CEQA Basics

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CEQA Basics

• IRWA
• October 27, 2006

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CEQA Basics

• The Rules
• Statute, Guidelines, Courts
• The Process
• Responsibilities, Phases
• The Documents
• Initial Studies, MNDs, EIRs

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The Rules
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The Rules

• The Statute
• Public Resources Code 21000-21178
• The Guidelines
• California Code of Regulations, Title 14, 15000
  et seq.
• The Courts

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CEQA Statute

• 1969 President Nixon signs National
  Environmental Policy Act
• 1970 Governor Reagan signs California
  Environmental Quality Act
• CEQA (the Statute) established by CA
  Legislature (1970)
• and continuously modified by the Legislature
• and interpreted by the Courts

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CEQA Guidelines

• Issued by Office of Planning and Research in 1973
• Road map for CEQA Implementation
• Intended to be revised every 2 years
• Recognized by courts, but trumped by statute

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The Courts

• CEQA enforced through litigation by citizens,
  organizations, and agencies not by OPR
• Interpretation of CEQA statute by courts plays
  major role in extending CEQAs applicability and
  effect

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CEQA Objectives

• To disclose to decision makers and the public the
  significant environmental effects of proposed
  activities
• To identify ways to avoid or reduce environmental
  damage
• To prevent environmental damage through
  implementation of feasible mitigation measures
• To disclose to the public reasons for agency
  approval of project with significant effects
• To foster interagency coordination in project
  review
• To enhance public participation in the planning
  process

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The Process
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Who is Responsible?

• Lead Agency
• Responsible Agency
• Trustee Agency
• Agencies with Jurisdiction by Law

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Lead Agency

• Government agency with the principal
  responsibility for approving a project
• Private Projects Lead Agency usually City or
  County
• Public Projects owner of project (water
  district, Caltrans, UC, etc.)

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Responsible Agency

• An agency other than the Lead Agency with legal
  responsibility for approving a project
• Relies on Lead Agencys CEQA document
• Examples RWQCB, CDFG (permits), AQMD

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Trustee Agencies

• Four agencies/roles designated by CEQA
  Guidelines
• CDFG (rare, TE plants wildlife game refuges
  ecological reserves)
• State Lands Commission (certain state-owned
  lands)
• CA Dept. of Parks Rec. (state park system)
• UC (Natural Land Water Reserves System)
• Agencies hold resources in trust for the people
  of California
• Must be notified of CEQA documents relevant to
  their jurisdiction, even if they do not have
  approval/permitting authority

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Agencies with Jurisdiction by Law

• Lead Agency must seek comments from other
  agencies
• Any state, federal, or local agency that exercise
  authority over resources that may be affected by
  the project
• Cities or counties that border the project

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(No Transcript)
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Phases in the CEQA Process

• Phase 1 Preliminary review to determine if the
  action is subject to CEQA
• Phase 2 Determination if the project would have
  significant effects on the environment
• Phase 3 Preparation of ND, MND, or EIR

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Phase 1 Is the Action a Project?

• An activity directly undertaken by any public
  agency
• An activity supported by contracts, grants,
  subsidies, or other forms of assistance from a
  public agency
• An activity that involves the issuance of a
  lease, permit, license, certificate, or other
  entitlement for use by a public agency

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Phase 1 Is the Action a Project?

• Activity must be discretionary and not
  ministerial
• Discretionary requires exercise of judgment or
  deliberation to approve or disapprove the
  activity (CCR 15357)
• Ministerial involves little or no personal
  judgment involves the use of fixed standards
  (CCR 15369)

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Phase 1 Is the Action a Project?

• Discretionary Projects
• Tentative Tract Maps
• General Plans
• Issuance of 401/404/SAA
• Ministerial Projects
• Business licenses
• Demolition permits
• Building permits

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Phase 1 Is the Action a Project?

• Project segmenting or piecemealing not permitted
• Agencies may not treat each separate permit or
  approval as a separate project
• For example, must include impacts of off-site
  utilities extensions, if required for the project

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Phase 1 Is Project Exempt from CEQA?

