Transcript Document

CEQA: California Environmental
Quality Act
Presented by:
Kathleen Faubion
Tim Cremin
January 19, 2010
© 2010 Meyers Nave Riback Silver & Wilson. All rights reserved.
400 Mendocino Avenue
Suite 100
Santa Rosa, CA 95401
Tel.: 707.545.8009
www.meyersnave.com
California
Environmental Quality Act (CEQA)
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Establishes a (mostly) procedural framework by
which local agencies are required to examine the
impact of their decisions on the environment.
CEQA Overview
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Purpose of CEQA
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Codified in the Public Resources Code beginning at
§ 21000.
Requires public agencies to identify and consider the
environmental consequences of their discretionary
actions.
Private development applications.
Public works projects and improvements.
CEQA’s Core Principles
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Projects should try to avoid or reduce adverse
environmental impacts.
Public decision makers should make informed decisions
about the environmental consequences of their decisions.
Public participation is integral to the environmental review
process.
Environmental review should occur as early in the life of the
project as possible.
CEQA General Structure
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CEQA is primarily a procedural statute.
CEQA contains some substantive requirements.
“…public agencies should not approve projects as
proposed if there are feasible alternatives or
feasible mitigation measures available which would
substantially lessen the significant environmental
effects of such projects…”
(§ 21002.)
CEQA Implementation through
Administrative Guidelines
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14 California Code of Regulations § 15000 et seq.
Reflect the statutory requirements of CEQA and case law
interpretations.
Courts shall accord the Guidelines “great weight” unless clearly
unauthorized or erroneous. (Laurel Heights Improvement
Association v. Regents of the University of California 47 Cal.3d 376,
391, n.2 (1988)).
Caution: Guidelines are not updated each year; may not reflect the
most current statutory amendments or court decisions.
CEQA requires local agencies to establish local guidelines.
(§ 21082).
The Players
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Lead agency.
Responsible agency.
Environmental consultants.
Applicant, project proponent.
Local Implementation of CEQA
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Hierarchy of decision-making.
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Staff analysis and recommendation.
Planning Commission.
City Council.
What is a “Project” under CEQA?
The “whole of an action, which has a potential for
resulting in either a direct physical change in the
environment, or a reasonably foreseeable indirect
physical change…” (§ 15378).
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“Project” Only Discretionary Action
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CEQA applies only to discretionary actions, that is, actions
that require judgment by the decision maker, and/or are
governed by subjective findings rather than objective
standards. (See § 21080(a)).
CEQA does not apply to ministerial actions; ministerial
actions require little if any judgment from the decision
maker and most often consist of checking an application or
project against established objective standards, often by
means of a checklist.
Elements of a “Project”
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Project = direct physical changes from presently proposed
physical activity.
Project = indirect physical changes set in motion by present
approval.
Project = the applications submitted for review and
approval.
Cannot “segment” or “piecemeal” projects to avoid CEQA
review or to minimize the potential impacts of the entire
project. (See, Citizens Association for Sensible
Development of Bishop Area v. County of Inyo 172
Cal.App.3d 151 (1985)).
“Project”, continued…
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Practice Tip: Include a description of the existing
physical setting and conditions of the project site in
the Project Description.
Practice Tip: Identify project applications in order
of land use hierarchy.
“Project” under Save Tara Standards
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Case-by-case determination.
Factors to evaluate
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Definiteness of Project.
Agency Commitment to Project.
Surrounding Circumstances.
Analysis of Project impacts and alternatives must
remain.
Is the Project
Exempt from CEQA review?
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CEQA does not apply to projects that are exempt.
(§ 21080(a)).
Statutory exemptions.
Legislative policy that any negative environmental
consequences of the project are outweighed by its
benefits.
Types of Statutory Exemptions
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Minor infrastructure improvements.
Residential Projects Consistent with Specific Plans.
Specified Affordable or Infill Housing.
Categorical Exemptions
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Categorical exemptions.
Established by the state Resources Agency for
classes of activities that will not have a significant
effect on the environment. (Guidelines § 15300 et
seq.).
