CEQA Revised Guidelines Memorandum

Coleman & Horowitt LLP  provided a presentation to the American Council of Engineering Companies/ San Joaquin Chapter on January 9, 2019 regarding the revised CEQA Guidelines.
 
 After several years of regulatory efforts, in 2018 the most recent changes to the CEQA guidelines were finalized, and went into effect in December of the same year. While there are a number of changes, the most significant relate to analyzing traffic impacts, the Green House Gas (“GHG”) analysis, the water supply analysis and significant modifications to the Initial Study Checklist in Appendix G of the CEQA Guidelines.
 
The Memorandum is a summary of the more significant changes. Many of the final changes appear to be an attempt to reconcile the Guidelines with the current case law.
 
 
 
 

M E M O R A N D U M

After several years of regulatory efforts, in 2018 the most recent changes to the CEQA guidelines were finalized, and went into effect in December of the same year. While there are a number of changes, the most significant relate to analyzing traffic impacts, the Green House Gas (“GHG”) analysis, the water supply analysis and significant modifications to the Initial Study Checklist in Appendix G of the CEQA Guidelines. The following is a summary of the more significant changes. Many of the final changes appear to be an attempt to reconcile the Guidelines with the current case law.  To see the full array of changes see http://resources.ca.gov/ceqa/docs/2018_CEQA_FINAL_TEXT_122818.pdf.

14 CCR Section 15004(b)(4) – Time of Preparation

There are ongoing questions as to how a public agency can enter into preliminary project agreement without triggering a CEQA requirement. This section lays out the factors to review with respect to assuring that preliminary project approvals do not violate CEQA.

These factors include:

Conditioning the agreement on reviewing the eventual approval under CEQA;

Not binding any party or committing the agency to any definite course of action;

Not restricting the lead agency from considering feasible mitigation measures and alternatives, including no project;

Not preventing the Agency from denying the project.

14 CCR Section 15062(a) (6) Notice of Exemption

The CEQA statute and guidelines contain specific and general categories of projects that, absent certain factors, are exempt from CEQA. An agency that approves a project under an exemption can shorten the statute of limitations by filing a Notice of Exemption (“NOE”).  There are requirements for the NOE that now include requiring the following the information concerning that the beneficiaries of a project approval be identified:

If different from applicant the identity of the person undertaking the project which is supported by the public agencies or of the person receiving a lease, permit, license, certificate or other entitlements for use from public agencies.

This requirement is mirrored in several other new notice provisions.

Agency can now choose to have an Initial Study prepared in the manner they would an EIR (See 14 CCR §15084(d)):

(d)         The lead agency may choose one of the following arrangements or a combination of them for preparing a draft EIR.

Preparing the draft EIR directly with its own staff.

Contracting with another entity, public or private, to prepare the draft EIR.

Accepting a draft prepared by the applicant, a consultant retained by the applicant, or any other person.

Executing a third party contract or memorandum of understanding with the applicant to govern the preparation of a draft EIR by an independent contractor.

Using a previously prepared EIR.

14 CCR section 15064.3 Determining the Significance of Transportation Impacts (New)

This new section describes the change from using the Level of Service (“LOS”) to Vehicles Miles Travelled (“VMT”) with respect to potential transportation impacts. In section 15064.3 and in appendix G the focus is on Vehicles Miles Travelled. VMT can be used now but must be implemented beginning July 2020. The purpose of the sections set out in 15064.3(a)

Purpose.

This section describes specific considerations for evaluating a project’s transportation impacts. Generally, vehicle miles traveled is the most appropriate measure of transportation impacts.

