The 2018 California Environmental Quality Act (CEQA) Guidelines Update has been finalized and are found in the California Code of Regulations Section 15000 et seq. In the Final Statement of Reasons, the Natural Resources Agency organized the changes into three categories:
Using Regulatory Standards in the CEQA Process
The update clarifies that a standard adopted for purposes of environmental protection can be used as a threshold (this is one of the pieces of the 1998 Guidelines that was overturned by the court). Now, the Governor’s Office of Planning and Research (OPR) has added two provisos: (1) the lead agency must explain why the threshold is appropriate; (2) regardless of any threshold of significance used, “substantial evidence” is always the ruling factor in determining an impact.
Updates to the Sample Environmental Checklist in Appendix G
Beyond general streamlining and eliminating redundancy, changes include narrowing the scope of aesthetic impacts; moving paleontology from cultural resources to geology; adding the Appendix F energy “question” to Appendix G (which means energy must be considered in a Negative Declaration); moving and expanding wildfire issues; combining airport safety and noise into one question and deleting the reference to private airstrips; adding the Senate Bill (SB) 743 Vehicle Miles Traveled (VMT) changes; cleaning up water and utilities questions; clarifying that land use conflicts must relate to a physical impact; and adding “unplanned” to the population growth question.
Determining Whether a Project is “Within the Scope” of a Program EIR
OPR attempts to clarify this key decision point for tiering by specifying that this is a factual question decided by the lead agency based on substantial evidence. Factors that an agency may consider in making that determination include, but are not limited to, consistency of the later activity with the type of allowable land use, overall planned density and building intensity, geographic area analyzed for environmental impacts, and description of covered infrastructure, as presented in the project description or elsewhere in the program EIR.
The revised guidelines also state that a program EIR is most useful when it has a detailed project description that identifies later activities. Changes are also made to the section regarding tiering, clarifying that this section applies to tiering generally, and that streamlining methods may have specific rules.
The guidelines, per SB 743, expand the current streamlining for residential projects consistent with a specific plan (Section 158182) to certain transit-oriented residential and mixed use projects consistent with a specific plan. Additional detail has been added to the Statutory Exemption for Emergency Projects.
The Class 1 categorical exemption for existing facilities has been expanded by adding “former” uses to the definition of existing uses and covering certain improvements related to pedestrian, bicycle, and transit circulation. The update does not clarify how far in the past is considered “former.” This may be a boon for local planners or for lawyers who challenge it.
Remand and Remedies
Additional section outlining what happens to the project when the court remands a portion or all of the approval based on a CEQA violation.
Transportation Impacts Analysis
Perhaps the marquee change to the Guidelines is the change to transportation impact analysis, as authorized by SB 743. SB 743 specified that level of service, the standard metric for traffic impact analysis, could no longer be used for an impact significance determination for certain transit-oriented development projects, and gave OPR the option of expanding this change for all categories of project.
OPR took that option, and identified VMT as the new metric for transportation impacts. The changes to the CEQA Guidelines are brief
––Section 15064.3 has been added to the Guidelines to explain the use of VMT––and OPR prepared a separate Technical Advisory to flesh out the details for VMT as an impact methodology. Lead agencies must switch to VMT as an impact standard no later than July 1, 2020.
Greenhouse Gas Analysis
This improvementmakes revisions based on two recent greenhouse gas (GHG) court cases: Newhall (properly known as Center for Biodiversity vs. CDFW) and Cleveland National Forest Foundation. The changes clarify that consistency with the state’s long-term goals may be considered, but they must be applied at the project level, with substantial evidence supporting the determination of significance.
Energy Impacts Analysis
This improvement adds a discussion of energy to the section on potentially significant environmental effects to be considered in an EIR.
Water Supply Analysis
This improvement adds additional information to the analysis of water supply, including the level of certainty related to various phases of project approval.
Responses to Comments
This technical improvement clarifies that both comments and responses can be transmitted electronically. It further clarifies that the level of detail in a response can match the level of detail in the comment response (i.e., general comments merit general responses), and that the lead agency (per recent case law) is not required to respond to the “dump” of technical data in a comment unless that information is specifically referenced in the comment.
This technical improvement revises the environmental hazards section based on the Bay Area Air Quality Management District case, stating that the effect of an environmental condition on the project may only be considered significant if the project makes that condition worse. Existing hazards that may affect the project (i.e, “CEQA-in-reverse”) are not considered significant impacts.
This technical improvement reflects the recent line of case law. The conditions at the time of the Notice of Preparation (NOP) (or initiation of an initial study) are still the baseline of choice, but the lead agency can consider substantial evidence in the use of a historic or future baseline.
This technical improvement clarifies that interest in a project or an agreement to acquire a site may not require CEQA compliance, if it is clear that compliance will be required before any binding commitments are made on a project or its location.
Other Technical Improvements
- Conservation Easements as Mitigation. An agricultural conservation easement will serve as full mitigation for conversion of farmland.
- Notice of Determination and Notice of Exemption. The project proponent (recipient of government funding or approvals) must be identified in the notice.
- Posting with the County Clerk. NOPs shall be filed with the County Clerk of each county where the project is located.
- Time Limits for Negative Declarations. The 180-day limit can be extended once for not more than 90 days.
- Project Benefits. Benefits may be discussed as part of the project objectives.
- Joint CEQA/NEPA Documents. Agencies can enter into a memorandum of agreement for preparation.
- Discretionary Projects. Adds additional information on what makes a project discretionary.
- Common Sense Exemption. The “general rule exemption” has been renamed “common sense exemption.”
- Consultation with Transit Agencies. Minor cleanup to consultation on projects of statewide, regional or area-wide significance.
- Lead Agency by Agreement. Minor clarification to lead agency designation.
- Mitigation Details. Cleans up when and how the details of a mitigation measure can be deferred.
- Preparing the Initial Study. Cleans up arrangement for preparing negative declarations to match EIR.
- Citations in Environmental Documents. Minor clarification.
- Appendices to the CEQA Guidelines. Minor updates to forms to be consistent with the other changes (such as the infill project checklist).
For more information on the 2018 CEQA Guidelines Update, contact Brian Grattidge at firstname.lastname@example.org or 916.438.5312.