NR 416 Final Study Guide for weenie boys and girls who procrastinate

CEQA Objectives

CEQA makes me want to get FADED

1. Foster intergovernmental coordination

2. Avoid/reduce environmental damage

3. Disclose agency decision making

4. Enhance public participation

5. Disclose environmental impacts

Mechanism for attaining the objective: Disclose environmental impacts

1. Initial studies

2. Negative declarations

3. Environmental impact reports

Mechanism for attaining the objective: Avoid/reduce environmental damage

1. Mitigation measures

2. Alternatives

3. Mitigation monitoring and reporting programs (MMRP)

Mechanism for attaining the objective: Disclose agency decision making

1. Findings

2. Statement of overriding considerations

3. Noticing requirements

Mechanism for attaining the objective: Enhance public participation

1. Scoping

2. Noticing requirements

3. Response to comments

4. Legal/judicial system

Mechanism for attaining the objective: Foster intergovernmental coordination

1. Early consultation

2. Scoping

3. Notice of preparation

4. State clearinghouse

Land use permitting process

Check study guide for this.

Public vs private projects

Private: Entity proposing project, required to finance CEQA process, may conduct own env studies for consideration by Lead agency but LA doesn't have to accept, direct contact to env consultant not recommended

Public: Different division within local departments; responsible for project planning, design, engineering, tech studies, env review, project approval, construction/implementation, and oversight

Discretionary vs. ministerial

Discretionary: requires exercise of deliberation or judgement w project decision, is made judgement/deliberation/subjectivity is required

Ministerial: decision applying fixed, objective standards with little or no judgement required. no level of discretion/judgement/deliberation, no one can say no to permit approval if minimal requirements met for code

Definition of "project"

An activity directly undertaken by a public agency, supported in whole or part through public agency funds, loans, grants, etc.

Involves public agency issuance of a lease, permit, license, land use entitlement, etc. Considers all parts (no segmenting) and only applies to "reasonably foreseeable" actions not remote and speculative.

Examples: grading land, amending zoning ordinance

CEQA participants- define and list examples, where do they fit into the process

Applicant:

-private- entity proposing project, required to finance CEQA process, may conduct own env studies for consideration by Lead agency but LA doesn't have to accept, direct contact to env consultant not recommended

-Public-different division within local departments; responsible for project planning, design, engineering, tech studies, env review, project approval, construction/implementation, and oversight

CEQA: clearinghouse, responsible agency

-Office of Planning & Research (OPR): operates the State ClearingHouse, recommends CEQA guideline revision, categorical exemptions, dispute resolution, database management

-State Clearinghouse (SCH): Env doc distribution, review periods, responsible agency coordination, database management

State Admin and Oversight: formal rulemaking and adoption of guidelines, review/approve "functional equivalent" regulatory programs Example Dept of Forestry, CDFW

Lead Agency: principal responsibility for carrying out or approving a project and therefore main responsibility for preparing CEQA documents, determines level of documentation and scope of document. Determined? Public agency is LA for its own projects even if under another agency's jurisdiction. Private projects have LA with general gov powers (city or county)

Responsible agency: all agencies (other than LA) with discretionary power over proposed project, must actively participate in LA's CEQA process, has to rely on LA's env docs to make project approvals but has to make own findings

Examples: Air Pollution Control District, RWQCB

Trustee Agency: have jurisdiction over certain resources held in trust for people of CA, but don't have legal authority over approving/carrying out project. Could also be LA or Responsible agency. Required to be notified even without permitting or approval power.

ONLY 4: CDFW, CA State Parks, CA state land commission, and Univ of CA

Environmental Consultant: Hired by applicant to conduct tech studies or navigate permitting and env review process or hired by LA to conduct EIA. unbiased/neutral; no conflicts/financial ties to applicant, multidisciplinary team, report directly to LA, LA has ultimate approval over their inclusion in env docs

The public: Essential to CEQA, opportunities include scoping, hearing, comments, courts. LA must make diligent effort to involve public

courts: rule on adequacy of document and CEQA process (can't deny a project). Not many developments end up in court (0.3%)

Be able to describe the fair argument standard (and related case law)

An EIR must be prepared when it can be: fairly argued, based on substantial evidence, in light of whole record, project may have sig env effect (favors opponent/public)