Limited by exceptions in CEQA § 21084 and
Guidelines § 15300.2.
Narrowly construed.
Types of Categorical Exemptions
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Minor alteration to or replacement of existing
structure.
Small construction or development projects.
Agency actions to protect environment.
Exceptions to Categorical Exemptions
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Significant environmental effect due to unusual
circumstances.
Significant cumulative impacts from projects of
same type.
Damage to historic resource.
Notice of Exemption
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Form.
Filing.
35 day statute of limitations.
Initial Study
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Purpose. Determine if the project could have a
significant effect on the environment and whether
an EIR, MND, ND or other CEQA document should
be prepared. (CEQA Guidelines § 15063).
Environmental Checklist
in CEQA Guidelines
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CEQA Guidelines § 15063(d) identifies the required content
for initial studies.
Appendix G of the Guidelines includes the required content.
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Information about the applicant, the project, the regulatory
setting.
Determination as to whether an ND, MND or EIR should be
prepared.
Environmental checklist by topic.
Explanation of checklist answers.
Thresholds of Significance
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Identifies the point at which an impact becomes significant.
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Appendix G checklist questions often include thresholds.
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Can be quantitative, such as traffic level of service standards or
noise exposure standards.
Can also be qualitative, such as substantial impairment of scenic
resources.
Example: Will the project violate established air quality or water
quality standards?
Mandatory Findings of Significance
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Based on the direction in CEQA §§ 21001(c),
21083. (See also CEQA Guidelines § 15065).
Requires EIR (or MND?) if any of the findings is
made.
Initial Study Pointers
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Avoid merely completing a bare-bones
environmental checklist without factual evidence
to support the checklist conclusions. (Citizens
Association for Sensible Development of Bishop
Area v. County of Inyo 172 Cal.App.3d 151
(1985).
Access Appendix G at
http://www.califaep.org/Content/Documents/Document.ashx?DocId=47166.
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Determining Whether Negative
Declaration or EIR Required
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Fair Argument Standard.
Substantial Evidence to Support Decision.
Fair Argument Standard
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“Substantial evidence” in the record supports a “fair
argument” that significant impacts may occur, even though
other substantial evidence supports a different conclusion,
the lead agency must prepare an EIR. (No Oil, Inc. v. City
of Los Angeles (1974) 13 Cal.3d 68, 75; Friends of “B”
Street v. City of Hayward (1980) 106 Cal.App.3d 988, 10001003.)
Fair Argument
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Creates a “low threshold” for requiring preparation of an
EIR.
It is a question of law not fact for the reviewing court.
The court owes no deference to the lead agency’s decision.
Fair Argument
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Review is de novo, with a preference for resolving doubts in
favor of environmental review.
(Pocket Protectors v. City of Sacramento (2004)
124 Cal.App.4th 903, 928.)
Lead agency is entitled to resolve legitimate disputes
regarding the credibility of evidence.
What is “Substantial Evidence?”
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“Substantial evidence” means “enough relevant information
and reasonable inferences from this information that a fair
argument can be made to support a conclusion, even
though other conclusions might also be reached.”
(Guidelines, § 15384, subd. (a).)
Substantial evidence “shall include facts, reasonable
assumptions predicated upon facts, and expert opinion
supported by facts.”
(Guidelines, § 15384, subd. (b).)
What is “Substantial Evidence?”
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Relevant personal observations of people residing in the
area of a project concerning nontechnical subjects may
qualify as substantial evidence.
Expert opinion if supported by facts, even if not based on
specific observations as to the site under review may also
qualify as substantial evidence.
(Pocket Protectors v. City of Sacramento (2004) 124
Cal.App.4th 903, 928.)
What is not “Substantial Evidence?”
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“Argument, speculation, unsubstantiated opinion or
narrative, evidence which is clearly erroneous or
inaccurate, or evidence of social or economic impacts
which do not contribute to or are not caused by physical
impacts on the environment does not constitute substantial
evidence.” (Guidelines, § 15384, subd. (a).)
