vs. CEQA Practice INNOVATION BY October 2015, California APA Conference Oakland, CA

Transcription

1 SB 743 Legislative Intent vs. CEQA Practice INNOVATION BY October 2015, California APA Conference Oakland, CA

2 SB 743 Legislative Intent vs. CEQA Practice Moderator: Ronald T. Milam, Fehr & Peers Presenters: Darrell Steinberg, Greenberg Traurig Chris Calfee, OPR Chris Ganson, OPR Gary Jakobs, Ascent INNOVATION BY October 2015, California APA Conference Oakland, CA

3 Change SB 743 LEGISLATIVE INTENT (1) Ensure that the environmental impacts of traffic, such as noise, air pollution, and safety concerns, continue to be properly addressed and mitigated through the California Environmental Quality Act. (2) More appropriately balance the needs of congestion management with statewide goals related to infill development, promotion of public health through active transportation, and reduction of greenhouse gas emissions. INNOVATION BY

4 Change CEQA PRACTICE All CEQA changes pass through three stages. First, they are ridiculed. Second, they are legally opposed. Third, they are accepted after being validated by the courts. - Ronald T. Milam INNOVATION BY

5 Change REGULATIONS SB 375 SB 97 AB 32 SB 743 AB 417 AB 2245 SB 226 AB 1358 INNOVATION BY

6 Change THRESHOLDS Development or Infrastructure Project VMT Governor s Executive Orders SB 375 Targets SB 350 Caltrans Strategic Management Plan target INNOVATION BY

7 Change ANALYSIS Accessibility Mobility INNOVATION BY

8 Change MITIGATION INNOVATION BY

9 SB 743 Legislative Intent vs. CEQA Practice Moderator: Ronald T. Milam, Fehr & Peers Presenters: Darrell Steinberg, Greenberg Traurig Chris Calfee, OPR Chris Ganson, OPR Gary Jakobs, Ascent INNOVATION BY

10 SB 743 Legislative Intent vs. CEQA Practice Moderator: Ronald T. Milam, Fehr & Peers Presenters: Darrell Steinberg, Greenberg Traurig Chris Calfee, OPR Chris Ganson, OPR Gary Jakobs, Ascent INNOVATION BY

11 Shifting Gears in Transportation Analysis CEQA Guidelines Implementing SB 743 October

12 BACKGROUND: LEVEL OF SERVICE October

13 Analysis of infill development using LOS October

14 Analysis of infill development using LOS Relatively little vehicle travel loaded onto the network October

15 Analysis of infill development using LOS Relatively little vehicle travel loaded onto the network but numerous LOS impacts October

16 Analysis of greenfield development using LOS October

17 Analysis of greenfield development using LOS Typically three to four times the vehicle travel loaded onto the network relative to infill development October

18 Analysis of greenfield development using LOS Typically three to four times the vehicle travel loaded onto the network relative to infill development but relatively few LOS impacts Traffic generated by the project is disperse enough by the time it reaches congested areas that it doesn t trigger LOS thresholds, even though it contributes broadly to regional congestion. October

19 Problems with LOS as a Measure of Transportation Impact 1. Punishes last-in, inhibits infill, pushes development outward 2. Solves local congestion, exacerbates regional congestion 3. Inhibits transit 4. Inhibits active transport 5. Measures mobility, not access; shows failure when we succeed 6. Measures mobility poorly; fails to optimize network even for autos 7. Forces more road construction than we can afford to maintain 8. Hard to calculate and inaccurate October

20 Problems with LOS as a Measure of Transportation Impact 1. Punishes last-in, inhibits infill, pushes development outward 2. Solves local congestion, exacerbates regional congestion 3. Inhibits transit 4. Inhibits active transport 5. Measures mobility, not access; shows failure when we succeed 6. Measures mobility poorly; fails to optimize network even for autos 7. Forces more road construction than we can afford to maintain 8. Hard to calculate and inaccurate October

