an introduction to the national environmental policy act and the california environmental quality act

1. An Introduction to the National Environmental Policy Act and the California Environmental Quality Act ESM 430 Donald Bren School of Environmental Science & Management

3. California Environmental Quality Act (CEQA) Foundation of environmental law and policy in California Similar to NEPA but only applies to state and local agencies (counties, cities, and special districts) in California Provides a procedure for disclosing to decision-makers and the public the significant environmental effects of proposed activities Requires agencies to avoid or reduce the environmental effects by implementing feasible alternatives or mitigation measures

4. Workshop Objectives Basic understanding of the purpose and objectives of the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) Understanding the process for conducting environmental impact assessment (EIA) Familiarity with the differences between NEPA and CEQA

5. Workshop Organization Introduction and historical perspective Overview of the NEPA and CEQA processes Phases of the NEPA and CEQA process Phase 1 � Review for NEPA or CEQA applicability Phase 2 � Conduct screening study Phase 3 � Prepare environmental document Phase 4 � Decision-making Phase 5 � Monitoring Summary Written Exam

6. Environmental Planning Planning process to evaluate the potential environmental impacts of a proposed action and provide recommendations to avoid or minimize potential adverse impacts Main tool = Environmental Impact Assessment (EIA)

7. Environmental Impact Assessment Systematic process for identifying and evaluating the potential effects of proposed actions on the components of the environment (physical, biological, cultural and socioeconomic)

8. Objectives of EIA Process Modify and improve design Ensure efficient resource use Enhance social aspects Identify key impacts and measures for mitigating them Inform decision-making and condition-setting Avoid serious and irreversible damage to the environment Protect human health and safety

9. Key operating principles of good EIA practice EIA should: be applied to all proposals with significant impacts begin early in the project cycle address relevant environmental, social and health impacts identify and take account of public views result in a statement of impacts and mitigation measures facilitate informed decision making and condition setting

10. EIA vs Environmental Document EIA is a process Outcome of EIA process is a report or environmental document Examples of EIA Processes Federal - NEPA California � CEQA Europe � EU Directive 85/337/EEC Business world � ISO 14001

11. Historical Perspective

12. Pre-1970 Decision Making Process

13. NEPA Action-forcing Mechanism Sec. 102 (2)(C) �. all agencies of the Federal Government shall� �. (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on [the environmental effects of the proposed action].

14. NEPA Sec. 102 (2)(C) � cont. the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed action, the relationship between local short-term uses of man�s environment and the maintenance and enhancement of long-term productivity, any irreversible commitments of resources which would be involved in the proposed action should it be implemented.

15. Post-1970 Decision Making Process

16. NEPA Changed Decision-Making Established a process by which federal agencies must study the environmental effects of their actions Created an interdisciplinary and integrated framework in which Science of environmental impact assessment (EIA) is conducted Environmental management is implemented by integration with technical and economic feasibility Involves public in federal decision-making process through environmental disclosure

17. NEPA (1969) �Magna Carta for the environment� (CEQ, 1993) �The NEPA is at its core, a mandate for informed, democratic decision making and its greatest contribution to environmental protection is incalculable.� (CEQ, 1997) �NEPA is our country�s basic charter for environmental responsibility.� (Bass, Herson, et. al., 2001)

18. Administration of NEPA Council on Environmental Quality (CEQ) Established by congress to administer NEPA Environmental Protection Agency (EPA) Established by Congress in 1970 Provides oversight of NEPA by assisting federal agencies in certain aspects of NEPA Federal agencies Individually responsible for meeting NEPA guidelines with guidance from CEQ and oversight from EPA Public and Courts No enforcement agency Enforced by public through courts

19. Post-NEPA Events Calvert Cliffs (1971) First court decision that examined underlying intent of NEPA Affirmed universal requirement that NEPA applies to all federal agencies and actions CEQ binding NEPA regulations (1978)

20. What is NEPA? NEPA is not National Environmental Protection Act No specific substantive directives NEPA is National Environmental Policy Act Primarily a procedural requirement

