn problems or serious criticism are not swept under the rug. 95

96 Completing the EIR Process: Final EIR Contents of the Final EIR Draft EIR or revision of draft Comments and Responses List of Commentors Any other information 96

97 Completing the EIR Process: Final EIR The 10 Day Rule At least ten (10) days prior to certifying the Final EIR, the lead agency must provide a written response to any agency which has submitted timely comments on the Draft EIR. But typically lead agency will send the entire final EIR to all commentors. ( /15088) 97

98 Completing the EIR Process: Pre-decision Considerations Recirculation? Only for Significant New Information A new significant impact A substantial increase in the severity of significant impacts Feasible alternative or mitigation measures rejected Draft EIR is so flawed that it precludes meaningful public review 98

99 Completing the EIR Process: Pre-decision Considerations Recirculation? Not required for new information that Clarifies existing information Amplifies existing information Decision to not recirculate must be supported with substantial evidence If agency recirculates, only respond to comments relating to recirculated portion 99

100 Completing the EIR Process: Pre-decision Considerations Late Comments Ignore at your peril!!! 100

101 Completing the EIR Process: Approving the Project Certifying the EIR Agency must state on record that Final EIR complies with CEQA The decision-making body reviewed and considered the information in the Final EIR The Final EIR reflects the agency s independent judgment and analysis Typically, this step is taken through the preparation and adoption of a resolution. 101

102 Copy of Final EIR Guidelines Section requires the lead agency to file a copy of the final EIR with the planning agency of any city or county where significant environmental effects may occur. In addition, the applicant must be required to provide a copy of the certified final EIR to each responsible agency (PRC Section (a)). 102

103 Completing the EIR Process: Approving the Project Findings and Statement of Overriding Considerations Agency must explain in writing how it dealt with each significant environmental impact Purpose? Put public officials on record about their environmental decisionmaking Also tells the whole story of the project for a judge 103

104 Completing the EIR Process: Approving the Project Findings For each impact identified as significant or potentially significant, make one of the following findings: Mitigation measures have been adopted that reduce the level of significance Mitigation measures are the responsibility of another agency Specific economic, legal, social, technological, or other considerations make infeasible the mitigation measures or alternatives in the EIR All findings must be supported with substantial evidence in the record 104

105 Completing the EIR Process: Approving the Project Findings The Public Agency must present an explanation of the rationale of each finding. Preparation of a statement of overriding considerations does not substitute for this findings requirement. The Public Agency must ensure that adopted measures are fully enforceable through permit conditions, agreements or other measures. Substantial evidence must support conclusion that certain mitigation measures or alternatives are infeasible. Mira Mar Mobile Home Comm. v. City of Oceanside (2004) 119 Cal.App.4 th

106 Completing the EIR Process: Approving the Project Statement of Overriding Considerations Certain economic, legal, social, technological, or other benefits of a project may outweigh project s significant and unavoidable impacts If agency approves project with SU impacts, it must explain in writing the reasons supporting its decision to approve the project Must be supported with substantial evidence in the record Typically included as a section in the approval findings 106

107 Completing the EIR Process: Approving the Project Statement of Overriding Considerations (continued) Typically, a statement of overriding considerations begins with a summary of the unavoidable impacts and the lists the factors that justify approving the project despite these impacts. For example, if a development project would result in unavoidable impacts, potential benefits may include: creation of local jobs, construction of a new school, and/or increase to the tax base. Findings required - benefits outweigh impacts. 107

108 Completing the EIR Process: Approving the Project Approval of Project Only AFTER the EIR is certified 108

109 Public Hearing Not required under CEQA but may be required for the underlying action. However, agencies are encouraged to include environmental review as a topic when the agency holds a hearing on a project. A public hearing on the environmental impact of a project should be held if the Lead Agency determines it would facilitate the purposes and goals of CEQA. A draft EIR, MND or ND should be used as a basis for discussion. (CEQA Guidelines Section 15202). 109

110 Completing the EIR Process: Approving the Project Filing the Notice of Determination Don t delay! Within 5 working days Starts Statute of Limitations Must contain: Identification and Description of Project Determination regarding environmental impacts, mitigation measures and overrides Statement that EIR in compliance with CEQA Location of Final EIR Where? OPR County Clerk 110

111 Notices and the Internet Public agencies are encouraged to make copies of NODs, NOEs, and NOCs available on the Internet. Electronic notices are in addition to those required by the Guidelines and the Public Resources Code (Guidelines Sections 15062, and 15085). Public agencies are also encouraged to post notices of all public hearings on the Internet (Guidelines Section 15202). OPR is required to make all NOEs, Notices of Preparation, NODs, and NOCs provided to the office available on the Internet (PRC Section ). These notices are available at 111