21 Problems with LOS as a Measure of Transportation Impact 1. Punishes last-in, inhibits infill, pushes development outward 2. Solves localized congestion, exacerbates regional congestion 2 people 1 person 1 person 3. Inhibits transit 4. Inhibits active transport 5. Measures mobility, not access; shows failure when we succeed 40 people 6. Measures mobility poorly; fails to optimize network even for autos 7. Forces more road construction than we can afford to maintain 8. Hard to calculate and inaccurate October

22 Problems with LOS as a Measure of Transportation Impact 1. Punishes last-in, inhibits infill, pushes development outward 2. Solves local congestion, exacerbates regional congestion 3. Inhibits transit 4. Inhibits active transport 5. Measures mobility, not access; shows failure when we succeed 6. Measures mobility poorly; fails to optimize network even for autos 7. Forces more road construction than we can afford to maintain 8. Hard to calculate and inaccurate October

23 Problems with LOS as a Measure of Transportation Impact 1. Punishes last-in, inhibits infill, pushes development outward 2. Solves local congestion, exacerbates regional congestion 3. Inhibits transit 4. Inhibits active transport 5. Measures mobility, not access; shows failure when we succeed 6. Measures mobility poorly; fails to optimize network even for autos 7. Forces more road construction than we can afford to maintain 8. Hard to calculate and inaccurate October

24 Problems with LOS as a Measure of Transportation Impact 1. Punishes last-in, inhibits infill, pushes development outward 2. Solves local congestion, exacerbates regional congestion 3. Inhibits transit 4. Inhibits active transport 5. Measures mobility, not access; shows failure when we succeed 6. Measures mobility poorly; fails to optimize network even for autos 7. Forces more road construction than we can afford to maintain 8. Hard to calculate and inaccurate Braess s Paradox October

25 Problems with LOS as a Measure of Transportation Impact 1. Punishes last-in, inhibits infill, pushes development outward 2. Solves local congestion, exacerbates regional congestion 3. Inhibits transit 4. Inhibits active transport 5. Measures mobility, not access; shows failure when we succeed 6. Measures mobility poorly; fails to optimize network even for autos 7. Forces more road construction than we can afford to maintain 8. Hard to calculate and inaccurate October

26 1. Punishes last-in, inhibits infill, pushes development outward 2. Solves local congestion, exacerbates regional congestion 3. Inhibits transit 4. Inhibits active transport 5. Measures mobility, not access; shows failure when we succeed 6. Measures mobility poorly; fails to optimize network even for autos 7. Forces more road construction than we can afford to maintain 8. Hard to calculate and inaccurate

27 Opportunities/benefits in shift from LOS to VMT 1. Remove a key barrier to infill, TOD 2. Streamline transit and active transportation projects 3. VMT is easier to model 4. VMT is already in use 5. Reduction in infrastructure capital and maintenance costs 6. Attack regional congestion more effectively 7. Health benefits (active transport & transit trips) 8. GHG reduction October

28 Impacts of High VMT Development Environment Health Cost Emissions GHG Regional pollutants Energy use Transportation energy Building energy Water Water use Runoff flooding Runoff pollution Consumption of open space Sensitive habitat Agricultural land Collisions Physical activity Emissions GHGs Regional pollutants Mental health Increased costs to state and local government Roads Other infrastructure Schools Services Increased private transportation cost Increased building costs (due to parking costs) Reduced productivity per acre due to parking Housing supply/demand mismatch future blight October

29 Senate Bill 743 Align with State Policy Replace LOS with new criteria in the CEQA Guidelines Auto delay env. Impact Air quality, noise and safety Police power Draft by Summer 2014 October

30 VMT in Case Law NEPA Conservation Law Found. v. FHA (2007) 630 F. Supp. 2d 183 CEQA Cal. Clean Energy Comm. v. Woodland (2014) 225 Cal.App.4th 173 Cleveland Nat l Forest Fntd. v. SANDAG (2014) _ Cal.App.4th _ October

