1. 400 Mendocino Avenue Suite 100 Santa Rosa, CA 95401 Tel.: 707.545.8009 www.meyersnave.com © 2010 Meyers Nave Riback Silver & Wilson. All rights reserved. CEQA: California Environmental Quality Act Presented by: Kathleen Faubion Tim Cremin January 19, 2010

2. 2 California Environmental Quality Act (CEQA) Establishes a (mostly) procedural framework by which local agencies are required to examine the impact of their decisions on the environment. Establishes a (mostly) procedural framework by which local agencies are required to examine the impact of their decisions on the environment.

3. 3 CEQA Overview Purpose of CEQA Purpose of CEQA Codified in the Public Resources Code beginning at § 21000. Codified in the Public Resources Code beginning at § 21000. Requires public agencies to identify and consider the environmental consequences of their discretionary actions. Requires public agencies to identify and consider the environmental consequences of their discretionary actions. Private development applications. Private development applications. Public works projects and improvements. Public works projects and improvements.

4. 4 CEQA’s Core Principles Projects should try to avoid or reduce adverse environmental impacts. 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 decision makers should make informed decisions about the environmental consequences of their decisions. Public participation is integral to the environmental review process. Public participation is integral to the environmental review process. Environmental review should occur as early in the life of the project as possible. Environmental review should occur as early in the life of the project as possible.

5. 5 CEQA General Structure CEQA is primarily a procedural statute. CEQA is primarily a procedural statute. CEQA contains some substantive requirements. 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.) “…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.)

6. 6 CEQA Implementation through Administrative Guidelines 14 California Code of Regulations § 15000 et seq. 14 California Code of Regulations § 15000 et seq. Reflect the statutory requirements of CEQA and case law interpretations. 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)). 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. 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). CEQA requires local agencies to establish local guidelines. (§ 21082).

7. 7 The Players Lead agency. Lead agency. Responsible agency. Responsible agency. Environmental consultants. Environmental consultants. Applicant, project proponent. Applicant, project proponent.

8. 8 Local Implementation of CEQA Hierarchy of decision-making. Hierarchy of decision-making. Staff analysis and recommendation. Staff analysis and recommendation. Planning Commission. Planning Commission. City Council. City Council.

9. 9 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).

10. 10 “Project” Only Discretionary Action 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 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. 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.

11. 11 Elements of a “Project” Project = direct physical changes from presently proposed physical activity. Project = direct physical changes from presently proposed physical activity. Project = indirect physical changes set in motion by present approval. Project = indirect physical changes set in motion by present approval. Project = the applications submitted for review and 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)). 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)).

12. 12 “Project”, continued… Practice Tip: Include a description of the existing physical setting and conditions of the project site in the Project Description. 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. Practice Tip: Identify project applications in order of land use hierarchy.

13. 13 “Project” under Save Tara Standards Case-by-case determination. Case-by-case determination. Factors to evaluate Factors to evaluate Definiteness of Project. Definiteness of Project. Agency Commitment to Project. Agency Commitment to Project. Surrounding Circumstances. Surrounding Circumstances. Analysis of Project impacts and alternatives must remain. Analysis of Project impacts and alternatives must remain.

14. 14 Is the Project Exempt from CEQA review? CEQA does not apply to projects that are exempt. (§ 21080(a)). CEQA does not apply to projects that are exempt. (§ 21080(a)). Statutory exemptions. Statutory exemptions. Legislative policy that any negative environmental consequences of the project are outweighed by its benefits. Legislative policy that any negative environmental consequences of the project are outweighed by its benefits.

15. 15 Types of Statutory Exemptions Minor infrastructure improvements. Minor infrastructure improvements. Residential Projects Consistent with Specific Plans. Residential Projects Consistent with Specific Plans. Specified Affordable or Infill Housing. Specified Affordable or Infill Housing.

16. 16 Categorical Exemptions Categorical exemptions. 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.). 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. Limited by exceptions in CEQA § 21084 and Guidelines § 15300.2. Narrowly construed. Narrowly construed.

17. 17 Types of Categorical Exemptions Minor alteration to or replacement of existing structure. Minor alteration to or replacement of existing structure. Small construction or development projects. Small construction or development projects. Agency actions to protect environment. Agency actions to protect environment.

18. 18 Exceptions to Categorical Exemptions Significant environmental effect due to unusual circumstances. Significant environmental effect due to unusual circumstances. Significant cumulative impacts from projects of same type. Significant cumulative impacts from projects of same type. Damage to historic resource. Damage to historic resource.

