What Are Baseline and Environmental Setting?

Transcription

1 CEQA Porta Topic Paper Baseine and Environmenta Setting What Are Baseine and Environmenta Setting? Under CEQA, the impacts of a proposed project must be evauated by comparing expected environmenta conditions after project impementation to conditions at a point in time referred to as the baseine. The changes in environmenta conditions between those two scenarios represent the environmenta impacts of the proposed project. The description of the environmenta conditions in the project study area under baseine conditions is referred to as the environmenta setting. Why Is Baseine Important? Estabishing an appropriate baseine is essentia, because an inappropriatey defined baseine can cause the impacts of the project either to be under-reported or over-reported. A considerabe number of CEQA documents have been itigated over the choice of a baseine for a given project, and many CEQA documents have been invaidated for the use of an inappropriate baseine (see Important Cases beow). Estabishing the Baseine in an EIR The State CEQA Guideines Section provides the foowing guidance for estabishing the baseine: An EIR must incude a description of the physica environmenta conditions in the vicinity of the project, as they exist at the time the notice of preparation is pubished, or if no notice of preparation is pubished, at the time environmenta anaysis is commenced, from both a oca and regiona perspective. This environmenta setting wi normay constitute the baseine physica conditions by which a ead agency determines whether an impact is significant. As the Guideines section makes cear, ordinariy the appropriate baseine wi be the actua environmenta conditions existing at the time of CEQA anaysis (typicay when the Notice of Preparation [NOP] is pubished). In many cases, estabishing this existing conditions baseine is a straightforward task. However, there are circumstances that may make this task more compex and chaenging. A few are discussed here. Others, which are even more compex, or about which court cases do not provide cear guidance, are discussed beow under Areas of Controversy. 1

2 Resources That Fuctuate over Time Some environmenta resources evauated in a CEQA document are constant over the time frames typicay evauated (e.g., geoogica conditions; types of soi underying the project site; cutura resources present on the site). Other resources fuctuate over ong periods of time (e.g., types of pubic services and utiities provided, popuation, housing units, number of existing buidings, tree popuations). However, there are a number of environmenta resources that are subject to substantia fuctuations over the course of days, months, or seasons. It may be difficut or miseading to describe the specific condition of these resources as of a specific date. As an exampe, fows in rivers and streams are never constant, varying by hour, day, season, and from year to year. Describing the exact fows in a stream as of the baseine date (even if you specified the time) woud not necessariy provide a compete or usefu description of this resource. Therefore, for such resources, the environmenta setting may be described in terms of the historica range of fows, perhaps by month, over the period that records have been kept. Simiary, traffic voumes aso vary by hour of day, day of the week, and from year to year. Whie the counts are not often taken on the baseine date, they shoud be taken as cose to the date as possibe, particuary if traffic voumes are changing substantiay over time. Further, if substantia daiy variation is expected, traffic counts shoud be taken on more than one day, to try to capture these variations. Some bioogica resources, such as widife species, may be present on the project site ony during specific seasons, so even if the baseine date is estabished as a specific date, surveys for bioogica species shoud be schedued during the period when the species are anticipated to be present on the site. Simiary, some rare pant species can be definitivey identified ony during their fowering period, so, if possibe, botanica surveys shoud be undertaken during those times. Thus, some fexibiity is required in estabishing the appropriate date for coecting information on baseine conditions for individua resources. As ong as the reasoning for deviating from the norma approach is described and supported by substantia evidence, such deviations are typicay acceptabe. When Conditions as of the Date of the NOP Are Not Appropriate to Accuratey Describe Impacts The utimate goa of the anaysis in the EIR is to discose the impacts of the proposed project to the pubic and decision makers. There may be times when a deviation from the use of the NOP date to estabish the baseine is most appropriate in order to present a fair and accurate description of a project s expected environmenta impacts. An exampe of a circumstance that may warrant such a deviation woud be the case of a project where the NOP was pubished, but the initiation of work on the CEQA document was deayed unti many years ater, when environmenta conditions had markedy changed. Under such a circumstance, one shoud make an effort to obtain and report any information about the resources on the site as of the NOP pubication date from od reports, historica aeria 2

