MEETING MINUTES January 15, 2008

Transcription

1 Attendees: MEETING MINUTES January 15, 2008 Alan Kurotori City of Santa Clara Amber Parmer SASD Anna Chrissanthis K/J Bill Chavez SRCSD Cara Ingebrigtsen Brown & Caldwell Chris DeGroot City of Santa Clara Cindy Preuss Harris & Associates Colin Dudley Brown & Caldwell Dan Crosby Carollo Engineers Dirk Medema City of Walnut Creek Erin Darling RMC Jeanette Prentice SRCSD Jennifer Glynn RMC Jimmy Dang Kennedy/Jenks Jonathan Lee WVSD Jonathan Marshall RBF Kevin Wang CDM Lori Jones Brown & Caldwell Nina Hawk City of Santa Clara Pete Bellows Brown & Caldwell Richard Robert Sac County Rick Abbett SRCSD Robin Cort RMC Robin Gamble Napa Sanitation District Rolf Ohlemutz Vallejo Sanitation & Flood Control Rudy Portugal DSRSD Russ Eberwein Harris & Associates Sasha Mestetsky CCCSD Stan Shogren K/J Walk-Ins Alex Christensen Black & Veatch Amy Miller HDR Michael McCullough City of San Jose Julia Nguyen City of San Jose Alan Andaya City of San Jose Huggen Angeles City of San Jose Presentation: Environmental Considerations with Pipeline Construction by Robin Cort and Erin Darling of RMC Water and Environment. Robin and Erin gave an overview of CEQA and NEPA requirements and applicability to various pipeline projects. In addition, regulatory permit requirements with various governing agencies were covered. The presentation slides were printed and provided to all in attendance, and are Minutes by: Cindy Preuss, Harris & Associates 1 Secretary, Nor Cal PUG

2 attached at the end of these minutes. Rather than outline the presentation herein, the reader is directed to the detailed slides at back. A big thank you to Robin and Erin for this informative presentation! General: Seminar Status: Registration forms were sent out last week. We ve had a lot of vendor interest for tabletop exhibits so these are expected to go fast. As a head s-up, if individuals have issues getting their checks processed through their agency quickly to accompany their registration forms, these individuals are advised to send in the registration forms sans payment and indicate on the forms when the payment will be forthcoming. Paying at the door is an option as well. This year we expect approximately 175 people Speaker Calendar: 2008 is filled up, but the presentations may change place within the year and some speakers have yet to lock in confirmation. As always, Cindy will give as much notice as possible if there is a topic change so that members may plan their attendance accordingly. The 8-hr course on CIPP will be held in October but the exact date has yet to be set. Classes will likely be held at CCCSD but notice will be given as locations are locked in. Bylaws Legal Review: Our Bylaws was revamped by the attorney. The document went from 4 pages to 16, demonstrating how much legalese is required to protect our group and governing body from lawsuits. The Executive Committee will return comments to the lawyer soon, and we expect adoption in March. IRS & State Attorney General s Filing Status: Jonathan has a meeting with the accountant tomorrow afternoon. Will prepare schedule of annual filing forms and deadlines to keep us on track for future years. Per federal requirements, the financial statement will be posted to the PUG website once we figure out how to do that. Announcements & Project Discussions: The National No-Dig Conference in Dallas is coming up in April Next Meeting: Our next meeting will be held TUESDAY, MARCH 18, 2008 at the offices of Brown & Caldwell located at 201 N. Civic Dr., Suite 300, Walnut Creek, CA. The topic will be on Permitting Guidelines, given by Serge Glushkoff of the Department of Fish & Game. Please call (925) ext 176 or cpreuss@harris-assoc.com to RSVP. Minutes by: Cindy Preuss, Harris & Associates 2 Secretary, Nor Cal PUG

3 Environmental Considerations for Pipeline Construction: CEQA and Permitting Requirements Presentation to Pipe Users Group Meeting Presenters: Erin Darling Robin Cort Innovative Solutions for Water and the Environment January 15, 2008

4 Presentation Outline CEQA Overview Common Challenges & the Future of CEQA Key environmental permits 404 permits Streambed alteration agreements General NPDES permit for construction (SWPPP)

5 CEQA Overview What is NEPA? CEQA? When does CEQA apply? Who are the main players in the CEQA process? What is involved in the CEQA process?