For the purposes of this section, “vehicle miles traveled” refers to the amount and distance of automobile travel attributable to a project.  Other relevant considerations may include the effects of the project on transit and non-motorized travel. Except as provided in subdivision (b) (2) below (regarding roadway capacity), a project’s effect on automobile delay shall not constitute a significant environmental impact. (Rest of the section.[1])

This summary is paraphrased for documents online at: http://opr.ca.gov/

On September 27, 2013, Governor Brown signed Senate Bill 743 (Steinberg, 2013). SB 743 created a process to change the way agencies analyze transportation impacts under CEQA.  Currently, environmental review of transportation impacts focuses on the delay that vehicles experience at intersections and on roadway segments. That delay is often measured using a metric known as “level of service,” or “LOS”. Mitigation for increased delay often involves increasing capacity (i.e. the width of a roadway or size of an intersection), which may increase auto use and emissions and discourage alternative forms of transportation.

Level of Service (“LOS”) has been the standard by which the state measures the transportation impacts of major developments and changes to roads. Level of Service is basically a measurement of how many cars can go through an intersection in a given time. If a project reduced a road’s Level of Service it was considered a potentially significant effect— no matter how many other benefits the project might create.  The new measure Vehicles Miles Traveled (“VMT”) is purportedly easier to estimate, and arguably produces a measure of a project’s actual effect on overall travel, rather than just focusing on the delay it will create at certain intersections.

Transportation effects based on VMT will benefit projects in more densely populated areas that are near transit and discourages projects in suburban and rural areas. It also may impact existing general plan type documents, and impact the current common approval process that required a project to pay for roadway improvement.

The manner in which projects will mitigate their transportation impacts will also change.  Under the new rules, a development would be able to mitigate transportation impacts by funding better transit, creating better access to transit, building better pedestrian facilities, or a host of other improvements that would actually improve travel choices. For projects within the jurisdiction of the San Joaquin Valley Air Pollution Control District, there will be an overlap with their Indirect Source rule which requires similar mitigation for projects that draw mobile sources.

It should be noted that there was a Transportation advisory that was issued in April 2008 and then revised in December 2018 to further address VMT.  This technical advisory concerns the evaluation of transportation impacts and CEQA technical recommendations regarding VMT assessments. 14 CCR Section 15064.4.

http://opr.ca.gov/docs/20190122-743_Technical_Advisory.pdf

The basic premise under the advisory is that to achieve long-term climate goals California needs to reduce per capita VMT.  One of the goals of using VMT was to tie the CEQA process of evaluating transportation to the GHG gas reduction requirements and other statutory goals.  

1) Reduction of GHD omissions;

2) Development of multimodal transportation; and

3) Diversity of land uses thresholds that are linked to GHD reduction targets.

In summary, OPR recommends a per capita or per employee VMT that is 15% below that of existing development as a reasonable threshold. This is generally measured against the region or the city and may indicate a lesser impact.  Office projects that would generate vehicle travel exceeding 15% below existing VMT per employee may indicate a significant impact.

Retail locations typically distribute shopping trips rather than creating new trips estimating the total change in VMT. The difference in total VMT in the area affected with and without the project is the best way to analyze a retail transportation impact set their threshold for other types of projects for world projects and outside

14 CCR Section 15064.4 Determining the Significance of Greenhouse Gas Emissions

The proper analysis for Green House Gas impacts has been somewhat elusive. This new section indicates that an agency should focus its analysis on

The reasonably foreseeable incremental contribution of the projects’ emissions to the effects of climate.  

A project’s incremental contribution may be cumulatively significant even if it appears relatively small compared to a statewide, national or global emissions.  

The agency’s analysis should consider a time frame that is appropriate for the project.

The agency’s analysis also must reasonably reflect evolving scientific knowledge and state regulatory schemes.

The agency also needs also to look at:

1)         States’ long-term climate goals or strategies provided substantial evidence supports the agency’s analysis of how those goals or strategies address the projects’ incremental contribution to climate change and its conclusion that the projects incremental contribution is not cumulatively considerable.

2)         The Guidelines allow the use a model or methodology to estimate the GHG Emissions is if is what they consider appropriate to enable decision maker to intelligently take into account the projects’ incremental contribution to climate change.  The lead agency must support its selection with substantial evidence- and explore limitations of the model of methodology.