What is substantial evidence?

facts, fact-related reasonable assumption predicated on facts, expert opinion supported by facts. NOT- argument, speculation, unsubstantiated opinion, clearly inaccurate info, econ impact (favors agency)

CEQA and politics- Where do politics fit into the CEQA process. Be able to explain and provide examples

-flexible law: allows for agency control/discretion over CEQA triggers, level of documentation, and scope and content of document

-becomes political for lead agency decision makers (elected officials) and appeal process

-intake of permit and level of CEQA / scope/ approval of project subject to political influences

-Some issue areas political when choosing focus within area

What is tiering (in general)?

The preparation of env docs using multilevel approach, broad to narrow focus.

-Coverage of general environmental matters in broad, program-level EIRs, such as a General Plan EIR, with subsequent focused environmental documents for individual projects that implement the program.

-The project environmental document incorporates by reference the broader discussions in the Program EIR and concentrates on project specific issues.

-CEQA Statutes and the Guidelines encourage the use of tiered environmental documents to reduce delays and excessive paperwork in the environmental review process.

-This is accomplished in tiered documents by eliminating repetitive analyses of issues that were adequately addressed in the Program EIR and by incorporating those analyses by reference.

-Limitations: new activity must be related to original (orig or Tier 1 EIR), Tier 1 must be certified and not declared inadequate by courts (EX Friend of Santa Clara River v. Castaic Lake Water Agency 2002), EIR (not MND) may be required if Tier 2 project may cause sig env effects not adequately addressed in prior EIR (fair arg test) OR if would make considerable contrib to new sig cumulative impact

Project EIR:

examines env impacts of specific development project; most common type of EIR

EX: planning, construction, and operation, focuses on a single development (all phases)

EX: Merced to Fresno

When is Program EIR used?

Used for activities that are linked geographically, parts of a chain of planned events, rules, regulations, or plans, under same agency approval authority and have similar impacts and mitigation requirements

-IF subsequent activity is within scope: No new CEQA doc required, checklist should be used to document determination, feasible mitigation measures must be incorporated into activity, notice of later activity must indicate reliance on Program EIR

-IF out of scope: new initial study is required, either ND, MND, or EIR prepared

-EX: CA High Speed Train, Bay Area to Central Valley

Subsequent EIR

Important revisions addressing sig impacts

Supplemental EIR

Minor additions or changes addressing sig impacts

EIR Addendum

Minor technical changes only, with no sig impact

When is a Recirculation of DEIR needed

If sig new info added after draft EIR avail for pubic review:

New sig impact would result; substantial increase in severity of sig impact unless mitigation adopted; fundamentally inadequate DEIR

EIR Process Overview: Know the general steps. (For example, When is scoping conducted? What is the purpose? What are the noticing requirements (NOP v. NOA v. NOC v. NOD)?

-Purpose: inform decision makers and public about potential sig env effects of proposed development and ways to reduce, show env being protected, ensure political accountability by disclosing citizens env values held by elected and appted officials

-General parts: Initial study, notice of preparation (NOP), scoping, ADEIR (for LA review), DEIR (public review), Public Notice of DEIR Avail (NOA?), Notice of Completion (NOC) for SCH and must submit 15+ copies of DEIR for agency distribution via SCH, Review Periods, FEIR (Draft + comments & responses to comments), certifying FEIR with findings, Agency decision making, noticing requirements

-NOP: Notice of Preparation, includes description, location, public hearing info, discussion of probable env effects, where doc avail for comments

-EIR can be initiated while waiting for comments from responsible agencies, Responsible agencies and public have 30 days to review and comment on an NOP. Their concerns need to be addressed in the EIR.