19. 19 Notice of Exemption Form. Form. Filing. Filing. 35 day statute of limitations. 35 day statute of limitations.

20. 20 Initial Study 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). 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).

21. 21 Environmental Checklist in CEQA Guidelines CEQA Guidelines § 15063(d) identifies the required content for initial studies. CEQA Guidelines § 15063(d) identifies the required content for initial studies. Appendix G of the Guidelines includes the required content. Appendix G of the Guidelines includes the required content. Information about the applicant, the project, the regulatory setting. Information about the applicant, the project, the regulatory setting. Determination as to whether an ND, MND or EIR should be prepared. Determination as to whether an ND, MND or EIR should be prepared. Environmental checklist by topic. Environmental checklist by topic. Explanation of checklist answers. Explanation of checklist answers.

22. 22 Thresholds of Significance Identifies the point at which an impact becomes significant. Identifies the point at which an impact becomes significant. Can be quantitative, such as traffic level of service standards or noise exposure standards. 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. Can also be qualitative, such as substantial impairment of scenic resources. Appendix G checklist questions often include thresholds. Appendix G checklist questions often include thresholds. Example: Will the project violate established air quality or water quality standards? Example: Will the project violate established air quality or water quality standards?

23. 23 Mandatory Findings of Significance Based on the direction in CEQA §§ 21001(c), 21083. (See also CEQA Guidelines § 15065). 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. Requires EIR (or MND?) if any of the findings is made.

24. 24 Initial Study Pointers 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). 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. Access Appendix G at http://www.califaep.org/Content/Documents/Document.ashx?DocId=47166.

25. 25 Determining Whether Negative Declaration or EIR Required Fair Argument Standard. Fair Argument Standard. Substantial Evidence to Support Decision. Substantial Evidence to Support Decision.

26. 26 Fair Argument Standard “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, 1000-1003.) “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, 1000-1003.)

27. 27 Fair Argument Creates a “low threshold” for requiring preparation of an EIR. Creates a “low threshold” for requiring preparation of an EIR. It is a question of law not fact for the reviewing court. It is a question of law not fact for the reviewing court. The court owes no deference to the lead agency’s decision. The court owes no deference to the lead agency’s decision.

28. 28 Fair Argument Review is de novo, with a preference for resolving doubts in favor of environmental review. 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. Lead agency is entitled to resolve legitimate disputes regarding the credibility of evidence.

29. 29 What is “Substantial Evidence?” “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.” “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).) (Guidelines, § 15384, subd. (a).) Substantial evidence “shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” Substantial evidence “shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” (Guidelines, § 15384, subd. (b).) (Guidelines, § 15384, subd. (b).)

30. 30 What is “Substantial Evidence?” Relevant personal observations of people residing in the area of a project concerning nontechnical subjects may qualify as substantial evidence. 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. 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.)

31. 31 What is not “Substantial Evidence?” “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).) “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).)

32. 32 Negative Declaration Draft negative declaration. Draft negative declaration. Public review of draft negative declaration. Public review of draft negative declaration. Adopt negative declaration. Adopt negative declaration.

33. 33 What is a Negative Declaration? 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.) 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.)

34. 34 When Can a Lead Agency Use a Negative Declaration? 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).) 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). 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).

35. 35 “Draft” Negative Declaration A Negative Declaration circulated for public review shall include: A Negative Declaration circulated for public review shall include: A brief description of the project, including a commonly used name for the project, if any; 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; 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; A proposed finding that the project will not have a significant effect on the environment;

36. 36 “Draft” Negative Declaration A Negative Declaration circulated for public review shall include: A Negative Declaration circulated for public review shall include: Project Description. Project Description. An attached copy of the Initial Study documenting reasons to support the finding.(Guidelines, § 15071.) An attached copy of the Initial Study documenting reasons to support the finding.(Guidelines, § 15071.)

37. 37 Public Review 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. 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 20- day public review period. The notice of intent to adopt must allow for a minimum 20- day public review period. Minimum 30-day review period if submitted to State Clearinghouse. Minimum 30-day review period if submitted to State Clearinghouse.

38. 38 Public Review The notice of intent to adopt must be mailed to all individuals and organizations that have requested a copy 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: The notice must also be provided by one of the following: Publication in a newspaper of general circulation in the area. 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. 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.) Direct mail to all owners and occupants of property contiguous to the project. (Guidelines, § 15072.)