6 National Environmental Policy Act of 1969 History Signed into law on Jan 1, 1970 Developed in response to criticism that environmental factors were being ignored Key Points Established a national policy to protect the environment Established the Council on Environmental Quality (CEQ) Required that all Federal agencies integrate environmental concerns into their planning and decision making processes

7 National Environmental Policy Act of 1969 Applicability Federal projects or projects involving Federal agencies Actions that have the potential to significantly impact the environment

8 California Environmental Quality Act History Enacted in 1970 California the first of 15 states to enact a law modeled after NEPA Objectives Disclose environmental impacts Avoid or reduce environmental damage when feasible Explain why environmental damage allowed to occur Foster interagency coordination Enhance public participation

9 California Environmental Quality Act Applicability Applies to State and local agencies CEQA applies to all projects subject to public agency discretionary action CEQA is continuously modified by Legislature and interpreted by the courts

10 Excluded NEPA CEQA Review for Exclusions Review for Exemptions Exempt Finding of No Significant Impacts Environmental Assessment Initial Study Negative Declaration or Mitigated Negative Declaration EIS EIR Notice of Intent Notice of Preparation Scoping Scoping Draft EIS Draft EIR Public and Agency Review Public and Agency Review EPA Filing; Federal Register State Clearinghouse Review Final EIS Final EIR Public & Agency Review; EPA filing; Federal Register Notice Review of Responses by Commenting Agencies Agency Decision Agency Decision Record of Decision Findings: Statement of Overriding Consideration; Mitigation Monitoring Program

11 NEPA vs. CEQA - Major Differences NEPA Only need to consider impacts of each alternative Must prepare only if there is substantial evidence that project may have significant impact No specific statute of limitation Need only explain why the decision was made EIS must treat alternatives with relatively similar level of detail CEQA Must mitigate impacts if feasible Must prepare if fair argument can be made that the project may have a significant impact Short statue of limitation for legal challenges Must explain whether each impact was mitigated and if not, why EIR must compare alternatives, but may evaluate them in less detail than the proposed project

12 Integration with other Environmental Laws Joint NEPA/CEQA documents Ex: EIR/EIS, Negative Declaration/FONSI State/Local agencies can adopt a NEPA document for CEQA compliance, but generally not the other way around CEQA-Plus State Revolving Fund (SRF) Funding Partially funded by US EPA, thus is subject to Federal regulation In addition to CEQA, must comply with: Endangered Species Act (ESA) National Historic Preservation Act (NHPA) Federal General Conformity Rule for the Clean Air Act (CAA) Permitting actions

13 Activities Subject to CEQA Applies to discretionary, not ministerial, actions Discretionary: Exercise of judgment or deliberation Ministerial: Compliance with fixed statutes, regulations, standards Action is a Project as defined by CEQA Project has the potential to result in a direct or reasonably foreseeable indirect significant environmental impact

14 What is a Project? Initiated by a Public Agency, including: Public works construction activities Clearing or grading of land Improvements to existing public structures Funded, in whole or in part, by a public agency Approved by a public agency (permits, leases, plan changes) In determining if an activity is a project you must look at all of the parts, components, and phases of the activity

15 What is a Significant Effect on the Environment? Substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. A social or economic change by itself shall not be considered a significant effect on the environment (CCR 15382)

16 Key Players in the CEQA Process Agencies with Jurisdiction by Law Responsible Agencies Concerned Citizens and Organizations Lead Agency Courts Environmental Consultants Trustee Agencies Project Applicants (CEQA Deskbook, 1999)

17 CEQA Lead Agency State or local agency City or County Water or wastewater district Regulatory agency Usually agency proposing project or with primary approval for private project Primary responsibility to fulfill CEQA requirements

18 Screening Criteria for CEQA Process Is it an activity with no possibility of a significant impact? NO Is the activity outside the definition of a project? NO Is the project described in a Statutory Exemption? NO Is the project described in a Categorical Exemption? NO Is the project fully covered by a previous EIR, Program EIR, or Master EIR? NO Does the Initial Study show that the project will have no significant impact? NO YES YES YES YES YES YES Activities outside of CEQA Notice of Exemption (optional) Finding of no new impact or mitigated Negative Declaration Negative Declaration EIR (CEQA Deskbook, 1999)

19 Exemptions to CEQA Statutory Exemptions Legislature established exemptions for many types of projects Ministerial actions Emergency actions Feasibility or Planning Studies for Possible Future Actions New or replacement pipelines are exempt if < 1 mile long and in public right-of-way.

