CEQA Portal Topic Paper. Thresholds of Significance. What Is a Threshold of Significance?

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1 CEQA Porta Topic Paper What Is a Threshod of Significance? Threshods of Significance CEQA requires a Lead Agency to determine the significance of a environmenta impacts (Caifornia Pubic Resources Code [PRC] Section ; State CEQA Guideines Section 15064). A threshod of significance for a given environmenta impact defines the eve of effect above which the Lead Agency wi consider impacts to be significant, and beow which it wi consider impacts to be ess than significant. Threshods of significance may be defined either as quantitative or quaitative standards, or sets of criteria, whichever is most appicabe to each specific type of environmenta impact. For exampe, quantitative criteria are often appied to traffic, air quaity, and noise impacts, whie aesthetics impacts are typicay evauated using quaitative threshods. Lead Agencies have discretion to formuate their own significance threshods. Setting threshods requires the Lead Agency to make a poicy judgment about how to distinguish significant impacts from ess-than-significant impacts. Lead Agencies can set threshods on a project-by-project basis, or they can informay or formay adopt threshods to be consistenty appied to a projects. For the Lead Agency, having ceary estabished threshods promotes predictabiity and consistency (over time and across reviewers) in the environmenta review process, can boster the defensibiity of significance determinations in the Agency s documents, and can focus the anaysis on impacts expected to be significant rather than impacts that are simpy controversia. However, CEQA does not require that a Lead Agency use the same significance threshod for different CEQA documents. The determination by a Lead Agency of whether a project may have a significant effect on the environment cas for carefu judgment, based to the extent possibe, on scientific and factua data. Thus, estabishing a singe threshod of significance, whie desirabe in most instances, may not be possibe for every environmenta impact, because the significance of an activity may vary with the setting. For exampe, a given eve of impact that is not significant in an urban area may be significant in a rura area (e.g., noise or aesthetics). Lead Agencies may not arbitrariy estabish threshods to either create or avoid significant impacts. Threshods must be backed by substantia evidence, which is defined in the CEQA statute to mean facts, reasonabe assumptions predicated on facts, and expert opinion supported by facts (14 CCR (b)). 1

2 Threshods of Significance Topic Paper Why Are Threshods of Significance Important? Threshods of significance are key eements of any CEQA document, as the eve at which threshods are estabished can determine whether the impacts of a project are deemed significant (thus requiring mitigation) or ess than significant (thus not requiring mitigation). Further, if significant project impacts are identified that cannot be reduced beow the threshod of significance through mitigation, the Lead Agency is obigated to prepare an EIR rather than an IS/MND (PRC Section (d); State CEQA Guideines Section 15064(a)(1)). How Do You Seect Appropriate Threshods of Significance? Lead Agencies are responsibe for determining the threshods of significance for a documents they prepare. They can rey on severa sources, incuding: Appendix G of the State CEQA Guideines; CEQA s mandatory findings of significance (State CEQA Guideines Section 15065); threshods estabished by reguatory agencies; threshods provided in Genera Pans or other oca panning documents; or threshods estabished by other agencies. For exampe, many jurisdictions rey on threshods estabished by a oca or regiona air district when anayzing air quaity impacts. Appendix G is the most common source, though Lead agencies are not required to use it and are free to deveop their own threshods. It is aso important to note that an impact can be significant even if it is not covered by an Appendix G question. Lead Agencies are encouraged in the State CEQA Guideines (14 CCR (a)) to deveop and formay adopt threshods of significance, though most do not do so. Threshods estabished for genera use by a Lead Agency must be: adopted by ordinance, resoution, rue, or reguation; be subjected to pubic review; and be supported by substantia evidence (State CEQA Guideines Section (b)). Threshods used ony for a specific project are not required to be adopted by ordinance or other forma means. In adopting threshods, ead agencies shoud consider the foowing factors 1 : Whether the threshod is consistent with the agency s poicies, especiay as expressed in adopted pans; Whether there are environmenta aws, rues and reguations that can be used in deveoping the threshods; Whether the threshod is consistent with threshods recommended by other agencies, in particuar reguatory agencies with jurisdiction over the resource in question; Whether a threshod is quantitative and objective rather than quaitative or subjective; and The degree to which the threshod is simpe to interpret and impement. 1 Some of these factors are derived from the discussion in Letunic and Ferre (2007) isted beow under Sources. 2