14 CCR Section 15064.7 Threshold of Significance

This section was included in part to indicate when it was appropriate to use an existing regulatory threshold in their CEQA analysis.

Agencies are encouraged to develop and publish thresholds of significance.

(d)        Agencies can use environmental standard as a threshold- but they must show how the standards reduce project impacts, including reducing cumulative impacts to a less than significant impact- and why the standard is relevant to the analysis.

Defines what an Environmental Standard is:

Quantitative, qualitative or pertinent requirement found in an ordinance, resolution, rule, regulation, order, plan or other environmental requirement.

Adopted for the purpose of environmental protection.

Addresses the environmental effect caused by the property.

Applies to the project under review

14 CCR Section 15072(e) Notice of Intent to Adopt Negative Declaration or Mitigated Negative Declaration

In the event of the filing of Notice of Intent to adopt a Negative Declaration or a Mitigated Negative Declaration, the agency must consult with any public transit agency with facilities within one-half mile of the proposed project.

14 CCR Section 15075(b) (8) Notice of Determination Negative Declaration or Mitigating Negative Declaration

When a Notice of Determination (NOD) is filed it must also include the identity of the person undertaking the project which is supported by the public agencies or of the person receiving a lease, permit, license, certificate or other entitlements for use from public agencies.

14 CCR Section 15082(a) Notice of Preparation EIR

A Notice of Preparation of an EIR is supposed to be sent to OPR and each responsible and trustee agency, but also now must be filed with the County Clerk in each county in which the project will be located.

14 CCR Section 15086 Consultation Concerning DRAFT EIR

Consultation is addition to Responsible and Trustee agencies must also include any Public Transit Agency with facilities within one-half mile.

14 CCR Section 15087 (2),(5) Public Review of Draft EIR

(e)(2) In addition to identifying the period for public review the agency must indicate the manner in which the comments will be taken and the (5) location where documents that incorporated by reference are located for public review.

14 CCR Section 15088(a)-(c) Evaluation and Response to Comments

The Lead Agency must respond to comments “raising significant environment issues;” (a) responses can be in writing or electronic format; (b)The written responses can correspond to the level of detail provided in the comments.  A general response may be appropriate where the comment does not contain or refer to readily available information or does not explain the relevance of the evidence submitted with the evidence.

14 CCR Section 15094 Notice of Determination

A Notice of Determination indicating that a project has been approved must contain:

If different from applicant the identity of the person undertaking the project which is supported by the public agencies or of the person receiving a lease, permit, license, certificate or other entitlements for use from public agencies.

14 CCR Section 15107 Completion of Negative Declaration.

The 180 day period that an agency has for completing the Negative Declaration can be extended for another 90 days with consent

14 CCR Section 15124(b) Project Description

The Guidelines now indicate that the Project Description can describe project benefits.

14 CCR Section 15125 Environmental Setting

The purpose of the environment setting is to give the public and decision makers the most accurate and understandable picture- practically possible of the projects likely near and long term effects.

The description should be the conditions at the time they exist at the time the NOP is published- or if none is issued at the time the environmental analysis is conducted.

Where existing conditions change or fluctuate over time and where necessary for an accurate picture, a lead agency may define existing conditions by referencing historic conditions or conditions expected when the project becomes operational, or both, that are supported with substantial evidence.  In addition, a lead agency may also use baselines consisting of both existing conditions and projected future conditions supported by reliable projections based on substantial evidence in the record.

Lead agency may use projected future conditions as baseline only if it demonstrates with substantial evidence that the use of existing conditions would be either misleading or without informative value to decision maker and the public.  Use of future conditions must be supported by reliable projections based on substantial evidence in the record.

An existing conditions baseline shall not include hypothetical conditions, such as those that might be allowed but have never actually occurred, under existing permit, or plans, as the baseline.