21. NEPA Limitations No mandate to protect the environment, only to study the environmental effects of actions No requirement to avoid or mitigate adverse environmental effects � only consider them Basic premise of NEPA: Disclosure and consideration = better decisions

22. Little NEPAs

23. CEQA Origins 1969: President Nixon signs National Environmental Policy Act (NEPA) 1970: Governor Reagan signs California Environmental Quality Act (CEQA) CEQA (the Statute): Established by Legislature �and continuously modified by Legislature �and �interpreted� by the Courts GaryGary

24. CEQA Origins Initially intended to apply to public projects only 1972: Friends of Mammoth v. Board of Supervisors: CEQA applies to �all� projects subject to discretionary action GaryGary

25. CEQA Objectives Inform government decision makers and the public about the potential significant environmental impacts of proposed activities Identify ways that environmental impacts can be avoided or significantly reduced Prevent significant avoidable damage to the environment by requiring changes in the project through the use of alternatives and mitigation Disclose to the public the reason that an agency approved a project notwithstanding its environmental impacts

26. Administration of CEQA Governor�s Office of Planning and Research (OPR) drafts CEQA guidelines California Resources Agency Secretary for Resources reviews and approves guidelines for implementing CEQA State and local agencies Public agencies are entrusted with following CEQA guidelines and implementing statue No direct oversight of CEQA CEQA is a self-executing statue Public CEQA enforced by public litigation or threat of litigation

27. Public Participation Essential part of the NEPA and CEQA processes Each public agency must include provisions in its NEPA and CEQA procedures for wide public involvement Disclose to the public the reason that an agency approved a project notwithstanding its environmental impacts Enables the public to determine the environmental and economic values of their elected officials

28. NEPA/CEQA �Frameworks for Decision-Making To review the impacts of a project So decision-makers (that includes you) are informed To offer improvements � mitigations And consider other ways � alternatives Provide the public an opportunity to review and comment on projects

29. NEPA/CEQA Process

30. NEPA Process

31. CEQA Process

32. Overview of NEPA/CEQA Process Phase 1 � Review for NEPA or CEQA applicability Phase 2 � Conduct screening study Phase 3 � Prepare environmental document Phase 4 � Decision-making Phase 5 � Mitigation Monitoring

33. Who is Responsible? NEPA Rule Maker Council on Environmental Quality (CEQ) Implementers Lead agency Cooperating agency Filing and Noticing U.S. EPA Enforcement Public through the courts CEQA Rule Maker California Resources Agency Implementers Lead agency Responsible agency Trustee agency Filing and Noticing Office of Planning and Research (OPR) - State Clearinghouse Enforcement Public through the courts

34. The Rules NEPA NEPA � the statute 42 U.S.C. 4371 et. seq. CEQ NEPA Regulations 40 CFR 1500 et. seq. The Courts CEQA CEQA � the statute Public Resources Code �� 21000-21178 The CEQA Guidelines California Code of Regulations Title 14, �15000 et seq. The Courts

35. Sources for Information Federal NEPA Net http://ceq.hss.doe.gov/nepa/nepanet.htm California CERES (California Environmental Resources Evaluation System) http://www.ceres.ca.gov/ CEQA Web � California statues and guidelines searchable interface LUPIN � Land Use Planning Information Network

36. Other Sources of information Solano Press Books (http://www.solano.com/) California publisher specializing in land use, planning law, and environmental books Bass et. al. (2001), The NEPA Book Bass et. al. (2002), CEQA Deskbook Professional Organizations National Association of Environmental Professionals www.naep.org California Association of Environmental Professionals www.califaep.org International Association of Impact Assessment www.iaia.org

37. Phase 1 � Determining NEPA or CEQA Applicability

38. Phase 1 � Preliminary Review Objectives Is the activity a proposed action under NEPA or a project under CEQA? Is the proposed action or project exempt from either NEPA or CEQA?

