United States: OPR Releases Preliminary Discussion Draft Of Proposed Changes To CEQA Guidelines; CEQA Stakeholders Are Invited To Submit Comments

As California developers and public agencies well know, the entitlement process in our state is driven by CEQA, the California Environmental Quality Act. CEQA, in turn, functions pursuant to the CEQA statute and the "CEQA Guidelines." If you've ever wondered who writes those CEQA Guidelines, the answer is "the Governor's Office of Planning and Research," or "OPR." The CEQA Guidelines reflect OPR's interpretation of CEQA's statutory requirements, its reading of case law construing CEQA, and its take on "practical planning considerations." As a result, this little known operation in the Governor's office plays a pivotal role in California's entitlement process. CEQA Guidelines are formally adopted by the Natural Resources Agency following review by the Office of Administrative Law, but OPR basically writes the Guidelines.

This year, OPR is engaged in two separate endeavors to amend the CEQA Guidelines. One ongoing effort is the product of SB 743, legislation adopted in 2013 which likely will revolutionize the way traffic impacts in California are evaluated and mitigated by focusing on vehicles miles travelled (VMT) rather than level of service (LOS). We have discussed with you in prior "Lay of the Land" posts the potential implications of the new SB 743 Guidelines being prepared by OPR.

The other effort began two years ago, when OPR announced its intent to consider a broad range of revisions to the CEQA Guidelines. OPR solicited public comments and received a very large number of comments making a wide variety of suggestions. Since then, OPR has been considering the many comments and suggestions received, and OPR has now, on August 13, released a preliminary draft of proposed Guidelines amendments based on the public suggestions and OPR's own ideas. The public is invited to comment, through October 12, and this is an important opportunity for stakeholders in the CEQA process to evaluate the proposals and weigh in with comments. In contrast to recent Guideline amendments on particular topics such as greenhouse gas emissions, this is the first overall update of the Guidelines in many years.

OPR is proposing revisions to almost thirty different sections of the CEQA Guidelines, addressing nearly every step of the environmental review process. OPR categorizes each of its various proposed changes into one of three categories: (1) efficiency improvements; (2) substantive improvements; and (3) technical improvements. Among the various proposed changes, the following are of particular note:

  • Updating the Environmental Checklist. The "Environmental Checklist," found in Appendix G of the Guidelines and typically submitted at the time a project application is filed, is the initial effort to identify a project's potential impacts and often defines the scope of the project's environmental review. For example, the information in the Environmental Checklist may lead to the agency's conclusion that a mitigated negative declaration, rather than an EIR, will be required. OPR proposes a number of changes to the checklist. Among other things, it would: consolidate certain categories of questions to eliminate redundancy and ease data collection; reframe or delete certain questions that should be addressed in the planning process to focus attention on those issues that must be addressed in the CEQA process; and revise the questions related to tribal cultural resources, transportation impacts, and wildfire risks, as required by AB 52, SB 743, and SB 1241, respectively. If finalized, these proposed changes would substantially change Appendix G, shortening its length by approximately 30 percent. However, some of the changes likely would expand CEQA requirements.
  • Follow-up approvals "Within the Scope" of a Program EIR. OPR proposes to amend Section 15168 to further assist lead agencies in determining whether later activities are within the scope of a prior program EIR. These proposed additions would: clarify that determination of whether a later activity falls within the scope of a program EIR is a question of fact to be resolved by the lead agency, and supported by substantial evidence; provide a list of factors that may assist a lead agency in determining that a project is within the scope of a program EIR; and add language clarifying how to proceed with analysis of an activity that a lead agency determines is not within the scope of the program EIR.
  • Litigation Remedies and Remand. Proposed new Section 15234 is intended to assist agencies in complying with CEQA in response to a court order requiring some correction or revision of a CEQA document. This new section would reinforce that not every violation of CEQA will compel a court to set aside project approvals and that, except as provided in Public Resources Code Section 21168.9, CEQA does not limit the traditional equitable powers of the judicial branch to tailor remedies based on the circumstances of the project. It also would clarify that in certain circumstances, portions of the project approvals or the project itself may proceed while the agency conducts further review.
  • Baseline. Based on the California Supreme Court's holding in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, OPR proposes to amend Section 15125 to explain that an agency may use a different baseline where use of existing conditions would be either misleading or without informative value to decision-makers and the public. The changes also would state that if future conditions are to be used, they must be based on reliable projections grounded in substantial evidence.
  • Deferral of Mitigation Details. OPR proposes to amend Section 15126 to clarify that, while a lead agency may not defer identification of mitigation measures, a lead agency may defer specific mitigation details where it is impractical or infeasible to fully formulate the details of a mitigation measure at the time of project approval and the agency commits to mitigation.

Notably, there are some inconsistences between the introductory comments to the proposals and the text of the proposals themselves. The introduction states that the proposals do not seek to change traffic impact analyses, but several of the proposed revisions do include VMT-related changes. Also, the introduction states that the document does not address any changes related to the analysis of greenhouse gas emissions or whether CEQA requires analysis of impacts of the environment on a project ("reverse CEQA" as many have called it), because those two issues are currently pending before the California Supreme Court. However, several proposed revisions to Appendix G would appear to support the application of reverse CEQA. For example, the proposed wildfire thresholds would include whether a project would expose "project occupants" to wildfire risks.

OPR is accepting public comments on the proposed revisions to the Guidelines through October 12, 2015 at 5 p.m. Comments may be submitted electronically to CEQA.Guidelines@resources.ca.gov.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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