The Office of Planning and Research (OPR) has issued a final version of its proposed revisions to the CEQA guidelines. The Natural Resources Agency will soon begin the formal administrative rule making process under the Administrative Procedure Act. This rule making process will entail additional public review, and may lead to further revisions. After completing the process, the Secretary for the Natural Resources Agency may adopt the changes. Changes would only go into effect after the Office of Administrative Law reviews and approves them.
The agency has divided the amendments into three categories—Efficiency Improvements,Substantive Improvements and Technical Improvements. The following was taken from the Executive Summary for the Proposed Update in November 2017.
First, the amendments promote use of existing regulatory standards in the CEQA process. Using standards as “thresholds of significance” creates a predictable starting point for the analysis, and allows agencies to rely on the expertise of other regulatory bodies, without foreclosing consideration of possible project specific effects.
Second, the amendments propose to update the environmental checklist that most agencies use to conduct their environmental review. Redundant questions in the existing checklist would be eliminated and some questions would be updated to address contemporary topics. The checklist has also been updated with new questions related to transportation and wildfire.
Third, the amendments include several changes to make existing programmatic environmental review easier to use for later projects. Specifically, it clarifies the rules on tiering, and provides additional guidance on when a later project may be considered within the scope of a program EIR thereby obviating the need for additional environmental review.
Fourth, the amendments revise several exemptions expanding an existing exemption for projects implementing a specific plan to include not just residential, but also commercial and mixed-use projects near transit. It also clarifies the rules on the exemption for changes to existing facilities so that vacant buildings can more easily be redeveloped. Changes to that same exemption would also promote pedestrian, bicycle, and streetscape improvements within an existing right of way.
Finally, the amendments include a new section to assist agencies in complying with CEQA in response to a court’s remand, and to help the public and project proponents understand the effect of the remand on project implementation.
First, the Substantive Improvement amendments would provide guidance regarding an energy impacts analysis. Specifically, it would require an EIR to include an analysis of a project’s energy impacts that addresses not just building design, but also transportation, equipment use, location, and other relevant factors.
Second, the Substantive Improvement amendments propose guidance on the analysis of water supply impacts. It requires analysis of a proposed project’s possible sources of water supply over the life of the project and the environmental impacts of supplying that water to the project. The analysis must consider any uncertainties in supply, as well as potential alternatives.
Third, the Substantive Improvement amendments includes propose updates related to analyzing transportation impacts pursuant to Senate Bill 743. These updates will specify that vehicle miles travelled is the appropriate measure of transportation impacts for most projects.
Finally, the amendments include proposed updates related to analyzing the impacts from greenhouse gas emissions.
It adds that the focus of the GHG analysis should be “on the project’s effect on climate change” and should not focus on “the quantity of emissions, and in particular how that quantity of emissions compares to statewide or global emissions.” Agencies should “consider the reasonably foreseeable incremental contribution of the project’s emissions to the effects of climate change,” but avoid speculation, according to OPR.
The changes also direct agencies to consider appropriate time frames for the GHG analysis of their project, noting that in some cases, it would be appropriate for agencies to consider a project’s long-term greenhouse gas impacts, such as for projects with long time horizons for implementation. The changes clarify that agencies can rely on existing GHG reduction plans, such as Climate Action Plans, when conducting
the GHG analysis.
The Technical Improvement amendments also include technical changes to conform to recent cases and statutory changes. For example, it includes changes related to evaluation of hazards mandated by the California Supreme Court in CBIA v. BAAQMD (2015) 62 Cal.4th 369.
Another change clarifies when it may be appropriate to use projected future conditions as the environmental baseline. Another change addresses when agencies may defer specific details of mitigation measures until after project approval.
The Technical Improvement amendments also propose a set of changes related to the duty of lead agencies to provide detailed responses to comments on a project. The changes would clarify that a general response may be appropriate when a comment submits voluminous data and information without explaining its relevance to the project. Other changes address a range of topics such as selecting the lead agency, posting notices with county clerks, clarifying the definition of “discretionary,” and others.
Finally, the amendments include technical changes to Appendices D and E to reflect recent statutory requirements and previously adopted amendments to the CEQA Guidelines, and to correct typographical errors.
Additional Technical Improvements include those related to: pre-approval agreements; lead agency by agreement; common sense exemption; preparing the initial study; consultation with transit agencies; citations in environmental documents; posting notices with the county clerk; time limits for negative declarations; project benefits; joint NEPA/CEQA documents; using the emergency exemption; discretionary projects; conservation easements as mitigation; and Appendices C and M to the CEQA Guidelines.
Craig A. Tristao is a Partner in the litigation and transactions departments of the firm’s Fresno office. He provides representation to clients in litigation matters involving agricultural law, environmental law, construction law, land use and natural resource law, water law, probate and estates, and eminent domain matters that involve the California High Speed Rail Authority. Craig also assists clients with regulatory compliance issues concerning the Clean Water Act (CWA), the Porter-Cologne Act, and the Clean Air Act (CAA). In addition to litigation, Craig also represents clients before the Regional Water Quality Control Boards and the State Water Resources Control Board, air districts, and the Contractors State License Board (CSLB). He has also been named a Super Lawyers “Rising Star” for 2015-2018 (2.5% of lawyers practicing under 10 years). You can contact Craig at (559) 248-4820 or firstname.lastname@example.org.