31 Preliminary Discussion Draft VMT is primary metric Land Use Transportation Safety Methodology Mitigation Measures Applicability Appendices and Explanatory Materials October

32 Outreach Targeted outreach with affected stakeholders Multiple Statewide and Regional Conferences Publications Coffee talk October

33 Themes in the Comments? Nearly four month comment period Comment period closed November 21, 2014 Approximately 200 comments Local governments Transportation agencies Air Districts Business interests Environmental organizations Individuals And many others! October

34 Support Transformative step because: Enhance ability to promote TDM Improve air quality Better integrate with regional planning Promote better development patterns Easier for infill! October

35 Concerns Thresholds Too blunt, not tied to environmental objectives Safety Requires more nuance Mitigation measures Viewed as mandates Timing Need more time October

36 Updated Draft: Technical Advice in Technical Advisory Staff Level Recommendation For Discussion Purposes Only Comment: - Technical advice is better given in a Technical Advisory Guidelines update: Technical advice moved from Guidelines into a Technical Advisory Staff Level Recommendation For Discussion Purposes Only October

37 Updated Draft: Residential Threshold Recommendation Staff Level Recommendation For Discussion Purposes Only Comments: - Needs flexibility for outlying cities - Average = BAU, and that s not good enough for State goals, e.g. GHG reduction Updated recommendation: Residential: 15 percent below regional or city VMT/cap October

38 Updated Draft: Office Threshold Recommendation Staff Level Recommendation For Discussion Purposes Only Comment: - Average = BAU, and that s not good enough for State goals, e.g. GHG reduction Updated recommendation: 15 percent below regional VMT/cap October

39 Updated Draft: Retail Threshold Recommendation Staff Level Recommendation For Discussion Purposes Only Comment: - Most travel to a new retail land use is not from new trips, but rather from trips redirected from other retail Updated recommendation: Assess retail with Net VMT approach Local-serving retail presumed less than significant Retail which increases VMT compared to previous shopping patterns may be considered significant October

40 Updated Draft: Transportation Threshold Recommendation Staff Level Recommendation For Discussion Purposes Only Comment: - Analysis may be burdensome for small projects Updated recommendation: Clarification of project types which might induce measurable/substantial VMT (and which wouldn t) VMT threshold rather than project type threshold, connection to 2030 GHG reduction goals Simple analysis method October

41 Updated Draft: Maintained from previous draft Staff Level Recommendation For Discussion Purposes Only Screening VMT maps for residential and office projects Presumption of Less Than Significant near transit More stringent thresholds at lead agency discretion October

42 Updated Draft: Additional Updates Staff Level Recommendation For Discussion Purposes Only Comment: Rural is different Update: Recommendation that rural projects choose thresholds on a case-by-case basis Comment: Might trigger EIR for very small projects Update: Small projects screening threshold Comment: Concerns about impacts to transit Update: Addition of riders not an impact; blocking stations or routes may be an impact October

43 Caltrans and SB 743 California Statewide Travel Demand Model is up and running - Assistance with trip lengths for sketch models - Assistance with setting thresholds - Assistance generating VMT screening maps Source: California Statewide Travel Demand Model October

44 Caltrans and SB 743 California Statewide Travel Demand Model is up and running - Assistance with trip lengths for sketch models - Assistance with setting thresholds - Assistance generating VMT screening maps Source: California Statewide Travel Demand Model October

45 Caltrans and SB 743 Transportation Analysis Guidelines and Transportation Impact Study Guidelines (TAG-TISG) Caltrans has kicked off a collaborative effort to develop New approaches to characterize land use project impact on the state highway system New methods for analyzing the effects of transportation projects Broad stakeholder involvement in TAG-TISG development, including MPOs, local jurisdictions, outside experts, and public October

