2016 CEQA Workshop April 16, 2016

Transcription

1 2016 CEQA Workshop April 16, 2016

2 CEQA in Brief

3 California Environmental Quality Act CEQA it s a process, not a permit CEQA neither approves, nor denies, a project CEQA provides decision makers information about a project s potential to adversely affect the physical environment The adequacy of a CEQA document is not linked to the merits of the project it analyzes CEQA is not a planning act Environmental analysis is one means of understanding the outcome of proposed land use changes CEQA s focus is on substantial adverse physical changes

4 CEQA s Top 5 Concepts Disclosure Project, environment, impacts, mitigation. Good faith effort Not perfection, but doing your best Analysis Linking facts to conclusions Comments Consider the public and other agencies Mitigation All feasible mitigation must be included in the project approval

5 Planning Commission and CEQA CEQA applies to all projects before the Commission Some projects are exempt: Categorical and Statutory Exemptions Categorical Exemptions have exceptions Some projects are subject to a Negative Declaration or Mitigated ND Initial Study analyzes potential impacts Mitigation measures avoid all significant impacts Public review required

6 Planning Commission and CEQA (cont d) Some projects require an EIR Fair argument that project may have a significant effect EIR includes project alternatives and mitigation measures Notice of Preparation announces EIR is coming Public review of draft EIR required Final EIR includes results of public review Findings must describe the disposition of all potentially significant effects Statement of override required for effects that are unavoidable

7 The CEQA Process

8 Public Agency determines whether the activity is a project Not a project Project Public Agency determines if the project is exempt Project is ministerial No possible significant effect Statutory exemption Categorical exemption Not exempt Public Agency evaluates project to determine if there is a possibility that the project has a significant effect on the environment Possible significant effect Yes = EIR No = Negative Declaration Notice of Exemption may be filed No further action required under CEQA CEQA Process Flow Chart

9 Definition Of A Project An activity undertaken by a public agency, including: A discretionary action by a public agency resulting in physical effects: Direct effects or reasonably foreseeable indirect effects Includes construction projects, or general plan and ordinance adoption Activities supported through public agency contracts, grants, subsidies, loans, or other assistance Activities involving public agency issuance of a lease, permit, license, certificate, or other entitlement The public agency must include the whole of an action in the project being analyzed CEQA Guidelines Sec

10 Piecemealing is not allowed. Activities A and B are part of the same project when: Activity B is a reasonably foreseeable consequence of Activity A, Activity B is a future phase of Activity A, Activity B provides essential public services needed to implement Activity A, or Activities A and B are integral parts and lack independent utility

11 Key Participants in the CEQA Process California Tribes Responsible Agencies Agencies with Jurisdiction by Law Lead Agency Concerned Citizens and Organizations Courts Trustee Agencies Project Applicants Environmental Consultants

12 Lead and Responsible Agencies Lead agency Agency undertaking the project or considering approval of project Holds primary responsibility for CEQA process Liable for any inadequacies Responsible agency Agency approving project AFTER the lead agency Required to use lead agency s CEQA document, with some exceptions Independently weighs project approval City does not control the CEQA process when it s a responsible agency

13 California Native American Tribal Consultation AB 52 (2014) creates new consultation process with Native American tribes Notice from tribe triggers formal consultation request New CEQA concern: tribal cultural resource Adverse effect = significant impact Lead agency and tribe(s) may consult on impact significance, mitigation, alternatives Establishes grounds for ending consultation Requires mitigation when feasible Suggests mitigation methods

14 California Native American Tribal Consultation (cont d) AB 52 consultation occurs early in the CEQA process The PC will need to consider the mitigation measures identified in the consultation, if any Will also need to adopt a finding regarding the outcome of the consultation

15 CEQA Exemptions Statutory Exemptions set out in law Categorical Exemptions established by the CEQA Guidelines

16 Statutory Exemptions Various types are established by law Qualifying project must fit the description in the statute Some statutory exemptions allow projects with significant effects, others do not No public review period is required File a Notice of Exemption for a 35 day statute of limitations

17 Common Statutory Exemptions Ministerial projects Emergency projects Rejected or disapproved projects Feasibility or planning studies CEQA Guidelines sec , et seq.

