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 titled 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.
CEQA was originally only applied to only public projects….but California Supreme Court interpretation of the law in the Friends of Mammoth vs. Board of Supervisors came to a decision that resulted in revisions to CEQA that now expand CEQA’s jurisdiction to nearly all projects within California. In this case Mono County, approved a conditional use permit for an apartment complex with any sort of environmental documentation. So the “Friends of Mammoth” filed a writ, sighting non compliance with CEQA. So this was sent to the Superior Court, which sided with the County, but then the Supreme Court reversed the decision and said that it was in fact a “project” and must comply with CEQA. So in 1972 it was revised to clearly stat it applied to government approval of private projects, as well as to direct government activities.
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.
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.
50 acre commercial development over a vacant lot-- not previously planned for in the City’s general plan (was designated for something else) Project? Yes-- discretionary decision is needed Subject to CEQA? Yes- impacts to land, air, water use, traffic, noise, etc… Prepare initial study to find out what impacts may cause a problem What is appropriate document? Can you mitigate them (mit neg nec)? Or are there areas that may still end up being significant, even with mitigation? (EIR) Circulate your document for the public to see the impacts and to give their two cents Give to Lead Agency’s decision making body (I.e. City Council or Board of Supervisors -County) for decision and environmental findings
A public agency must comply with CEQA when it undertakes an activity defined by CEQA as a "project." A project is an activity undertaken by a public agency or a private activity which must receive some discretionary approval (meaning that the agency has the authority to deny the requested permit or approval) from a government agency which may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in the environment. Most proposals for physical development in California are subject to the provisions of CEQA, as are many governmental decisions which do not immediately result in physical development. Every development project which requires a discretionary governmental approval will require at least some environmental review pursuant to CEQA, unless an exemption applies. Section 21002
Ministerial = within zoning ordinance, ok to build, just fill out your permit
Wastewater treatment expansion projects
Exemptions AKA Fee Passes Now exemptions, which are not to be confused with exclusions, because that’s NEPA. There are basically two types of exemptions passes under CEQA:
Statutory- Which are basically “projects” or discretionary actions which the state legislature has deemed exempt. Regardless of impacts. Good example the Olympics. All the statutory exemptions I believe are found in article 18.
Categorical- Theses are projects that typically do not have significant environmental impacts, but there are exceptions. So lets talk about the exceptions first. Another exemption is unusual circumstances- such as say you are replacing an existing structure, but that structure is adjacent to a State Designated Scenic Highway… well the initial action of replacing your structure isn’t an issue, it’s the fact that you are located next to the scenic highway that is.
No after you have determined that your action is exempt from CEQA you have to file….. believe it or not “notice of exemption” So what goes into a NOE: Brief Project Description A finding that the project is exempt Citation why the project is exempt Discussion supporting the finding. So you have a NOE completed so now what: No you have to File it with the County clerk, then the clerk posts the notice within a 24 hour period. This posts takes 30 days. Then “lead agency” holds onto the NOE for nine months. What this process does is shorten the time in which anyone can file a legal challenge to the exemption.
If your project is NOT exempt, then prepare an initial study to find out what document you will need to do.
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
Checklists can’t be naked…court case decided this Court Case: Citizens Association for Sensible Development of Bishop Area v. County of Inyo …have to have substantial evidence backing up your checkboxes!
Must be feasible: USE ENGINEERS TO DECIDE THIS TOO 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)
A project EIR examines the environmental impacts of a specific development project, reviewing all phases of the project, including planning, construction, and operation. No further environmental review under CEQA is required following preparation of a project EIR. A program EIR is prepared for a series of actions that can be characterized as one large project Allows the lead agency to consider broad policy alternatives and program-wide mitigation measures Subsequent project specific activities in the program are examined in light of the program EIR to determine if additional environmental compliance is required.
Environmental Setting Description of physical environmental conditions at the time of the NOP, or when environmental analysis is commenced, if no NOP Baseline for environmental analysis, which is normally the setting at time of NOP Regional setting and rare or unique resources Significant environmental effects thresholds of significance direct and indirect, short- and long-term, all phases effect of bringing people/development to an area Significant effects that cannot be avoided Irreversible environmental changes Growth-inducing impacts foster economic or population growth remove obstacles to population growth Alternatives offer environmental advantage Avoid or lessen an impact Feasible Alternatives “ capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” A Range of Reasonable Alternatives Environmentally Superior Alternative Can identify alternatives found to be infeasible
Certify the FEIR has been conducted in accordance with CEQA procedures the FEIR was presented to the decision maker and they have reviewed and considered it the FEIR reflects the independent judgment of the city FINDINGS: findings regarding each impact and mitigation measures, findings regarding the feasibility of alternatives (reasons for rejecting them), Statement of Overriding: Reasons to approve a project where significant impacts are not avoided or substantially lessened. Supported by substantial evidence in the record Reasons can be economic, legal, social, technological or other (CCR § 15093)
Specific project features: WWTP, oxidation ditches, clarifiers, calculated flow rates, project footprint, what type of construction equipment is needed, buildout timeframe, etc. All types of engineers are needed, not only civil engineers, but also structural, electrical, and mechanical engineers.