-Procedures: send to state clearinghouse, resp agencies, trustee agencies, and involved fed agencies. Send to jurisdictions, indivs, and groups w interest in project. use certified mail, 30 days runs from date of receipt

-Scoping: meeting req in addition to NOP when Requested by Responsible or Trustee Agency, OPR, or applicant... Project is of statewide, areawide, or regional significance..Affects highways/facilities and requested by Caltrans

-Must notify agencies with jurisdiction by law, & individuals or groups filing written request for notice

-Benefits of Scoping: Eliminates environmental issues not important to the issue at hand, Effective way to bring together and resolve the concerns of interested federal, state and local agencies, Allows for public involvement (including project opponents), Range of implementation and success

-A/DEIR: Table of contents, Executive Summary, Project Description, Environmental Setting, Environmental Impacts Analysis (Direct, Indirect, Short-term, Long-term, Cumulative, Unavoidable), Mitigation Measures, Growth Inducing Impacts, Effects Found not to be Significant, Alternatives (No Project Alternative, Environmentally Superior Alternative), Significant Irreversible Changes, References, Organizations and Persons Consulted

~dif btwn ADEIR & DEIR? ADEIR sent to lead agency for edits which are then added in to form the DEIR which goes to public for comments

-Noticing:

NOC = notice of completion, filed w state clearinghouse. Says where env doc avail, comment period, and hearing dates.

NOA = notice of availability, IDs sig impacts, distrib to those on previous notice requests, newspaper, direct mailing, posting

NOD = notice of determination; states if sig env effects, EIR certified to CEQA, mitig cond and SOC if req, address where EIR cert examined. LA must file after deciding to certify EIR and approve project. Filing and posting; Within 5 working days after project approval, Posted with the county clerk for at least 30 days, Filed with State Clearinghouse for at least 30 days, DFG Fee required at time of filing, Starts 30 day Statute of Limitations (180 days if not filed and posted)

-AFEIR & FEIR: response to comments revise DEIR directly or separate FEIR doc, no sep review period

Who are "The Decisionmakers" and what is the decisionmaking process (see lecture slides)... what decisions are they making?

-Lead agency = dec maker?

Process:

1. Consider and certify EIR; compliance w CEQA, reps LA's judgement

2. Approve project; make findings, adopt MMRP and statement of overriding consids if necessary

3. Issue permit; CEQA statute of limitations, all other permits received, approp cond of approvals (mitigations) complete

What are Findings?

Basis for the Lead Agency's decision; A written statement made by the decision making body of the Lead Agency that explains how it dealt with each significant impact and alternative in the EIR, Responsible agencies must make their own findings.

-Only 3 possibilities:

1. Project changed to avoid/subst reduce magnitude of impact

2. Changes to project within another agency's jurisdiction and changes have been/will be made

3. Economic, legal, social, tech, other consids like employment of highly skilled workers makes mitig/alts infeasible

What is a Statement of Overriding Considerations? When is it required?

Statement needed for approval of project with remaining sig effects. Has reasons to approve a project where significant impacts are not avoided or substantially lessened

Reasons can be economic, legal, social, technological or other, Must be supported by substantial evidence in the record

What is a MMRP?

Mitigation Monitoring or Reporting Plan: Required by CEQA to adopt for changes made to project or cond of approval to mitigate or avoid sig effect. Program shall be designed to ensure compliance during project implementation. adopted /certified sep from EIR usually at time of certification of DEIR

EIR Contents: Executive Summary- importance, purpose, key contents

one of most imp sections, many reviewers only read this, should be last section made. Key components are sig effects and mitigation measures (often in matrix format, grouped by issue area or impact class), areas of known controversy, issues raised by agency/public, unresolved issues

EIR Contents: Project Description- importance, purpose, key contents

also very imp and challenging bc being made before EIR process has started, complete before NOP distrib, Include: objectives, location, project char, reasonably foreseeable future phases, req approvals/permits, agencies using EIR

EIR Contents: -Project Objectives- importance, how to develop, relationship to Alternatives Analysis:

CEQA:

"A clearly written statement of objectives that will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary. The statement of objectives should include the underlying purpose of the project and why it's needed"

Objectives of LA (written from standpoint of public need) and applicant

-Accurate, stable, complete.