18 Ministerial Exemption Ministerial means: The agency applies little or no personal judgment as to the wisdom or manner of carrying out the project The agency merely applies the law to the facts presented The decision involves only the use of fixed standards or objective requirements The agency can t use personal, subjective judgment in deciding how the project should be carried out Examples: Building permits, in most places Business licenses CEQA Guidelines sec

19 Emergency Sudden unexpected occurrence Clear and imminent danger to public health and safety Immediate action needed to mitigate losses or damages Examples: fire, flood, earthquake, riot CEQA Guidelines sec

20 General Rule/Common Sense Exemption CEQA doesn t apply where it can be seen with certainty that no environmental effect may occur No possibility that project may have a significant effect This exemption may apply to any activity not limited to particular types of projects Guidelines Section 15061(b)(3))

21 Categorical Exemptions CEQA Guidelines: 33 classes Qualifying project is not subject to CEQA Legislature s granted Natural Resources authority to identify projects that are typically without impacts No public review period is required File an NOE for a 35 day statute of limitations Restrictions on Use: Qualifying project must fit one or more class of CE No exceptions can apply No mitigation measures must be necessary

22 Categorical Exemptions Class 1 Operation, repair, or maintenance of existing structures or facilities Class 2 Replacement or reconstruction of existing structures or facilities Class 3 Construction or conversion of small new facilities Class 4 Minor alterations of land, water, or vegetation Class 5 Minor alterations in land use limitations Data collection, research, experimental management, or resource Class 6 evaluation Classes Public agency maintenance, restoration, or enhancement of 7 and 8 environmental or natural resources Class 9 Inspections of operations or projects Loans under Veterans Farm and Home Purchase Act and mortgages for Class 10 existing structures Class 11 Construction or placement of accessory structures Class 12 Surplus government property sales Class 13 Acquisition of lands for wildlife conservation purposes Class 14 Minor additions to existing schools Class 15 Minor land divisions Class 16 Transfer of land ownership to create parks CEQA Guidelines secs

23 Categorical Exemptions Class 17 Open space contracts or easements Class 18 Designation of wilderness areas Class 19 Annexations of existing facilities and lots for exempt facilities Class 20 Changes in organization of local agencies Class 21 Enforcement actions by regulatory agencies Class 22 Educational or training programs involving no physical changes Class 23 Normal operations of facilities for public gatherings Class 24 Regulations of employee wages, work hours, or working conditions Transfers of ownership of interest in land to preserve existing natural Class 25 conditions and historical resources Class 26 Acquisition of housing for housing assistance programs Class 27 Leasing new facilities exempt from CEQA Class 28 Small hydroelectric projects at existing facilities Class 29 Cogeneration projects at existing facilities Class 30 Minor alterations hazardous waste or hazardous substances Class 31 Historical resource restoration or rehabilitation Class 32 Infill development projects Class 33 Small habitat restoration projects CEQA Guidelines Secs

24 Class 1 Existing Facilities operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment involving negligible or no expansion of use Examples: Existing facilities of both investor and publicly owned utilities used to provide electric power, natural gas, sewerage, or other public utility services Additions to existing structures not exceeding: 50% of the floor area of the structures before the addition, or 2,500 square feet, whichever is less; or 10,000 sq. ft. if public services and facilities are available and the area in which the project is located is not environmentally sensitive Addition of safety or health protection devices for use during construction of or in conjunction with existing facilities, or equipment CEQA Guidelines sec

25 Class 3 Small New Construction Or Conversion Construction and location of limited numbers of new, small facilities or structures; Installation of small new equipment and facilities in small structures; and Conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure Examples: Accessory structures Utility extensions to serve small structures Commercial structure not involving the use of significant amounts of hazardous substances, and not exceeding 2500 square feet in floor area. In urbanized areas, the exemption also applies to up to four such commercial buildings not exceeding 10,000 sq. ft. in total area CEQA Guidelines sec