39. 39 Public Review Public may provide written comments on the project and/or the proposed Negative Declaration/MND. 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. 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. Some agencies choose to respond to written comments; response usually in the staff report anyway.

40. 40 Adoption of the Negative Declaration Prior to approving project lead agency must consider negative declaration. Prior to approving project lead agency must consider negative declaration. Must also consider any comments received. 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. 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.

41. 41 Adoption of the Negative Declaration The lead agency must also find that the negative declaration reflects its independent judgment and analysis. 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.) 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.)

42. 42 Mitigated Negative Declaration Standard of review: fair argument standard. Standard of review: fair argument standard. Public review of draft mitigated negative declaration. Public review of draft mitigated negative declaration. Adopt mitigated negative declaration and mitigation monitoring program. Adopt mitigated negative declaration and mitigation monitoring program.

43. 43 What is a Mitigated Negative Declaration? 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 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 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. 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. 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.

44. 44 When Can a Lead Agency use an MND? The Initial study identifies potentially significant environmental impacts of the project. 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. 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.

45. 45 Draft MNDs Must include everything that a Negative Declaration includes. Must include everything that a Negative Declaration includes. Must also include a description of the mitigation measures to be incorporated into the project. 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. Adequacy of MND mitigation measures held to the same standards of adequacy as in EIRs. (Guidelines § 15071)

46. 46 For any significant impact, the agency must require feasible mitigation measures, or may identify feasible environ- mentally superior alternatives (Pub. Res. Code, §§ 21002, 21081(a); Guidelines, §§15002(a) (3) 15021(a) (2), and 15091(a) (1)) For any significant impact, the agency must require feasible mitigation measures, or may identify feasible environ- mentally 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) 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) Mitigation Measures

47. 47 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. 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. For example, it is permissible if the mitigation measure commits the agency to a realistic performance standard or criterion that must be met. Deferred Mitigation

48. 48 Adoption of an MND Lead agency must consider the MND and any comments received. 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, 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. Must find that the MND reflects the lead agency’s independent judgment and analysis.

49. 49 Mitigation Monitoring and Reporting Program For an MND, the lead agency must also adopt a mitigation monitoring and reporting program. 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) The monitoring program must be designed in a way that the lead agency can ensure that the required mitigation measures are implemented. (Guidelines, § 15097)

50. 50 Environmental Impact Reports EIR Process and EIR Content. EIR Process and EIR Content.

51. 51 Purpose of an EIR Identify, analyze, mitigate significant impacts. Identify, analyze, mitigate significant impacts. Provide information to decision makers, public. Provide information to decision makers, public. Opportunity for public involvement. Opportunity for public involvement. Ensure environmental protection. Ensure environmental protection.

52. 52 Notice of Preparation Solicit direction from agencies on scope and content of EIR information. Solicit direction from agencies on scope and content of EIR information. Content requirements; may be satisfied by attaching initial study. Content requirements; may be satisfied by attaching initial study. Send to Office of Planning and Research, responsible agencies, trustee agencies. Send to Office of Planning and Research, responsible agencies, trustee agencies. Agencies must respond within 30 days. Agencies must respond within 30 days.

53. 53 EIR Scoping NOP process. NOP process. Optional meetings authorized. Optional meetings authorized. Mandatory meetings for projects of statewide, regional, or area-wide significance; or where requested by Caltrans. Mandatory meetings for projects of statewide, regional, or area-wide significance; or where requested by Caltrans. Use of App G Checklist in Scoping Process. Use of App G Checklist in Scoping Process.

54. 54 Notice of Completion CEQA Guidelines Appendix L. CEQA Guidelines Appendix L.

55. 55 Notice of Completion of Draft EIR Appendix L

56. 56 Public Review of Draft EIR File Notice of Completion with OPR; may need to send Draft EIR also. File Notice of Completion with OPR; may need to send Draft EIR also. Request comments on the Draft EIR from responsible and trustee agencies. Request comments on the Draft EIR from responsible and trustee agencies. Provide notice to public through Notice of Availability of Draft EIR. 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 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. Public hearing to accept comments on a Draft EIR are optional, but may be required by local ordinance or guidelines.

57. 57 Final EIR Prepare Responses to Comments received during the public review period. Prepare Responses to Comments received during the public review period. Provide reasoned, good faith analysis of comments that raise significant environmental issues. Provide reasoned, good faith analysis of comments that raise significant environmental issues. Practice Tip: Make sure the “response” fully responds to the issue. Practice Tip: Make sure the “response” fully responds to the issue.

