CEQA TRAINING SEMINAR: FIVE TOPICS

Transcription

1 MWD CEQA Workshop Los Angeles CEQA TRAINING SEMINAR: FIVE TOPICS P RESENTED BY : C URTIS ALLING, AICP C HRIS MUNDHENK A SCENT ENVIRONMENTAL, INC. A UGUST 2015

2 FIVE TOPICS u Thresholds of Significance u Project Design Features v. Mitigation u Project /Facility Changes, Supplemental Reviews u CEQA Document Types Advantages and Disadvantages u Compliance with Local Ordinances

3 TOPIC 1 THRESHOLDS OF SIGNIFICANCE

4 ADOPTED FOR GENERAL USE OR DEVELOPED PROJECT-BY-PROJECT u Lead agency may adopt uniformly applied, formal thresholds of significance u Project-by-project thresholds may be used u Role of Appendix G: Environmental Checklist questions u Substantial evidence support

5 WHY ARE THRESHOLDS OF SIGNIFICANCE IMPORTANT? u The crux of the CEQA Process u CEQA s substantive mandate u Determines appropriate level of review u Determines trigger for mitigation u Determines need for Statements of Overriding Consideration

6 WHAT ARE FORMALLY ADOPTED, STANDARD THRESHOLDS OF SIGNIFICANCE? u An identifiable quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency CCR (a) Adopted through a public review process Generally applied by the lead agency for its projects Must be supported by substantial evidence In practice, thresholds of neighboring jurisdictions have been used, especially where impacts may occur in those jurisdictions

7 ADOPTED THRESHOLDS WHO HAS THEM? u Santa Barbara County, Environmental Thresholds and Guidelines Manual (Yes) u City of San Diego, Significance Determination Thresholds (Yes) u Bay Area Air Quality Management District CEQA Guidelines (In Legal Limbo)

8 IMPORTANCE OF THRESHOLDS u What you want: Legally defensible argument that you have provided an accurate objective evaluation of the environmental impacts A completed CEQA Review Process without the need for additional public review through recirculation or subsequent environmental needs

9 CONSISTENCY ACROSS METROPOLITAN FACILITIES u u Some consistency: Afforded by State and federal law Industry standard of approach Examples: Biological and Cultural Resources, Geology, Hazards, Hydrology, Mineral Resources Where inconsistencies occur: Air Quality and GHG Mojave and South Coast AQMDs; Imperial and San Diego APCDs Biology in terms of regional conservation efforts (HCPs/ NCCPs) Noise Construction noise Transportation Acceptable Level of Service (becoming less important for CEQA)

10 COMPLIANCE WITH REGULATIONS u Regulatory compliance is not expressed as mitigation, if compliance is prescribed, ministerial Example - NPDES and SWPPP requirements for construction u It can be mitigation, if the manner of compliance includes regulatory agency discretion Example No net loss of riparian/wetland habitat through restoration 404/401/1600

11 And now for some examples of how to approach this for a project ADOPTED THRESHOLDS V. PROJECT-SPECIFIC u Series of questions to be asked: Do components of the project exhibit unique characteristics that could result in atypical impacts? Is the project located in an area where typical thresholds may not be appropriate or capture what is necessary? Could someone make a fair argument that standard thresholds would not address impacts of the project?

12 EXAMPLE 1 u Metropolitan wants to add a couple new pumps within an existing pump station structure at Skinner Treatment Plant Is this a unique project? Are there similar activities currently going on there? Has Metropolitan evaluated projects under CEQA at Skinner before? What were the comments received on previous CEQA documents? Stephen s Kangaroo Rat, Gnatcatcher, new eyesore Could someone make a fair argument that standard thresholds would not address impacts of the project?

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14 EXAMPLE 2 u Metropolitan wants to add a new solids handling facility at Jensen, but the existing ball fields on Metropolitan property that are leased would need to be moved Do components of the project exhibit unique characteristics that could result in atypical impacts? Temporary if not permanent recreation impacts Canadian geese and other wildlife corridor Is the project located in an area where typical thresholds may not be appropriate or capture what is necessary? Not a typical evaluation for Metropolitan due to recreation component which is compounded by the visibility of the fields as part of a potential wildlife corridor Could someone make a fair argument that standard thresholds would not address impacts of the project? What to do?

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16 EXAMPLE 3 u Pipeline repairs on the Orange County Feeder in an area surrounded by commercial/light industrial uses. There is a dirt road on top of Metropolitan right-of-way that locals sometimes use as a recreational path. Unique characteristics? Unauthorized recreational use? Is it designated anywhere as a recreational trail by the City or local community organization? Potentially sensitive area? Noise and other localized impacts? o Lake Forest Noise Exemption Biological resources? Could someone make a fair argument that standard thresholds would not address impacts of the project?