112 Substantive Requirements for EIRs Project Description Location and boundaries of the proposed project Statement of objectives sought by the proposed project General description of project s technical, economic, and environmental characteristics, including the principal engineering proposals and any supporting public service facilities 112

113 Substantive Requirements for EIRs Project Description (continued) Brief statement of the intended uses of the EIR. Important list of agencies expected to use the EIR in their decision making list of permits and other approvals required to implement the project list of related environmental review and consultation requirements required by federal, state or local laws, regulations or policies 113

114 Substantive Requirements for EIRs Project Description (continued) Must include the whole of an action with potential for direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. General Plan Amendments with no detail of a specific project: make a reasonable assumption about what the development would look like and what it would entail. 114

115 Substantive Requirements for EIRs Environmental Setting Description of the physical environmental conditions in the vicinity of the project As they exist at the time the Notice of Preparation is published * Normally, this setting will be the baseline physical conditions by which a lead agency determines whether an impact is significant. 115

116 Substantive Requirements for EIRs Environmental Setting (continued) Issues: Agency must choose a baseline if there are different numbers in different studies (water use example) Timing traffic counts in 2003, EIR not distributed for public review until

117 Substantive Requirements for EIRs Discussion of Environmental Impacts All the environmental topics from aesthetics to utilities Approximately topics Setting, Impacts and Mitigation Measures for each topic Impacts of mitigation measures must be described 117

118 Substantive Requirements for EIRs Alternatives Range of reasonable alternatives to the project, or to the location of the project, which would: feasibly attain most of the basic objectives of the project but would substantially lessen any of the significant effects of the project Need not consider every possible alternative. An alternative whose effect cannot be reasonably ascertained and whose implementation is remote and speculative need not be considered. Alternatives must be feasible Rule of Reason 118

119 Substantive Requirements for EIRs Alternatives (continued) Disclose the reasons for selecting those alternatives Identify alternatives rejected as infeasible and reasons for rejecting. Factors for rejecting: Failure to meet most of the project objectives infeasibility inability to avoid environmental impacts 119

120 Substantive Requirements for EIRs Alternatives (continued) Evaluate the comparative merits of the alternatives Sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project Matrix can be used 120

121 Substantive Requirements for EIRs No Project Alternative This alternative must be evaluated Compare the impacts of approving the project with the impacts of not approving the project May be, but not necessarily, the baseline for determining whether impacts will be significant Discuss existing conditions as well as what would reasonably be expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services 121

122 Substantive Requirements for EIRs No Project Alternative (continued) When the project is the revision of an existing land use or regulatory plan, policy or ongoing operations, the no project alternative will be the continuation of the existing plan, policy or operation into the future. If other kind of project, for example, a development project on identifiable property, no project alternative is circumstance where the project does not proceed 122

123 Substantive Requirements for EIRs Environmentally Superior Alternative If the no project alternative is the environmentally superior alternative, the EIR shall also identify an environmentally superior alternative among the other alternatives 123

124 Substantive Requirements for EIRs Alternative Locations Ask: would significant effects be avoided or substantially lessened by putting the project in another location. If not, alternative sites not required. Explain. May rely on previous documents that analyzed alternative locations. 124

125 Substantive Requirements for EIRs Cumulative Impacts Projection method List of past, present and reasonably foreseeable future projects method Consider a hybrid approach 125

126 Substantive Requirements for EIRs Growth Inducing Impacts Foster economic or population growth? Remove an obstacle to growth? Chicken or egg? 126

127 Relationship to Water Supply Planning SB 610 (2001, amended SB 901, 1995). CEQA Guidelines has not been updated to reflect SB 610. CEQA Case Law. SB 221 applies to subdivisions. 127

128 Relationship to Water Supply Planning SB 610: City or County Consultation with Water Agencies Applies to projects defined in the Water Code Generally larger projects, statewide, regional or areawide significance. Residential development > 500 dwelling units. Shopping center/business employ > 1,000 persons of > 500,000 sq. ft. floor space. Commercial office employ > 1,000 persons or > 230,000 sq. ft. floor space Hotel/motel > 500 rooms. Industrial/manufacturing > 1,000 people, > 40 acres, > 650,000 sq. ft. floor area. Any mixed-use project that includes one of above, or, would demand an amount of water equal to or greater than amount of water needed to serve a dwelling unit project.