58. 58 Send Draft Responses to Public Agency Commentors Send proposed responses to public agencies who commented on the Draft EIR; no similar requirement for other commentors. 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)) Responses must be sent no fewer than 10 days before the EIR is certified. (Guidelines § 15088(6))

59. 59 Determine if Draft EIR Must Be Recirculated Is there new information that shows a new or substantially more severe significant impact? 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 there new information on a feasible alternative or mitigation measure but the applicant declines to adopt it? Is the Draft EIR fundamentally flawed? Is the Draft EIR fundamentally flawed?

60. 60 Prepare and Certify a Final EIR Final EIR = Draft EIR + comments and responses, and other per Guidelines § 15132. Final EIR = Draft EIR + comments and responses, and other per Guidelines § 15132. EIR certification (Guidelines § 15090). EIR certification (Guidelines § 15090). EIR completed in compliance with CEQA (and Guidelines). EIR completed in compliance with CEQA (and Guidelines). EIR presented to decision maker, who reviewed and considered the information before approving the project. 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. EIR reflects the lead agency’s independent judgment and analysis. Identify, Prepare Findings to Support Project Approval. Identify, Prepare Findings to Support Project Approval.

61. 61 Managing EIR Consultants Kick-off meeting on expectations. Kick-off meeting on expectations. Substantive analysis. Substantive analysis. Format, style. Format, style. Timeline. Timeline. Review, monitor ongoing work. Review, monitor ongoing work.

62. 62 Contents of Draft EIR Guidelines § 15120-15132. Guidelines § 15120-15132. Contents, structure of impact analyses. Contents, structure of impact analyses. Identify significant impact. Identify significant impact. Identify feasible mitigation measures, feasible alternatives. Identify feasible mitigation measures, feasible alternatives. Determine if mitigations, alternatives will reduce impact to less than significant. Determine if mitigations, alternatives will reduce impact to less than significant.

63. 63 Project Description Guidelines § 15124. Guidelines § 15124. Must be accurate, stable, finite, and include all project components. Must be accurate, stable, finite, and include all project components. Must include reasonably foreseeable future phases. Must include reasonably foreseeable future phases. Identify comprehensive, well-crafted project objectives. Identify comprehensive, well-crafted project objectives. Identify intended uses of the EIR by other agencies, for other permits. Identify intended uses of the EIR by other agencies, for other permits.

64. 64 Environmental Setting Baseline for measuring impacts. Baseline for measuring impacts. Existing physical conditions at NOP. Existing physical conditions at NOP. Local and regional perspective. Local and regional perspective. Inconsistencies with General Plan. Inconsistencies with General Plan. Guidelines § 15125. Guidelines § 15125.

65. 65 Identify Significant, Potentially Significant Environmental Impacts Impact = change project will cause to the environment. Impact = change project will cause to the environment. Direct, indirect changes. Direct, indirect changes. Long-term, short-term changes. Long-term, short-term changes. Presence of a resource is not, per se, an impact. Presence of a resource is not, per se, an impact.

66. 66 Impacts, continued… Identify standard of significance against which to measure project change. Identify standard of significance against which to measure project change. Identify “baseline” of existing conditions 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. Economic and social impacts not CEQA impacts unless they cause a secondary environmental impact. Example: urban blight, supercenters.

67. 67 Cumulative Impacts Cumulative impacts = two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts. 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. 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? Is the cumulative ( i.e., combined) impact significant? Is the project’s contribution to that impact cumulatively considerable?

68. 68 Cumulative Impacts, continued… Methodology Methodology List of past, present and reasonably foreseeable future projects. List of past, present and reasonably foreseeable future projects. Summary of projections based on general plan or similar planning document. Summary of projections based on general plan or similar planning document. Combination. Combination.

69. 69 Unavoidable Significant Impacts Identify significant impacts that cannot be avoided by either mitigation measures or project alternatives. Identify significant impacts that cannot be avoided by either mitigation measures or project alternatives.

70. 70 Growth Inducing Impacts Will the project directly or indirectly foster economic or population growth, or remove obstacles to growth? Will the project directly or indirectly foster economic or population growth, or remove obstacles to growth?

71. 71 Identify Feasible Mitigation Measures Intended to substantially reduce or avoid an identified significant impact. Intended to substantially reduce or avoid an identified significant impact. Identify for each significant impact. Identify for each significant impact. Multi-part mitigations. Multi-part mitigations. Mitigations in-the-alternative. Mitigations in-the-alternative.