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18 FAIR ARGUMENT STANDARD AND SUBSTANTIAL EVIDENCE

19 FAIR ARGUMENT STANDARD u u u u u Legal standard for determining the significance of impacts; whether a fair argument can be made that a substantial adverse change in physical conditions will occur EIR is required if fair argument exists that a project may have a significant effect on the environment Fair argument must be backed by substantial evidence Generally does not matter how much evidence supports a less-than-significant effect, when a fair argument exists If competing evidence exists, lead agency must prepare an EIR

20 ORIGINATED WITH THE COURT If 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 it may also be presented with other substantial evidence that the project will not have a significant effect. No Oil, Inc. v. City of Los Angeles (1974)

21 SUBSTANTIAL EVIDENCE DEFINED u Includes fact, reasonable assumption predicated upon fact, or expert opinion supported by fact u Does not include argument, speculation, unsubstantiated opinion, erroneous information, or evidence of social or economic impact that do not cause or contribute to physical environmental effects (PRC 21080(e))

22 SUBSTANTIAL EVIDENCE IS CRITICAL u Standard of judicial review is abuse of discretion u Agency abuses its discretion if it fails to comply with the law, or if its decision is not supported by substantial evidence u Agency s decision is at risk, if supporting CEQA evidence is not in the record

23 TYPES OF SUBSTANTIAL EVIDENCE u Agency staff reports, opinions u Expert opinion based on facts u Technical studies u Public comments u Prior planning documents, prior EIRs

24 EXAMPLE u Minor trenching and equipment storage north of La Sierra Avenue at Lake Mathews. Metropolitan wants to prepare a ND/MND for the work. Local resident voices opposition and says that she/he sees California coastal gnatcatcher in that exact spot all the time o Substantial evidence? o Photos provided? o Corroborated by CNDDB search or biological surveys by qualified biologist? Does that meet the legal definition of fair argument?

25 TOOLS FOR DETERMINING SIGNIFICANT EFFECTS

26 TOOLS FOR DETERMINING SIGNIFICANCE u Adopted thresholds (CCR ) u Cumulatively considerable contributions (CCR 15355, 15130) u Mandatory findings of significance (PRC 21083(b), CCR 15065) u Appendix G checklist questions

27 ADOPTED THRESHOLDS Summary of CCR : u u u u u u Encourages use of thresholds of significance by public agencies Quantitative, Qualitative, or performance level Non-compliance is normally a significant effect Compliance is normally a less-than-significant effect Adopted by ordinance, resolution, rule or regulation with public review Supported by substantial evidence

28 COMPLIANCE WITH APPROVED PLAN OR MITIGATION PROGRAM u u u u Must apply to geographic area of project Specified in law or adopted by agency with jurisdiction over resource through a public review process to implement the law administered by that agency Examples: water quality control plan, air quality control plan, regional transportation plan Fair argument still prevails over plan compliance ( agency may determine )

29 MANDATORY FINDINGS u Lead agency shall find a project may have a significant effect, if certain effects occur u Consider significance after mitigation in making this finding: Where, prior to the commencement of public review of an environmental document, a project proponent agrees to mitigation measures, lead agency need not do an EIR solely because, without mitigation, the environmental effects at issue would have been significant. (CCR 15065)

30 MANDATORY FINDINGS: KEY TOPICS Pertaining to biological and cultural resources: u u u u u substantially reduce the habitat of a fish or wildlife species cause a fish or wildlife population to drop below self-sustaining levels threaten to eliminate a plant or animal community substantially reduce the number or restrict the range of an endangered, rare, or threatened species eliminate important examples of California history or prehistory

31 MANDATORY FINDINGS: KEY TOPICS u Achieve short-term to the disadvantage of long-term environmental goals u Effects that are individually limited but cumulatively considerable u Substantial adverse effects on human beings, directly or indirectly

32 MANDATORY FINDINGS: ENDANGERED, RARE, OR THREATENED SPECIES u Where a project may substantially reduce the number or restrict the range of such species, an EIR is not needed if: Commit to mitigation pursuant to an approved HCP/ NCCP HCP/NCCP approved using an EIR or EIS And, either: No net loss in habitat and reduction in number of species, or Sufficient habitat will be preserved, restored, or enhanced to mitigate reduction in habitat or number of species u So if the project involves take of species, can still determine less than significant, if

33 KEY JUDGMENT CALL SIGNIFICANCE DECISIONS u Example: Construction/repair project in a remote area that requires substantial generator power for equipment All impacts are mitigable with the exception of NOx from diesel-powered equipment For three weeks, emissions will exceed daily limits established by air district Is that really a significant impact in a remote area with no local receptors? Do you: Lose six months to prepare EIR and override three-weeksworth of construction emissions in exceedance of air district daily emissions thresholds? Change the project? What about natural gas generators? Acknowledge exceedance but still deem LTS due to limited timeframe

34 APPENDIX G CHECKLIST QUESTIONS u Appendix G checklist questions are routinely used to determine significance u Considered a sample form that may be tailored to an agencies needs u Intended to encourage thoughtful assessment of impacts; do not necessarily represent thresholds of significance u Caution: Support with substantial evidence!

35 APPENDIX G GUIDELINES, NOT MANDATES (PART 1) u Disturb human remains? Typically addressed through accidental discovery mitigation and an acknowledgement of the unknown What if something is found? Do we then have a significant impact? Is it even mitigable? What if you need to supplement an EIR for a project where remains were discovered? o Do you need to acknowledge a new significant effect? o Does it then indicate that your previous mitigation was inadequate if you do?