Negative Declaration
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Draft negative declaration.
Public review of draft negative declaration.
Adopt negative declaration.
What is a Negative Declaration?
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A “Negative Declaration” is a written statement by the Lead
Agency briefly describing the reasons that a proposed
project . . . will not have a significant effect on the
environment and therefore does not require the preparation
of an EIR.”
(Guidelines, § 15371.)
When Can a Lead Agency
Use a Negative Declaration?
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After completing the initial study, the lead agency may
prepare a negative declaration where the lead agency
determines that a project “would not have a significant
impact on the environment.” (Pub. Res. Code, § 21080,
subd. (c).)
The determination that a project would not have a
significant effect on the environment can only be made
where “there is no substantial evidence in light of the whole
record that such an impact may occur.” (Pub. Res. Code
§ 21080, subd. (c)(1).
“Draft” Negative Declaration
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A Negative Declaration circulated for public review
shall include:
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A brief description of the project, including a commonly
used name for the project, if any;
The location of the project, preferably shown on a map,
and the name of the project proponent;
A proposed finding that the project will not have a
significant effect on the environment;
“Draft” Negative Declaration
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A Negative Declaration circulated for public review
shall include:
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Project Description.
An attached copy of the Initial Study documenting
reasons to support the finding.(Guidelines, § 15071.)
Public Review
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Before approving a draft negative declaration or MND, the
lead agency must provide a notice of intent to adopt the
negative declaration or MND to the public, responsible
agencies, and the county clerk of the county in which the
project is located.
The notice of intent to adopt must allow for a minimum 20day public review period.
Minimum 30-day review period if submitted to State
Clearinghouse.
Public Review
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The notice of intent to adopt must be mailed to all
individuals and organizations that have requested a copy
The notice must also be provided by one of the following:
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Publication in a newspaper of general circulation in the area.
Posting of the notice on the project site and in the area of the
project site.
Direct mail to all owners and occupants of property contiguous to
the project. (Guidelines, § 15072.)
Public Review
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Public may provide written comments on the project and/or
the proposed Negative Declaration/MND.
Unlike EIR, no requirement to respond to comments in
writing in final document, but lead agency is required to
“consider” comments.
Some agencies choose to respond to written comments;
response usually in the staff report anyway.
Adoption of the Negative Declaration
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Prior to approving project lead agency must consider
negative declaration.
Must also consider any comments received.
Lead agency can adopt the negative declaration if it
makes findings that, based on substantial evidence in
light of the whole record, the project will not have any
significant impact on the environment.
Adoption of the Negative Declaration
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The lead agency must also find that the negative
declaration reflects its independent judgment and
analysis.
Must also specify the location and custodian of the
documents or other material which constitute the
record of proceedings upon which its decision is
based. (Guidelines, § 15074.)
Mitigated Negative Declaration
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Standard of review: fair argument standard.
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Public review of draft mitigated negative declaration.
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Adopt mitigated negative declaration and mitigation
monitoring program.
What is a
Mitigated Negative Declaration?
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A Mitigated Negative Declaration is a negative declaration
prepared for a project when the initial study has identified
potentially significant effects on the environment, but
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revisions are made to the project before the proposed negative
declaration and initial study are released for public review that
would avoid the effects or mitigate the effects to a point where
clearly no significant effect on the environment would occur.
there is no substantial evidence in light of the whole record before
the public agency that the project, as revised, may have a
significant effect on the environment.
When Can a Lead Agency use an MND?
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The Initial study identifies potentially significant
environmental impacts of the project.
The lead agency identifies revisions to the project or
“mitigation measures” that would eliminate the adverse
impacts, or reduce them to a level of insignificance.
Draft MNDs
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Must include everything that a Negative Declaration
includes.
Must also include a description of the mitigation measures
to be incorporated into the project.
Adequacy of MND mitigation measures held to the same
standards of adequacy as in EIRs.