-Scope: all project components; utilities; reasonably foreseeable future phases

EIR Contents: Environmental Setting and Baseline- importance, purpose, how to develop, components (or dimensions)

baseline physical cond that LA uses to det impact sig, must be estab before impacts of project can be det/measured; temporal, spatial, and functional dimensions, usually det at time of NOP or when env anal commenced if no NOP

Includes: proj site descrip, vicinity, regional descrip, policy & planning context

-Is the environmental setting ALWAYS a description of the site at the time of NOP preparation? No, there are exceptions! Is it ever appropriate to use a historical or future baseline? Yes historical In what circumstances? only if supported w substantial evidence, such as actual entitlements for those historic levels, and demonstration that the use at those levels had previously occurred

-What does Case Law say about it (North County Advocates vs. City of Carlsbad during traffic analysis, city applied existing cond env baseline w premise that Robinsons-May bldg of shopping center renovation fully occupied when actually empty for years; Communities for a Better Environment v. South Coast Air Quality Management Dist air districts selected air emission baseline impermissibly hypothetical bc based on max permitted operating cond that were not norm/never been reached

Definition of impact

The environmental changes a project causes

Direct/Primary impact

An impact that occurs at the same time and place of project development, EX removing a tree

Indirect/Secondary impact

Reasonably foreseeable and caused by project, but occur at diff time and place, produced as result of complex impact pathway

EX: Oceano dunes with high amount of automobiles creates lower air quality in Nipomo

Growth-Inducing Impacts: definition, common examples

Result if project fosters econ/pop growth or add housing, removes obstacles to growth, or encourages building new facilities that cause sig env eff. secondary/indirect.

Level of analysis not specified. Best evaluated in program/master EIRs, subsequent EIRs may reference. Should not be assumed beneficial/detrimental

EX: Expansion of public facilities like wastewater trtmt plant, extension of public transit line like Bart, extension of public services located outside CSA boundaries, Sig employment gen, sig housing ^

Cumulative Impacts- Definition, methodologies (list v. projection approach), how to identify "past, present, and probable future projects"

two or more indiv effect which when considered together are considerable which ^ env impacts

List approach: list of past, present, and reasonably foreseeable future projects. Consider location, jurisdiction, types, and size of other projects

Projection approach: summary of projections based on general plan/similar planning doc

General methodology for alternatives analysis

Steps:

1. Describe proj obj

2. Conduct assessment of proj sig env imp

3. Dev screening criteria for feasibility of alts

4. Select reasonable range of alts (must meet most or all of proj obj)

5. Explain why other alts have been rej from consid

6. Conduct detailed env analysis of reasonable range of alts and no project

7. ID env superior alt

Reasons for eliminating potential alternatives (relate to feasibility, project objectives, and impacts):

financial, social, legal, technologically infeasible

Situations where alternative locations are applicable/feasible (and where they are not)

-Public project (because of eminent domain)

-Project proponent owning or controlling or having access/lease of feasible alternative sites

-Two or more developers seeking approval for same type of development at different locations

No Project Alternative- how to define?

Purpose = provide comparison of env impacts that would result if proj approved vs. what would occur if proj not approved

Environmentally Superior Alternative

must ID another if "no project" alternative is IDed. LA not obligated to adopt; Findings must det infeasible w subst ev

Mitigation Measures:Purpose

must mitigate if sig env effect IDed

Mitigation Measures:Feasible, Implementable, Enforceable

Feasible= mitig must have essential nexus and be roughly proportional to IDed sig imp (have to eat broccoli to get ice cream)

Mitigation Measures: Five Types/Categories (A/M/R/R-E/C)- be able to provide a brief description/example

-Avoid: impact altogether by not taking certain actions or parts of actions

EX redesign plans to avoid wetland

-Minimize: impact by limiting degree/mag of action and imp

EX perform construction during non-seeding season

-Rectify: impact by repairing, rehabing, or restoring affected env onsite

EX treat contaminated water onsite

-Reduce/elim: impact over time through preservation and maintenance during life of action

EX planting veg near noise wall to reduce aesthetic impact

-Compensate: impact by replacing/providing sub resources/env offsite

EX planting oak trees offsite

Questions for effective mitigation measures - be able to use these to critically evaluate an example mitigation measure:

How will it be impacted?

Who is responsible for implementation & oversight?

Where & when will occur?

What are the criteria?

What steps taken if criteria aren't met?

Nexus and rough proportionality - define and cite/understand case law and relationship to 5th amendment (know Nollan, Dolan, Erlich, and Koontz cases)

Essential nexus= clear connection between proposed mitig measure and IDd significant effect.

Roughly proportional: mitig requiring dedication of private prop or requiring monetary exactions must be roughly prop to impact of proposed dev.

