NEPA and Other Regulatory Requirements 9 th Annual CLE NEPA Conference April 22, 2013 Stephanie Parsons, Parsons Brinckerhoff Jesse Halsted, Cordoba Corporation Mary Lynn Coffee, Nossaman LLP
Stephanie s Representative Projects Stockton Delta Water Supply Project Sacramento International Airport Big Build Project PG&E Line 406/407 Improvement Project 2
Jesse s Representative Projects SR 520 Bridge Replacement Alaskan Way Viaduct I-5 Columbia River Crossing 3
Mary Lynn s Representative Projects Newhall Land and Farming Specific Plan Orange County Great Park Transportation Corridor Agency SR 241 Tollroad
Joint Representative Project
Regulated Resources and Permits State and federal law resource protection regulations and permits 6
Regulated Resources and Permits Wetlands/Riparian Permits Fish & Game Code 1602 Water Board Clean Water Act Section 401 USACE Clean Water Act Section 404 Water Board WDRs for fill 7
Regulated Resources and Permits Listed Species Permits USFWS Section 7 or 10(a) Fish &Game Code Section 2081 8
Regulated Resources and Permits Water Quality Water Boards Clean Water Act Section 401 Cert. Water Boards Clean Water Act Section 402 NPDES Permit
Tools, Methods and Issues INTEGRATION OF PERMITTING AND CEQA/NEPA 10
Benefits of Integrating CEQA/NEPA and Permitting Streamlines schedule Alternatives analysis integrates MMs Easy integration of conservation and MM measures Supports permit findings Reduces potential for additional mitigation 11
Streamlines Schedules 12
Integration of Minimization and Conservation Measures Ensures measures are implementable, effective and meet the intent of protection law Provides feedback loop and improvement of future measures 13
Integration of Minimization and Conservation Measures Integrates permit measures into alternatives analysis Identifies mitigation that can serve dual purpose Ensures secondary impacts are analyzed under CEQA/NEPA 14
Challenges for Integration of CEQA/NEPA and Permitting Scheduling and sequence Funding Resource Agency Involvement High level of time and resources Design/ Build 15
Tools, Methods and Issues ACHIEVING INTEGRATED NEPA/CEQA AND RESOURCES AGENCY APPROVALS 16
Agency Coordination Groups Formalized coordination process between resource agencies and project proponents Typically includes checkpoints or milestones in project review process leading up to NEPA documents and permit issuance 17
Checkpoints/ Milestones Purpose and Need Evaluation Criteria/ Framework Range of Alternatives Draft EIS Preferred Alternative Preliminary/ Apparent LEDPA Mitigation Plan 18
Coordination Group Pros Review at early level of design Consistent development of mitigation and commitments Early identification of red flags Provides formalized agency feedback and concurrence on milestones Dispute resolution 19
Coordination Group Cons Significant time and effort to establish group Regular coordination requires staff time; solution may be position funding by project proponent Likely unavailable for private projects 20
Coordination Group Examples Signatory Agency Committee (SAC) Multi-Agency Permit (MAP) Team Collaborative Env. and Transportation Agreement for Streamlining (CETAS) Interstate Collaborative Environmental Group Process (InterCEP) Regulatory Agency Coordination Process (RACp) 21
Clean Water Act/NEPA Integration MOU Examples: California High Speed Rail Project South Orange County Infrastructure Improvement Project (SR 241 Toll Road) 22
Integration MOU Partcipants
Clean Water Act/NEPA Integration MOU 24
Clean Water Act/NEPA Integration MOU Integrates: 1. Checkpoint A: Purpose and Need; Program Level Alternatives/Analysis; Environmental/Practicability Factors 2. Checkpoint B: DEIS Alterantives; Potential LEDPAs 3. Checkpoint C: Prelminary LEDPA; BiOp; FEIS Preferred Alternative 25
Clean Water Act/NEPA Integration MOU Advantages: Assures acceptance by federal permitting agencies (USACE, USFWS, EPA) of Purpose and Need Assures permittability and therefore constructability of preferred alternative 27
Clean Water Act/NEPA Integration MOU Advantages (cont.) Allows for coordination of federal permit conditions and NEPA mitigation measures Feasible and implementable compliance programs 28
NEPA/Permitting Integration Issues 29
NEPA/Permitting Integration Issues 1. Constrains Preferred Alternative--limits Non-Environmental (Local, Community NGO) Interests 30
2. Data Needs v. Engineering Design (Design Build Contracting) 31
2. Engineering Design Level-Section 408 32
NEPA/Permitting Integration Issues Limited to federally regulated resources and permitting agencies But provides a framework for state permits But expansive definition of federal juridiction may help encompass state regulated resources
NEPA/Permitting Integration Issues Still requires a large number of statewide permits to be integrated into the NEPA process on a permit-by-permit basis
Clean Water Act/NEPA Integration MOU 35
Tools, Methods and Issues PERMIT-BY-PERMIT INTEGRATION 37
Tools and Tips for Permit-by-Permit Integration Coordinate with CEQA/NEPA process and lead agency action Intra-agency coordination Differing schedules, standards and priorities 38
Tools and Tips for Permit-by-Permit Integration Permit issued post-nod/rod Must be consistent with pre-nod/rod analysis Permit requires higher level of detailed information May lead to new impacts, recirculation and supplemental analysis 39
Tools and Tips for Permit-by-Permit Integration Ensure CEQA/NEPA document has robust biological and water quality impact analysis Avoid recirculation or supplemental review Conservative estimate of impacts in CEQA/NEPA document May pose challenges with jeopardy finding 40
Tools and Tips for Permit-by-Permit Integration Permit issued post-nod/rod Must be consistent with pre-nod/rod analysis Permit requires higher level of detailed information May lead to new impacts, recirculation and supplemental analysis Poses challenges with D/B 41
Tools and Tips for Permit-by-Permit Integration Agencies may not consider permit requirements until post-nod/rod Requires early engagement Menu of mitigation sites and programlevel analysis of activities 42
Tools and Tips for Permit-by-Permit Integration If new impacts, use Categorical Exemptions or Negative Declarations if feasible CEQA/NEPA differing thresholds Project may have high profile and may require conservative approach 43
Coordination Between Permits and Agencies Although differing standards, inconsistency may be susceptible to litigation Pre-application coordination before NOD/ROD Biological Opinion 2081 404(b)(1) LEDPA 401-1602 44
Coordination Between Permits and Agencies Mitigation plans that fulfill all agency requirements Ensure early agreement Involve in selection process May provide flexibility in mitigation implementation timing May reduce mitigation requirements if provides a greater benefit 45
Tools, Methods and Issues DESIGN REFINEMENTS/ CHANGES 46
Design Refinements/ Changes Refinement vs. change Thresholds and criteria Change and Design-Build RFP and contracting Process and tracking 47
Design Change and NEPA When is a supplemental document required (40 CFR 1502.9) The agency makes substantial changes in the proposed action that are relevant to environmental concerns. There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 48
NEPA Reevaluation Document that supplement is or is not warranted. Project change, new info/regs, time Thresholds and criteria Permit or other documents modified Minor documentation Reevaluation format Checklist, memo, decision document 49
Design Change and CEQA To supplement or not to supplement? Subsequent, supplement and addendum New significant environmental effects or a substantial increase in the severity of previously identified significant effects. CEQA Guidelines 15162 New mitigation actions not undertaken Thresholds of significance (15064.7) 50
Design Change and Permitting Reliance on NEPA/CEQA by resource agencies Change before permit issuance Design freeze Change after permit issuance Modification thresholds and triggers 51