72. 72 Mitigations, continued… Mitigations, continued… Mitigations must be fully enforceable. Mitigations must be fully enforceable. Impose mitigations as conditions of development project approval. Impose mitigations as conditions of development project approval. Incorporate mitigations into planning 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. 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.

73. 73 Identify Feasible Alternatives to the Project 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 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. 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. 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. CEQA requires that a No Project alternative be evaluated.

74. 74 Alternatives, continued… CEQA requires that the environmentally superior alternative be identified. 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 findings are required for unavoidable impacts before, and separately from, a statement of overriding considerations. Alternatives analysis is governed by the rule of reason. 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. 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.

75. 75 CEQA findings – EIR Certification Compliance with CEQA and local guidelines. Compliance with CEQA and local guidelines. Independent review and consideration prior to project approval. Independent review and consideration prior to project approval. EIR reflects City’s independent judgment and analysis. EIR reflects City’s independent judgment and analysis. Certification of EIR. Certification of EIR.

76. 76 CEQA findings – Significant Impacts and Mitigations Significant impacts reduced by identified mitigation. Significant impacts reduced by identified mitigation. Mitigation within control of another agency. Mitigation within control of another agency. Economic, legal, social or technological make mitigations infeasible. Economic, legal, social or technological make mitigations infeasible. Significant and Unavoidable Impacts. Significant and Unavoidable Impacts. Adopt mitigation monitoring and reporting program. Adopt mitigation monitoring and reporting program.

77. 77 CEQA findings – Alternatives If any significant and unavoidable impacts, must find alternatives infeasible. If any significant and unavoidable impacts, must find alternatives infeasible. Findings on alternatives that reduce impacts. Findings on alternatives that reduce impacts. “Feasibility” defined broadly. (Guidelines § 15364) “Feasibility” defined broadly. (Guidelines § 15364)

78. 78 CEQA findings – Statement of Overriding Considerations Applies to significant and unavoidable impacts. Applies to significant and unavoidable impacts. Specify benefits that outweigh adverse impacts. Specify benefits that outweigh adverse impacts. Evidence of benefits in record. Evidence of benefits in record.

79. 79 CEQA findings – form and evidence Impact, mitigation, finding, and rationale/facts. Impact, mitigation, finding, and rationale/facts. Infeasibility findings. Infeasibility findings. Complete record of proceeding. Complete record of proceeding. Substantial evidence to support. Substantial evidence to support.

80. 80 Notice of Determination Form. Form. Filing. Filing. Dept of Fish & Game fees. Dept of Fish & Game fees. 30 day statute of limitations. 30 day statute of limitations.

81. 81 CEQA Streamlining Techniques Tiering principles for reuse of CEQA documents. Tiering principles for reuse of CEQA documents. Subsequent and supplemental EIRs, ND’s. Subsequent and supplemental EIRs, ND’s. Addendum. Addendum.

82. 82 Tiering Using a series of EIRs or NDs starting with analysis of general concerns followed by streamlined review of site-specific concerns. (Guidelines §§ 15152, 15385) 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. Analyze general matters in first-tier EIR. EIR for General Plan, policy or program. EIR for General Plan, policy or program. Programmatic level of detail common. Programmatic level of detail common.

83. 83 Tiering, continued… Analyze narrower, site-specific matters in later tiers. Analyze narrower, site-specific matters in later tiers. Later project must be consistent with GP, zoning. Later project must be consistent with GP, zoning. Later tier may be EIR or ND. Later tier may be EIR or ND. Focus on effects not previously examined or adequately addressed. 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. Later EIR or ND must refer to prior EIR and state where it can be examined by the public.

84. 84 Tiering, continued… Typical EIRs used in tiering. Typical EIRs used in tiering. Program EIRs. (Guidelines § 15168) Program EIRs. (Guidelines § 15168) Redevelopment project EIRs. (Guidelines § 15180) Redevelopment project EIRs. (Guidelines § 15180) Projects consistent with GP, zoning. (Guidelines § 15183) Projects consistent with GP, zoning. (Guidelines § 15183)

85. 85 Subsequent, Supplemental EIRs, NDs Analyze substantial changes from prior EIR/ND. (Guidelines §§ 15162, 15163) Analyze substantial changes from prior EIR/ND. (Guidelines §§ 15162, 15163) Substantial project changes. Substantial project changes. Substantial changes in circumstances. Substantial changes in circumstances. Substantial new information showing new or substantially more severe significant effects. Substantial new information showing new or substantially more severe significant effects.