36 APPENDIX G GUIDELINES, NOT MANDATES (PART 2) u Otherwise substantially degrade water quality? Typically addressed as part of violate water quality standards threshold with reference back in CEQA checklist Prior to 1998, this issue area was only question: Substantially degrade water quality? Current threshold language may have been a result of public opposition to solely relying on a discussion of water quality standards

37 APPENDIX G ISSUE AREAS THAT DON T APPLY u Due to the nature of MWD discretionary actions, several CEQA issue areas typically don t apply. u Potential approaches (+ s and s) Develop template language for issue areas like public services, recreation, population and housing By project type? By facility/location? District-wide? Programmatic evaluation that requires subsequent evaluation of only a few Appendix G questions for subsequent/tiered documents

38 SUMMARY OF RELEVANT COURT DECISIONS

39 KEY RELEVANT COURT DECISIONS u Sundstrom v. County of Mendocino (1988) Naked Checklist Unacceptable u Gentry v. City of Murrieta (1995) Substantial Evidence to Support a Fair Argument u Friends of Davis v. City of Davis (2000) Social and economic effects not leading to physical effects are not significant impacts on the environment

40 KEY RELEVANT COURT DECISIONS u Bowman v. City of Berkeley (2004) Testimony as to visual compatibility is not substantial evidence supporting a fair argument u Pocket Protectors v. City of Sacramento (2004) Testimony as to visual compatibility is substantial evidence supporting a fair argument (distinguished by context) u Lighthouse Field Beach Rescue v. City of Santa Cruz (2004) Inconsistency with general plan not necessarily a significant effect

41 KEY RELEVANT COURT DECISIONS u Protect the Historic Amador Waterways v. Amador Water Agency (2004) Agency should not rely too heavily on checklist questions; consider and resolve fair arguments u Endangered Habitats League v. County of Orange (2005) Thresholds too lenient; failure to apply mandatory findings u Banning Ranch Conservancy v. City of Newport Beach (2012) Conclusions pertaining to cumulative biological impacts and growth inducement supported by substantial evidence

42 KEY RELEVANT COURT DECISIONS u City of Maywood v. Los Angeles Unified School District (2012) EIR must consider effects of pedestrian safety, even if such movements are illegal e.g. trespassing of pedestrians along pipeline ROW u Concerned Dublin Citizens v. City of Dublin (2013) Substantial evidence supports finding of exemption from additional review; threshold guidelines for GHGs does not constitute new information

43 TOPIC 2 PROJECT DESIGN FEATURES V. MITIGATION

44 FIVE TOPICS u Thresholds of Significance u Project Design Features v. Mitigation u Project /Facility Changes, Supplemental Reviews u CEQA Document Types Advantages and Disadvantages u Compliance with Local Ordinances

45 LOTUS V. CALTRANS DECISION

46 A WORLD-CLASS, SENSITIVE ENVIRONMENT

47 A LONG-RUNNING ENVIRONMENTAL DEBATE

48 A CLEAR SHORTCOMING IN THE IMPACT ANALYSIS OF THIS VERY SENSITIVE RESOURCE u u u Title of key section: The EIR fails to comply with CEQA insofar as it fails to evaluate the significance of the project s impacts on the root systems of old growth redwood trees adjacent to the roadway. Primary flaw: omitting thresholds of significance for root zone impacts and an analysis of impact significance Facts about physical changes and concepts to define significance criteria existed in the record, so analysis of impact significance could have occurred

49 OUTCOME: SHORT-CUTTING OF CEQA REQUIREMENTS IS NOT ALLOWED u Approach precluded identification of potential environmental consequences and thoughtful analysis of sufficiency of measures to mitigate those consequences u Simply stating that there will be no significant impacts because the project incorporates special construction techniques is not adequate

50 SHORTCOMINGS POINTED OUT TO CALTRANS, BUT FINAL EIR DID NOT RESOLVE THEM u California State Parks comment letter raised the lack of analysis of significance u Lack of sufficient data to evaluate the proposed project u Final EIR did not provide significance criteria or new data, so there was no change in the significance determination (which, if done, would have required recirculation)

51 AND THEN, THE COMPOUNDING ISSUE u u Caltrans compounds its omission, by reliance on environmental protection measures to conclude less than significance for actions that should have been mitigation measures offered in response to the significant effect. Example measures: Special pavement to reduce roadbed depth Hand excavation in root zone (pick axes and shovels) Habitat restoration of formerly paved areas Invasive plant removal elsewhere to offset road impacts Arborist monitoring of construction

52 CAN A FOOTNOTE BE A SAVING GRACE? u Footnote 8: the distinction between elements of a project and mitigation measures may not always be clear u Cement Treated Permeable Base pavement might well be considered to define the project u But restorative planting, invasive plant removal elsewhere, and arborist monitoring are plainly mitigation measures

53 PRACTICE POINTERS IN LIGHT OF THE LOTUS DECISION

54 FOR THE PRACTITIONERS OUT THERE Self-mitigating strategies and good environmental planning of projects before CEQA review are still good practices, but with conditions

55 LOTUS DEALT WITH A SPECIFIC FACT SET u u u u An infrastructure project in a highly sensitive setting A project EIR Measures applied specifically to this rather unusual project impact circumstance (redwood root zone) Would the outcome be the same for different types of CEQA projects?

56 WHAT ABOUT.? u Standardized construction measures dictated by enforceable regulatory approvals, like storm water control and water quality BMPs?

57 WHAT ABOUT.? u A program EIR with self-mitigating, programmatic standard practices for a series of related actions (rather than a singular project situation)?

58 WHAT IF THE EIR INCLUDES ADEQUATE IMPACT ANALYSIS? u How about a similar project circumstance, but in an EIR that provides: clear significance criteria and explanations, supported by substantial evidence, about how project description features avoid significant effects and what would occur without the features? u After all, the Lotus court found absence of significance criteria and adequate impact analysis to be the primary, fatal flaw.