5th amendment: "takings clause" is constraint bc "private property shall not be taken for public use, w/o just compensation"

Mitigation monitoring- importance

Obj: ensure implementation of mitig measures during proj, allow for adaptive mgmt, provide feedback and learning opportunities on mitig effectiveness and improving in future proj, ID need for enforcement action to prevent env damage

format: list impact, mitig measure, who implemented and the phases of implementation, and monitoring

Typical issues and trends of CEQA Case laws

-Neither OPR or Nat Res Agency has authority to enforce reqs of CEQA

-Courts have played major role extending CEQA's applicability and effect, have high standard for procedural accuracy. Noticing; Resp/trustee agency consultation, etc

-trends: fewer than 1% permit applications that are subject to CEQA are actually litigated

-Issues: Def of project and exemptions, failure to prep EIR, adequacy of EIR (rule of reason, expert disagreement allowable, also minor tech defects...etc), defer to LA if methods/results backed by subst ev

CEQA Case law: What are the Statute of limitations

Time after permit issued that the process can appealed

-35 days after agency filed/posted NOE (Notice of Exemption)

-30 days after agency has filed/posted NOD(Notice of Determination) (for MND or EIR)

-180 days after agency decides to approve/carry out project or from proj commencement if no formal approval req/no NOE or NOD filed

CEQA Case law: The Administrative Record

-Consists of docs and materials dir/indir considered by agency decision maker in making challenged dec; can be application and supplemental material, CEQA doc and supplemental ev, staff reports, public hearing records, public notices, written comments, all corresp (emails and texts)

-Included whether supports agency dec or not

-Public and Agency comments from hearings and meetings become part of the Administrative record.

-Lead Agencies required to respond at some point during process

Friends of Mammoth v. Board of Supervisors of Mono County (1972)

Extended CEQA's reach beyond just public projects to also include private projects requiring a government permit or entitlement. (in regards to discretionary projects)

Nollan v. California Coastal Commission (1987)

Details

-Replacement of existing bungalow with 3-bedroom house (Ventura Co)

-Aesthetic impacts - CA Coastal Act requires diminishing the "blockage of the view of the ocean"

-California Coastal Commission granted development permit with condition to grant public access easement along beachfront

The Nollan case described the "nexus" requirement for exactions.

-US Supreme Court found the requirement unconstitutional because of the insufficient nexus between the public burden created by the proposed construction and the permit condition required by the CCC.

-"unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but an out-and-out plan of extortion."

Therefore, in order for an exaction (or mitigation) to be valid, the type of condition imposed must address the same type of impact caused by the new development.

Sundstrom v. County of Mendocino (1988)

Approval of a sewage plant that serves small community of buildings but a big development was coming in

Level of documentation in question - initially determined the ND was needed with mitigation measures being established later after a hydrographic survey

Court said they violated CEQA

-Needed to resolve all uncertainties

-Lack of evidence

Dolan v. City of Tigard (1994)

Details

-Project: Redevelopment (expand building, pave parking lot) of existing retail store in OR.

-Impacts: Traffic, Water Resources (Flooding)

-City approved permit w/ condition that owner donate portion of her property for flood control and traffic improvements.

-Public greenbelt and pedestrian/bike path along creek frontage

Judicial Rulings

OR Appeals and Supreme Court sided with City (met requirements of Nollan)

US Supreme Court overturned

Exactions not proportional to impact

Public vs. private (greenway)

Substantial evidence (bike path to offset traffic increase)

Ehrlich v. City of Culver City (1996)

Details

-Project: multi-unit residential condominium; replacing previously operated private tennis club and recreational facility.

-Re-zone required (REC to RES) REC impact: shortage of facilities in the city; developer required to pay a mitigation fee of $280,000 as a condition for approval of his project.

Judicial Rulings

-Bounced around lower courts (insert lots of legal jargon). Basically: Superior Court and Appeals Court did not uphold the City's decision

-CA Supreme Court reversed the rulings "Takings" clause also applies to monetary exactions Record was insufficient to justify proportionality of the $280,000 fee as a condition for approval of the project.

City of Marina et al. v Board of Trustees of the CA State University (2006) and City of San Diego v. Board of Trustees of the CA State University (2015)

Very dense, moral of the case was that CSU monterey bay tried to get out of mitigation because the property wasnt theirs yet.

