The changes to state guidelines for implementing the California Environmental Quality Act (CEQA) are now in effect. The final approved text, final statement of reasons (including comments and responses to comments), and related materials are posted on the Agency’s website at http://resources.ca.gov/ceqa/. The new CEQA Guidelines are consistent with recent court decisions, implement changes required by the Legislature, and reduce duplicative analysis.
The revised Guidelines should help lead agencies be more proactive in their analysis of greenhouse gas (GHG) emissions, energy use, and wildfire risk. The Guidelines included nuanced changes to baseline analysis that incorporates new case law. Perhaps the most significant changes to the Guidelines are a long-awaited shift from the analysis of transportation impacts from Level of Service (LOS) to Vehicle Miles Traveled (VMT), which more closely aligns with efforts to reduce GHG emissions and more accurately measure impact on the environment in accordance with SB 743 (Steinberg, 2013).
Effective Date
The revised CEQA Guidelines are in effect as of December 28, 2018. According to the Governor’s Office of Planning and Research, the new requirements will apply to steps in the CEQA process not yet undertaken by the effective date of the revisions. (CCR § 1500 (b).) For example, the revised Guidelines will apply to a CEQA document only if the revised Guidelines are in effect when the document is sent out for public review. (CEQA Guidelines, § 15007 (c)) The timeline for VMT adoption is extended. Lead agencies have until July 1, 2020 to comply with the new VMT metric for analyzing transportation impacts, although they may voluntarily comply earlier. (CCR Section 15064.3 (c))
Implementation Resources
OPR has released technical advisories to assist lead agencies and CEQA practitioners with implementation of key topics addressed in the new CEQA Guidelines.
Transportation: Technical Advisory on Evaluating Transportation Impacts in CEQA. (OPR, December 2018)
Climate Change: Technical Advisory on Climate Change and CEQA, Discussion Draft. (OPR, December 2018)
Categories of Changes to the CEQA Guidelines
Efficiency Improvements. These improvements include changing existing exemptions, modifying the relationship between thresholds of significance and regulatory standards, clarifying the rules of tiering CEQA documents, and updating Appendix G—the sample form for initial studies—by eliminating and clarifying existing questions as well as adding questions on oft-neglected topics.
Changes to the initial study checklist (Appendix G) include:
- Promotion of use of existing regulatory standards as thresholds of significance;
- Identification of factors for a within the scope analysis for Program EIRs, including consistency with land use, density, geographic area, and infrastructure;
- New transportation questions focused on evaluation of VMT impacts on VMT;
- New wildfire questions that emphasize the need for an analysis of when a project exacerbates an environmental impact, for example by bringing new housing into an area with high wildfire risk (although CEQA does not require analysis of the impact of the environment on a project);
- Addition of energy as an impact category for mitigated negative declarations and new questions that require analysis of a project’s energy use and compliance with state and local energy goals;
- Clarification that a project’s prior use can be considered in a determination of an existing facilities exemption, and application of the existing facilities exemption to infill and transit-oriented development;
- Clarification that both state and federal wetland impacts must be evaluated; and
- Clarification that view impact analysis is for public rather than private views.
Substantive Changes Include
- Energy Impacts. The energy analysis in an EIR must address transportation, equipment use, location, and renewable energy features that could be incorporated into the project, as well as building design and compliance with Title 24 of the green building code.
- Water Supply Impacts. Water supply assessments must address water supply sources over the lifetime of a project and the environmental impacts of supplying that water to the project, as well as uncertainties in supply and alternatives.
- Climate Change. Clarify that lead agencies should analyze whether a project’s contribution to GHG emissions would have a cumulatively considerable effect on climate change, taking into account projects with long implementation timelines, evolution of scientific knowledge, and changing regulations. Lead agencies relying on consistency with state goals and policies to determine significance should explain how the project’s emissions are consistent with the regulatory goals and policies, and use substantial evidence to support that determination.
- Transportation and VMT. The Guidelines shift from LOS to VMT as a measure of a project’s transportation-related impacts associated with GHG emissions. This change is intended to promote infill and transit-oriented development. Lead agencies can still use their discretion when selecting alternative methodologies for determining transportation impacts for projects to increase roadway capacity.
Technical Changes Include
- Baseline. Clarifies that lead agencies may use projected future conditions or representative past conditions as the environmental baseline when use of existing conditions would be misleading. Requires lead agencies to support a decision not to use existing conditions with substantial evidence. Allows a lead agency to describe both existing and future conditions.
- General Responses to Data Dumping. Clarify that a general response to a general comment may be appropriate when a commenter submits voluminous data and information without explaining its relevance to the project (“data dumping”). A lead agency may also provide proposed responses to public agency comments in electronic form.
- Discretionary versus Ministerial. Incorporates recent case law to clarify the definition of “discretionary” versus “ministerial”. Notes that a discretionary project is one in which a lead agency can shape the project to respond to concerns raised in an EIR. Clarify that review of projects in areas with “by right” zoning cannot be discretionary.
- Lead Agency Determination. Clarifies that when more than one agency meets the criteria for being “lead agency,” the agencies can agree which agency to designate as the lead agency.
- Deferred Mitigation. Permits “deferred mitigation” when the lead agency: “(1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will [be] considered, analyzed, and potentially incorporated in the mitigation measure.” Commitment to a performance standard is required, but the lead agency does not have to commit to a menu of measures from which the implemented mitigation measure must be selected. The menu of options may be a non-exclusive list of examples.
- Pre-Commitment Activities. Clarifies that pre-CEQA actions fall on a continuum between interest in a project and a commitment to a definite course of action, and that circumstances surrounding the activity are relevant to the determination of whether an agency has, as a practical matter, committed to a project. Permits approval of agreements that do not foreclose mitigation measures or project alternatives; and are conditioned on completion of CEQA review. Provides guidance on how to draft a pre-commitment agreement to not preclude mitigation measures and alternatives.
- Notice of Preparation. Clarifies the requirement to post the Notice of Preparation in the office of the County Clerk of each county in which the project will be located.
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Holly Roberson
hroberson@kmtg.com | 916.321.4517