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HomeMy WebLinkAbout03 CEQA WorkshopITEM #3 6~,~ Inter-Corn ~~- DATE: FEBRUARY 22, 2011 ~~. ~;~'~ . t'- TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: WORKSHOP (CALIFORNIA ENVIRONMENTAL QUALITY ACT) California Environmental Quality Act The California Legislature enacted the California Environmental Quality Act (CEQA) in 1970 in response to the Federal Government's passage of the National Environmental Policy Act (NEPA) a year earlier. Since its inception, CEQA has grown to play an integral role in the development industry. CEQA is not limited solely to immediate physical development, but also applies to the adoption of developmental guidelines such as amendments to the General Plan and Zoning Code. CEQA guidelines are continually evolving due to case law. It is the responsibility of the Governor's Office of Planning and Research (OPR) to review the CEQA guidelines at least once every two years and recommend changes or amendments to the Secretary of the Resources Agency. CEQA Framework CEQA establishes the framework for environmental protection in six important ways: • Environmental Policy. CEQA establishes a statewide policy of environmental protection; • Solving Problems. CEQA provides a mechanism for identifying and solving environmental problems; • Public Participation. CEQA increases a citizen's ability to participate in governmental decision-making. • Communication and Coordination. CEQA enhances communication and coordination among governmental agencies. • Disclosing Information. CEQA requires governmental decision-makers to disclose the environmental impacts of their actions; and, • Governmental Accountability. CEQA requires governmental decision-makers to explain their decisions. Planning Commission Workshop February 22, 2011 Page 2 Purpose of CEQA The basic purposes of CEQA are to: • Inform govemmental decision makers and the public about the potential significant environmental effects of proposed activities; • Identify ways that environmental damage can be avoided or significantly reduced; • Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of altematives or mitigation measures when the govemmental agencies find the changes to be feasible; and, • Disclose to the public the reasons why a govemmental agency approved the project in the manner the agency chose if significant environmental effects are involved. Applicability CEQA applies to all govemmental agencies at all levels in California and all govemmental actions which may involve: Activities directly undertaken by a govemmental agency; Activities financed in whole or in part by a govemmental agency; or, Private activities which require approval from a govemmental agency. CEQA Fundamentals Under the California Environmental Quality Act (CEQA), the environmental effects of a project must be taken into account when considering discretionary development project approvals such as General Plan Amendments, Zone Changes, Conditional Use Permits, Zone Variances, Specific Plans, and Subdivision Maps. CEQA indicates that public agencies should not approve projects as proposed if feasible altematives or mitigation measures would substantially lessen the significant environmental effects of such projects. CEQA also indicates that if a public agency finds specific economic, social, or other conditions make the project altematives or such mitigation measures infeasible, individual projects may be approved in spite of their significant environmental effects. CEQA Three Step Process In deciding which CEQA document to prepare, an agency would norrnally follow the separate steps (see attached flow chart) summarized as follows: Planning Commission Workshop February 22, 2011 Page 3 1. An activity is subject to CEQA if it falls under the definition of a "project" pursuant to Section 15378 of CEQA Guidelines. A "project' is defined as the whole of an action, which has a potential for resulting in either a direct physical change in the environment or a reasonable foreseeable indirect physical change in the environment. The public agency would determine if the project is subject to CEQA orrf the project is subject to a statutory or categorical exemption. If the project is exempt, the process does not need to proceed further. The agency would prepare a Notice of Exemption and file with the County Clerk. No additional review is required. 2. If the project is not exempt, the agency would prepare an Initial Study to determine whether the project may have a significant effect on the environment. If the Initial Study shows that there is no substantial evidence that the project may have a significant effect, the lead agency either prepares a Negative Declaration or a "Mitigated" Negative Declaration if mitigation measures are included to reduce impacts to a level of insignificance. 3. If the Initial Study shows that the project may have a significant effect, the lead agency would prepare an Environmental Impact Report (EIR). CEQA Documents • Statutory and Categorical Exemption The list of Statutory Exemptions and Categorical Exemptions is contained in the Public Resources Code. These exemptions are classes of projects for which the Legislature has given the authority to the Secretary of the California Resources Agency to create. Projects within any of these categories are exempt from CEQA review. Examples of these projects include: ministerial projects (issuance of business licenses, building permits, utility service connections and disconnections, etc.), emergency projects, improvements to existing facilities, minor alterations to land, new construction, or conversion of small structures, etc. • Initial Study Following preliminary review, the agency conducts an Initial Study if the project is not exempt. The Initial Study is the basis for determining if a project has the potential to cause a significant impact on the environment. The Initial Study involves the completion of the Environmental Checklist form and supporting analysis. Agency staff must be careful to ensure that the conclusions reached in the Initial Study are supported by data. A