Again, ask your consultant what questions they are trying to clearly answer or show evidence for….
Examples Engineering Firms: CH2M Hill, Kennedy Jenks, CEI Engineering, Blair, Church and Flynn, Provost and Pritchard
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
2012 ceqa presentation for ce class
California Environmental Quality ActTrevor Macenski- Principal/ Director of Environmental Services- MBA/ First Carbon Solutions
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)
CEQA LingoCEQA: California Environmental Quality Act IS: Initial Study ND: Negative Declaration NOP: Notice of Preparation of EIR EIR: Environmental Impact ReportDEIR: Draft EIRFEIR: Final EIR NOC: Notice of CompletionNOD: Notice of Determination NOA: Notice of Availability
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
Introduction to CEQA (cont.)• Initially intended to apply to publicly- sponsored projects only• 1972: Friends of Mammoth v. Board of Supervisors: CEQA applies to ‘all’ projects subject to public agency discretionary action
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
Basic Purposes of CEQA1. Inform government decision makers and the public about the potential significant environmental impacts of proposed activities.2. Identify ways that environmental impact(s) can be avoided or significantly reduced.
Basic Purposes of CEQA (cont.) 3. Prevent significant avoidable damage to the environment by requiring changes in the project through the use of alternatives and mitigation 4. Disclose to the public the reason that an agency approved a project notwithstanding its environmental impacts
CEQA Process Overview • An action is brought forth to the Lead Agency • Is it a “project” or is it “exempt”? • If subject to CEQA, what are the potential impacts? (prepare an Initial Study) • Based on initial study, what type of CEQA document do you need? (Neg Dec, MND, EIR?) • Prepare appropriate environmental document • Public reviews and comments on document • Decision and findings made on the project
What is a “project” under CEQA? • Comply with CEQA when you have a “project.” • Project: activity undertaken by a public agency or a private activity which may cause a change in the environment and must receive discretionary approval from a government agency.
Discretionary vs. Ministerial Projects• Discretionary projects (CEQA) Tentative maps General plans Conditional use permits• Ministerial projects (no CEQA) Demolition permits Building permits
Typical CEQA Projects Residential Commercial Transportation projects Water and energy infrastructure
Exemptions to CEQA• Statutory Activities exempted from all or part of CEQA by the State Legislature regardless of impacts (policy decision)• Categorical Classes of projects which are exempted from CEQA because they typically do not have significant impacts (there are exceptions)
Statutory Exemption Examples Article 18 • 1984 L.A. Olympic games • Family day care homes • Specified mass transit projects • State and regional transportation improvement programs • Projects located outside California • Certain pipeline work • Air quality permits • Ministerial projects • Emergency projects • Other miscellaneous per CCR §15282
Categorical Exemptions Article 19• Classes of projects that do not have a significant impact on the environment• Not applicable when cumulative impact is significant or when there is a potential significant impact due to unusual circumstances Scenic highways Hazardous waste sites Historical resources
Categorical Exemptions• Existing facilities • Surplus property sales• Reconstruction • Land acquisition for wildlife conservation• Small structures • Minor additions to school• Minor alterations to land • Minor land divisions or land use • Transfer of ownership for• Actions by regulatory parks agencies for natural resources protection or • Total of 33 categories protection of the outlined in section environment 15301 of Guidelines
Notice of Exemption• If your “project” is exempt, a Notice of Exemption (NOE) may be filed with County Clerk• The filing of an NOE shortens the time that someone can file a legal challenge to the exemption from 180 days to 35 days
Initial Study• Purpose Complete a project description To decide between a Negative Declaration, Mitigated Negative Declaration, or EIR Refine issues to be addressed in an EIR• Initial Study is not required if it is known an EIR will be prepared
Contents of Initial Studies CCR §15063(d)• Project description - location, project objectives and characteristics• Environmental setting• Discussion of environmental impacts using Appendix G checklist• Mitigation measures if necessary• List of preparers
Definition of“Significant Impact on the Environment”• Substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. A social or economic change by itself shall not be considered a significant effect on the environment (CCR §15382)
After the checklist . . . The IS checklist will help you determine what type of CEQA environmental document the Lead Agency will need to prepare (or have prepared for them)
Mitigation Measures Required for all potentially significant impacts if possible Should identify who, what, where and when Be legally, technically, socially, politically and economically feasible Should avoid the impact altogether or minimize impacts by limiting the magnitude May rectify by repairing, rehabilitating, restoring May reduce or eliminate over time May compensate by replacing or providing substitute resources
When to Prepare an EIR Substantial evidence in the record supports a fair argument that significant impacts may occur. Fair Argument – Very Low Threshold If there is any substantial evidence to support a fair argument that project may have significant environmental impacts, an EIR must be prepared There is a presumption in CEQA in favor of preparing EIRs instead of Neg Decs
Basic Types of EIRs Project EIR Program EIR Tiered EIR Subsequent/Supplemental Focused EIR
EIR Process Overview• Notice of Preparation (NOP) released for 30 days• Scoping meeting• Notice of Completion (NOC) and Notice of Availability (NOA) to start minimum 45-day Draft EIR public review• Responses to comments sent to responding public agencies 10 days before EIR certification• Public hearing generally held for discretionary approval• EIR certification, project approval, CEQA findings, statement of overriding considerations• File Notice of Determination (NOD)
Diamond Springs Parkway EIR Joint lead Agency New Roadway Existing Roadway Improvements Water and Sewer Improvements Sound walls Power Lines Much, much more
Notice of Preparation (NOP)Include: Description, location, and a discussion of the probable environmental effects. EIR can be initiated while waiting for comments Responsible agencies and public have 30 days to comment on an NOP. The comments should to be addressed in the EIR. EIR cannot be released for public review until 30 days after distribution of the NOP.