20 Exemptions to CEQA Categorical Exemptions Classes of projects that generally don t have significant impacts Over 30 categories (classes) of projects covered, including: Minor alterations to existing pipelines Replacement or reconstruction of existing pipeline involving negligible or no expansion of capacity Notice of Exemption (optional) Shortens time for legal challenge

21 Initial Studies When is an Initial Study prepared? Significance of impacts is not clear Negative Declaration/Mitigated Negative Declaration expected to be prepared Sometimes as part of EIR process Purpose Determine potential for significant impacts Decide what level of analysis should be completed Refine issues to be addressed in an EIR

22 Initial Studies Contents of an Initial Study Project Description Environmental setting Discussion of environmental effects Standard checklist often used Mitigation measures Consistency with plans and policies List of preparers

23 Thresholds of Significance No Impact Less than Significant Less than Significant with Mitigation Significant and Unavoidable

24 Negative Declarations / Mitigated Negative Declarations When is a Negative Declaration (ND) prepared? No substantial evidence that a significant effect may occur Rarely prepared, often challenged When is a Mitigated Negative Declaration (MND) prepared? Initial Study identifies a potentially significant effect Project proponent makes or agrees to make project revisions that mitigate effects to a point where clearly no significant effect would occur

25 Negative Declarations / Mitigated Negative Declarations Contents of an ND/MND Project Description Project Location Identification of project proponent Proposed finding of no significant effect Copy of Initial Study justifying the finding Mitigation measures included in project description to avoid significant effects

26 Negative Declarations / Mitigated Negative Declarations Initial Study Draft ND/MND Notice of Intent to Adopt Public Review (20 30 days) Final ND/MND Adopt Final ND/MND File Notice of Determination No public hearing required Public comment must be considered but responses are not required (but a good idea)

27 Environmental Impact Reports When is an Environmental Impact Report (EIR) prepared? An activity is determined to be a project Project is not exempt from CEQA Project potentially causes significant and unavoidable effects on the environment Purposes of an EIR Inform decision makers and the public about a project s significant environmental effects and ways to reduce them Demonstrate that the environment is being protected Ensure political accountability by disclosing to citizens the environmental values held by their elected and appointed officials

28 Environmental Impact Reports Primary Types of EIRs Project EIR Program EIR Master EIR and Focused EIR Subsequent EIR, Supplemental EIR, Addendum to EIR

29 Environmental Impact Reports Contents of a Draft EIR Summary Project Description Environmental Setting Significant environmental impacts Direct, indirect, short-term, long-term, cumulative, unavoidable impacts Areas of known controversy Alternatives to the proposed project No-Project Alternative Environmentally superior alternative Mitigation measures for the significant environmental effects Growth-inducing impacts

30 Environmental Impact Reports Typical Resource Sections Aesthetics Air Quality Biological Resources Cultural Resources Geology and Soils Hazards and Hazardous Materials Hydrology and Water Quality Land Use and Planning Mineral Resources Noise Population and Housing Public Services Recreation Transportation/Traffic Utilities and Service Systems

31 Environmental Impact Reports Contents of a Final EIR Comments on Draft EIR List of commenters Responses to environmental points raised Draft EIR

32 Environmental Impact Reports Initial Study (optional) Notice of Preparation Scoping Meeting (optional) Review of NOP (30 days) Draft EIR Notice of completion Lead Agency Decides on Project Final EIR Certified Response to Comments Public Hearing (optional) Public Review (30 45 days) Findings Written and Adopted Mitigation Reporting and Monitoring Program Adopted Notice of Determination filed (5 days from approval) Responsible Agency Decision (180 days from Lead Agency Decision)

33 Document Comparison Time to Complete Document Length Cost Scoping Public Comment Period Decisions Document Statute of Limitations IS/MND 4-12 months pages $25-200K Recommended days min Neg Dec 30-day EIR months 100-1,000 pages $200 1M+ Required days min Findings & NOD 30-day

34 Common Challenges & the Future of CEQA CEQA Concerns (from engineers) Avoiding the Pitfalls Other CEQA Concerns Can CEQA Change?