46 Planning for Automobile Capacity Bad Good Use Ad-hoc, LOS-triggered mitigation (highly problematic) Use LOS to plan roadway capacity; use number of units or square footage to estimate project impact (not ideal) Use LOS to plan roadway capacity; use VMT to estimate project impact (okay) Use accessibility metric to plan network; use VMT to estimate project impact (ideal) October

47 SB 743 Legislative Intent vs. CEQA Practice Moderator: Ronald T. Milam, Fehr & Peers Presenters: Darrell Steinberg, Greenberg Traurig Chris Calfee, OPR Chris Ganson, OPR Gary Jakobs, Ascent INNOVATION BY

48 VMT and CEQA THE VIEWS OF A GRIZZLED VETERAN GARY D. JAKOBS, AICP ASCENT ENVIRONMENTAL

49 SB 743 was about so many things Became law: 2013 Aesthetics and Parking Impact Exemptions in Transit Priority Areas New CEQA Guidelines for the implementation of CEQA establishing criteria for determining the significance of transportation impacts of projects within transit priority areas and apparently non-transit priority areas or VMT is the new LOS CEQA efficiencies to build a new Kings basketball arena

50 Race to be the first CEQA GUIDELINES KINGS ARENA

51 CEQA as a Changing Organism 45 years old may soon be historic Many changes since 1970: The Courts Friends of Mammoth-1972 (CEQA applies to public discretionary actions) Key Court Decisions Interpreting CEQA Whole of an Action Segmentation Cumulative and Drop in a Bucket Range of Reasonable Alternatives (Reasonable Range?) Baseline Baseline Baseline Mitigation and Deferral Fair Argument and Negative Declarations Greenhouse Gases and Energy BAU Executive Orders Subsequent Environmental Review

52 CEQA as a Changing Organism Many changes since 1970: Legislature New statutes nearly every year Statutory Exemptions Project-Specific Modifications Addition of Master EIRs Many Tweaks Greenhouse Gases: Develop Guidelines Infill Guidelines Transportation Impact Guidelines New Guidelines Every Two Years Last major change: 1998 New Guidelines on the Horizon?

53 Transportation and VMT Legislation Courts Guidelines: In Process The Question: Guidelines, Technical Advisory, Courts? What is the best way to address new transportation analysis approach?

54 CEQA Context CEQA: changes to the physical environment Gary s premise: roads are infrastructure and CEQA should focus on impacts from new infrastructure (physical environmental changes) and other physical transportation issues VMT: relationship to physical environment that is Not air quality Not noise Not greenhouse gases???

55 CEQA Concerns Determining and substantiating significance threshold Enforceable/substantiate mitigation to below thresholds Fair argument: the next Big Litigation issue? Would threshold be a hard line (average per capita per land use VMT)? How do we avoid double counting do 10 trips per DU overlap with 8 trips per 1,000 SF in an office and 6 trips per 1,000 SF in retail? Do some projects redirect VMT how proven? Will this be another GHG conundrum?

56 Other CEQA Considerations Surrogate for good planning? Should some projects be exempt? Consistent with SCS Infrastructure construction Expansion of existing public facilities Open space-public access Small projects (how defined?) Urban bias? Should VMT analysis requirements be limited to Transit Priority areas?

57 Conclusion: Optimist or Pessimist You have to learn the rules of the game. And then you have to play better than anyone else. -- Albert Einstein, as applied to transportation by Chris Ganson, OPR. The road to hell is paved with good intentions. -- Samuel Johnson, and the CEQA project manager responding to VMT substantiation comments from an opponent s attorney at 3AM.

58 SB 743 Legislative Intent vs. CEQA Practice Q&A Moderator: Ronald T. Milam, Fehr & Peers INNOVATION BY Presenters: Darrell Steinberg, Greenberg Traurig Chris Calfee, OPR Chris Ganson, OPR Gary Jakobs, Ascent