3 photographs, od photographs, and other sources. However, given the practica difficuties associated with describing the bioogica resources on the project site as of the NOP date, it may be more appropriate to describe conditions existing when the CEQA anaysis actuay begins. The reasons for the seection of the baseine date shoud be described in the environmenta document and supported by substantia evidence in the record. Athough the baseine shoud normay be the same for a resource topics, there are circumstances when this woud not make sense or woud provide distorted resuts. For instance, if new sensitive receptors have been constructed adjacent to a project since the NOP was pubished, and that project woud generate noise, arge amounts of air poutants, or noxious odors, these receptors must be incuded in the description of environmenta setting, and impacts on these receptors must be anayzed. Aso, under these same circumstances, the bioogica anaysis shoud use a current ist of specia-status species, rather than ony the species that were isted at the time of the NOP, and the most current ists of species occurrences from state and federa databases shoud be used. Appeate cases have determined the propriety of deviating from a baseine of existing conditions on the NOP pubication date in a variety of circumstances, incuding the foowing: Rejecting use of poutant emission eves aowed under prior permits, but not refective of actua existing emissions, as a baseine (Communities for a Better Environment v. South Coast Air Quaity Management Dist. (2010) 48 Ca.4th 310.) Uphoding use of a traffic baseine that assumed fu occupancy of a department store that was vacant on the NOP pubication date based on historica occupancy information. (North County Advocates v. City of Carsbad (2015) 241 Ca.App.4th 94.) Uphoding use of 5-year average of annua mining voumes instead of the mining voumes from the year the NOP was pubished as the baseine for determining environmenta impacts. (San Francisco Baykeeper, Inc. v. State Lands Commission (2015) 242 Ca.App.4th 202.) As a practice pointer, any deviation from the use of conditions existing on the NOP date as a baseine shoud be done ony where it presents a better, more accurate presentation of the project s expected impacts, and shoud never mask or distort project impacts. Further, it is very important that the reasons for any such deviation be fuy expained in the EIR and that the decision to utiize a different baseine be supported by substantia evidence. Use of Future Baseines For projects that may be impemented over a period of years, or even decades, simpy comparing the effects of such a project to a baseine representing existing conditions may not provide a fu and accurate picture of the project s impacts. As an exampe, if a arge deveopment project is intended to be constructed over a 20-year time frame, comparing the traffic generated by the project at fu buidout to existing traffic conditions coud be miseading, particuary if background traffic eves are projected to grow over time or fuy-funded infrastructure improvements are schedued to be constructed in the interim. 3

