January 15th- IS-ND-MND


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  • Discuss Greenspot sample – either the City of the developer will either construct improvements or pay for them.. At time of entitlement.
  • January 15th- IS-ND-MND

    1. 1. ESP 179- Winter 2012 IS, ND, MNDs January 15, 2012 Instructor: Trevor Macenski
    2. 2. EIR Review Assignment The purpose of this exercise is for you to go through an actual Environmental Impact Report (EIR) and experience first- hand the challenges of gleaning useful information from its pages and analyze the impact assessment methodologies and mitigation strategies presented in the EIR. Due Feb. 12th 3:10
    3. 3. Initial Study
    4. 4. Initial Study Purpose  Complete a project description  Determine the appropriate CEQA document: Negative Declaration, Mitigated Negative Declaration, or EIR  Refine issues to be addressed in an EIR Checklist  Appendix G Initial Study is not required if it is known an EIR will be prepared
    5. 5. Contents of Initial StudiesCCR §15063(d) Project description - location, project objectives and characteristics Environmental setting Discussion of environmental effects using Appendix G checklist or another method Mitigation measures Consistency with zoning, plans, and land use controls List of preparers
    6. 6. Project Description Be sure it includes all actions  Construction and project implementation  Temporary and permanent activities  All discretionary permits and entitlements  Reasonably foreseeable future phases Be sure it includes all improvements  On and off site traffic and infrastructure improvements
    7. 7. Court Case: Citizens Association for SensibleDevelopment of Bishop Area v. County ofInyo…although an initial study can identify environmental effects by use of a checklist, it must also disclose the data or evidence upon which the person(s) conducting the study relied. Mere conclusions simply provide no vehicle for judicial review. (No naked checklists!)
    8. 8. Initial Studies An Initial Study is NOT just an exercise in word processing • Critical thinking is necessary • Document the thought process • Just because your IS has a hat on it, doesn’t mean it’s not naked!
    9. 9. Initial StudiesEach question requires an answer regardlessof the conclusion (“no impact” vs. “potentiallysignificant”). Must be supported bysubstantial evidence:  Facts (including technical studies)  Reasonable assumptions based on facts  Expert opinion supported by facts
    10. 10. Initial Studies Must substantiate every conclusion Can’t just put off thought process until EIR IS must have explanations based on substantial evidence why the project might have an impact
    11. 11. Initial Studies Consider with each question:  Facts? What facts do I have to support my conclusion?  Technical study? Do I have a study to support my conclusion?  Substantive evidence? What evidence do I have?  Thought process? Have I shown a logical thought process to the conclusion?  Just rephrasing the question? Don’t do it!
    12. 12. Initial Studies- HydroHydrology -- Would the project otherwise substantially degrade water quality?
    13. 13. Initial Studies- Hydro Sample 1 Potentially significant: The proposed project could potentially substantially degrade water quality. The Draft EIR will provide an analysis of the proposed project’s potential to substantially degrade water quality.  Facts? There are no facts given  Technical study? The technical study has not been prepared  Substantive evidence? None given  Thought process? None identifiable  Just rephrasing the question? Yes
    14. 14. Initial Studies- Hydro Sample 2Potentially significant: The proposed project could potentiallysubstantially degrade water quality as a result of constructionactivities that could increase the amount of sediments andpollutants in the surface runoff. The on-going operation of thecommercial facility could also substantially degrade water qualityby increasing the amount of pollutants in the surface runoff dueto irrigation and the use of pesticides for landscaping, petroleumproducts from vehicles, litter, and other waste.Facts? Construction, irrigation, future pesticide useTechnical study? The technical study has not beenpreparedSubstantive evidence? None givenThought process? Yes
    15. 15. Negative Declarationsand Mitigated Negative Declarations
    16. 16. Negative Declaration 15063 Project Description Project Location Identification of project proponent Proposed Findings of no significant effect Attached copy of the Initial Study justifying the finding For Mitigated Negative Declaration mitigation measures to reduce impacts
    17. 17. MND Definition An ND “for a project when the IS has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed ND and IS are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (§21064.5)
    18. 18. Mitigated Negative Declaration Was used in practice frequently  Not approved until the 1993 CEQA Amendments Must mitigate impacts to a less than significant level  No overriding considerations No alternatives analysis No cumulative analysis– Well….Kind Of
    19. 19. Uses of ND/MND When there is no substantial evidence that a significant effect may occur (CCR §15070[a]) When revisions in a project, made by or agreed to by the applicant, mitigate to a point where “clearly” no significant effect would occur (PRC §21064.5) As one choice for a subsequent document after a Master EIR (PRC §21157.5) When tiering from a previously certified EIR (under certain circumstances) (CCR §15152)