(Guidelines § 15071)
Mitigation Measures
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For any significant impact, the agency must require feasible
mitigation measures, or may identify feasible environmentally superior alternatives (Pub. Res. Code, §§ 21002,
21081(a); Guidelines, §§15002(a) (3) 15021(a) (2), and
15091(a) (1))
The mitigation measures should be capable of either
avoiding the impact altogether, reducing or eliminating the
impact over time by preservation and maintenance
operation, or compensating for the impact by replacing or
providing substitute resources or environments, or of
“repairing, rehabilitating, or restoring the impacted
environment.” (Guidelines, §§ 15370)
Deferred Mitigation
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In general, agencies are not permitted to rely on
speculative mitigation measures. It may be permissible,
however, to defer some amount of mitigation in
appropriate circumstances.
For example, it is permissible if the mitigation measure
commits the agency to a realistic performance standard
or criterion that must be met.
Adoption of an MND
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Lead agency must consider the MND and any
comments received.
Must find that, based on substantial evidence in the
record, the project as mitigated will have no significant
impact on the environment.
Must find that the MND reflects the lead agency’s
independent judgment and analysis.
Mitigation Monitoring and
Reporting Program
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For an MND, the lead agency must also adopt a
mitigation monitoring and reporting program.
The monitoring program must be designed in a way
that the lead agency can ensure that the required
mitigation measures are implemented. (Guidelines,
§ 15097)
Environmental Impact Reports
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EIR Process and EIR Content.
Purpose of an EIR
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Identify, analyze, mitigate significant impacts.
Provide information to decision makers, public.
Opportunity for public involvement.
Ensure environmental protection.
Notice of Preparation
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Solicit direction from agencies on scope and
content of EIR information.
Content requirements; may be satisfied by attaching
initial study.
Send to Office of Planning and Research,
responsible agencies, trustee agencies.
Agencies must respond within 30 days.
EIR Scoping
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NOP process.
Optional meetings authorized.
Mandatory meetings for projects of statewide,
regional, or area-wide significance; or where
requested by Caltrans.
Use of App G Checklist in Scoping Process.
Notice of Completion
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CEQA Guidelines Appendix L.
Notice of Completion of Draft EIR
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Appendix L
Public Review of Draft EIR
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File Notice of Completion with OPR; may need to send Draft EIR
also.
Request comments on the Draft EIR from responsible and trustee
agencies.
Provide notice to public through Notice of Availability of Draft EIR.
Public review period is 30 days; review period is 45 days if Draft EIR
required to be sent to OPR.
Public hearing to accept comments on a Draft EIR are optional, but
may be required by local ordinance or guidelines.
Final EIR
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Prepare Responses to Comments received during the
public review period.
Provide reasoned, good faith analysis of comments that
raise significant environmental issues.
Practice Tip: Make sure the “response” fully responds to
the issue.
Send Draft Responses to
Public Agency Commentors
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Send proposed responses to public agencies who
commented on the Draft EIR; no similar requirement for
other commentors.
Responses must be sent no fewer than 10 days before the
EIR is certified. (Guidelines § 15088(6))
Determine if
Draft EIR Must Be Recirculated
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Is there new information that shows a new or substantially
more severe significant impact?
Is there new information on a feasible alternative or
mitigation measure but the applicant declines to adopt it?
Is the Draft EIR fundamentally flawed?
Prepare and Certify a Final EIR
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Final EIR = Draft EIR + comments and responses, and
other per Guidelines § 15132.
EIR certification (Guidelines § 15090).
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EIR completed in compliance with CEQA (and Guidelines).
EIR presented to decision maker, who reviewed and considered
the information before approving the project.
EIR reflects the lead agency’s independent judgment and
analysis.
Identify, Prepare Findings to Support Project Approval.
Managing EIR Consultants
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Kick-off meeting on expectations.
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Substantive analysis.
Format, style.
Timeline.
Review, monitor ongoing work.
Contents of Draft EIR
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Guidelines § 15120-15132.
Contents, structure of impact analyses.
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Identify significant impact.
Identify feasible mitigation measures, feasible
alternatives.
Determine if mitigations, alternatives will reduce impact
to less than significant.