59 u Regardless of decisions about mitigation or project description, don t overlook significance criteria and good-faith analyses of significance. PRACTITIONER S RECOMMENDATIONS u If an environmental protection feature modifies a physical element of a project, depicted in a plan or design, it can likely be in the project description u If an action is not depicted in a project plan or design, and it otherwise fits the definition of mitigation, it likely is mitigation (quacks like a duck).

60 EXAMPLE 1 u Water treatment plant modernization An existing water treatment plant is getting upgraded to include a new, more efficient solid waste handling facility. Due to limited space, the new facility will need to be constructed within 100 feet of a mobile home park. Temporary noise curtains will reduce construction noise such that substantial or temporary periodic increases in noise levels would not occur Component of the project or mitigating an environmental impact? Mitigation Measure

61 EXAMPLE 2 u Utility tunnel repair project An existing utility tunnel is in need of repair; to ensure no interruption of service, a secondary tunnel needs to be constructed. Drilling equipment with high electrical demand is required but there are no utility lines nearby. Use of natural gas generators would reduce the emissions of the project below air district thresholds Component of the project or mitigating an environmental impact? Does it change aspects of the project other than reducing localized NOx emissions? o Where does natural gas versus diesel come from? Project Design Feature

62 EXAMPLE 3 u Skinner Filtration Plant Capital Improvement Skinner is being expanded and excess material (from excavation) needs to be stored/distributed onsite. The best location is just west of Skinner Reservoir. However, it s nesting season, and there are at least two active California gnatcatcher nests within 50 feet of this area. An alternative location is located south of Skinner Reservoir, but it s approximately one mile further away. It would also require topographic modifications that would be visible from Borel Road Component of the project or mitigating an environmental impact? Does your answer change if no new impacts would result from use of this alternative location? Mitigation

63 EXAMPLE 4 u Pump Station expansion OC-88 is getting two additional pumps. This will involve increasing the building footprint of the pump station and grading of 1+ acres for new equipment and storage. Using sandbags and hay bales will ensure that sediment from the graded area does not make it off-site Component of the project or mitigating an environmental impact? Regulatory Compliance.

64 PRACTICAL GUIDANCE FOR MWD PROJECTS u Series of questions to ask yourself How has MWD or the local agency in which the project is located addressed this previously? Is it integral to project planning (i.e. would the project look/function differently without it)? Yes PDF; No - mitigation Is this something that needs to be done because the project is being implemented Proactive PDF; Reactive mitigation

65 TOPIC 3 PROJECT/FACILITY CHANGES, SUPPLEMENTAL REVIEWS

66 FIVE TOPICS u Thresholds of Significance u Project Design Features v. Mitigation u Project /Facility Changes, Supplemental Reviews u CEQA Document Types Advantages and Disadvantages u Compliance with Local Ordinances

67 ARE WE DEALING WITH THE SAME PROJECT? u Previously certified EIR or adopted ND or MND u Time has passed u Project is the same as previously considered u Another CEQA review is needed, because: A follow-up discretionary action is necessary, and Circumstances have changed and/or project description has changed

68 THIS IS A DIFFERENT SITUATION THAN: u Recirculation of a Draft EIR (CCR ) Prior to initial project approval Criteria for recirculation are similar in concept, but not identical in the details u New information emerges after all discretionary approvals have occurred No CEQA purview exists without a discretionary action.

69 STATUTORY FOUNDATION PRC Subsequent or Supplemental Impact Report; Conditions u When an EIR has been prepared for a project pursuant to this division, no subsequent or supplemental EIR shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: (a) Substantial changes are proposed in the project which will require major revisions of the EIR. (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the EIR. (c) New information, which was not known and could not have been known at the time the EIR was certified as complete, becomes available.

70 GUIDELINES FUNDAMENTALS u u If an EIR certified or ND approved for a project, no subsequent/supplemental document need be prepared unless the project requires a discretionary action and a change in project or circumstances occurs that could: Add new significant impacts or Substantially increase the severity of previously identified significant impacts, or Add new information of substantial importance If no new discretionary approvals required by lead or responsible agencies and conditions above occur, no need to conduct additional CEQA. (CCR [a] and [c])

71 SUBSEQUENT V. SUPPLEMENT TO EIR u General practice rule of thumb: if changes are sufficient for a broad range of revisions in the EIR, prepare a subsequent EIR. u If only minor additions or changes in documentation needed, such as one or two impact issue areas, a supplement to an EIR would be enough. u Judgment needed. No bright line test.

72 PROCESS DIFFERENCES u Subsequent (CCR 15162) Include all sections of EIR (including cumulative, alternatives, etc.) Relevant information can be incorporated by reference to prior EIR (including cumulative, alternatives, etc.) u Supplement (CCR 15163) Include only information needed to make previous EIR adequate Need not circulate prior EIR, but prior EIR is part of record, including when making findings u Applies to both Same notice (NOA) and review period as the original Draft EIR Guidelines silent on need for NOP. Recommendation: reissue an NOP, especially for subsequent EIR (CCR 15082: after decision to prepare an EIR, lead agency shall send an NOP) Some believe prior NOP can be reused for supplement to

73 SUBSEQUENT NEGATIVE DECLARATION u Probably a rare document, because criteria involves new or substantially more severe significant effects u Process: same notice (NOI) and public review period as a regular ND or MND u Can we mitigate our way from a Subsequent EIR to a Subsequent MND?