    20. 20. ND/MND Process Highlights Notice of Intent to Adopt Send to responsible and trustee agencies 15 copies to the State Clearinghouse, if state agencies Proposed ND for 20- or 30-day public review No public hearing necessary for CEQA Public comments must be considered. No response necessary, but it is good practice File Notice of Determination (NOD)
    21. 21. Required Contents of anND/MND Brief description of the project, location, and proponent’s name Proposed finding that the project will have no significant effect Initial study documenting reasons supporting the finding Mitigation measures to avoid potentially significant effects (MND only) Mitigation Monitoring & Reporting Plan (MND only)
    22. 22. Contents Not in an ND Detailed environmental setting and impacts discussion (unless necessary to support reasoning) Alternatives analysis Growth-inducing impacts, per se, but be sure to consider indirect effects of growth Unavoidable significant or irreversible effects (Inherently these effects should not exist!) Statement of Overriding Considerations
    23. 23. Practical Reasons for ND or MNDs Environmental planning as part of project design is the best approach  Minimize mitigation  Facilitate better design Can “reward” good environmental planning with streamlined process  Less issues that require mitigation quicker the process. Lead agency can require applicant commitment to mitigation before MND release Time to complete can be quick (3 - 5 months)
    24. 24. Determining SignificanceSignificant Effect on the Environment: “Substantial or potentially substantial adverse change to any of the physical conditions within the area affected by the project…”  Impacts=Effects  Thresholds and analysis determine significance. “An economic or social change by itself shall not be considered a significant effect on the environment.” CCR §15382
    25. 25. Fair Argument Standard Legal Standard - EIR is required if fair argument exists that a project may have a significant effect on the environment Fair argument must be backed by substantial evidence Generally does not matter how much evidence supports an MND, when a “fair argument” exists If competing evidence exists, lead agency must prepare an EIR
    26. 26. Substantial Evidence Supporting theND or MND ND or MND is the CEQA document Initial Study is the main source of evidence supporting environmental analysis Those documents, and everything else the Lead Agency uses to support them, make up the administrative record Administrative record must support the ND or MND conclusions
    27. 27. Practice Pointers for IS/MNDs Use current Appendix G - address the topics in checklist questions at least, but feel free to tailor, add relevant questions Include discussion to support all but the most obvious “no impact” conclusions Maintain a good in-house information base and complete administrative record Include CCR §15063 content requirements for Initial Study, such as zoning and plan consistency No need to overdo it. Skinny NDs/MNDs can work when there is no controversy and a limited set of potentially significant issues
    28. 28. Mitigation Measures
    29. 29. Mitigation is the Key Ingredient CCR §15370 definition:  Avoiding the impact altogether  Minimizing impacts by limiting the magnitude  Rectifying by repairing, rehabilitating, restoring  Reducing or eliminating over time  Compensating by replacing or providing substitute resources Mitigation to a point where clearly no significant impact would occur from implementation of the project, as revised
    30. 30. Adequate Mitigation Physically modifying the project, such as design changes to avoid or substantially reduce an effect Limiting project activities, such as operational limits like seasonal or daily time restrictions Constructing improvements intended for mitigation, such as BMPs Compensatory actions, such as replacement of lost habitat through restoration or enhancement
    31. 31. Mitigation Measures Mitigation measures  feasible measures required for significant effects  if impact below significant, no duty but not prohibited  proposed by project or recommended by environmental document (but in MND must be included before public review)  consider significant effects of mitigation measures  measures must be fully enforceable  must be essential nexus (Nollan v. CCC), and roughly proportional to impacts (Dolan v. Tigard)
    32. 32. Feasible Mitigation Capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors (CCR §15364)
    33. 33. Mitigation Monitoring andReporting Program (MMRP) Public agency shall adopt a “reporting or monitoring program” at project approval to ensure compliance during project implementation (PRC § 21081.6) MMRP must be enforceable through permit conditions, agreements or other measures MMRP required for EIR and MND MMRP can be provided as part of Final EIR (good practice)
    34. 34. Sample Mitigation Structure MM 5-1: Oak Tree Replacement Plan (short title) Objective: …to compensate for the significant loss of oak trees on the project site… Description: specific actions or types of actions, location, how they reduce/compensate for impact Performance Criteria: ... no net reduction in number of trees after five years ... Timing: …prior to grading permit… Responsible Party: Project proponent Significance After Mitigation: Less than significant (and provide a statement supporting why)
    35. 35. Mitigation Practice Pointers ONLY include mitigation for significant effects Generally use “commitment” verbs (like, ‘will’ or ‘shall,’ not ‘may’ or ‘should’), but lead agency may have standards or preferences Measures linked to conditions of approval Use a numbering or notation system to clearly link impacts and mitigation Provide evidence about how measures reduce or avoid the impact in the description
    36. 36. Questions? Thank You