Project Description
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Guidelines § 15124.
Must be accurate, stable, finite, and include all
project components.
Must include reasonably foreseeable future phases.
Identify comprehensive, well-crafted project
objectives.
Identify intended uses of the EIR by other agencies,
for other permits.
Environmental Setting
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Baseline for measuring impacts.
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Existing physical conditions at NOP.
Local and regional perspective.
Inconsistencies with General Plan.
Guidelines § 15125.
Identify Significant, Potentially
Significant Environmental Impacts
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Impact = change project will cause to the
environment.
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Direct, indirect changes.
Long-term, short-term changes.
Presence of a resource is not, per se, an impact.
Impacts, continued…
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Identify standard of significance against which to
measure project change.
Identify “baseline” of existing conditions against
which to measure project change.
Economic and social impacts not CEQA impacts
unless they cause a secondary environmental
impact. Example: urban blight, supercenters.
Cumulative Impacts
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Cumulative impacts = two or more individual effects which,
when considered together, are considerable or which
compound or increase other environmental impacts.
Incremental impact of the project when added to other
closely related past, present, and reasonably foreseeable
future projects.
Is the cumulative (i.e., combined) impact significant? Is the
project’s contribution to that impact cumulatively
considerable?
Cumulative Impacts, continued…
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Methodology
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List of past, present and reasonably foreseeable future
projects.
Summary of projections based on general plan or similar
planning document.
Combination.
Unavoidable Significant Impacts
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Identify significant impacts that cannot be avoided
by either mitigation measures or project
alternatives.
Growth Inducing Impacts
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Will the project directly or indirectly foster economic
or population growth, or remove obstacles to
growth?
Identify Feasible Mitigation Measures
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Intended to substantially reduce or avoid an
identified significant impact.
Identify for each significant impact.
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Multi-part mitigations.
Mitigations in-the-alternative.
Mitigations, continued…
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Mitigations must be fully enforceable.
Impose mitigations as conditions of development project
approval.
Incorporate mitigations into planning project approval.
Practice Tip: In the Draft EIR, show the manner and/or
extent to which the mitigation reduces the impact, with
specific reference to the identified standard of significance.
This practice will assist in preparing adequate mitigation
findings when the project is being considered for approval.
Identify Feasible
Alternatives to the Project
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EIR must identify and analyze a reasonable range of
alternatives to the project, or its location, that would feasibly
attain most of the project’s basic objectives, while reducing
or avoiding any of its significant impacts.
EIR must evaluate the comparative merits of the
alternatives.
Alternatives may include change in density, intensity,
location of development area, type, design, access,
location, etc. as appropriate to reduce or avoid the project’s
impacts.
CEQA requires that a No Project alternative be evaluated.
Alternatives, continued…
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CEQA requires that the environmentally superior alternative
be identified.
Alternatives findings are required for unavoidable impacts
before, and separately from, a statement of overriding
considerations.
Alternatives analysis is governed by the rule of reason.
Practice Tip: Several recent cases have involved disputes
over the feasibility of alternatives to demolition of historic
structures. See Uphold Our Heritage v. Town of Woodside
(2007) 147 Cal.App.4th 587.
CEQA findings – EIR Certification
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Compliance with CEQA and local guidelines.
Independent review and consideration prior to
project approval.
EIR reflects City’s independent judgment and
analysis.
Certification of EIR.
CEQA findings – Significant Impacts
and Mitigations
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Significant impacts reduced by identified mitigation.
Mitigation within control of another agency.
Economic, legal, social or technological make
mitigations infeasible.
Significant and Unavoidable Impacts.
Adopt mitigation monitoring and reporting program.
CEQA findings – Alternatives
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If any significant and unavoidable impacts, must
find alternatives infeasible.
Findings on alternatives that reduce impacts.
“Feasibility” defined broadly. (Guidelines § 15364)
CEQA findings – Statement of
Overriding Considerations
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Applies to significant and unavoidable impacts.
Specify benefits that outweigh adverse impacts.
