California Water Resources Guideline for Ceqa Review in Eirs

The Governor's Office of Planning and Research ("OPR") has spent five years drafting a comprehensive update to 30 sections of the California Environmental Quality Act ("CEQA") Guidelines.[1] The updated text[2] ("Terminal Text") ensures the Guidelines are consistent with recent court decisions, implements legislative changes, clarifies rules governing the CEQA process, and eliminates duplicative analysis. Several changes to the Guidelines address 2 hot button topics: global climate change and statewide affordable housing shortages. During the deliberative process, the Agency as well released its "Final Argument of Reasons for the Regulatory Activity Amendment to the State Guidelines" to give more history and context to each change to the Last Text.[3]

While a number of the amendments to the Guidelines simply formulate the implementation of CEQA as currently required past example law, many of the changes volition significantly alter the application of CEQA to future projects. The revised Guidelines will certainly cause pb agencies to be more proactive in their analysis of wildfire impacts, long-term greenhouse gas ("GHG") and free energy impacts, baseline justifications and deferred mitigation. In that location is also a new Vehicle Miles Traveled ("VMT") methodology for assessing transportation impacts. Such programs and thresholds volition likely dovetail with state and local efforts to meet GHG reduction targets set by the state or in local climate activeness plans. This comprehensive update, five years in the making, will undoubtedly improve the defensibility of CEQA documents moving frontwards.

The Office of Administrative Police ("OAL") completed its review of the Final Text on December 28, 2018. Once OAL files the Final Text with the Secretary of State (probable, the side by side few days), any CEQA documents not circulated for the statutory public review and comment period prior to Jan one, 2019 must comply with the new content requirements. Whatever new procedural requirements will accept effect 120 days after the new Guidelines are filed with the Secretary of State. The new VMT methodology will not be mandatory until July 1, 2020, unless implemented early on past a pb agency, equally has been done by the City of San Francisco. Notwithstanding, pb agencies should first planning at present for their VMT-based thresholds, or starting time creating VMT mitigation banks to allow for new development to achieve some of VMT reductions off-site through contributions to regional transit projects that more efficiently reduce VMT.

A more detailed assay of these changes follows.

Efficiency Improvements

A New and Improved Environmental Checklist – The Final Text updates and reorganizes the environmental checklist (Appendix G) almost agencies use to format and guide their ecology review.[four] The modifications to the checklist:

• Eliminate redundant questions then atomic number 82 agencies are not required to repeat analysis in subparts of the aforementioned touch category;
• Add together new transportation questions that focus pb agencies on evaluating impacts on VMT,[five] pursuant to requirements, however, that will non be in event in most places until July 1, 2020
• Add new wildfire questions, reminding lead agencies that, while CEQA does not require analysis of the affect of the environment on a project (a.k.a. "reverse CEQA"), CEQA does require an analysis when a project exacerbates an environmental impact, e.thou., wildfire risk;
• Add free energy as an affect category for MNDs (and not simply EIRs) with new questions requiring analysis of a project's energy consumption and compliance with state or local energy laws;
• Clarifies that both state and federal wetland impacts must be evaluated;
• Clarifies that public, not private, view impacts are relevant to a CEQA analysis; and
• Moves paleontological resource impacts out of cultural and into the geologic resource section, in accordance with AB 52.

Use of Existing Regulatory Standards – The Last Text promotes use of existing regulatory standards equally "thresholds of significance" in the CEQA process, even on an informal, case-past-example basis.[6] This change codifies example police[7] allowing agencies to rely on the expertise of some other regulatory body, without foreclosing consideration of possible project-specific effects.

