The California Environmental Quality Act (CEQA) directs that certain proposed projects undergo environmental review to assess and mitigate significant environmental impacts. The CEQA Guidelines provide procedures and clarification on how to perform the reviews. The Guidelines are often cited in legal challenges to CEQA reviews.
In August, the California Governor’s Office of Planning and Research (OPR), released a Preliminary Discussion Draft of Proposed Updates to the CEQA Guidelines (Proposed Updates) and asked for public comments. The opportunity to comment on such a comprehensive update to the Guidelines does not come along often. In fact, OPR points out in the Proposed Update that the last such opportunity happened in the late 1990’s. The deadline for submitting comments on this draft is October 12, 2015. You can send your comments online to CEQA.Guidelines@resources.ca.gov
OPR introduces the Proposed Updates under three separate “Improvement” sections: Efficiency, Substance and Technical. For each proposed change, OPR lists the background, explanation of the proposed amendment, and shows the changes to the text of the section in the Guidelines. OPR’s Proposed Updates document addresses changes to sections in the Guidelines involving such substantive issues as:
- The use of regulatory standards (thresholds) in CEQA;
- Clarification as to what is “Within the Scope” of a Program Environmental Impact Report;
- What happens when a court invalidates certain parts of the environmental review;
- Rules on tiering;
- The transit oriented development exemption;
- Using the existing facilities exemption; a significant update to the environmental checklist (known as “Appendix G”);
- Analysis of energy impacts and water supply;
- How to define the project’s baseline;
- Deferral of mitigation;
- The common sense exemption;
- Preparing the initial study;
- Joint NEPA/CEQA documents; and
- When is a project discretionary.
While not the entire list of proposed changes, this short list demonstrates the breadth of issues being considered and open for comments.
If you work with, or are impacted by CEQA, you definitely should review the Proposed Updates – they are substantive changes that will impact project development and planning in California.
For example, the proposed new language for identifying and substantiating thresholds and regarding transit oriented development are fundamental to almost every CEQA review. The existing facilities exemption proposal is interesting because it suggests that a lead agency can look at the historic use of a building, not just the use at the time the agency makes its decision. How that historic use actually folds into the CEQA analysis may create issues. OPR also proposes to make significant changes to Appendix G by eliminating, broadening and combining questions. Proposed changes to Appendix G include suggestions to include a “Jobs-Housing Fit” analysis “which includes not just the overall number of jobs and housing in a community, but also accounts for wages and housing cost, as well as income issues” as stated in the Proposed Updates.
OPR really does want your comments. In fact, in the Proposed Update, OPR asks specific questions to stakeholders that are designed to encourage comments. For example (page 44): “As indicated above, OPR sees these proposed changes to Appendix G as a conversation starter. To that end, OPR asks that reviewers consider several questions regarding the proposal, including:
- Do any of the proposed revisions conflict with CEQA or cases interpreting CEQA?
- Will any of the proposed revisions raise any concerns about practical application?
- Are there revisions (that are consistent with CEQA and the cases interpreting it) that you think would lead to a more efficient process? Or better substantive outcomes?
- Could the format of Appendix G be improved to be more user-friendly (i.e., by adding internet links to data resources)? We look forward to your thoughts.”
Additionally (page 71): “Neither the statute nor the Guidelines currently define the phrase “wasteful, inefficient, and unnecessary consumption of energy.” Should the Guidelines define that phrase? If so, how should it be defined?”
Responding to these and other questions and participating in this comment session is an important opportunity to help shape the environmental analysis, which in turn, should hopefully streamline the process.
Opportunities like this come along only about every 15 years. Don’t miss your chance to speak up and get your comments submitted by October 12.