By Rachael Carnes, Environmental Planner
While the environmental permitting world is abuzz with talk of the ever-shifting “Waters of the U.S.” definition, the State of California recently released revised CEQA Guidelines, and they could have important implications for your project. The Natural Resources Agency adopted final text, which was approved by the Office of Administrative Law and filed with the Secretary of State on December 28, 2018. The revisions apply to any California Environmental Quality Act (CEQA) Negative Declaration or Mitigated Negative Declaration that has not yet been distributed for public review or to any Environmental Impact Report (EIR) for which the Notice of Preparation has not been circulated by the effective date.
The CEQA Guidelines provide direction on everything from streamlining to tiering to complex environmental document preparation, and the recent revisions address climate change and the housing shortage in a new way. Updated exemptions have been included for transit-centered residential and mixed-use development, along with clarifications to CEQA exemptions for existing facilities and emergencies. The revisions elaborate on the ideas of tiering, streamlining, and baseline conditions. Changes were made to implement Senate Bill (SB) 743 traffic impact analysis as well, including guidance on Vehicle Miles Traveled screening thresholds, mitigation, and reduction. The new Guidelines also include some noteworthy changes to the Appendix G checklist.
The CEQA Guidelines Appendix G Checklist is the list of questions that forms the basis of pretty much any CEQA analysis. Needless to say, revisions to the aforementioned documents can have ripple effects throughout a project’s environmental review, and therefore its timing and budget constraints.
Perhaps the most noticeable changes for projects currently undergoing environmental review come from the new Appendix G checklist. The following summarized components could influence how CEQA analysis will be approached for a proponent’s project:
- The language in the third question of the Biological Resources section discussing impacts to wetlands has been changed from “wetlands as defined by Section 404 of the Clean Water Act” to “state or federally protected wetlands”. This effectively broadens the definition of a wetland under CEQA. For biologists analyzing impacts under CEQA, this means that you should look at how wetlands in the project area are delineated at both a state and federal level, and then go with whichever definition covers a larger area. This will often mean your project impact areas will increase.
- The Hydrology section was revised more than most others to remove questions referring to placing housing or structures within a flood zone and otherwise exposing people or project features to flooding, tsunami, mudflow, etc. The new Hydrology section still covers surface and ground water quality, alteration of drainage patterns, erosion, runoff, and redirection of flood flows.
- Most other sections were changed to consolidate, simplify, and reformat questions, but the information required has not drastically changed.
- Energy and Wildfire sections have been added to the checklist. Previously included in Appendix F to the CEQA Guidelines, the Energy section covers wasteful energy consumption and conflicts with state or local energy efficiency plans. The Wildfire section addresses factors that could expose people or structures to fire or post-fire flooding or landslides, risk or impair emergency response, or require installation of infrastructure that could exacerbate fire risk.
Past case law supports that CEQA should evaluate a proposed project’s impact on the environment (e.g., potential of a housing development to degrade water quality), rather than the environment’s impact on a project (e.g., potential for an earthquake to destroy a housing development). In California Building Industry Association v. Bay Area Air quality Management District (CBIA v. BAAQMD 2015), the CBIA challenged BAAQMD’s adoption of CEQA air pollutant significance thresholds that required analysis of impacts on “new receptors” (residents and workers drawn to an area as a result of a proposed project). The California Supreme Court found that “agencies subject to CEQA generally are not required to analyze the impact of existing environmental conditions on a project’s future users or residents”, except where a proposed project may exacerbate those environmental hazards or conditions that already exist.
While some questions relating to the environment’s impact on the project have been removed (such as in the Hydrology section described above), others have been added. Therefore, while addressing impacts of the environment on the project may not be required by law, an approach to such questions should be discussed upfront with your project team, as they are not being eliminated from the checklist.
The State’s revised CEQA Guidelines reveal new approaches to key topics and contain updates that will influence many projects currently in environmental review. It is important for lead agencies to update their CEQA IS and EIR checklists immediately and prepare for the possibility of adding some additional time to an in-process IS or EIR timeline in order to comply with the revisions.
WRA’s environmental planning team began analyzing the revisions as soon as they were released, bringing methodology and scheduling implications to the attention of lead agencies on our current projects. We are already in the process of updating checklist templates and CEQA documentation for many of our clients. Feel free to reach out and let us know how we can help with your current or upcoming projects.
To delve deeper into the specific changes, click here for the final approved text, final statement of reasons, and other related materials. For additional guidance on CEQA review of housing projects, exemptions, evaluating transportation impacts, and more, check out this list of Technical Advisories from the Office of Planning and Research (OPR).