26 Class 4 Minor Alterations To Land Minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes Examples: Grading on land with a slope of less than 10 percent, except that grading shall not be exempt in a waterway, any wetland, an officially designated scenic area, or officially mapped areas of severe geologic hazard Minor temporary use of land having negligible or no permanent effects on the environment Minor trenching and backfilling where the surface is restored CEQA Guidelines sec

27 Class 6 Information Collection Basic data collection, research, experimental management, and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource. These may be strictly for information gathering purposes, or as part of a study leading to an action which a public agency has not yet approved or funded CEQA Guidelines sec

28 Class 11 Accessory Structures Construction, or placement of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities Examples: On premise signs Small parking lots Placement of seasonal or temporary items such as lifeguard towers, mobile food units, portable restrooms, or similar items in generally the same locations from time to time in publicly owned parks, stadiums, or other facilities designed for public use CEQA Guidelines sec

29 Class 32 Infill Development Projects In fill development meeting the following conditions: Located within city limits on a project site of no more than five acres substantially surrounded by urban uses Consistent with the applicable general plan designation and policies as well as with applicable zoning regulations Site has no value as habitat for endangered, rare or threatened species Approval would not result in any significant effects relating to traffic, noise, air quality, or water quality Site can be adequately served by all required utilities and public services Note, this exemption does not apply to sites located within county jurisdictions CEQA Guidelines sec

30 Exceptions Reasonably possible the activity may have a significant environmental impact due to unusual circumstances Cumulative impacts would be significant Certain specified sensitive environments would be affected A project affects scenic resources within official state scenic highways A project is located on hazardous waste site list maintained by the California EPA Cortese List A project causes substantial adverse changes in significant historic resources Technical studies can be prepared to support finding that there are no applicable exceptions CEQA Guidelines sec

31 Two Part Test for Exceptions Exceptions apply only if there are unusual circumstances and a potential for significant impact By itself, a potentially significant environmental effect is not an unusual circumstance First part: Are there unusual circumstances? Lead agency determines this based on substantial evidence Lead agency has the discretion to consider conditions in the vicinity of the proposed project Second part: is there potential for significant impact? A fair argument that project may result in a significant impact is sufficient to demonstrate potential Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4 th 1086

32 Fair Argument The Road to EIR ville An EIR is required when it can be fairly argued, on the basis of substantial evidence in the record, that a project may have a significant effect on the environment. Fairly argued = issue was raised during the span of the CEQA process by any party (city, commissioners, opponents, proponents, etc.) May have a significant effect = absolute proof is not necessary A fair argument can be raised at your hearing Applies to CEs (phase 2 test) and Negative Declarations, not EIRs themselves

33 What s Substantial Evidence? Factual evidence in the record that indicates the project may result in an unavoidable significant impact Facts, expert opinion based on facts, conclusions drawn for factual basis It does not include: Argument, speculation, unsubstantiated opinion, clearly erroneous evidence, or social economic impacts not related to a physical change in the environment The Challenge: Recognizing a fair argument when it s presented CEQA Guidelines sec

34 Categorical Exemptions and Impact Avoidance A CE cannot be used when mitigation measures must be applied to the project in order to avoid environmental impacts Conditions of approval can be applied to the project, provided that they are not mitigation measures for an environmental impact A CE can be used when the project, as submitted, includes design components that will avoid impacts Requirements added after submittal could be construed as mitigation measures

35 Neg Decs and EIRs

36 Negative Declaration Negative Declaration or Mitigated Negative Declaration There is no factual evidence that the project may have a significant effect (Negative Declaration) All potential significant effects can be mitigated (Mitigated Negative Declaration) Initial Study checklist and related studies document absence of impacts A fair argument triggers need for an EIR Requires public notice and review prior to adoption Commission must consider any comments prior to acting on project