39. NEPA/CEQA Applicability NEPA �Proposed action� includes major federal actions including activities: Directly undertaken by federal agencies Supported by federal agency contracts, grants, subsidies, loans or other assistance Involving the issuance of a permit, license or other entitlement by a federal agency Involving federal rules, plans , policies or procedures �Proposed action� includes proposals for legislation CEQA �Project� means the whole of an action that may impact the environment including activities: Undertaken by state or local agencies Supported by state or local agency contracts, grants, subsidies, loans or other assistance Involving the issuance of a permit, license or other entitlement by a state or local agency Involving state or local agency rules, plans , policies or procedures �Project� does not involve proposals for legislation

40. Ministerial vs. Discretionary Actions NEPA and CEQA only apply to discretionary actions; they do not apply to ministerial actions Discretionary action Decision-maker has considerable discretion to approve, modify, or reject proposed action Ministerial action No discretion in decision-making process Only involves review for compliance with standards

41. When does NEPA apply to California agencies? NEPA applies to any state or local projects if it requires a permit, regulatory decision, funding or other assistance from a federal agency NEPA does not apply to activities or projects when there is no federal discretionary authority Projects in California may be subject to only CEQA, NEPA or both NEPA and CEQA

42. Excluded and Exempt Projects NEPA Statutory Exclusions/Exemptions NEPA does not include express exemptions Other legislation exempts some federal programs or activities Categorical Exclusions Category of federal actions that does not have significant environmental impacts (there are exceptions) Very broad list Separate listing by each agency CEQA Statutory Exemptions CEQA includes express exemptions Activities exempted from all or part of CEQA by the State Legislature regardless of impacts (policy decision) Categorical Exemptions Classes of projects which are exempted from CEQA because they typically do not have significant impacts (there are exceptions) 33 approved by State Resources Agency

43. CEQA Statutory Exemptions Ongoing project Feasibility and planning studies Discharge requirements Timberland preserves Adoption of local coastal plans and programs General plan time extension Financial assistance to low or moderate income housing Ministerial projects Emergency projects Projects which are disapproved Early activities related to thermal power plants Olympic games Rates, tolls, fares and charges Family day care homes Specified mass transit projects State and regional transportation improvement programs Projects located outside California Application of coatings Certain pipeline work Air quality permits Other miscellaneous per CCR �15282

44. CEQA Categorical Exemptions Existing facilities Reconstruction Small structures Minor alterations to land Minor alterations to land use Information collection Actions by regulatory agencies for natural resources protection Actions by regulatory agencies for protection of the environment Inspection Loans Accessory structures Surplus property sales Land acquisition for wildlife conservation Minor additions to school Minor land divisions Transfer of ownership for parks Open space contracts Designation of wilderness areas Annexations of existing facilities for exempt facilities Changes in organization of local agencies Enforcement actions by regulatory agencies Education programs with no physical changes Normal operations for public gatherings Regulation of working conditions Transfer of ownership of open space Acquisition of housing for housing assistance programs Leasing new facilities Small hydroelectric projects at existing facilities Cogeneration projects at existing facilities Minor actions to prevent, minimize, stabilize, mitigate, or eliminate the release or threat of hazardous waste or substances Historical resource restoration or rehabilitation Certain in-fill development Small habitat restoration projects

45. Preliminary Project Review Steps

46. Phase 2 � Screening Process

47. EISs Filed (1970-2006)

48. Screening Process Objectives Determine which project issues are important Assess the need for project design changes Focus preparation of the environmental document only on those issues that are potentially significant

49. NEPA/CEQA Screening Documents NEPA Environmental Assessment (EA) Concise public document that is primary tool used by federal agencies to determine whether EIS is necessary Presents a preliminary assessment of potential environmental impacts Assesses need for project design changes Documents federal agency�s conclusion about whether or not an EIS is required CEQA Initial Study (IS) Checklist format report that is primary tool used by California public agencies to determine whether EIR is necessary App. G, CEQA Guidelines Court Case: Citizens Association for Sensible Development of Bishop Area v. County of Inyo No �naked checklists�

50. Phase 2 Threshold Decision Will the proposed action significantly affect the quality of the human environment? Significantly refers to the context and intensity of the environmental effects of an action Quality of the human environment refers to natural and physical environment and the relationship of people with that environment Both individual and cumulative impacts must be considered No = Finding of No Significant Impact (NEPA) or Negative Declaration (CEQA) Yes = EIS (NEPA) or EIR (CEQA)

51. Thresholds of Significance

52. Key Concept - Mitigation Mitigation to a point where clearly no significant impact would occur from implementation of the project, as revised Types of mitigation Avoiding the impact altogether Minimizing impacts by limiting the magnitude Rectifying by repairing, rehabilitating, restoring Reducing or eliminating over time Compensating by replacing or providing substitute resources

53. Agency Decision to Prepare EIS or EIR NEPA Agencies must prepare EIS only if there is substantial evidence that project may have significant environmental impact CEQA Agencies must prepare EIR if fair argument can be made that project may have significant environmental impact

54. Phase 3 � Prepare Appropriate Environmental Document

55. Environmental Document Terminology NEPA Finding of No Significant Impact (FONSI) Environmental Assessment (EA) attached Environmental Impact Statement (EIS) CEQA Negative Declaration (ND) Initial Study (IS) attached Mitigated Negative Declaration (MND) Environmental Impact Report (EIR)

56. No Impacts NEPA � Finding of No Significant Impact (FONSI) Public document that briefly describes why proposed action would not significantly affect the environment EA is the factual support for FONSI Must include, summarize, attach, or incorporate the EA by reference CEQA � Negative Declaration Brief description of the project, location, and proponent�s name Proposed finding that the project will have no significant effect Initial study documenting reasons supporting the finding must be attached Mitigation measures to avoid potentially significant effects (MND only) Mitigation Monitoring & Reporting Plan (MND only)

57. Examples � Screening Documents NEPA Environmental Assessments/FONSI White Earth Nation Wind Energy Project; Becker County, MN CEQA Initial Studies/NDs El Colegio Road Improvement Project; Isla Vista

58. NEPA � Environmental Impact Statement (EIS) Summary Table of contents Statement of purpose and need Alternatives, including the proposed action Affected environment Environmental consequences, including mitigation measures List of preparers List of all federal permits Responses to all comments on draft EIS Appendices Index

59. CEQA � Environmental Impact Report (EIR) Table of contents Summary Project Description Environmental Setting Significant environmental effects (including direct, indirect, short-term, long-term, cumulative, and unavoidable) Areas of known controversy Alternatives, including No Project alternative Mitigation measures Growth-inducing impacts Irreversible impacts Responses to all comments on draft EIR

60. Alternatives Analysis NEPA EIS must treat alternatives in relatively similar level of detail CEQA EIR must compare a reasonable range of alternatives, but may evaluate them in less detail than the proposed project

61. Types of EISs and EIRs NEPA Project-specific EIS Programmatic EIS Legislative EIS CEQA Project EIR Program EIR Addendum to an EIR Subsequent or Supplemental EIR Master EIR Focused EIR Others (Staged, Redevelopment, Base Reuse, General Plan)

62. Examples � EISs and EIRs NEPA Environmental Impact Statement (EIS) Carrizo Plain National Monument Resource Management Plan Piute Fire Restoration Project Central Valley Project Water Supply Contracts CEQA Environmental Impact Report (EIR) Lompoc Wind Energy Project Santa Barbara Botanic Garden Vital Mission Plan

63. Time Limits NEPA No time limits for document preparation Each federal agency encouraged to set time limits in its specific NEPA regulations CEQA Non-agency projects subject to Permit Streamlining Act ND � 180 days from application�s acceptance as complete EIR � one year from application�s acceptance as complete

64. Public Notice and Review NEPA Public notice not always required for FONSIs Notice in Federal Register required for Draft EIS Notice in Federal Register and 30-day review required for Final EIS CEQA Public notice required for Negative Declarations Public notice required for Draft EIRs Public notice and review not required for Final EIRs