mere checklist is insufficient. Planning Commission Workshop February 22, 2011 Page 4 • Negative Declaration If there is no evidence that the project would have a significant impact, the agency may prepare a Negative Declaration. If the Initial Study shows the potential for an environmental impact but there are revisions to the project or measures to avoid or lessen the impact to a level of insignificance, a "Mitigated" Negative Declaration can be prepared. • EIR If the initial study indicates that the project may have a significant effect on the environment, an EIR is required. The determination to prepare an EIR must be based on substantial evidence. Substantial evidence must be based on facts and reasonable assumptions rather than speculation, unsubstantiated opinions, or inaccurate evidence. An EIR is an information document only. It is not an action document. An EIR would discuss which significant environmental effects, including cumulative impacts, would result from a project. An EIR would also describe mitigation measures to reduce or avoid any significant effects and propose project alternatives, including a "no project" alternative. An EIR must be done with a sufficient degree of analysis to allow decision-makers to consider environmental consequences. The Planning Commission and City Council would utilize an EIR to approve or disapprove a project considering its impact on the environment. If an agency finds that there are no alternatives or feasible mitigation to prevent those consequences, the agency could approve the project based upon findings of specific economic, legal, social, technological, or other considerations. If the economic, legal, social, technological, or other benefits, including region-wide or statewide environmental benefits, of a proposed project outweigh the unavoidable adverse environmental effects, then the adverse environmental effect may be considered "acceptable" and a Statement of Overriding Consideration is made. Public Review and Process of Filing a Negative Declaration and EIR Prior to the approval of a project, the agency is required to invite the public to participate in the environmental process. The following summarizes the public review period and process for filing the Negative Declaration and EIR. Negative Declaration Prior to adopting a Negative Declaration and consideration of a project by the approval body, the lead agency is required to provide a public review period for not fewer than twenty (20) days. If the review involves State agencies, then the public review period must not be fewer than thirty (30) days. The lead agency would prepare a public notice of the availability of the Negative Declaration. Planning Commission Workshop February 22, 2011 Page 5 The public may submit comments on the draft Negative Declaration prior to consideration of the project by the decision-maker. The lead agency must include all comments it receives during the public comment period in considering the project approval. EIR • Notice of Preparation/Scoping After determining that an EIR is required due to the potential for significant environmental impacts of a project, the lead agency must send a Notice of Preparation to responsible agencies, that is, other agencies with discretionary authority over the project. The lead agency should also consult with any person or organization that may be concerned with the environmental effects of the project. This early consultation is called "scoping" and might include informal meetings in the neighborhood or with planning staff to discuss potential problems that might arise. • Draft EIR As soon as the Draft EIR is completed, a Notice of Completion must be filed with the Office of Planning and Research (OPR). At this point, the Draft EIR is also noticed for a thirty (30) day public review. If the EIR is submitted to the State Clearinghouse, the public review period would be forty-five (45) days. The public may submit comments on the Draft EIR prior to consideration of the project by the decision-maker. The City must evaluate and respond in writing to all comments it receives during the public comment period. • Revisions/Re-circulation If significant new information is added to the Draft EIR after it has been released for public review, the Draft EIR must be re-noticed and re-circulated for public review. • Final EIR If there were no significant changes to the EIR, the lead agency would prepare a Final EIR. A Final EIR usually consists of the Draft EIR and the responses to public comments received during the review period. The Final EIR may include a proposed Mitigation Monitoring Plan and/or Overriding Considerations. A Mitigation Monitoring Plan is a program for monitoring the revisions which it has required in the project or the measures it has imposed to mitigate or avoid significant environmental effects. Planning Commission Workshop February 22, 2011 Page 6 Project Approval Once the environmental document (Negative Declaration or EIR) is certified, the City then proceeds to review the project. The City cannot approve or carry out a project with significant effects on the environment unless it responds by one or more of the following methods: ~ Changing the project; ~ Imposing conditions of the project's approval; ~1 Adopting plans or ordinances to control a broader class of activities to avoid the problems; ~l Choosing an alternative way of meeting the need; ~1 Making a finding that changes in, or alterations to, the project are not feasible; or ~ Making a finding that the unavoidable, significant environmental damage is acceptable because of overriding considerations. To ensure that the mitigation measures and project revisions identified in the EIR or Negative Declaration are implemented, the City must adopt a Mitigation Monitoring Program. The Mitigation Monitoring Program would identify conditions of project approval, including measures and revisions required and imposed to mitigate or avoid significant environmental effects. If the significant effects are unavoidable or cannot be mitigated to a level of insignificance, then the City must prepare a Statement