4 In Neighbors for Smart Rai v. Exposition Metro Line Construction Authority (2013), 57 Ca.4th 439, the Caifornia Supreme Court provided some guidance on the use of a future baseine. In Neighbors for Smart Rai, a transportation agency approved a project to construct a ight rai ine between Cuver City and Santa Monica. The ine was anticipated to be competed in When preparing the EIR for that project, the agency used, as a baseine, projected traffic and air quaity conditions in the project area in the year 2030, refecting the Southern Caifornia Association of Governments (SCAG s) 2030 regiona demographic projections and its ist of transit service and road improvements expected to be in pace by An environmenta group sued, arguing that the excusive use of this future baseine was inappropriate because the agency faied to discose the impacts the project woud have on existing environmenta conditions in the project area. In siding with the agency, the Supreme Court hed that the use of ony a future baseine for traffic anayses (and presumaby other topic anayses) may be permissibe under certain circumstances where an agency can show that an anaysis based on existing conditions woud tend to be miseading or without informationa vaue. In recognition of the Court s concusion that the excusive use of a future baseine is a departure from the norm stated in Guideines section 15125(a), and shoud appy ony to situations where justified by unusua aspects of the project or the surrounding conditions, parties shoud proceed with caution before competey omitting a discussion of existing conditions. The authors offer the foowing guidance 1 on the steps to be foowed when empoying a future baseine: Show Your Work. This is aways good advice, but this case highights the need for an EIR to contain a cear expanation of any deviation from norma assumptions or methods. In this case, expain why a future baseine is reasonabe and/or necessary. Be Specific. The Supreme Court has set out the circumstances under which a future baseine can be justified. The EIR 2 shoud incude a discussion of how the baseine was estabished, incuding the specific unusua aspects of the project or surrounding conditions that justify using a future baseine. In addition, expain how using a future baseine is necessary in order to prevent misinforming or miseading the pubic and decision makers, and why the particuar future baseine date was seected and appropriate. The description/expanation must be supported by substantia evidence in the record. Be Reasonabe. Don t rey excusivey on a future baseine that s many years beyond the date at which the project woud begin operations. The more distant the baseine year, the more difficut it wi be to justify. Expain why the projections that the future baseine reies on are indeed reiabe and consider using mutipe baseines as we to ensure that a impacts are accuratey described. Evauate a Mid-Point as We (Mutipe Baseines). When a future baseine is we beyond the beginning of operations for a project, the EIR must examine the impacts, if any, that woud occur 1 Based on anaysis in The Proper Baseines for Anayzing Traffic and Reated Impacts under CEQA (Rivaspata et a. 2013). 2 This court case invoved an EIR, but this guidance may appy equay to Initia Studies. 4

5 between the commencement of construction and the beginning of operations, and utimatey, buidout. If the project is divided into phases, these provide convenient dates for mid-point anayses. As is true for the anaysis at the baseine date, the EIR shoud discose whether the impacts at this mid-point are significant and shoud incude appropriate mitigation measures. This can be very usefu in determining the timing of needed improvements for projects that may take many years or even decades to reach fu impementation. Use of Future Baseine Is Unusua. Using an existing conditions baseine is sti warranted in most cases. The Supreme Court, in creating this unusua aspects of the project/miseading information rue, is estabishing an approach that is appicabe ony under narrow circumstances. Don t get carried away and attempt to appy this approach to every impact anaysis. Estabishing a Baseine when Unpermitted or Iega Activities Occurred before the Baseine Date Athough rare, occasionay a question arises regarding how to characterize the baseine where the existing conditions (either on-site physica conditions or operations) are the resut of iega activity, incuding activity inconsistent with existing permits. This issue was addressed in Fat v. County of Sacramento (2002), 97 Ca.App.4th 1270, where the court (citing Riverwatch v. County of San Diego (1999) 76 Ca.App.4 th 1428) noted that the preparation of a CEQA document is not a forum for determining the nature and consequences of the prior conduct of a project appicant and uphed the County s seection of the NOP issuance date as the baseine date for the IS/MND, despite the fact that the Conditiona Use Permit for the airport in question had expired many years earier. Lead agencies must evauate impacts against actua conditions existing at the time of CEQA review and are not required to turn back the cock and evauate impacts compared to a baseine condition that predates the iega activity. What Information Shoud Be Incuded in the Environmenta Setting? A description of the environmenta setting shoud be provided for every resource discussed in an Initia Study or EIR. The description of the environmenta setting is intended to provide context for the reader to understand the impacts discussed, and for the significance concusions that are provided. Thus, the preparer shoud be thoughtfu about how much information is incuded in the environmenta setting. Too itte information may deprive the reader (and perhaps a judge) of the information needed to understand what circumstances ed the writer to concude that an impact was either significant or ess than significant, and why the proposed mitigation woud sufficienty address the identified significant impacts. On the other hand, providing too much information may make it unnecessariy difficut for the reader to find the information they need to understand the context (as described earier). To strike this baance, it is advisabe for the writer to view the text from the perspective of a reativey uninformed reader, and to seect that setting information which is required to provide the reader with context to understand the 5