• Statutory
• Activities exempted from CEQA by the State
  Legislature regardless of impacts
• Categorical
• Classes of projects exempted from CEQA because
  they typically do not have significant impacts
  (with exceptions)

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Statutory Exemptions (selected)

• Disapproved project
• Feasibility and planning studies
• Discharge requirements
• Timberland preserves
• Coastal plans and programs
• General plan time extension
• Emergency projects

• Olympic games
• Family day care homes
• Specified mass transit projects
• Projects located outside of California
• Low income housing
• Air quality permits
• Rates, tolls fares

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Categorical Exemptions (selected)

• Small hydroelectric projects at existing
  facilities
• Cogeneration projects at existing facilities
• Historical resource restoration or rehabilitation
• Certain infill development
• Small habitat restoration project

• Existing facilities
• Small structures
• Minor alterations to land
• Actions by regulatory agencies for natural
  resources protection
• Accessory structures
• Minor additions to schools
• Education programs with no physical changes

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Exceptions to Categorical Exemptions

• A reasonable possibility exists that the project
  may have a significant environmental impact
• Cumulative impacts would be significant
• The project occurs in certain sensitive
  environments that have been designated, mapped,
  and officially adopted by law by a federal,
  state, or local agency
• The project affects scenic resources in a State
  Scenic Highway
• The project is located on a toxic site listed by
  Cal-EPA
• The project causes substantial changes in a
  significant historic resource

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Phase 2 Determine Environmental Impacts

• CEQA Initial Study
• To decide ND, MND, or EIR
• To refine issues to address in EIR
• Not required if EIR is known (but often useful)

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Phase 2 Determine Environmental Impacts

• Initial Study Checklist (CEQA Guidelines Appendix
  G)
• Potentially Significant, Less than Significant
  with Mitigation, Less than Significant, No Impact
• Agency-Specific Checklist or Document (eg
  Caltrans)

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Phase 2 Are Impacts Significant?

• 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
  impact (CCR 15382)

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Phase 2 Are Impacts Significant?

• Lead Agency/State CEQA Guidelines
• Mandatory Findings of Significance (CCR 15065)
• Initial Study Checklist Questions
• Adopted Thresholds of Significance (eg AQMD,
  traffic LOS)

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Phase 3 Prepare CEQA Document

• Negative Declaration (ND)
• Mitigated Negative Declaration (MND)
• Environmental Impact Report (EIR)

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The Documents
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Initial Study

• Determines Document or Focuses EIR
• Initial Study Contents
• Project Description
• Construction and operation
• List of permits
• On and off site improvements
• Environmental setting
• Environmental effects (checklist)
• Mitigation measures
• Consistency with zoning, plans, and land use
  controls
• List of preparers

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CEQA Document Types

• Negative Declaration (ND) No Impact or Less
  than Significant Impact
• Mitigated Negative Declaration (MND) No Impact,
  Less than Significant Impact, or Less than
  Significant with Mitigation
• Environmental Impact Report (EIR) at least one
  Potentially Significant Impact

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SCH CEQA Statistics

• 1999 81 of documents filed at SCH were ND/MNDs
• 2000-82
• 2001-83
• 2002-83
• 2003-84
• 2004-82

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Risk vs. Time
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Fair Argument Standard

• Courts have held that a Negative Declaration or
  Mitigated Negative Declaration is inappropriate
  if it can be fairly argued that the project
  will cause significant environmental impacts.

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Substantial Evidence Standard

• The standard of review in a mandate case alleging
  noncompliance with CEQA is whether the decision
  of the public agency is supported by substantial
  evidence facts, reasonable assumptions
  predicated upon facts, and expert opinion
  supported by facts. Expert disagreement allowed
  in EIR.

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Fair Argument vs.Substantial Evidence

• The fair argument standard of review is much
  more stringent than the substantial evidence
  standard used to review the adequacy of an EIR,
  and it places a greater burden of proof on the
  Lead Agency. Because of the different standards
  of judicial review, an EIR is more easily
  defended in a CEQA-related lawsuit than a
  Negative Declaration. The adequacy of an EIR is
  presumed the project opponents have the burden
  of proving otherwise.

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Helpful References

• CEQA Deskbook (Bass et al.)
• State Clearinghouse www.opr.ca.gov/clearinghouse/
  Clearinghouse.html
• CERES CEQA web http//ceres.ca.gov/ceqa/
• Caltrans Standard Environmental Reference
  http//www.dot.ca.gov/ser/
• AEP CEQA Basics Workshop
• Corona Nov. 1 LA Nov. 2 Orange Nov. 3
• www.califaep.org