65. Phase 4 - Decision-Making

66. Decision Process NEPA Consider and adopt final EA/FONSI or EIS Decision File Record of Decision CEQA Consider and certify final ND or EIR Decision Make Findings Adopt Mitigation, Monitoring Program Adopt Statement of Overriding Considerations (if necessary) File Notice of Determination

67. NEPA Process � Record of Decision An explanation of the decision on the proposed action Factors considered in making the decision Alternatives considered and the environmentally preferred alternative Any adopted mitigation measures or reasons why mitigation measures were not adopted A monitoring and enforcement program for those mitigation measures adopted

68. CEQA Process - Findings For each significant impact, an agency must make one of the following findings: The project has been changed to avoid or substantially reduce the magnitude of the impact Specific economic, social, legal, technical, or other considerations make the mitigation measures ar alternatives infeasible Changes to the project are within another agency�s jurisdiction and such changes have been or should be adopted �Statement of Overriding Considerations� is necessary to approve a project that will have a significant unavoidable environmental impact

69. CEQA Process � Notice of Determination Project name, description and location Date of project approval Statement that EIR prepared and certified Summary of project impacts List of mitigation measures adopted Adopted Findings and any Statement of Overriding Considerations Address where EIR may be reviewed

70. Agency Decisions on Project NEPA No requirement to mitigate impacts Record of Decision need only explain why the decision was made CEQA Agencies must mitigate all project impacts, if feasible Findings must explain whether each impact has been mitigated and, if each has not, why Notice of Determination filed after project approval

71. Statutes of Limitation NEPA No specific statute of limitation for legal challenges CEQA Short statute of limitation for legal challenges

72. Phase 5 - Mitigation Monitoring and Reporting

73. Mitigation Monitoring NEPA ROD must identify adopted mitigation measures CEQ recommends that federal agencies monitor effectiveness of mitigation measures Neither NEPA or CEQ guidelines contains specific guidance on how to develop monitoring programs CEQA CEQA includes a specific requirement for an agency to adopt a Mitigation Monitoring and Reporting Program at project approval to ensure compliance during project implementation MMRP must be enforceable through permit conditions, agreements or other measures

74. Sample CEQA Mitigation Structure MM 5-1: Oak Tree Replacement Plan (short title) Objective: �to compensate for the significant loss of oak trees on the project site� Description: specific actions or types of actions, location, how they reduce/compensate for impact Performance Criteria: ... no net reduction in number of trees after five years ... Timing: �prior to grading permit� Responsible Party: Project Proponent Significance After Mitigation: Less than significant

75. NEPA/CEQA Similarities Basic premise = disclose and consider Both require preparation of detailed environmental studies to evaluate environmental effects of proposed actions Both establish multi-step procedures for evaluating projects and alternatives

76. NEPA/CEQA Differences Substantive Agency decision on project Procedural Public notice and review Time limits Agency decision to prepare EIS or EIR Statutes of limitation Document Content Alternatives analysis Decision document

77. Summary

78. CEQA/NEPA Decision Tree

79. CEQA/NEPA Contrasting Elements CEQA Requires mitigation measures to be implemented, if feasible. Requires discussion of growth-inducement. Alternatives analysis less detailed than project analysis. Requires mitigation monitoring program to be prepared. NEPA No such requirement. No such requirement. Alternatives analyzed at equal level of detail Allows, but does not require, mitigation monitoring.

80. Key Points NEPA and CEQA = regulatory frameworks for Environmental Impact Assessment (EIA) Phases of the NEPA and CEQA EIA process Phase 1 � Review for NEPA or CEQA applicability Phase 2 � Conduct screening study Phase 3 � Prepare environmental document Phase 4 � Decision-making Phase 5 � Monitoring Most important effects of NEPA and CEQA Established interdisciplinary and integrated framework for decision-making Includes an �action-forcing mechanism� Involves public in decision-making process NEPA/CEQA Differences NEPA = procedural (disclose and consider only) CEQA = procedural and substantive (requirements to minimize environmental Impacts)