6 project s impacts on the resource topic and the circumstances that ed to the author s impact concusions. As a simpe exampe, it is not necessary or advisabe to provide a great dea of setting information for species you wi utimatey determine coud not exist in the study area. Simiary, if the proposed project woud not have any effect on pubic services, it is necessary to provide ony a brief summary of the pubic services avaiabe in the study area and the entities providing those services. As another exampe, it is often necessary to provide an extensive discussion of the history and prehistory of the study area in cutura resources technica reports, as this information is required for reports submitted to the State Historic Preservation Office. However, ony that information directy reevant to the impacts of the proposed project on cutura resources need be incuded in the environmenta setting of the Initia Study or EIR. Simiary, bioogica resource technica reports typicay provide a ist of a of the species identified during fied surveys conducted at the project site, incuding both common species and specia-status species. Discussions of common species in an Initia Study or EIR is not necessary, as these species are generay not protected, and impacts on them are not considered significant and do not require mitigation. Thus, the discussion of existing conditions in the IS or EIR shoud focus on specia-status species. The environmenta setting shoud not be confused with the No-Project Aternative, which aso provides a baseine of sorts against which the proposed project and other aternatives may be compared. In circumstances where the physica environment in the study area is not projected to change over time, the environment may be the same under the environmenta setting and the No-Project Aternative. However, this is often not the case, so the No-Project Aternative shoud not be used to measure the impacts of the proposed project, estabish the significance of impacts, or to estabish mitigation measures (State CEQA Guideines Section (e)(1)). How Are Baseine and Environmenta Setting Addressed in an IS/ND or MND? Athough not expicity stated, the guidance provided in Section15125 of the State CEQA Guideines appies to both Initia Studies and EIRs. Because the issuance of an NOP is not required when an Initia Study is prepared, the date that the environmenta anaysis is begun is typicay used as the baseine date. This interpretation is supported by the court s decision in Fat v. County of Sacramento, which supported the use of the date when environmenta anaysis began as the baseine for the preparation of an IS/MND. The guidance used for describing the environmenta setting in an EIR as described above under Estabishing the Baseine in an EIR appies equay to an Initia Study. 6

7 Baseine and Environmenta Setting under NEPA NEPA (40 CFR (d)) requires federa agencies to incude an anaysis of the aternative of no action in the anaysis of aternatives in Environmenta Assessments and Environmenta Impact Statements. Commony referred to as the No-Action Aternative, this aternative represents conditions that woud resut if the agency continued existing poicy or did not impement the proposed federa action, and, unike under CEQA, serves as a baseine against which the effects of impementing the proposed action and other aternatives are measured. The President s Counci on Environmenta Quaity (CEQ) Memorandum: Questions and Answers about the NEPA Reguations ( 40 Questions ), provides further carifications regarding the No-Action Aternative. It states: There are two distinct interpretations of "no action" that must be considered, depending on the nature of the proposa being evauated. The first situation might invove an action such as updating a and management pan where ongoing programs initiated under existing egisation and reguations wi continue, even as new pans are deveoped. In these cases "no action" is "no change" from current management direction or eve of management intensity... Therefore, the "no action" aternative may be thought of in terms of continuing with the present course of action unti that action is changed. Consequenty, projected impacts of aternative management schemes woud be compared in the EIS to those impacts projected for the existing pan. In this case, aternatives woud incude management pans of both greater and esser intensity, especiay greater and esser eves of resource deveopment. The second interpretation of "no action" is iustrated in instances invoving federa decisions on proposas for projects. "No action" in such cases woud mean the proposed activity woud not take pace, and the resuting environmenta effects from taking no action woud be compared with the effects of permitting the proposed activity or an aternative activity to go forward. The federa agency has wide discretion to determine the time frame of the No-Action Aternative, which need not represent existing conditions. In fact, it is not uncommon for the No-Action Aternative to refect future conditions, if the proposed action woud not be impemented immediatey, or woud take many years to impement. Baseine and Environmenta Setting in a Joint CEQA/NEPA Document There may be circumstances where the NEPA No-Action Aternative and CEQA baseine are not the same. The CEQA and NEPA Lead Agencies shoud meet to discuss the structure and content of the joint document eary in the environmenta review process, and this discussion shoud incude a determination whether the NEPA No-Action Aternative and the CEQA baseine wi be the same or different. For simpicity, it is best if they are the same, but this cannot aways 7

