ESP171-CEQA and Land Use Planning
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ESP171-CEQA and Land Use Planning

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  • STATUTE: Law of California California Public Resources Code §§ 21000-21177 GUIDELINES: First issued 1973 Developed by the Office of Planning and Research (OPR) Establish a road map for implementing CEQA Intended to be certified and adopted every two years Recognized by courts, but do not carry same weight as statutes Watch for changes…
  • So here’s the basics: what you need to know is that the National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4327) was signed into law by President Richard M. Nixon, it was proposed in 1969 and it was actually tited the Environmental Policy act of 1969, but it wasn’t really signed into law until 1970. So what does this mean…. Well this was important because it represented a fundamental shift in United States federal government policy from a primary focus on economic development toward a more environmentally balanced approach and it set the foundation of environmental regulation. Primarily, the law established policy that required federal government agencies to consider the environmental effects of their decision making. For the purpose of this presentation, that’s all you really need to know. NEPA set the foundation for CEQA. The California Environmental Quality Act (CEQA) which was passed and adopted in 1970 shortly after NEPA, was incorporated into Public Resources Code under §§21000.   CEQA’s history comes from what was called the California Assembly Select Committee on Environmental Quality. This group decided well what the heck let’s write a report. … so they did and it was called the Environmental Bill of Rights, what this report did was call for a California counterpart to NEPA. Later that same year, acting on the recommendations of the committee, the legislature passed, and Governor Reagan signed, the CEQA statute. One interesting thing to note is that the report actually called for CEQA as a constitutional amendment, but the legislature decided to go the statue rout. So the Legislature is tasked with the continuous task of modifying the statue as new Laws are enacted. We will get into later how the Courts play into this whole process and how they “interpret” the Law.
  • So there are four fundamental reasons for CEQA: Informing government decision makers and public about the potential significant environmental impacts- So this is the bridge between science and politics. We as practitioners are taking sound science and presenting it to the public in a way in which they can understand it. Secondly, we must clearly identify way impacts can be avoided or significantly reduced.- This is why in environmental impact assessment documents you will often times see BOLDED statements saying things like SIGNIFICANT IMPACT, LESS THAN SIGNIFICANT IMPACT, ETC.
  • 3) Next once we have identified what will happen as a result of this “project” we must then try and develop a means to avoid this potential damage. By way of mitigation or alternatives. Good example, 4) Finally after we have tried to mitigate the impact we now have to disclose to the public why the “lead agency” has approved the “project” in the event there are significant and unavoidable impacts. We will touch on this later on. The California Environmental Quality Act (CEQA) is a public disclosure law that applies to projects that require a discretionary approval by a state or local governmental agency.
  • § 21067. LEAD AGENCY “Lead agency” means the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment. § 21069. RESPONSIBLE AGENCY “Responsible agency” means a public agency, other than the lead agency, which has responsibility for carrying out or approving a project. § 21070. TRUSTEE AGENCY “Trustee agency” means a state agency that has jurisdiction by law over natural resources affected by a project, that are held in trust for the people of the State of California.
  • So now that we have this new LAW the next few years were spent trying to figure out how and what to do with it… one very important thing to mention is that CEQA is a “self-executing statute.” This means that Public agencies are entrusted with compliance with CEQA and all the provisions are to be enforced, as necessary, by the public through the legal process. While the Resources Agency is charged with the adoption of CEQA Guidelines, and may often assist public agencies in the interpretation of CEQA, it is each public agency's duty to determine what is and is not subject to CEQA. So after CEQA became a law, many public agencies did not take this law seriously.
  • Again, ask your consultant what questions they are trying to clearly answer or show evidence for….