74 WHAT ARE PROJECT CHANGES AFTER EIR CERTIFIED OR ND APPROVED? 1. Substantial changes are proposed in the project and the changes will result in new significant impacts or change the severity of previously identified significant impacts (CCR 15162[a][1])

75 EXAMPLE 1 Pump station approved with MND on threeacre site adjacent to a wetland. After further engineering/planning, additional capacity of forebay is necessary. Project size increase to five acres, and wetland needs to be filled (biological resource impacts increased). New discretionary action? Project changed? New or substantially more severe significant impact?

76 WHAT ARE CHANGED CIRCUMSTANCES AFTER EIR CERTIFIED OR ND APPROVED? Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or ND due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects (CCR 15162[a][2])

77 EXAMPLE 2 Modernization of existing water treatment plant. When the EIR was written, there was nothing within 1,000 feet of the property line. In the 7 years since the EIR, houses have been built up to the Metropolitan property line. The orientation and treatment process has also been altered from the previously approved project and what s in the EIR. New discretionary action? Circumstances changed or project changed? New or substantially more severe significant impacts?

78 WHAT IS NEW INFORMATION OF SUBSTANTIAL IMPORTANCE? 3. New information of substantial importance which was not known or could not have been known with the exercise of reasonable diligence when prior EIR or ND prepared shows one of three outcomes: New or substantially more severe significant effect Mitigation or alternative found not to be feasible is, in fact, feasible New mitigation or alternative considerably different from those analyzed previously EIR (CCR 15162[a][3])

79 NEW OR SUBSTANTIALLY MORE SEVERE SIGNIFICANT IMPACTS u Project will result in new significant impacts or substantially increase the severity of previously identified significant impacts New impacts may seem easy to discern, but were they known or could have been known with reasonable due diligence? (e.g., GHG) Substantially more severe leaves room for interpretation

80 MITIGATION OR ALTERNATIVE PREVIOUSLY DETERMINED INFEASIBLE IS FEASIBLE u Mitigation or alternatives found not to be feasible (previously), but in fact are feasible and would substantially reduce one or more significant impacts, are found to be feasible, and project proponents decline to adopt them. Only involves mitigation or alternatives previously considered in first EIR or ND/MND Previously found infeasible, but not any longer Effective in substantially reducing the impact If proponent accepts the now-feasible mitigation or alternative, no need for supplemental review

81 NEW AND CONSIDERABLY DIFFERENT MITIGATION OR ALTERNATIVE u Mitigation or alternatives that are considerably different from those analyzed previously would substantially reduce one or more significant effects, but the project proponent declines to adopt them. Must be considerably different from those previously analyzed Effective in substantially reducing the impact Again, if proponent accepts the different mitigation or alternative, no need for supplemental review

82 EXAMPLE 3 After approval of a new pump station next to a wetland with MND, citizen biologist finds redlegged frog (ESA - threatened) in wetland. New information is brought to Metropolitan s attention before award of construction contract. Discretionary action needed? Is this significant new information? Can EIR be avoided?

83 BUT WHAT IF? u No new impacts would occur u Some impacts would occur but they were already addressed in previous document u Still have a discretionary action tied to the changes

84 ADDENDA CCR Addendum to an EIR or Negative Declaration u u When some changes or additions have occurred Not major revisions No new significant or substantially more severe impacts Does not require public review or adoption/ certification Only consideration by lead agency Make addendum available to public according to lead

85 SUMMARY OF CHANGED CIRCUMSTANCES u Identify and describe environmental circumstances that have changed u Consider each environmental topic area in the Appendix G Checklist u Include both physical conditions and relevant regulatory circumstances

86 USING A TAILORED CHECKLIST u Appendix G Environmental Checklist includes all environmental topics u But the questions/responses do not relate to changed projects, changed circumstances, and new information u So modify the questions/responses to assess changed conditions!

87 Environmental Issue Area Where Impact Was Analyzed in Project FEIR. Do Proposed Changes Involve New or Substantially More Severe Significant Impacts? Do Any New Circumstances Involve New or Substantially More Severe Significant Impacts? Any Substantially Important New Information Requiring New Analysis or Verification? Do Project FEIR Mitigation Measures Address/Resolve Impacts? 1. Aesthe)cs. Would the Project: a. Have a substantial adverse effect on a scenic vista? a. Substantially damage scenic resources, including but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? a. Substantially degrade the existing visual character or quality of the site and its surroundings? a. Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? Not analyzed No No No N/A Not analyzed No No No N/A 1996 FEIR; Impacts 5.5-1, 5.5-2, 5.5-4, 5,5-5, and 5.5-8; pages through FEIR; Impact 5.5-3, page No No Yes, but no significant impact would occur Yes No No No Yes

88 Environmental Issue Area Where Impact Was Analyzed in Project FEIR. Do Proposed Changes Involve New or Substantially More Severe Significant Impacts? Do Any New Circumstances Involve New or Substantially More Severe Significant Impacts? Any Substantially Important New Information Requiring New Analysis or Verification? Do Project FEIR Mitigation Measures Address/Resolve Impacts? 4. Biological Resources. Would the project: a. Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? 1996 FEIR; Section 5.3; pages No Yes Yes No a. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, and regulations or by the California Department of Fish and Game or US Fish and Wildlife Service? 1996 FEIR; Section 5.3; pages , No No Yes, but new or more severe significant effects would not occur Yes, with modifications /updates