35 Common Concerns (from engineers) CEQA process takes too long! 3 years for an EIR considered standard by some agencies It costs too much! As much as 35% of total project planning/design cost Inconsistent requirements Planners want too much information too soon CEQA process forces project changes at inconvenient times

36 Avoiding the Pitfalls Insufficient budget Poor communication Good communication between planners, engineers, lead agency and regulatory agencies is essential Incomplete project descriptions Give options/ranges if final decision has not yet been made Inadequate record keeping Keep good records/files (you could get sued!) Negative public reaction Good public outreach is essential Starting too late

37 Other Common Concerns Documents are cumbersome focus more on pleasing the lawyers than on protecting the environment Gives too much power to the NIMBYs Inhibits implementation of good projects Poor integration with other environmental laws and regulations

38 Can CEQA Change? Practice Larger agencies often lead the way Legislative changes Several streamlining reforms passed by the Legislature in mid-90 s Broad legislative reforms would be difficult to implement Case law CEQA regulations are continually altered to reflect results of lawsuits

39 CEQA Case Law CEQA enforcement is left to citizen court challenge ~ 1 in 354 Initial Studies end up in a lawsuit ~ 1 in 18 EIRs end up in a lawsuit Statues of limitations exist CEQA lawsuits are often won or lost based on the evidence in the administrative record

40 CEQA and Global Warming In water supply impact analysis, consider global warming effects when: Describing reliability of proposed water supplies Describing reliability of alternatives Evaluating environmental effects of alternatives Other impact analyses to include Flooding risks due to global warming Project contributions to cumulative air quality impacts, and GHG mitigation measures

41 My CEQA document is done now what do I do?

42 Major Environmental Permits 404 Permit U.S. Army Corps of Engineers Streambed alteration agreement California Department of Fish and Game General NPDES permit for construction Notice of Intent Regional Water Quality Control Board

43 404 Permit When is it needed? Any project placing fill in a wetland or water of the U.S. Waters of the U.S. are essentially all surface waters, so permits are required for: Any pipeline crossing a stream using cut and cover construction Any pipeline crossing an adjacent wetland

44 Corps Jurisdiction under Section 404

45 Types of 404 Permits Nationwide Permit A general permit authorizing categories of activities Valid only if applicable conditions are met Nationwide 12 authorizes Utility Line Activities Bottom contours not changed ½ acre or less Most projects require Pre-construction Notification Individual Permit Required for any project that exceeds limits established in Nationwide Permit Requires full public interest review of application

46 404 Permit Process Delineate wetlands and obtain Corps verification Submit application showing amount of wetlands affected Include mitigation to minimize impacts and compensate for any unavoidable loss of wetlands Must demonstrate that you are implementing the Least Environmentally Damaging Practicable Alternative (LEDPA) May require purchase of mitigation credits at a mitigation bank for permanent impacts Corps must file public notice before issuing permit

47 404 Permit Associated Requirements 401 Water Quality Certification RWQCB Consultation with USFWS and NMFS Compliance with Section 106 (National Historic Preservation Act) - SHPO

48 404 Permit Schedule Requirements Allow at least a year for Individual Permit 1-6 months for delineation 2-6 months for verification 2-4 months for permit processing Additional time if hearing or NEPA document is needed Nationwide permits can be done in 6 months or less

49 Streambed Alteration Agreement DFG has jurisdiction over bed, channel & bank of rivers streams and lakes Required for all stream crossings (even if you tunnel under the stream) Submit application with detailed crossing design to CDFG Include frac-out plan for tunneled crossings

50 Time frame for Streambed Alteration Agreement Takes about 90 days DFG has 30 days to determine completeness 60 days to provide draft agreement to applicant Applicant has 30 days to review and sign

51 General NPDES Construction Permit Required for any construction site over 1 acre Submit NOI for coverage under general permit to RWQCB Requires preparation of Storm Water Pollution Prevention Plan NOI typically submitted by contractor

52 Questions?