14 CCR Section 15126.2 Consideration and Discussion of Significant Environmental Impacts.

Energy impacts must be identified and identified-wasteful-inefficient or unnecessary use of energy resources must be mitigated.

The analysis should include the projects’ energy use for all phases and components, including transportation related energy during construction and operation.

14 CCR Section 15126.4 Mitigation Measures

15126.4(a) (1) (B)-This section attempts to clarify when future mitigation measures are appropriate. The specific details of mitigation may be developed after project approval when it is impractical or infeasible to include these details during the environment review provided that the agency:

Commits itself to the mitigation;

Adopts specific performance standards that mitigation will achieve;

Identifies the types of potential actions that can feasibly achieve the performance standard- and that will be considered analyzed and potentially incorporated in the mitigation measure.  Compliance with a regulatory permit or other similar process may be identified as mitigation, if compliance would result in implementation of measures that would be reasonably expected, based on substantial evidence in the record to reduce the significant impact to the specified performance standards.

14 CCR Section 15155 Water Supply Analysis

With respect to the water supply analysis under the new subsections of this section include:        

(f)        Degree of Certainty [of the report] will vary depending on the stage of approval.  

There should be greater confidence in the availability for a specific project then might be required for a conceptual plan (like a general plan, specific plan.)  The analysis may incorporate by reference information water supply assessment, urban water management plan or other publicly available sources.  The analysis shall include:

Sufficient information regarding the project’s proposed water demand and proposed water supplies to permit the lead agency to evaluate the pros and cons of supplying the amount of water the project will need.

Analysis of reasonably foreseeable environmental impacts of supplying water throughout all phases of the project.

Analysis of circumstances affecting the likelihood of the water’s deniably as well as the degree of the concentration involved.  Relevant factors may include;

Drought

Saltwater intrusion

Regulatory or contractual curtailments and other reasonable foreseeable demands on the water supply.

If the lead agency cannot determine that a particular water supply will be available, it should conduct an analysis of alternative sources including at least in general terms the environmental consequences of using those alternate sources, or alternatives to the projects that could be served with available water.

14 CCR Section 15168 Program EIR’s

(c)(2) Whether a later activity is within the scope of the Program EIR is factual issue based on substantial evidence:

Factors may consider:

Consistency of later activity within the type of allowable land use;

Overall planned density and building intensity;

Geographic area analyzed for environmental impact; and

Whether the infrastructure that was covered and described the program EIR.

14 CCR Section 15182 Projects Pursuant to Specific Plan

Certain residential, commercial and mixed use projects that are consistent with a specific plant adopted pursuant to Title 7, Div.1, Chapter 3 of the Government Code are exempt from further CEQA compliance.

A residential or mixed-use project, or a project with a floor area ratio of at lease .75 on commercially-zoned property, including any required subdivision or zoning approvals is exempt if:

It is located within a transit priority area;

Consistent with a specific plan for which an EIR was certified; and

Consistent with general plan and other policies including:

Sustainable communities strategy or an Alternative Planning Strategy (CARB)

Unless certain conditions occur (requirements for subsequent CEQA documents).

14 CCR 15234 Remand

The purpose of this section was to specify what actions a court may take in remanding CEQA case to the Lead Agency;

Void the project approval in whole or in part.

Suspend any project activities that preclude consideration and implementation of mitigation measures and alternatives necessary to comply with CEQA, or

Take specific action necessary to bring the agency’s consideration of the project into compliance with CEQA.

15234(c) – An agency may also proceed or individual project activities, during the remand period where the court allows:

15234(d) – For portions that comply- additional review is only a requirement by the court consistent with principles of Res Judicata – in general the agency need not expand the scope of the analysis on remand beyond that specified by the court.