Scoping Process During 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)
What needs to be in the EIR?• Project description• Environmental Setting• Significant environmental effects• Unavoidable significant adverse effects• Growth-inducing impacts• Cumulative impacts• Mitigation measures• Alternatives• FEIR contains response to comments
Typical EIR Impact Analysis Issues• Air quality • Traffic• Biology • Recreation• Hydrology/Water quality • Agriculture• Energy • Seismic safety• Geology/Soils • Noise• Land Use & Planning • Aesthetics• Public Services • Hazardous materials• Cultural Resources • Climate Change
Technical Studies Help provide supporting evidence for the CEQA documents Useful to see what checklist questions the consultant or planner is using, and tailor your report to answering those questions Technical experts often called to give testimony at public hearing
When the DEIR is Complete:• Issue Public Notice of Availability (NOA) Mailed to those previously requesting notice and, General circulation newspaper or, Posting in the project area or, Direct mailing to owners/occupants of contiguous parcels
Issue Notice of Completion (NOC) Sent to SCH Brief description of project Location Address where environmental document is available Notice of hearings (if one is scheduled) Begins the 45-day public review period
Final EIR• Includes text revisions to Draft EIR• Includes responses to comments• No separate public review period• Written response to commenting agencies 10 days prior to certification• Better to discuss everything than ignore difficult issues
Final Decision Process1. Consider and Certify EIR2. Approve Project Make Findings Adopt Mitigation, Monitoring Program Adopt Statement of Overriding Considerations (if necessary)
Final CEQA Step: Notice ofDetermination (NOD) • Filed within 5 working days after project approval • Posted with the county clerk and State Clearinghouse for at least 30 days
Notice of Determination (NOD) Project description Location Date of approval Determination whether will have a significant effect on the environment That ND/MND or EIR was prepared/certified pursuant to CEQA Whether mitigation measures are a condition and whether Statement of Overriding Considerations was adopted Address of where ND/MND or EIR and certification can be examined
The real final CEQA step . . . After the NOD is filed…project isn’t “out of the woods” Litigation timeframe = 30 days after NOD (or 180 days if NOD is not filed with the clerk’s office)
CEQA and Engineers Engineers provide: the tech studies on items such as hydrology and drainage, traffic, geotechnical analysis the drawings that enable CEQA writers to understand and analyze the Project practical comments on mitigation measures specific project design features, often to comply with mitigation measures potential stumbling blocks for CEQA writers
CEQA and the Public CEQA is the bridge between the hard sciences and the public. Technical studies will need to cater to public understanding. Often, site plans, engineering drawings will need to be simplified for CEQA purposes.
Take Home Tips• Be aware of possible environmental consequences of your projects.• When in doubt, contact the environmental division of your group. Early consultation will keep you and your project out of trouble.• CEQA is can be a long, tedious process, but not following procedure could cause even more delays for the project.• Engineers and environmental planners/consultants must be in close contact throughout a project to efficiently and effectively navigate the project through the environmental process.
Helpful Websites CEQA Statute and Guidelines http://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/
Michael Brandman Associates Environmental Services ☼ Planning ☼ Natural Resources ManagementTrevor Macenski, MSc, REAPrincipal/ Director Environmental ServicesBishop Ranch 32633 Camino Ramon, Suite 460San Ramon, CA 94583Office: 925.830.2733Mobile: 916.508.4170Email: email@example.comTwitter: CEQAplanner