86. 86 CEQA Addendum Documents changes from prior EIR or ND. (Guidelines § 15164) Documents changes from prior EIR or ND. (Guidelines § 15164) Allowed only if no subsequent or supplemental review required. Allowed only if no subsequent or supplemental review required. Not circulated for public review. Not circulated for public review. Considered by decision makers with prior EIR or ND. Considered by decision makers with prior EIR or ND.

87. 87 Role of Initial Study in Streamlining Use Initial study to document why CEQA analysis on later projects can be limited. Use Initial study to document why CEQA analysis on later projects can be limited. Revise initial study form for use in streamlining. Revise initial study form for use in streamlining. Describe changes to prior project or circumstances. Describe changes to prior project or circumstances. Analyze whether changes cause substantial impacts beyond those previously analyzed. Analyze whether changes cause substantial impacts beyond those previously analyzed.

88. 88 CEQA Litigation Standard of review. Standard of review. Fair argument standard – little deference to local determinations. Fair argument standard – little deference to local determinations. Low threshold that favors preparation of EIR. Low threshold that favors preparation of EIR. Substantial evidence standard – more deferential, but avoid conclusory statements unsupported by facts, evidence. Substantial evidence standard – more deferential, but avoid conclusory statements unsupported by facts, evidence.

89. 89 CEQA Litigation, continued… Create adequate administrative record. Create adequate administrative record. Document compliance with CEQA procedural requirements. Document compliance with CEQA procedural requirements. Document compliance with CEQA substantive requirements. Document compliance with CEQA substantive requirements. Use staff reports, final resolutions to reflect, summarize compliane. Use staff reports, final resolutions to reflect, summarize compliane. Not in the record? It didn’t happen! Not in the record? It didn’t happen!

90. 90 CEQA Litigation, continued… Strategies for avoiding litigation. Strategies for avoiding litigation. Create adequate administrative record. Create adequate administrative record. Consider preparing EIR rather than ND to get better standard of review. Consider preparing EIR rather than ND to get better standard of review. Support conclusions with substantial evidence. Support conclusions with substantial evidence. Be flexible with project, if possible and reasonable to revise project to avoid significant impacts. Be flexible with project, if possible and reasonable to revise project to avoid significant impacts.

91. 91 Climate Change CEQA Guidelines Amendments. CEQA Guidelines Amendments. BAAQMD Thresholds and Guidance. BAAQMD Thresholds and Guidance. SB 375. SB 375.

92. 92 Climate Change – CEQA Guidelines Amendments GHG analysis is required. GHG analysis is required. Agency discretion. Agency discretion. Thresholds not established. Thresholds not established. Elements of analysis: Elements of analysis: Quantify, qualitative, performance standards. Quantify, qualitative, performance standards. Significance determination. Significance determination. Mitigations – Types. Mitigations – Types. Consistency with Plans. Consistency with Plans.

93. 93 Climate Change – Use of Climate Action Plans Consistency with Plan = CEQA Review. Consistency with Plan = CEQA Review. Plan Elements. Plan Elements. Quantify Emissions – Baseline and Forecast. Quantify Emissions – Baseline and Forecast. Establish Reduction Level. Establish Reduction Level. Specify Reduction Measures. Specify Reduction Measures. Implementation and Monitoring. Implementation and Monitoring. CEQA environmental document. CEQA environmental document.

94. 94 Climate Change – BAAQMD Regs Thresholds and “Guidance”. Thresholds and “Guidance”. 1,000 MT CO2eq/year. 1,000 MT CO2eq/year. Efficiency thresholds – 4.6 MT/service population/year Efficiency thresholds – 4.6 MT/service population/year Consistency with Climate Action Plan Consistency with Climate Action Plan Issues with Plan Elements. Issues with Plan Elements.

95. 95 SB 375 Ongoing Implementation. Ongoing Implementation. Sustainable Community Strategies. Sustainable Community Strategies. CEQA Exemptions/Streamlining. CEQA Exemptions/Streamlining.

96. 96 Adequate Alternatives Analysis Identify potentially feasible alternatives in Draft EIR. Identify potentially feasible alternatives in Draft EIR. When project approved, determine if alternatives are actually feasible. When project approved, determine if alternatives are actually feasible. (California Native Plant Society v. City of Santa Cruz)