37 Air Quality (Excerpt from Appendix G) Significance criteria established by air quality management or air pollution control district may be relied upon. Would the project: Issues a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? c) Result in cumulatively considerable net increase in any criteria pollutant for which the project region is nonattainment? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of people? Potentially Significant Impact Less Than Significant with Mitigation Incorporation Less Than Significant Impact No Impact

38 Air Quality thresholds SVJAPCD has adopted thresholds for air quality impacts Sample criteria pollutant thresholds now in effect: Thresholds for construction and operations are the same Pollutant Tons/year ROG 10 CO 100 NOx 10 SOx 27 PM10 and PM2.5 15

39 Avoid The Naked Checklist The IS checklist conclusions must be supported by evidence/facts Initial Study may include technical studies in addition to the checklist, where pertinent: Traffic study, biological survey, archaeological survey, etc. The checklist in Appendix G can be revised to meet agency s needs Show your analysis bridge the gap between data and conclusions

40 Checklist Translation The four possible answers to checklist questions carry specific meanings No impact: the project would not result in any impact Less than significant impact: the impact of the project is not a substantial adverse change in the environment Less than significant impact with mitigation incorporation: any potentially significant impact is reduced to a less thansignificant level by specific mitigation measures Potentially significant impact: the impact cannot be mitigated below a level of significance an EIR is required

41 More about the Fair Argument Another way to think of a fair argument is a disagreement among experts each of whom is supported by factual evidence Be careful: the record of defending ND/MND in the face of a fair argument is poor May be better to switch to an EIR and go from there Fair argument does not apply when an EIR is prepared EIR can present disagreement among experts, provided that its conclusions are supported

42 What s mitigation? Mitigation is a feasible, enforceable action that will: Avoid the prospective impact, Minimize the impact, Rectify the impact, Reduce or eliminate the impact over time, or Compensate for the impact Mitigation cannot be deferred when adopting an MND Further study isn t mitigation Consulting with other agencies isn t mitigation by itself Mitigation must be made a condition of approval Must adopt a mitigation monitoring or reporting program (MMRP) to ensure implementation

43 Mitigation Lead Agency must adopt mitigation for all significant impacts, unless infeasible Mitigation outside the Lead Agency s boundaries is not infeasible or unenforceable if another agency can and will implement it Mitigation must be reflected in the conditions of approval Must adopt a separate Mitigation Monitoring or Reporting Program with project approval

44 Deferred mitigation: Deferred Mitigation Only allowed when an EIR is prepared Cannot defer mitigation, can only defer details of the mitigation measure A properly deferred mitigation measure must include: Agency s commitment to mitigate Performance standards describing what the measure will require and ensuring its effectiveness If the measure requires future study, that study must lead to specific actions taken to mitigate the impact If X, then Y.

45 Contents Of An ND/MND Project description Project location Identification of project proponent Proposed finding of no significant effect Attached copy of Initial Study justifying finding: The Negative Declaration is a couple pages long; the IS can be 100 or more pages long For MNDs, mitigation measures that will avoid significant effects CEQA Guidelines sec

46 Public Review Of The Negative Declaration Proposed ND or MND (and associated IS and studies) must be circulated for public review and comment before it is adopted: 30 day review for most projects 20 day review for local projects with no state agencies Public notice announces availability for review: Copies must be sent to responsible agencies and to the State Clearinghouse for certain projects (30 day review) Lead Agency must consider the comments before adoption Fair argument may be raised in the comments

47 Environmental Impact Report (EIR) Prepared for projects with the potential for significant unavoidable environmental impacts Typical contents: Executive summary Project description Environmental analyses by resource type (air quality, agriculture, etc. ) Environmental and regulatory settings Determinations of significance Mitigation measures Analysis of alternatives to the project Analysis of growth inducing and cumulative impacts