14 CCR Section 15269 Emergency Projects

Exemptions are allowed if long term projects undertaken for purpose of preventing or mitigating a situation that has a low probability of occurrence in the short term, unless the anticipated period of time to conduct a review would create a public risk or if actions are proposed to an existing facility in response to an emergency of a similar existing facility.  

14 CCR Section 15301 Existing Facilities

The exemption for existing facilities also applies to certain additions including bicycle facilities, bus lanes, pedestrian crossings, street trees, and other similar alterations that do not include the addition of automobile lanes.

14 CCR Section 15357 Discretionary Project

Addresses the definition of a discretionary project versus a ministerial one.  “The key question is whether the public agency can use its subjective judgment to determine whether and how to carry out or approve a project.”  

Changes to Appendix G

Appendix G to the Guidelines contains the suggested checklist that should be used by an agency to determine whether the project may have significant impacts, and forms the road map for the CEQA document that is eventually drafted. The revisions contain substantial changes, the most significant of which is the addition of sections on energy and wildfires.

Initial Study Checklist Changes

Elimination of overlapping questions;

Revised cumulative air quality impacts questions;

Reorganized the hydrology and utility issues;

Clarification whether the conflict with land use plans actually causes a significant effect;

Mandatory Findings of Significance were changed to:

Clarify that whether the projects have the potential to substantially degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, substantially reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory.

Two new Categories of Impacts

Energy Impacts– Energy Usage is to be considered in all CEQA documents not just EIR’s-Questions as to whether there is a waste of energy and whether there is a conflict with the state or locals plans for renewable efficiency;

Wildfire–If located in or near state responsibility areas or lands classified as very high fire hazard severity zones, would the project;

Substantially impair an adopted emergency response plan or emergency evacuation plan;

Exacerbate wildfire risks, and thereby expose project occupants to, pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire.

Would the associated infrastructure (such as roads, fuel breaks, emergency water sources, power lines or other utilities) that may exacerbate fire risk or that may result in temporary or ongoing impacts to the environment, and would it expose people or structures to significant risks, including downslope or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or drainage changes?

[1] New Section 15064.3. Determining the Significance of Transportation Impacts.

 (b) Criteria for Analyzing Transportation Impacts.

(1) Land Use Projects. Vehicle miles traveled exceeding an applicable threshold of significance may indicate a significant impact. Generally, projects within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor should be presumed to cause a less than significant transportation impact. Projects that decrease vehicle miles traveled in the project area compared to existing conditions should be presumed to have a less than significant transportation impact.

(2) Transportation Projects. Transportation projects that reduce, or have no impact on, vehicle miles traveled should be presumed to cause a less than significant transportation impact. For roadway capacity projects, agencies have discretion to determine the appropriate measure of transportation impact consistent with CEQA and other applicable requirements. To the extent that such impacts have already been adequately addressed at a programmatic level, such as in a regional transportation plan EIR, a lead agency may tier from that analysis as provided in Section 15152.

(3) Qualitative Analysis. If existing models or methods are not available to estimate the vehicle miles traveled for the particular project being considered, a lead agency may analyze the project’s vehicle miles traveled qualitatively. Such a qualitative analysis would evaluate factors such as the availability of transit, proximity to other destinations, etc. For many projects, a qualitative analysis of construction traffic may be appropriate.

(4) Methodology. A lead agency has discretion to choose the most appropriate methodology to evaluate a project’s vehicle miles traveled, including whether to express the change in absolute terms, per capita, per household or in any other measure. A lead agency may use models to estimate a project’s vehicle miles traveled, and may revise those estimates to reflect professional judgment based on substantial evidence. Any assumptions used to estimate vehicle miles traveled and any revisions to model outputs should be documented and explained in the environmental document prepared for the project. The standard of adequacy in Section 15151 shall apply to the analysis described in this section.

(c) Applicability.

The provisions of this section shall apply prospectively as described in section 15007. A lead agency may elect to be governed by the provisions of this section immediately. Beginning on July 1, 2020, the provisions of this section shall apply statewide.