The Implications of CEQA: Regional and Urban

Planning

Trevor Macenski, M.S., REA, Michael Brandman Associates

Outline• CEQA basics: introduction and purpose• Know your role• CEQA’s “impact” on the planning process• Stakeholders • Example Projects • Take home messages and questions

CEQA Basics

Introduction and Purpose

Rules and Regulations

• The StatutePublic Resources Code §§ 21000-21178 (PRC)

• The GuidelinesCalifornia Code of Regulations Title 14, §15000 et seq. (CCR)

• The CourtsOngoing 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

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

Basic Purposes of CEQA

1. 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

Knowing your role…

Everyone has an agenda

Knowing Your Role

1) Lead Agency2) Responsible Agency3) Trustee Agency4) Public Interest Groups5) Joe the plumber6) Unions7) Consultants

Who is “in charge” of CEQA?

Lead AgencyCEQA 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 thePlanning Process

Perfect planning often has not so perfect impacts….

CEQA and the PublicCEQA is the bridge between the hard sciences and the public.Technical studies will need to cater to public understandingOften, site plans, engineering drawings will need to be simplified for CEQA purposes

Common CEQA Projects

Residential CommercialTransportation projectsWater and energy infrastructure

Planning Related CEQA Projects

SOI AmendmentsAnnexationsSpecific PlansGeneral PlansClimate Action PlansHabitat Conservation PlansRegional Transportation PlansAnything with a “plan” after it…

Statutory Exemption ExamplesArticle 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• Existing facilities• Reconstruction• Small structures• Minor alterations to

land or land use• Actions by regulatory

agencies for natural resources protection or protection of the environment

• Surplus property sales• Land acquisition for

wildlife conservation• Minor additions to

school• Minor land divisions• Transfer of ownership

for parks• Total of 33 categories

outlined in section 15301 of Guidelines

CEQA and Planning

Master or Program EIREnvironmental Constraints Analysis

Permitting ThresholdsAppendix G ResourcesSignificant Thresholds

Significant Unavoidable Impacts Air Quality - Construction SchedulesTraffic Impacts- LOS

Checklist topics

AestheticsAgricultureAir Quality (GHG)BiologyCulturalGeologyHazardsHydrology

Land UseMineralsNoisePopulation/HousingPublic Services/UtilitiesRecreationTransportation/trafficUrban decay

Appendix G Checklist Question Example

Biological ResourcesWould 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?

Uses of ND/MND• When there is no substantial evidence that a

significant impact 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 impact would occur (PRC §21064.5)

• When tiering from a previously certified EIR (CCR §15152)

When to use and EIR

Substantial evidence in the record supports a fair argument that significant impacts may occurFair 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

Stakeholders and Public Participation

Everyone has the right to be heard…

Scoping ProcessRequired for EIR’s not for IS/MND’sRequired when:1) Roadway project2) 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 impactsEncourage inter-agency consultationConsult with recognized expertsInvolve public at an early stage of the review process (though not required)

Public Comment ProcessIS/MND

30 DaysEIR

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 hearingsComment periods

Document dumpLate comment strategyDisagreement among expertsFair argument mine field

Common CEQA Challenges

Regulatory or Responsible agency choices not to comment during the NOP but then demands more analysisUnwarranted Data Requests Asserting that an EIR is warranted because of “controversy”.

Example Projects

The good the bad and the impacts

CDCR- Take No Prisoners

CMCSVSPFolsomSolarLight bulbs- Not Kidding

Concrete Batch Plant- Merced

Openly Non-Union ContractorPrevious Project Challenged and LostOut of State Consultant Hired to Challenge EIRFive hours of public commentsCounty to prepare Focused EIR

SA- RecyclingIt all started with a fence….Business License- Issued by the CityProperty located in the CountyFacility in violation of RWQCB discharge requirements for stormwaterCounty prepared IS/MND City wrote 45 page comment letter

Elnoka Village EIR

Affordable Housing ProjectDensity Bonus Adjacent to senior communityLand Use and ConsistencyVisual ImpactsTraffic

Bell Village IS/MND

Infill Mixed Use ProjectCommercial CenterMulti Family HousingAdjacent to HWY 101Groundwater Contaminated SiteRoadway 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 Macenski

Michael Brandman Associates2000 “O” Street, Suite 200

Sacramento, CA 95811916-447-1100

tmacenski@brandman.com