Program EIR Tiering – Amid the well-nigh efficient, but underutilized, methods for expediting subsequent CEQA review and avoiding duplicative analysis, is the "within the scope" method for analyzing a project covered by a Program EIR.[8] Recognizing that recent example constabulary showed that the existing Guidelines lacked clarity regarding "within the telescopic" analysis, the Final Text identified factors (consistency with the Program EIR's country utilise, overall density and intensity, geographic area, and covered infrastructure) courts take used to uphold a atomic number 82 bureau's "within the scope" environmental checklist.[9]

Emergency Project Exemption – The Concluding Text clarifies that projects requiring a "reasonable amount" of planning can authorize under CEQA'south current exemption for emergency repairs.[x] The exemption is also clarified to provide that it is non express to unexpected emergencies, and identifies factors for certain imminent emergencies.

Existing Facilities Exemption – In order to promote redevelopment of vacant buildings, the Final Text clarifies that a project's prior apply history can be considered when determining whether it would result in an expansion of an existing use. The Final Text also clarifies that this exemption includes improvements to the public right-of-way that enable use past multiple modes of transportation.[xi] These clarifications are intended to encourage infill and transit-oriented evolution.

"Common Sense" Exemption – Under the Terminal Text, the "full general rule" that an activity is exempt from CEQA if in that location is no possibility that activeness may have a meaning environmental consequence is now referred to as the "mutual sense" exemption to match the linguistic communication used by the California Supreme Court.[12]

<Judicial Remedies – Relying on several CEQA cases,[thirteen] the Final Text emphasizes that courts have the equitable discretion to void just parts of a project approval and to suspend merely certain projection activities that preclude consideration of mitigation measures and alternatives; or to require the atomic number 82 bureau to accept specific deportment to bring the projection into CEQA compliance.[14] It as well affirms that CEQA-compliant portions of the EIR need not be reevaluated if consistent with the principles of res judicata. In other words, when the proposed project is not inverse, there is no "second seize with teeth at the apple" on bug that were non raised or that were successfully defended. Changing the project tin open upward new problems, of class, simply the agency generally need not expand its analysis beyond what a court specified needed to be fixed.

Noun Improvements

Energy Impacts – The Final Text provides new guidance for analyzing a project'southward impacts due to "wasteful, inefficient, or unnecessary consumption of energy."[15] An EIR'southward energy analysis must now accost not merely edifice design and Title 24 green building code compliance, only also transportation, equipment utilize, location, renewable energy features that could exist incorporated into the project, and other relevant factors.

Water Supply Impacts – The Final Text clarifies the standards for an acceptable water supply assessment, including an analysis of possible sources of water supply over the life of a project and the environmental impacts of supplying that water to that project. The analysis must also consider whatever uncertainties in supply, too as potential alternatives and other environmental impacts of using these alternatives.[16] Following on the heels of 1 of the worst water crises in California history, these requirements will assume boosted importance in many jurisdictions.

Transportation Impacts and New VMT Methodology – In mayhap the most significant noun change to the Guidelines, the Concluding Text adopts an culling methodology for analyzing the significance of transportation impacts.[17] The Agency determined that the electric current level of service ("LOS") methodology, which analyzes traffic congestion, tends to promote increased vehicle use, jeopardizing the power to realize GHG emissions reduction goals. Guidelines section 15064.3 therefore adopts a new methodology focusing on a project's effect on VMT. While the Bureau believes VMT methodology will promote project designs that reduce reliance on automobile travel, this section still permits lead agencies to use discretion when selecting alternative methodologies for determining transportation impacts, including LOS, for projects intended to increase roadway capacity.

The Agency noted that the second greatest category of household expenditures later on housing itself is a family's transportation costs. The Agency believes the shift to VMT analysis volition save households approximately $2,000 a twelvemonth by reducing VMT and spurring more than infill and transit-oriented development. The updated Guidelines will also aid streamline the development process for housing projects in depression-VMT and transit-oriented locations, thereby helping increase the supply of housing options in areas with depression transportation costs.