8 be accommodated, and under such circumstances, it may be necessary to have two impact anayses, one using the CEQA baseine, and the other using the NEPA No-Action Aternative. It shoud be recognized that, under these circumstances, the CEQA impacts and mitigation measures might be quite different from the NEPA effects anaysis and mitigation. Areas of Controversy Regarding Baseine and Environmenta Setting In uphoding the use of a future baseine, Neighbors for Smart Rai eft unanswered a variety of questions, incuding the circumstances in which existing conditions woud be uninformative or miseading such that use of an excusive future baseine is appropriate; how far in the future an EIR may set the baseine when reying on conditions predicted to exist at project opening; and the appropriate point for use of a mid-term baseine. These invove fact-specific questions that are ikey to be feshed out in future pubished decisions. Unti more direction is provided, and because case aw cannot address every conceivabe situation a Lead Agency might encounter, environmenta professionas shoud be mindfu of the importance of ceary expaining the rationae and evidence supporting the decision to use a baseine other than physica conditions existing at the time of the NOP. The adequacy of a document s baseine is a factua issue to be determined based on whether there is substantia evidence in the record supporting the agency s determination, and thus a reasonabe decision supported by substantia evidence and adequate anaysis in the EIR itsef shoud be uphed. Important Cases The foowing pubished cases invove issues reated to baseine and environmenta setting: Neighbors for Smart Rai v. Exposition Metro Line Construction Authority (2013) 57 Ca.4th439: A ead agency may rey on a future baseine ony if using existing conditions woud be uninformative or miseading. The adequacy of that baseine, as we as any decision to use additiona future baseines (e.g., a midpoint) wi be uphed if supported by substantia evidence. This EIR did not adequatey justify its reiance on a baseine representing conditions 15 years after commencement of the project; the EIR negected any consideration of impacts that might occur during construction or the first 15 years of operation. Citizens for Open Government v. City of Lodi (2012) 205 Ca.App.4th 296: The court uphed a city s decision not to update the baseine for an EIR s urban decay anaysis despite a substantia deay (7 years) between issuance of the NOP and reease of the Draft EIR, where the decision was supported by substantia evidence in the form of a consutant s report. 8

9 Communities for a Better Environment v. South Coast Air Quaity Management Dist. (2010) 48 Ca.4th 310: For modifications to an existing faciity, the baseine shoud represent existing physica conditions, not the maximum operations authorized under the faciity s permit. The court invaidated the agency s use of permitted emission eves that had never been reached as the baseine for anaysis of a proposed expansion. The court recognized that for resources that fuctuate over time, effects might be compared to a point other than the precise time of commencement of CEQA review, if reasonabe and supported by substantia evidence. Cherry Vaey Pass Acres & Neighbors v. City of Beaumont (2010) 190 Ca.App.4th 316: For a proposa to deveop a former farm, the EIR s use of the andowner s adjudicated groundwater right of 1,484 acre feet per year (afy) as baseine was uphed despite fact that actua water use at time of NOP was much ower (50 afy) because the adjudicated amount approximated historica water use when the farm was operating and the adjudicated amount was therefore not a hypothetica baseine. San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Ca.App.4th 645: An EIR must painy identify the specific assumptions incuded in its baseine. Fat v. County of Sacramento (2002) 97 Ca.App.4th 1270: The baseine incudes existing activities at the project site, even if unawfu (here, airport operations unauthorized by the faciity s conditiona use permit) Save Our Peninsua Committee v. Monterey County Bd. of Supervisors (2001) 87 Ca.App.4th 99: The Court invaidated the EIR s baseine for water use, where the EIR presented an array of potentia baseines. Decision makers utimatey reied on information provided after commencement of CEQA review, which showed that substantiay higher water use had occurred. That information was provided at the end of the environmenta review period, not in the EIR itsef and therefore not subject to pubic review. Moreover, no evidence was provided in the record to indicate that the higher use accuratey represented historica conditions on the property or those existing at the start of CEQA review. County of Amador v. E Dorado County Water Agency (1999) 76 Ca.App.4th 931: The Court found the EIR s reiance on information concerning ony one eement of historica water project operations (ake eves and associated reated reguatory requirements) as the baseine for evauation of impacts associated with changes to the water project, was inadequate because it did not contain sufficient information or anaysis about historica water reeases to adequatey assess effects on fish and recreation from proposed changes to project operations. Riverwatch v. County of San Diego (1999) 76 Ca.App.4th 1428: Prior iega activity by an appicant that affects physica conditions to the project site (in this case, iega dredging) is not reevant to determining the CEQA existing conditions baseine. 9