  • Wastewater treatment expansion projects
  • Say you’re constructing a pipeline that is travelling through wetlands or sensitive biological habitat…give example of gas pipeline along a nature preserve
  • § 21083.9. SCOPING MEETINGS (a) Notwithstanding Section 21080.4, 21104, or 21153, a lead agency shall call at least one scoping meeting for either of the following: (1) A proposed project that may affect highways or other facilities under the jurisdiction of the Department of Transportation if the meeting is requested by the department. The lead agency shall call the scoping meeting as soon as possible, but not later than 30 days after receiving the request from the Department of Transportation. (2) A project of statewide, regional, or areawide significance. (b) The lead agency shall provide notice of at least one scoping meeting held pursuant to paragraph (2) of subdivision (a) to all of the following: (1) A county or city that borders on a county or city within which the project is located, unless otherwise designated annually by agreement between the lead agency and the county or city. (2) A responsible agency. (3) A public agency that has jurisdiction by law with respect to the project. (4) An organization or individual who has filed a written request for the notice. (c) For any entity, organization, or individual that is required to be provided notice of a lead agency public meeting, the requirement for notice of a scoping meeting pursuant to subdivision (b) may be met by including the notice of a scoping meeting in the public meeting notice. (d) A scoping meeting that is held in the city or county within which the project is located pursuant to the National Environmental Policy Act (42 U.S.C. Sec. 4321 et seq.) and the regulations adopted pursuant to that act shall be deemed to satisfy the requirement that a scoping meeting be held for a project subject to paragraph (2) of subdivision (a) if the lead agency meets the notice requirements of subdivision (b) or subdivision (c).
  • Challenging the process not the project. Challenging the Public Information Act, the Brown Act, any other act that municipal governments have to adhere to. Noticing Requirements and Comment Periods Oh is today when the projects is supposed to be approved…. Well I just found out about it and I want you to review all this information. Late response from public agency commenter to required 10-day distribution of FEIR prior to certification. "Oh, did we only have ten days? Well we still have comments.“ Well I have a PhD in philosophy and I think your project is going to result in significant unavoidable impacts to groundwater. The parade of impossible impacts.
  • 1. Regulatory or significant responsible agency doesn't respond to NOP but then comes in late with huge demand for unique data and analysis. Or, agency simply doesn't participate in review process but subsequently hammers applicant during subsequent permit request. 2. Regulatory agency makes simply whacko request for data. 3. Anyone asserting an EIR is necessary because of "controversy". No!! You still need substantial evidence of an issue(s).
  • California Land Use Planning Information Network has information grouped by counties or regions, all sorts of tools for answering checklist questions, generals plans, habitat conservation plans, links to fish and game regulations, maps, zoning regulations, etc

ESP171-CEQA and Land Use Planning ESP171-CEQA and Land Use Planning Presentation Transcript

  • The Implications of CEQA: You Better Plan For It Trevor Macenski, Regional Manager Michael Brandman Associates Tom Buford, Senior Planner City of Sacramento
  • OutlineCEQA basics- TrevorWhos Who of the Process - TomCEQA’s “impact” on the planning process- TrevorStakeholders- TomExample Projects- Trevor/ Tom
  • CEQA BasicsIntroduction and Purpose
  • Rules and Regulations• The Statute Public Resources Code §§ 21000-21178 (PRC)• The Guidelines California Code of Regulations Title 14, §15000 et seq. (CCR)• The Courts Ongoing court decisions (Case law)
  • Introduction to CEQA• 1969: President Nixon signs National Environmental Policy Act (NEPA)• 1970: Governor Reagan signs California Environmental Quality Act (CEQA)• CEQA (the Statute): Established by Legislature …and continuously modified by Legislature …and “interpreted” by the Courts
  • Basic Purposes of CEQA1. Inform government decision makers and the public about the potential significant environmental impacts of proposed activities2. Identify ways that environmental impact(s) can be avoided or significantly reduced
  • Basic Purposes of CEQA (cont.) 1. Prevent significant avoidable damage to the environment by requiring changes in the project through the use of alternatives and mitigation 3. Disclose to the public the reason that an agency approved a project notwithstanding its environmental impacts
  • Whos who…Everyone has an agenda
  • Knowing Your Role 1) Lead Agency 2) Responsible Agency 3) Trustee Agency 4) Public Interest Groups 5) Joe the plumber 6) Unions 7) Consultants
  • Who is “in charge” of CEQA? Lead Agency CEQA is a “Self-executing Statute” meaning it is the Lead-Agency’s duty to determine what is and is not subject to CEQA, and to follow the process. Public can go through the legal process (suing) to challenge decisions
  • CEQA’s Impact on the Planning ProcessPerfect planning often has not so perfect impacts….