Evidence of benefits in record.
CEQA findings – form and evidence
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Impact, mitigation, finding, and rationale/facts.
Infeasibility findings.
Complete record of proceeding.
Substantial evidence to support.
Notice of Determination
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Form.
Filing.
Dept of Fish & Game fees.
30 day statute of limitations.
CEQA Streamlining Techniques
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Tiering principles for reuse of CEQA documents.
Subsequent and supplemental EIRs, ND’s.
Addendum.
Tiering
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Using a series of EIRs or NDs starting with analysis
of general concerns followed by streamlined review
of site-specific concerns. (Guidelines §§ 15152,
15385)
Analyze general matters in first-tier EIR.
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EIR for General Plan, policy or program.
Programmatic level of detail common.
Tiering, continued…
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Analyze narrower, site-specific matters in later tiers.
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Later project must be consistent with GP, zoning.
Later tier may be EIR or ND.
Focus on effects not previously examined or adequately
addressed.
Later EIR or ND must refer to prior EIR and state where
it can be examined by the public.
Tiering, continued…
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Typical EIRs used in tiering.
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Program EIRs. (Guidelines § 15168)
Redevelopment project EIRs. (Guidelines § 15180)
Projects consistent with GP, zoning. (Guidelines
§ 15183)
Subsequent, Supplemental EIRs, NDs
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Analyze substantial changes from prior EIR/ND.
(Guidelines §§ 15162, 15163)
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Substantial project changes.
Substantial changes in circumstances.
Substantial new information showing new or
substantially more severe significant effects.
CEQA Addendum
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Documents changes from prior EIR or ND.
(Guidelines § 15164)
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Allowed only if no subsequent or supplemental review
required.
Not circulated for public review.
Considered by decision makers with prior EIR
or ND.
Role of Initial Study in Streamlining
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Use Initial study to document why CEQA analysis
on later projects can be limited.
Revise initial study form for use in streamlining.
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Describe changes to prior project or circumstances.
Analyze whether changes cause substantial impacts
beyond those previously analyzed.
CEQA Litigation
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Standard of review.
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Fair argument standard – little deference to local
determinations.
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Low threshold that favors preparation of EIR.
Substantial evidence standard – more deferential, but
avoid conclusory statements unsupported by facts,
evidence.
CEQA Litigation, continued…
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Create adequate administrative record.
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Document compliance with CEQA procedural
requirements.
Document compliance with CEQA substantive
requirements.
Use staff reports, final resolutions to reflect, summarize
compliane.
Not in the record? It didn’t happen!
CEQA Litigation, continued…
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Strategies for avoiding litigation.
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Create adequate administrative record.
Consider preparing EIR rather than ND to get better
standard of review.
Support conclusions with substantial evidence.
Be flexible with project, if possible and reasonable to
revise project to avoid significant impacts.
Climate Change
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CEQA Guidelines Amendments.
BAAQMD Thresholds and Guidance.
SB 375.
Climate Change – CEQA Guidelines
Amendments
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GHG analysis is required.
Agency discretion.
Thresholds not established.
Elements of analysis:
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Quantify, qualitative, performance standards.
Significance determination.
Mitigations – Types.
Consistency with Plans.
Climate Change – Use of Climate Action
Plans
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Consistency with Plan = CEQA Review.
Plan Elements.
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Quantify Emissions – Baseline and Forecast.
Establish Reduction Level.
Specify Reduction Measures.
Implementation and Monitoring.
CEQA environmental document.
Climate Change – BAAQMD Regs
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Thresholds and “Guidance”.
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1,000 MT CO2eq/year.
Efficiency thresholds – 4.6 MT/service population/year
Consistency with Climate Action Plan
Issues with Plan Elements.
SB 375
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Ongoing Implementation.
Sustainable Community Strategies.
CEQA Exemptions/Streamlining.
Adequate Alternatives Analysis
Identify potentially feasible alternatives in Draft EIR.
 When project approved, determine if alternatives
are actually feasible.
(California Native Plant Society v. City of Santa Cruz)
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