10 The ead agency is not required to turn back the cock and anayze impacts compared to the conditions that existed prior to any unawfu activity. Back Property Owners Ass n v. City of Berkeey (1994) 222 Ca.App.4th 974: In amending a pan, CEQA review extends ony to environmenta impacts associated with the amendments. The re-adoption of previousy adopted poicies without change does not require environmenta review. Fairview Neighbors v. County of Ventura (1990) 70 Ca.App.4th 236: For changes to an existing operation, the baseine may reasonaby incude the faciity s estabished eves of permitted use. In an EIR for a mining project, the Court aowed traffic numbers occurring when the mine operated at peak capacity pursuant to a prior use permit as the baseine, since mine operations varied widey depending on market factors and the peak capacity was actuay achieved in prior years. Environmenta Panning & Information Counci v. County of E Dorado (1982) 131 Ca.App.3d 350: The baseine for anaysis of impacts of deveopment under a new Genera Pan is the existing physica deveopment in the Genera Pan area, not the eve of deveopment that coud occur under the existing Genera Pan, even where the proposed changes woud reduce the authorized eve of deveopment compared to the existing pan. Baseine and Environmenta Setting in the State CEQA Guideines Section 15125(a) Requires EIRs to contain a description of the physica environmenta conditions in the vicinity of the project, as they exist at the time the NOP is pubished, or if no NOP is pubished, at the time environmenta anaysis is commenced, from both a oca and regiona perspective. Section 15125(b) Indicates that estabishing baseine for miitary base reuse EIRs shoud consider the principe contained in Section Section 15125(c) Indicates that emphasis shoud be paced on rare or unique environmenta resources when describing the environmenta setting. Section 15125(e) Provides guidance for estabishing baseine when the proposed project is compared to an adopted pan. Section (e)(1) Carifies that the No-Project Aternative shoud not be used as the baseine for the purposes of anayzing the impacts of the proposed project. Section Provides guidance for estabishing baseine for miitary base reuse EIRs. 10

11 Reated CEQA Porta Topics Aternatives (in process) Authors Craig Stevens, Stevens Consuting Antero Rivaspata, ICF Internationa Reviewers Kate Wheatey, Tayor & Wiey Keey Taber, Somach Simmons & Dunn Demar Hooper, Law Offices of B. Demar Hooper Sources Counci on Environmenta Quaity Forty Most Asked Questions. March Fed. Reg (1981). Avaiabe at: Date Updated: August 23, 2016 Lega Discaimer The AEP-sponsored CEQA Porta, this topic paper, and other topic papers and information provided as part of the CEQA Porta are not intended as ega advice. The information contained herein is being provided as a pubic service and has been obtained from sources beieved reiabe. However, its competeness cannot be guaranteed. Further, additiona facts or future deveopments may affect subjects contained herein. Seek the advice of an attorney before acting or reying upon any information provided herein. 11