of Overriding Considerations. The Statement of Overriding Considerations shall state the specific reasons to support its action based on the Final EIR and/or other information in the record. Notice of Determination Once a project is approved and the required findings, mitigation monitoring plan, and/or overriding considerations are adopted, the agency would file a Notice of Determination within five (5) working days with the County Clerk. If the project requires a discretionary approval from a State agency, then the Notice of Determination must also be filed with OPR. Coordination with Permit Streamlininu Act In accordance with the Permit Streamlining Act, a lead agency must approve or disapprove a project within the following applicable periods: One hundred eighty (180) days from the date of certification by the lead agency of an EIR; Sixty (60) days from the date of adoption of a Negative Declaration; or, Sixty (60) days from the determination that the project is exempt from CEQA. Planning Commission Workshop February 22, 2011 Page 7 In the event that a lead agency fails to act to approve or to disapprove a project within the time limits, the failure to act would be deemed approval of the permit application for the development of the project. Statute of Limitations When a Notice of Determination is filed there is a thirty (30) day statute of limitations for CEQA challenges which commences with the posting of the Notice of Determination. The statute of limitations for the filing of a Notice of Exemption is a thirty-five (35) day period which commences with the posting of the Notice of Exemption CEQA Amendments There have been significant amendments to the CEQA guidelines recently through the adoption of Senate Bill 97 (SB 97) and Senate Bill 375 (SB 375). These amendments primarily focus on the role of greenhouse gas (GHG) emissions associated with projects. • SB 97 was enacted in 2007 and constitutes the Legislature's recognition that GHG emissions are an appropriate subject for CEQA analysis. The Office of Planning and Research was directed to develop guidelines for the mitigation of GHG emissions or the effects of GHG emissions. These updated CEQA guidelines now require agencies to determine the significance of impacts from GHG emissions that a project may cause. The CEQA Environmental Checklist form has been updated to include a section related GHG emissions which is required to be analyzed within the Initial Study document. If a potentially significant impact could occur then an EIR would need to be prepared and warrant further analysis. • SB 375 was enacted by the Califomia Legislature and Governor Schwarzenegger in 2008. This bill seeks to reduce GHG emissions from cars and light trucks through the coordination of land use and transportation planning. The law requires Metropolitan Planning Organizations to add a Sustainable Communities Strategy (SCS) component to their Regional Transportation Plans (RTPs). The SCS is required to identify how it will achieve the GHG emission reduction targets as established by the Califomia Air Resources Board (ARB). If the SCS cannot feasibly show how it will reduce the GHG emissions to targeted levels, then an Alternative Planning Strategy (APS) must be prepared to identify how GHG emission reduction targets will be met. The SCS or APS needs to be accepted by the ARB prior to implementation. The SCS for Orange County is still under development and has not yet been approved by the ARB. The provisions of SB 375 that affect CEQA are applicable to Transit Priority Projects and Mixed Use Residential Projects that comply with the approved SCS or APS. The CEQA guidelines have been updated with a list of criteria to determine which projects qualify as Transit Priority Projects and Mixed Use Residential Projects. Transit Priority Projects that qualify may receive exemptions from CEQA or a Planning Commission Workshop February 22, 2011 Page 8 reduced level of environmental review. Qualifying Mixed Use Residential Projects may be eligible for a limited analysis under CEQA. j ~-_-- --------- ~ --- Rya iontek, As ociate Planner Attachment: CEQA Process Flow Chart lssoeration of Environmental Professfo»als ?009 CEQA APPENDIX A: CEQA PROCESS FLOW CHART Public agency determines whether the activity Is a "project" Not a protect Project is ministerial Public agency determines if the Na possible signif+contefJect project is exempt Statutory exemption Categorical exemption Nat Exempt Public agency evaluates project to determine if there is a possibility that the project may have a significant effect on the envi ronment Possible significant eJfed Notice of No further Exemption may action required Determination of lead agency where be filed under CEOA more than one public agency is involved RESPONSIBLE AGENCY LEAD AGENCY Lead agency prepares initial study Respond [o informal Consultoton consuiCation Lead agency decision to prepare EIR or Ne ative Declaration F1R Negative Declaration Lead agency sends Notice of Respond to Notice of Pre aration [o res onsible a en Preparation as to contents of Consultation draft EIR _ Lead agency prepares draft EIR Lead agency files Notice of Lead agency gives public Completion and gives public notice of availability of Comments on adequacy of draft notice of availabili of draft EIR Ne alive Declaration EIR or Negative Declaration Consultation Public Review Period Public Review Period Lead agency prepares final EIR including responses to comments on draft EIR Decision-making body considers Consideration and approval of Consideration and approval final EIR or Negative Decaration final EIR b decision-makin bad of Negative Declaration by Endings on feasibility of reducing or avoiding significant environmental effects Decision on permit State Agencies CocalAgencies File Notice of File Notice of Determination Determination with OPR with County Clerk Findings of feasibility of reducing or avoiding significant environmental effects Deuston on project State Agencies Local A encies File Notice of Fiie Notice of Determination Determination with OPR with County Cierk CEQA Guidelines Appendices 229