89 Environmental Issue Area Where Impact Was Analyzed in Project FEIR. Do Proposed Changes Involve New or Substantially More Severe Significant Impacts? Do Any New Circumstances Involve New or Substantially More Severe Significant Impacts? Any Substantially Important New Information Requiring New Analysis or Verification? Do Project FEIR Mitigation Measures Address/Resolve Impacts? 8. Greenhouse Gas Emissions. Would the project: a. Generate greenhouse gas emissions, either directly or indirectly, that may have a significant impact on the environment? N/A No Yes Yes No a. Conflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions of greenhouse gases? N/A No Yes Yes No

90 ADVANTAGES OF THE CHECKLIST u Thoroughly covers environmental issues u Forces consideration of the questions about changed conditions u Provides substantial evidence to support the selection of a CEQA document

91 CONSIDERATION OF ADDENDA u Does not need to be a public process u But is there an advantage to some public acknowledgement? Board approval? Filing of NOD? u Hint: Addenda still need to be supported by substantial evidence

92 CONSIDERATION OF ADDENDA u By making consideration of addenda a quasi-public process, it may: Afford Metropolitan greater protection regarding acknowledgement/evaluation of impacts Identify potential issues related to fair argument standard Sometimes permitting agencies press for decision documents related to NODs if addenda are tied to permits or permit amendments

93 WHY NOT FILE AN EXEMPTION u u Exemptions run similar risks as addenda Exceptions to exemptions exist, if because of unusual circumstances, a significant impact may occur Notice of exemption is publically posted, but now circulated for review And one greater risk Segmentation objection If the project has similar funding and is covered by the same Board approval If the project is located at the same facility If the project would be conducted at the same time by the same contractor or employee This risk is even greater when the project involves permitting and a permit amendment may be tied to the exemption

94 MITIGATION TO AVOID SUBSEQUENT EIR? RULES ARE UNCLEAR u u Guideline discussions of substantial changes in the project or circumstances, leading to new or more severe significant effects, do not discuss mitigation. (CCR 15162[a][1, 2]) Guideline discussions of new information, leading to new or more severe significant effects reference mitigation and alternatives (if they could reduce the impact but are not adopted, then prepare a subsequent EIR or supplement to an EIR). (CCR 15162[a][3])

95 WHAT DO COURTS SAY? u u u u Issue has not been directly challenged In some cases, lead agencies have mitigated new impacts and not prepared supplemental EIR documents (River Valley v. Metropolitan Transit, 1995; STOP v. San Francisco, 1999) In other cases, Courts have suggested new mitigation measures require recirculation to public (Mira Monte Homeowners v. County of Ventura, 1985) By analogy, cannot add mitigation to qualify for a cat ex (SPAWN v. County of Marin, 2005)

96 UNSETTLED LEGAL ISSUE u Because the issue has not been settled, no firm guidance. u In practice, many addenda have included new mitigation. u But proceed at your own risk until the issue is challenged directly on point and resolved in court.

97 KEY RELEVANT COURT DECISIONS Citizens of Goleta Valley v. BOS; 1990 Moss v. Co. of Humboldt; 2008 SD Navy Broadway Complex Coalition v. City of SD; 2010 Further review prohibited unless Addendum decision, substantial evidence SEIR not required, if discretionary action not related to impact Benton v. Board of Supervisors; 1991 Only the increment of changed impact needs to be analyzed

98 KEY RELEVANT COURT DECISIONS STOP v. City and County of SF; 1999 River Valley Preservation Project v. MTDB Mani Brothers Real Estate Group v. City of Los Angeles; 2007 No SEIR, even with major project change No substantial severity increase, if well studied SEIR not required with large s.f. increase; no significant impacts Eller Media Co. v. Community Redevelopment Agency; 2003 Proposal for billboards was substantial new information; historic/ aesthetic impacts

99 TOPIC 4 CEQA DOCUMENT TYPES ADVANTAGES AND DISADVANTAGES

100 FIVE TOPICS u Thresholds of Significance u Project Design Features v. Mitigation u Project /Facility Changes, Supplemental Reviews u CEQA Document Types Advantages and Disadvantages u Compliance with Local Ordinances

101 BASIC CEQA DOCUMENT TYPES FOR NEW PROJECTS u Notice of Exemption u Neg Dec/MND u Environmental Impact Report Program EIR Master EIR Staged EIR Focus of this topic Project-Specific EIR

102 PROGRAM EIR

103 PROGRAM EIR VISION u Series of actions that is related either: Geographically; Logical parts in a series of contemplated actions i.e. when we do this, then we do this and so on In connection with rules, regulations, plans, or other general criteria; or Carried out under the auspices of the same authorizing statutory or regulatory authority and have similar impacts/mitigation

104 WHAT IS THE INTENT OF A PROGRAM EIR u High-level evaluation of a program Exhaustive consideration of effects and alternatives More comprehensive evaluation of cumulative impacts and alternatives (i.e. gives you the big picture) Reduce need to evaluate each action against the same policies ad nauseum Carried out under the auspices of the same authorizing statutory or regulatory authority and have similar impacts/mitigation

105 IS THERE A DOWNSIDE TO A PROGRAM EIR u Funding u Time constraints Program EIRs typically require at least a year u Vague language due to uncertainty can reduce efficacy of the document (especially with mitigation) Remember to include performance metrics within your mitigation key to reducing effort for actions addressed by Program EIR

106 SO HOW DO I MAKE A PROGRAM EIR USEFUL? u Establish reasonable or typical descriptions of activities within the program Pipeline repair Typical construction length (300 feet? 500 feet?) Typical construction equipment (e.g. 2-3 pieces) Linear feet per day? Reasonable estimate of number of concurrent repairs under the program on the same day