48 EIR (cont d) Notice of Preparation Pre notice to agencies and public of the coming EIR (30 day review period) Draft EIR Subject to public review and comment (45 day review period) All comments become part of the administrative record Final EIR includes: Draft EIR, comments, written responses to comments, any revisions to the Draft EIR, list of commenters May be two volumes Final EIR and Draft EIR Project Approval Actions: Findings, Statement of Overriding Considerations, and MMRP

49 Common Types of EIRs Program EIR: analyzes a large or phased project at a general level of detail. Impacts of later activities consistent with the program are examined in light of the PEIR. Tiered EIR: general term for several options for applying a previously certified EIR to a new project that s related to the project for which that EIR was prepared. Subsequent EIR: analyzes impacts of an activity that were not covered in a previously certified EIR for the same project. Analysis limited by law to new or substantially more severe impacts of the activity. Each of these has its own specific requirements and limitations

50 EIRs and Fair Argument When an EIR is prepared, its determinations are not subject to fair argument The EIR s conclusions must be based on substantial evidence Evidence must be in the administrative record (not limited to just the EIR): staff report, testimony, special study, etc. Disagreement among experts is acceptable So, why not prepare an EIR for every project? Not the intent of CEQA why have NDs and MNDs? Projects that won t have significant effects have a more streamlined approach

51 Mitigation Mitigation cannot be deferred to later environmental analyses Tiering is no excuse for failing to mitigate An EIR may defer describing mitigation in detail if: City adopts a mitigation measure The measure contains performance standards or a menu of options that will ensure mitigation Mitigation measures must be specific enough to allow implementation If monitoring is needed to ensure mitigation, include it in the mitigation measure

52 A Word on Subsequent EIRs Once an EIR or Neg Dec has been certified, CEQA statute and Guidelines limit the analysis of later activities covered by that document. The later activity will be analyzed under one of the following, in decreasing level of impacts: Subsequent EIR Supplement to the EIR Subsequent Mitigated Negative Declaration Addendum to EIR or Mitigated Negative Declaration

53 Planning Commission s Responsibilities For projects that the Commission alone approves Adopt the Exemption or ND/MND, or Certify the Final EIR and make necessary findings, etc. These are your documents You represent the city/county The city/county is responsible for a good faith effort to comply with CEQA Your hearing is part of the administrative record Review and familiarize yourself with the CEQA documents before the Commission meeting Advise staff of questions or concerns before the meeting

54 Topic 1 1/2. What to Look For

55 Planning Commissioner: What to Look for Is the CEQA approach appropriate? If a categorical exemption: the project fits within the exemption There are no unusual circumstances If an ND/MND: the initial study includes sufficient analysis to support its conclusions there s no fair argument for a significant impact If an EIR: all the required EIR parts are there it provides a good faith effort at disclosure

56 Planning Commissioner: What to Look for Final EIR: the analysis is objective the project description is consistent across the environmental issues there s more than one alternative analyzed the alternatives reduce or avoid one or more project impacts CEQA comments have been responded to Any mitigation or alternatives suggested by commenters have been addressed in the written responses to comments

57 Planning Commissioner: What to Look for Is the mitigation adequate? There s a mitigation measure for each potentially significant impact If not, there s a reasonable explanation of why mitigation is infeasible The mitigation measure fits the significant impact The mitigation addresses an impact of this project It s proportional to the project s share of the impact Specific enough to implement as conditions of approval Who, what, where, when, and how

58 Planning Commissioner: What to Look for When the Commission has the final decision on a project: You should be comfortable with adopting an exemption You should be satisfied with the adequacy of the CEQA document before adopting a Neg Dec, or certifying an EIR with the related findings It isn t your role to write the CEQA document It is your role to review it for adequacy

59 That s All Folks! CEQA Workshop Presented by Terry Rivasplata, AICP ICF International

60 Information on CEQA California Natural Resources Agency Website with basic information on CEQA and the CEQA Guidelines Office of Planning and Research Technical advisories on CEQA and planning html Planning and Conservation League Community Guide to CEQA A basic primer on CEQA