  • CEQA and the PublicCEQA is the bridge between the hardsciences and the public.Technical studies will need to cater topublic understandingOften, site plans, engineeringdrawings will need to be simplified forCEQA purposes
  • Common CEQA ProjectsResidentialCommercialTransportation projectsWater and energy infrastructure
  • Planning Related CEQAProjects SOI Amendments Annexations Specific Plans General Plans Climate Action Plans Habitat Conservation Plans Regional Transportation Plans Anything with a “plan” after it…
  • CEQA and Planning Master or Program EIR Environmental Constraints Analysis Permitting Thresholds Appendix G Resources Significant Thresholds Significant Unavoidable Impacts Air Quality - Construction Schedules Traffic Impacts- LOS
  • Checklist topicsAesthetics Land UseAgriculture MineralsAir Quality (GHG) NoiseBiology Population/HousingCultural PublicGeology Services/UtilitiesHazards RecreationHydrology Transportation/traffic Urban decay
  • Appendix G ChecklistQuestion Example Biological Resources Would the project: A) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations or by the California Dept of Fish and Game or US Fish and Wildlife?
  • Stakeholders and Public Participation Everyone has the right to be heard…
  • Scoping ProcessRequired for EIR’s not for IS/MND’sRequired when:3) Roadway project4) Statewide, regional, or areawide significanceIf they comment you must address or discuss why it wasn’t warranted. This must be supported by fact!
  • Scoping ProcessDuring these 30 days, a scoping meeting may be held to identify key environmental concerns and issues Identify possible impacts Encourage inter-agency consultation Consult with recognized experts Involve public at an early stage of the review process (though not required)
  • Public Comment Process IS/MND 30 Days EIR 45 Days All comments have to be considered. Respond to those only commenting the EIR not the project.
  • Common CEQA Challenges Challenging the Process not the Project Noticing of hearings Comment periods Document dump Late comment strategy Disagreement among experts Fair argument mine field
  • Common CEQA Challenges Regulatory or Responsible agency choices not to comment during the NOP but then demands more analysis Unwarranted Data Requests Asserting that an EIR is warranted because of “controversy”.
  • Example ProjectsThe good the bad and the impacts
  • Elk Grove SOI EIR SOI Amendment South of City Almost exclusively AG. Adjacent to Wildlife Preserve Adjacent to Flood Zone South Sac HCP Incredibly Controversial
  • Concrete Batch Plant- Merced Openly Non-Union Contractor Previous Project Challenged and Lost Out of State Consultant Hired to Challenge EIR Five hours of public comments County to prepare Focused EIR
  • Bell Village IS/MND Infill Mixed Use Project Commercial Center Multi Family Housing Adjacent to HWY 101 Groundwater Contaminated Site Roadway and Pedestrian Improvements
  • Helpful WebsitesCEQA Statute and Guidelineshttp://ceres.ca.gov/ceqa/Land Use Planning Information Network (LUPIN)http://ceres.ca.gov/planning/index.html California Association of Environmental Professionals (AEP) http://www.califaep.org/
  • Questions? Contact Information: Trevor MacenskiMichael Brandman Associates 2000 “O” Street, Suite 200 Sacramento, CA 95811 916-447-1100 tmacenski@brandman.com