107 MITIGATION WITHIN PROGRAM EIRS u u u Guidelines states [a]n EIR shall describe feasible measures which could minimize significant adverse impacts CEQA allows for mitigation to be flexible, but it still needs to: Commit to the mitigating action Establish performance standard for environmental outcomes Provide tangible examples of the action Describe how it is feasible and enforceable Must provide an explanation of why you can t define it further

108 EXAMPLE 1 Hazardous Materials: The applicant should consult with the Department of Toxic Substances Control (DTSC) regarding any needed cleanup of industrial pollution from the site s previous use as a power plant. Hazardous Materials: The applicant should shall remediate contamination on the project site consistent with applicable state and federal standards prior to any issuance of any certificates of occupation by the City. This will include consultation consult with the Department of Toxic Substances Control (DTSC) regarding any needed cleanup of industrial pollution from the site s previous use as a power plant.

109 EXAMPLE 2 Noise: Solid noise barriers shall be used to shield training activities from view of the nearest residences. The barrier shall be a minimum of 6-feet in height and shall result in complete line of sight shielding of these activities from view of the impacted receiver locations. Such barriers could take the form of moveable walls or curtain systems (mounted on a trailer system), or permanent concrete masonry units or precast concrete walls. The noise reduction of this measure is computed to be 8-10 db. Feasibility issues with this example. u u u u The range of potential actions to be implemented is wide. Movable barriers would rely on continued maintenance and action by the operator. Permanent barrier (wall) would result in potential additional impacts construction-related, aesthetic, etc. Costs to be weighed by applicant, one-time cost of permanent wall versus operational cost of movable barrier (monitoring component for movable barrier?)

110 EXAMPLE 3 Mitigation Measure Delineate Waters of the United States and Obtain Authorization for Fill and Required Permits. Prior to the start of any construction activity that could affect waters of the United States, including wetlands, a delineation of such waters will be conducted by a qualified biologist in accordance with USACE delineation methods and procedures. The delineation will be submitted to and verified by the appropriate District of USACE. If, based on the verified delineation, it is determined that fill of waters of the United States would be required, authorization for such fill will be secured from the appropriate District of USACE through the Section 404 permitting process. The amount of wetlands or other Waters of the United States that would be removed or disturbed during project implementation will be quantified and replaced or restored/enhanced in accordance with USACE and federal regulations. Habitat restoration, enhancement, and/or replacement will be at a location and by methods agreeable to USACE as determined during the permitting processes for CWA Section 404. Because the regulatory processes and requirements of the Clean Water Act, Section 404, and California Fish and Game Code, Section 1600 et seq., include performance criteria for compensating affected habitat (e.g., no net loss of wetland habitat value), it is reasonable to expect that compliance with these laws and regulations would mitigate potentially significant effects to wetland and riparian habitats to a less-than-significant level.

111 PROCESS FOR LATER Checklist Later project is within the scope of the Program EIR File your Checklist as substantial evidence ACTIVITIES CONSISTENT WITH PROGRAM Later project is not wholly within the scope of the Program EIR New potential impacts can be mitigated. Adopt Focused Mitigated Negative Declaration EIRS Later project is not wholly within the scope of the Program EIR New potential impacts cannot be mitigated. Focused EIR on only those new impacts not included within Program EIR Later project is not within the scope of the Program EIR Amend Program EIR? Project-Specific ND/ MND/EIR?

112 SUMMARY OF ADVANTAGES/DISADVANTAGES u u Advantages: Provides the big picture (cumulative impacts and alternatives) Can assist in a strategy for implementation Reduce analysis required for actions considered consistent with the program i.e. speed up later work Disadvantages Up-front time required Up-front funding Mitigation must be carefully worded for defensibility and effectiveness when applied to later activities

113 MASTER EIR

114 THE MASTER EIR S VISION u u u A Master EIR provides a detailed environmental review of plans and programs upon which the approval of subsequent related projects can be based. It is intended to streamline the later environmental review of projects or approvals included within the project, plan, or program analyzed in the Master EIR. A Master EIR must, to the greatest extent feasible, evaluate the cumulative impacts, growth inducing impacts, and irreversible significant effects on the environment of specific, subsequent projects.

115 THE MASTER EIR S REPUTATION? u When do I prepare a Master EIR? Hardly ever. A Master EIR is ill-suited for the Metropolitan projects because it is: Inflexible; it requires each project included in the Plan to be described with great precision. Limited to 5-year lifetime; it must be updated every 5 years to show no changes in conditions. Hard to use for processing later projects as it does not allow for even small changes or adjustment in the later project.

116 STATUTORY FOUNDATION Chapter 4.5: Streamlined Environmental Review (PRC Sections and 21157) u Intent: Substantially reduce the environmental review of subsequent projects to the extent that project impacts have been reviewed and mitigation set forth in the MEIR u May be prepared for: (1) A general plan, element, GP amendment,or SP

117 STATUTE: CONTENT REQUIREMENTS u Detailed EIR, as required by Section u Description of subsequent projects within the scope u Sufficient information on kind, size, intensity, and location of subsequent projects u Description of potential impacts for which there is not sufficient information to support impact assessment

118 SUBSEQUENT PROJECT PROCESS FOR MEIRS

119 STATUTE: SUBSEQUENT PROJECT REVIEW u Lead agency is the MEIR lead or responsible agency u Prepare an initial study ( 15177[c]). If conclusions are: Described as subsequent project in MEIR? (yes) Cause significant effect not examined in MEIR? (no) Need new or additional mitigation or alternatives? (no) u Then, within the scope maximum streamlining:

120 GUIDELINES: WITHIN THE SCOPE u Whether a subsequent project is within the scope of the Master EIR is a question of fact to be determined by the lead agency based upon a review of the initial study ( 15177[c]) u Incorporate all feasible mitigation measures or alternative appropriate to the project u Adopt a finding that the project is within the scope

121 SUMMARY OF ADVANTAGES/DISADVANTAGES u Advantages: Reduced public noticing Reduced subsequent review, even with unavoidable significant effects (if analyzed in the MEIR) Allows lead agency to proceed more quickly with subsequent actions (so long as they are identified in the MEIR) u Disadvantages Inclusion of all potential actions that should be part of the MEIR may not be possible due to scheduling 5-year term limit without making subsequent

122 TIERING

123 LEGAL CEQA TIERING V. PLAIN MEANING OF TIERING u CEQA Sections and authorize tiering of EIRs (legal meaning of CEQA tiering) u Statutory language does not authorize use of NDs/MNDs or within the scope findings, only general EIRs leading to narrow, later EIRs u Confusion abounds between the limited use of legal tiering and plain meaning of tiering

124 1998 CEQA GUIDELINES ATTEMPTED TO EXPAND LEGAL TIERING u u u u In 1998, the Resources Agency adopted CEQA Guidelines amendments to streamline CEQA compliance Sought to explicitly authorize NDs and MNDs if all impacts are adequately addressed 2002 CBE v. Resources Agency struck down tiering sections of guidelines as unsupported by the statute Court expressed concern about avoiding adoption of overriding considerations in second-tier ND/MND, when first tier EIR had unavoidable significant effects

125 TIERING u What is it? When to use it? The incorporation of analysis from broader EIR to limit the analysis in later EIRs Useful, if planning to prepare an EIR for the second-tier environmental document u When should it not be used? When the desire is to approve a later project with an ND or MND, and significant unavoidable effects were identified in the first tier EIR

126 PRACTICE POINTER: GENERALLY, AVOID LEGAL TIERING u Other provisions are more powerful, validated by court decisions (program EIR, master EIR) u Unless statute is amended to expand legal tiering to avoid the need to revisit unavoidable significant effects in later tier document. u Exception: First tier and later tier documents are planned to both be EIRs.

127 STAGED EIR

128 WHAT IS A STAGED EIR u Can be applied to a multi-faceted, multiagency project that will require multiple years Involves special circumstances that are often statutorily driven One of the least commonly used CEQA documents u Requires supplementing the original EIR with subsequent approvals and greater specificity regarding the currently considered components Supplement can be addendum, supplemental, or subsequent EIR

129 SUMMARY OF ADVANTAGES/DISADVANTAGES u Advantages: Shared between multiple agencies to ensure all impacts are addressed Longer shelf-life than MEIR u Disadvantages Supplemental evaluations involving other agencies may cause confusion regarding thresholds Potential for extended delays

130 PROJECT-SPECIFIC EIR

131 PROJECT-SPECIFIC EIR OR ND u Most commonly seen u Allows for greater specificity and analysis of the action at the time that it is being planned u Affords the greatest amount of flexibility in terms of working on the analysis and shaping the project to avoid impacts u Requires the most effort by staff

132 SO WHY DO THEM? u It is the most flexible for a particular project u Does not require as much coordination with multiple staff u Mitigation is specific to the project and does not require as much if this, then that language

133 TOPIC 5 COMPLIANCE WITH LOCAL ORDINANCES

134 FIVE TOPICS u Thresholds of Significance u Project Design Features v. Mitigation u Project /Facility Changes, Supplemental Reviews u CEQA Document Types Advantages and Disadvantages u Compliance with Local Ordinances

135 MWD POWERS AND RESPONSIBILITIES u Metropolitan Water District Act (as amended) u District is a quasi-municipal corporation u District is a public instrumentality of legislative creation and is subject to complete legislative regulation and control, limited only by constitutional restrictions u In the use of streets the district shall be subject to the reasonable rules and regulations of the county or city in which such streets lie.

136 METROPOLITAN WATER DISTRICT SOVEREIGNTY? u Does the Metropolitan Water District Act give sovereignty over other municipal corporations? Water district; utility district authorities? Is Metropolitan subject to local zoning, ordinances, and land use planning designations City/County General Plans Municipal Code requirements, such as Noise Ordinance

137 CEQA COMPLIANCE AND PLAN CONSISTENCY u Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? u Analyze consistency with local ordinances related to environmental impacts? u Analyze consistency with local general plans related to environmental topics?

138 MWD SOVEREIGNTY u If MWD is not subject to them, why should we be concerned? each public agency is encouraged to develop thresholds Thresholds throughout MWD service area are not uniform Thresholds of local agencies do not necessarily conform to MWD thresholds 15064(a)(1) if there is substantial evidence that a project may have a significant effect on the environment

139 DIFFERENT AGENCY DIFFERENT THRESHOLD u Different agency thresholds Thresholds established by each local agency or even used by local agencies in their previous documents may be considered to be supported by substantial evidence CEQA affords agencies to make their own determinations Depending on relationships and the type of project proposed, local agencies could use the fair argument standard for their thresholds While on its face, residents in Santa Ana are probably just as sensitive as residents in Tustin to construction noise, CEQA does not require uniformity