129 Relationship to Water Supply Planning SB 610: City or County Consultation with Water Agencies At the time Lead Agency determines whether an EIR, ND or Mitigated ND is required. Shall identify the water system (that is or may become a public water system), that may supply water for the project. Send request to water system about demand: is project included in urban water management plan? No additional water supply assessment unless changes, new information = substantial increase in water demand. 129

130 Relationship to Water Supply Planning SB 610: City or County Consultation with Water Agencies If project not included, water supply assessment needed: Total projected water supplies available. During normal, single dry & multiple dry years. 20 year projection. Will meet project demand in addition to the system s existing and planned future uses, including agricultural and manufacturing uses. Special requirements re: water rights, groundwater. 130

131 Relationship to Water Supply Planning SB 610: City or County Consultation with Water Agencies Public water system submits assessment to city or county 90 days. Governing body (public water system or city/county) approve at special or regular meeting. Water Supply Assessment & any additional information about water supply shall be included in environmental document. 131

132 Relationship to Water Supply Planning SB 610: City or County Consultation with Water Agencies City or county shall determine whether projected water supplies will be sufficient to satisfy the demand of the project, in addition to existing and planned future uses. If not sufficient, must include that determination in its findings for the project. 132

133 Relationship to Water Supply Case Law on Water Supply Planning Must disclose the impact of supplying water to the site and potential sources if additional sources required. Must use reliable evidence of projected future supplies that will be realistically available to the project. Most recent case, Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2005) 25 Cal. Rptr. 3d 596. (CA Supreme Court will review) 133

134 Relationship to Water Supply Case Law on Water Supply Planning Project was community plan and near-term specific plan on 6,0000+ acre project with mix of residential (22,500 units) and commercial use. Complicated water supply issues, including groundwater. Court upheld EIR analysis of water supply. Even though all water sources were not completed (well fields), the sources were not speculative and county was fully informed about the issues. Specific sources of water were identified, and the impacts of those sources were analyzed. 134

135 Integrating the Planning Process with CEQA Ideal environmental factors considered early in planning process, use that information later Whole point of CEQA is to improve projects, reduce impacts Realities of development (including public works) Consistency with other permits and approvals: Wetlands (404 permit, 1602 Agreement, WDRs) Endangered species Water quality Hydrology and floodplain 135

136 Methods to Avoid Duplication Tiering Relationship Between Existing Environmental Review and Environmental Review for New Projects 136

137 Tiering: Example General Plan to Specific Plan to Subdivision Map 137

138 Tiering: Definition Pub. Resources Code, Tiering or tier means: the coverage of general matters in an EIR prepared for a policy, plan, program or ordinance followed by site-specific EIRs which incorporate by reference the discussion in any prior EIR and which concentrate on the environmental effects which a) are capable of being mitigated, or b) were not analyzed as significant effects on the environment in the prior EIR. 138

139 Avoid Redundancy Tiering: Policies environmental impact reports should be tiered whenever possible (Pub. Resources Code, 21093, subd. (b).) Providing Information and Disclosure Purpose of EIR is to provide agencies and public information about environmental effects of a project. (Pub. Resources Code, ) 139

140 Tiering: Related Mechanisms Program EIRs Master EIRs Projects consistent with zoning or community plans List in Guidelines, 15152, subd. (h) 140

141 Focus on the big picture. Tiering: First Tier Review Identify significant impacts resulting from the planning decision itself Stanislaus Natural Heritage Multi-phase specific plan, 5000 units Only analyzed water supply impacts of first phase Invalidated because did not disclose significant impact on water supply May defer some site-specific analysis to future document, but impact of planning level decision cannot be deferred 141

142 Review is Limited: Tiering: Second Tier Review Do not examine effects that: Have already been mitigated or avoided Were examined at a sufficient level of detail (Pub. Resources Code, 21094, subd. (a).) 142

143 Adequately Addressed Tiering: Second Tier Review Significant environmental effects have been adequately addressed if the lead agency determines that: a) They were completely mitigated or avoided in the prior [EIR], and the appropriate findings were adopted; or b) They have been examined in enough detail in the prior [EIR] to enable those effects to be mitigated or avoided by site specific revisions, the imposition of conditions, or by other means in connection with the approval of the later project. (CEQA Guidelines, 15152, subd. (f)(3).) 143

144 Tiering: Second Tier Review Adequately Addressed (continued) Caution: 15152(f)(3)(C) (preparation of EIR for purpose of statement of overriding considerations) invalidated If effect is significant and unavoidable, agency must make a statement of overriding considerations specifically tied to that project in a new EIR. (CBE) Is another EIR really needed? 144