3 Threshods of Significance Topic Paper Further, where appropriate, threshods shoud be dynamic and fexibe to account for appication in different settings (rura vs. urban) and site-specific conditions. Are Threshods of Significance Required in Initia Studies and EIRs? The deveopment and use of threshods of significance are not required by CEQA. However, it is good and accepted practice to do so in both Initia Studies and EIRs because it aows readers to more easiy understand the chain of facts and ogic that ed the Lead Agency to their significance concusions. Because many Initia Studies/Mitigated Negative Decarations (IS/MNDs) rey on the State CEQA Guideines Checkist (found in Appendix G), the statements provided in Appendix G often serve as the threshods by which impacts are evauated. The Appendix G statements may aso be used in an EIR. However, because an EIR typicay provides a more in-depth anaysis of the project s environmenta impacts, it typicay aso incudes more detai to support the seection of significance threshods than an IS/MND; a discussion of threshods is commony incuded in the Methodoogy section of each EIR chapter. Threshods of Significance Under NEPA There is no mention of threshods in the Counci on Environmenta Quaity (CEQ) NEPA reguations. Most federa agencies do not use estabished threshods but determine the significance of environmenta effects based on the context that effects occur within, and the intensity of the effects. In determining an effect s intensity, federa agencies consider factors such as pubic heath, characteristics of the geographic area, controversy, uncertain risks, precedent-setting aspects, cumuative effects, effects on cutura resources and endangered species, and vioation of environmenta protection aws. (40 CFR ) Threshods of Significance in a Joint CEQA/NEPA Document Because NEPA and CEQA define significance in different terms, NEPA and CEQA agencies tend to treat significance differenty in their environmenta documents. CEQA and NEPA practices can be aigned in a joint environmenta document by expaining which significance determinations are being made. Specific significance determinations shoud then be set forth in the document. The federa and state agencies can describe each specific impact in common anguage that is consistent with both NEPA and CEQA practice. Foowing each description, the agencies shoud incude a section in which the determination is made and expained. (Counci on Environmenta Quaity and Governor s Office of Panning and Research 2014) When working on a joint CEQA/NEPA document the two Lead Agencies shoud meet at the start of the project and come to an agreement on aspects of document preparation where CEQA and NEPA differ, incuding the appication of threshods of significance. Because CEQA 3

4 Threshods of Significance Topic Paper requires judgements about impact significance, joint CEQA/NEPA documents shoud incude CEQA threshods, but may aso expain significance in terms of NEPA context and intensity criteria. Some federa agencies opt to not incude significance determinations in their NEPA documents, arguing that such determinations are up to the ead agency decision-maker. If the Agencies cannot agree on a singe approach to determining significance, then separate CEQA and NEPA significance concusions can be provided for some or a impacts. Areas of Controversy Regarding Threshods of Significance? The roe of reguatory standards as threshods of significance continues to be very controversia. Using reguatory standards (e.g., air and water quaity standards, buiding codes) as threshods promotes efficiency in the CEQA process by reducing the need to reinvent the whee when anayzing highy reguated impacts. However, many impacts are not covered by reguatory standards, and the reguatory standards that do exist sometimes are vague, ineffective in reducing impacts (for exampe, because they require economic baancing), or not enforced. In Communities for a Better Environment v. Caifornia Resources Agency (2002) 103 Ca. App.4 th 98, the court invaidated a State CEQA Guideine that required Lead Agencies to rey on adopted environmenta standards to determine significance because it was inconsistent with the fair argument standard of review. There have been repeated unsuccessfu egisative attempts to amend CEQA to essentiay overturn the CBE case and require the use of reguatory standards to determine impact significance. In the meantime, Lead Agencies are free to use reguatory standards as threshods as ong as compiance with the reguatory standards keeps impacts from being significant. Some standards (e.g., air quaity, water quaity) are aready buit into Appendix G. Often ead agencies such as a city or county, and resource or widife agencies, disagree about the threshods to be appied to impacts on widife or other protected resources. Under CEQA case aw, a ead agency is not required to foow the recommendations of other agencies, athough a number of agencies choose to do so. The critica factor for the ead agency in this circumstance is to be sure that the ead agency s seected threshod is supported by some substantia evidence. Questions sometime arise about whether an impact is big enough to be significant. Generay, CEQA is concerned about impacts on the environment generay, rather than impacts on a sma set of persons. A number of ead agencies, for exampe, do not consider impacts on views from private roads to be significant, whie impacts on views from pubic roads or trais may be considered significant. Important Cases The foowing important pubished cases invove issues reated to threshods of significance: Rominger v. County of Cousa (2014) 226 Ca. App. 4th 690: 4