-Courts said they have to pay for mitigation with the military base conversion association.

-Cites a lot of previous cases.

-Basically the same case twice

Koontz v. St. John's River Water Management (2013)

Details Project:

-develop commercial land, most of which lies within a riparian habitat protection zone in Orange County, Florida

-Applied for a dredge and fill permit with the St. Johns Water Management District. WMD agreed to grant the permit, but only on the condition that he place a conservation easement over his land, and perform mitigation off-site by replacing culverts and plugging certain drainage canals on other properties not owned by Koontz and miles away from the property.

-When Koontz refused to perform the off-site mitigation, WMD denied the permit.

Judicial Rulings

-Taking (using Nollan and Dolan) denied at state court level:

(1) Nollan and Dolan apply only to forced dedications of interests in real property (not to mitigation work); and

(2) Nollan and Dolan apply only when government approves and issues a permit with conditions (not when it denies a permit, and therefore nothing has been demanded of or taken from the landowner).

-US Supreme Court overturned:

(1) Nollan and Dolan apply to an exaction that takes the form of a government demand that the applicant improve property off-site; and

(2) these doctrines extend to permit exactions, where the permit has been denied due to the applicant's rejection of that exaction.

Berkeley Hillside Preservation v. City of Berkeley (2015)

Approval of a 6,500-square-foot house and 10-car garage on a steep hillside lot. City determined that the project was exempt from CEQA under the categorical exemptions for small projects and in-fill development. Neighborhood group challenged the approval and the exemption determination, arguing that the size of the house and the lot characteristics were "unusual circumstances" triggering the need for environmental review. Courts created two-part test.

California Building Industry Association v. Bay Area AQMD (2015)

The Court invalidated these two sentences of the Guidelines:

"In light of CEQA's text, statutory structure, and purpose, we conclude that agencies generally subject to CEQA are not required to analyze the impact of existing environmental conditions on a project's future users or residents. But when a proposed project risks exacerbating those environmental hazards or conditions that already exist, an agency must analyze the potential impact of such hazards on future residents or users. In those specific instances, it is the project's impact on the environment - and not the environment's impact on the project - that compels an evaluation of how future residents or users could be affected by exacerbated conditions."

Keep our Mountains Quiet v. County of Santa Clara (2015)

Santa Cruz mountains; adjacent to Open Space Preserve History of unpermitted special events onsite; neighbor complaints regarding noise and traffic

-Permit to allow for wedding and special events on 14.5-acre site (up to 100 people per event).

-MND Prepared Noise study used "mock" event to determine impacts; Noise impacts did not exceed noise ordinance standards

-Traffic report prepared- acceptable levels of service on local roadways

Three conditions of project approval

1. Orienting speakers away from neighboring residences

2. Posting a noise complaint phone number

3. Conducting an annual report assessing compliance with the conditions in the first year.

Land Use permit issued; County sued by local NGO Noise. Said the study was flawed with the following: Traffic hazards (roadways design) not adequately considered, Biological resources impacts section flawed- no consideration of noise impacts on species, Recreational impacts section flawed- no consideration of noise impacts on future trail users

Potential for significant impacts- EIR needed.

Court Findings: Neighbors' comments about the discrepancy in noise levels between the mock event and actual events constituted substantial evidence supporting a fair argument that the project may have unmitigated noise impacts. Substantial evidence that the project may have significant traffic impacts. The testimony the court cited related facts about road conditions based upon personal knowledge. The court agreed increased traffic from the project may substantially increase existing design feature-related hazards.Evidence supported a reasonable inference that the project may have significant impacts on biological resources. The evidence that mountain lions and bobcats live in the Open Space Preserve and that noise may negatively affect them, combined with evidence that the mock event caused noise levels at the Property line with the Preserve to reach 70.1 dBA, supported a reasonable inference that the Project may have significant effects on biological resources. By contrast, no substantial evidence supported a fair argument of significant noise impacts on Preserve visitors. No trails have yet been established and no evidence showed how many permit-only visitors the Preserve actually has or how close they may get to the Property CEQA "focus[es] on impacts to the existing environment, not hypothetical situations."