Greenhouse Gas Emissions – The Final Text revises the CEQA Guideline addressing GHG emissions to clarify the appropriate methodology for a GHG analysis consistent with recent example law.[18] The revisions recognize that GHG-related climatic change is a global trouble and that no individual project is probable to accept a pregnant direct affect on climate change Accordingly, the lead agency should focus its analysis on whether a project'south incremental contribution to GHG emissions would have a cumulatively considerable[19] outcome on climate change. Moreover, the Final Text emphasizes the importance of: (a) analyzing long-term GHG impacts when the projection has a long time‑horizon for implementation; and (b) accounting for evolving scientific noesis and regulatory schemes. The changes likewise clarify that, if relying on consistency with country goals and policies to decide significance, the pb agency should explicate how the project's emissions are consistent with those goals and back up this position with substantial evidence.

Technical Improvements

Exacerbating Existing Environmental Hazards/Reverse CEQA Prohibition – The Final Text provides guidance for when agencies must consider the effects of locating projects in hazardous or vulnerable locations.[20] A atomic number 82 agency is not required to perform "reverse CEQA analysis" (analyzing the impacts of the existing environment on the project and its time to come users) unless the project has a reasonably foreseeable adventure of exacerbating existing environmental hazards. This includes any cumulative consequence the project would accept on a hazardous status. This ways that a lead agency should consider a project's potential for increasing the severity of hazards over time, including hazards that are expected to be more than severe in the future due to climatic change. All the same, a atomic number 82 agency demand not conclude any indirect impacts from environmental hazards are meaning or engage in speculative analysis of such impacts.

Baseline – The Last Text eliminates any limitation of the baseline to those conditions existing at the time the Notice of Preparation ("NOP") is published. It may be advisable to use projected time to come conditions or representative past weather condition as the environmental baseline when use of existing weather condition would be either misleading or without informative value to decision-makers and the public.[21] In such instances, the Last Text requires the lead bureau to expressly justify its decision not to utilize existing atmospheric condition, and back up that justification with substantial evidence in the record. This modify also allows a atomic number 82 agency to depict both existing and future weather. These changes facilitate the ability of the lead agency to present a more accurate moving picture of a project's actual impacts.

Deferred Mitigation – Another change addresses when agencies may defer specific details of mitigation measures until later project approval.[22] Specifically, the Final Text permits "deferred mitigation" when the pb agency: "(ane) commits itself to the mitigation, (two) adopts specific functioning standards the mitigation will achieve, and (3) identifies the type(s) of potential activity(s) that can feasibly achieve that performance standard and that volition [be] considered, analyzed, and potentially incorporated in the mitigation measure out." Notably, while commitment to the performance standard is required, this change does non require the pb agency to commit to an approved menu of measures from which the implemented mitigation must  be selected. Rather, the carte may exist a non-sectional list of examples.

Full general Responses to Data Dumping –The Final Text too includes changes related to the duty of pb agencies to provide detailed responses to comments on a project.[23] The changes analyze that a general response may be appropriate when a annotate is general in nature, or when a commenter submits voluminous information and information without explaining its relevance to the project ("data dumping"). A atomic number 82 agency may also now provide proposed responses to public agency comments in electronic course.

Pre-Commitment Activities – The Final Text acknowledges that certain activities will occur prior to CEQA compliance and project approval. The revised Guidelines recognize that these deportment fall on a spectrum between mere interest in a project and a commitment to a definite course of action, and that circumstances surrounding the activity are relevant to the determination of whether an agency has, as a practical thing, committed to a projection.[24] The Terminal Text permits approval of agreements that (a) do not forestall any mitigation measures or projection alternatives; and (b) are conditioned on completion of CEQA review. As such, information technology provides a useful roadmap for how to draft a pre-delivery agreement so information technology does not preclude mitigation measures and alternatives.