5 Threshods of Significance Topic Paper A Lead Agency need not use the Appendix G checkist and is free to devise its own significance threshods. Save Cuyama Vaey v. County of Santa Barbara (2013) 213 Ca.App.4th The court uphed the use of a project-specific significance threshod for hydroogica impacts, and rejected an argument that a significance standards must be based on the Appendix G checkist. The court aso hed that project-specific threshods do not need to be formay adopted, and the ead agency does not need to expain why it is not using the Appendix G checkist as the threshod. North Coast Rivers Aiance v. Marin Mun. Water District (2013) 216 Ca.App.4th 614. The court uphed an anaysis of greenhouse gas emissions impacts based on adopted County GHG goas. (For discussion of the significance of greenhouse gas emissions generay, see Center for Bioogica Diversity v. Department of Fish and Widife (2015) 62 Ca.4th 204). Mount Shasta Bioregiona Ecoogy Center v. County of Siskiyou (2012) 210 Ca.App.4th 184. The court uphed noise significance standards that were deveoped by an expert who assisted in preparing the EIR. Oakand Heritage Aiance v. City of Oakand (2011) 195 Ca. App. 4th 884: The court rued that project specific threshods did not need to be adopted by ordinance or other forma means. The court aso rued that reguatory standards can be presumed to provide sufficient protection to the appicabe resources, and that such standards can thus be used as significance threshods. Citizens for Responsibe and Equitabe Environmenta Deveopment v. City of Chua Vista (2011) 197 Ca. App. 4th 327: A Lead Agency may use a reguatory standard as a threshod of significance when it concudes it is appropriate to do so because it keeps impacts from being significant. Portervie Citizens for Responsibe Hiside Deveopment v. City of Portervie (2007) 157 Ca.App.4th 885. The court hed that height and view impacts of a proposed deveopment were not significance because ony a few persons woud be affected. Mejia v. City of Los Angees (2005) 130 Ca. App. 4th 322: Threshods of significance are not concusive and do not excuse the ead agency from considering evidence that a significant impact may nevertheess occur. Protect the Historic Amador Waterways v. County of Amador (2004) 116 Ca. App. 4th 1099: A reduction in streamfow was a potentiay significant impact, even though it was not expicity covered by an Appendix G question. Lead Agencies must address evidence submitted by a commenter that an impact might be significant despite the significance threshods used in an EIR. 5

6 Threshods of Significance Topic Paper Mira Mar Mobie Community v. City of Oceanside (2004) 119 Ca.App.4th 477. The court uphed an EIR s determination that impacts on pubic views woud be significant, but impacts on private were not significant. The EIR determination was based on poicies in the City s oca coasta program that protected pubic views, and the absence of city poicies protecting private views. Communities for a Better Environment v. Caifornia Resources Agency (2002) 103 Ca. App. 4th 98. Regarding the use of reguatory standards and threshods of significance, the court invaidated a State CEQA Guideines requirement for Lead Agencies to rey on adopted environmenta standards to determine significance. The court hed that this requirement conficted with CEQA s standard for determining whether to prepare an EIR whenever it can be fairy argued on the basis of substantia evidence that a project may have a significant environmenta impact. Oro Fino God Mining Corp. v. County of E Dorado (1990) 225 Ca.App.3d 872. The court uphed the use of genera pan noise standards as the threshod for determining that an EIR was required for a project. Threshods of Significance in the CEQA Guideines Threshods of significance are described in the foowing sections of the State CEQA Guideines: Section provides genera guidance to Lead Agencies regarding how to determine whether environmenta effects caused by a project are significant. Section provides specific guidance to Lead Agencies regarding how to determine whether the emissions of greenhouse gases by a project are significant. Section provides specific guidance to Lead Agencies regarding how to determine whether environmenta effects caused by a project on archaeoogica and historica resources are significant. Section defines threshods of significance and encourages Lead Agencies to deveop and pubish such threshods; requires that threshods of significance that are to be adopted for genera use be deveoped through a pubic review process, be supported by substantia evidenced, and be formay adopted; aows Lead Agencies to consider using threshods of significance adopted by other pubic agencies or experts, provided those threshods are supported by substantia evidence. Section Discusses the circumstances under which a Lead Agency must deem environmenta impacts as significant. Reated Topics Environmenta Setting and Baseine (In preparation) Impact Anaysis (To come) 6

7 Authors Emiy Bacchini, Sacramento Municipa Utiity District, Craig Stevens, Stevens Consuting, Threshods of Significance Topic Paper Reviewers Abert I. Herson, The Sohagi Law Group, PLC, Michae H. Zischke, Cox Caste Nichoson, Eison Fok, Shute, Mihay & Weinberger LLP, Sources 2014 Caifornia Environmenta Quaity Act Statute and Guideines. Bass, R. E., K. Bogdan, and T. Rivaspata. CEQA Deskbook, A Step-by-Step Guide on How to Compy with the Caifornia Environmenta Quaity Act. Third Edition City of San Diego, Deveopment Services Department Caifornia Environmenta Quaity Act Significance Determination Threshods. January. Avaiabe: Counci on Environmenta Quaity and Governor s Office of Panning and Research NEPA and CEQA: Integrating Federa and State Environmenta Reviews. February. Letunic, N., and C. E. Ferre, PhD CEQA Threshods of Significance, A Do-It-Yoursef Guide for Pubic Agencies. APA Caifornia Panner, March/Apri Avaiabe: Seiver, O. H., and T. H. Hatfied The Determination of Threshods of Environmenta Significance in the Appication of the Caifornia Environmenta Quaity Act (CEQA). March. Date Updated: March 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. 7

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