Noticing to County Clerk – The Terminal Text corrects an inconsistency with the Public Resource Code, and now requires posting of the NOP in the office of the County Clerk of each county in which the projection will exist located also as a transmittal of the NOP to OPR.[25]

Discretionary versus Ministerial – The Terminal Text clarifies the definition of "discretionary" to reflect various cases distinguishing this term from "ministerial."[26] Specifically, the Final Text states a discretionary project is 1 in which a public agency can shape the project in any way to respond to concerns raised in an environmental impact report. This clarification is necessary to maintain consistency in determining "discretionary" projects and to improve practitioners' ability to place when a project is required to undertake ecology review under CEQA. For example, the Bureau clarified that review of projects in areas zoning specifies uses "by right" pursuant to Government Code sections 65583(a)(4) and 65583.2(b) cannot be discretionary

Pb Bureau Determination – The Final Text increases the flexibility for determining the lead bureau for a project by changing the word "shall" to "volition commonly" to analyze that where more than one public bureau meets the criteria for beingness "lead agency," the agencies may agree to designate one entity as the lead.[27]

[1] fourteen C.C.R. § 15000 et seq.

[two] http://resources.ca.gov/ceqa/docs/2018_CEQA_FINAL_TEXT_122818.pdf

[iii] http://resource.ca.gov/ceqa/docs/2018_CEQA_Final_Statement_of%20Reasons_111218.pdf.

[4] A lead agencies is always permitted to utilise its own checklist(due south).

[5] See Senate Nib 743 (Steinberg, 2013).

[6] 14 C.C.R. §§ 15064,15064.vii.

[vii] Communities for a Better Envt. v. Cal. Resources Agency (2002) 103 Cal.App.4th 98; run into as well Protect the Historic Amador Waterways v. Amador Water Bureau (2004) 116 Cal. App. 4th 1099.

[viii] 14 C.C.R §§  15152, 15168.

[9] Citizens for Responsible Equitable Envt'50 Dev. v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598;Sierra Club v. County of Sonoma (1992) vi Cal.App.4th 1307.

[x] 14 C.C.R § 15269; City of Solana Embankment (2002) 103 Cal.App.4th 529.

[11] xiv C.C.R § 15301.

[12] 14 C.C.R. § 15061; Muzzy Ranch Co. v. Solano County Aerodrome State Apply Com. (2007) 41 Cal.4th 372.

[thirteen] Neighbors for Smart Rail v. Exposition Metro Line Construction Potency (2013) 57 Cal.fourth 439.

[14] fourteen C.C.R. § 15234.

[15] fourteen C.C.R. § 15126.ii.

[16] 14 C.C.R. § 15155(f); Vineyard Area Citizens for Responsible Growth v. Metropolis of Rancho Cordova (2007) 40 Cal.4th 412.

[17] 14 C.C.R. § 15064.iii.

[18] 14 C.C.R. § 15064.4; Cleveland Nat'l Forest Found. v. San Diego Ass'n of Gov'ts (2017) 3 Cal.5th 497; Ctr for Biological Diverseness five. Dept. of Fish & Wildlife (2015) 62 Cal.4th 204.

[xix] "Cumulatively considerable" means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past, current, and likely future projects.

[20] fourteen C.C.R. § 15126.2(a); Cal. Building Indus. Ass'northward v. Bay Area Air Quality Mgmt Dist. (2015) 62 Cal.4th 369

[21] 14 C.C.R. § 15125; Neighbors for Smart Rail 5. Exposition Metro Line Construction Potency (2013) 57 Cal.quaternary 439; Ass'northward of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 Cal.App.5th 708.

[22] fourteen C.C.R. § 15126.4.

[23] fourteen C.C.R. § 15008.

[24] 14 C.C.R. § 15004; Save Tara v. City of Due west. Hollywood (2008) 45 Cal.quaternary 116.

[25] xiv C.C.R. § 15082.

[26] 14 C.C.R. § 15357; Friends of Westwood, Inc. v. Urban center of Los Angeles (1987) 191 Cal.App.3d 259; Mountain King of beasts Institute. v. Fish & Game Comm. (1997) 16 Cal.fourth 105; San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924; Friends of Juana Briones Business firm v. Metropolis of Palo Alto (2010) 190 Cal.App.4th 286.

[27] fourteen C.C.R. § 15051.

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