A BRIEF(?) OVERVIEW OF CEQA – Part 2
This is the second part of a three-part post about the California Environmental Quality Act (CEQA).12 The chart below is from the Los Angeles Department of City Planning (DCP) website. Both left and right-side sections are shaded to draw attention to the center of the chart, the sections discussed today. See my prior post (CEQA – Part 1) for discussion of the left side sections; the right-side sections will be discussed in CEQA – Part 3.
Today’s post focuses on the lower center part of the chart. This section applies to actions that meet the CEQA definition of a project, but does not qualify for exemption (either statutory, categorical, or ministerial) and is not a Sustainable Community or Transit Priority Project.
The Initial Study
When the lead agency receives a project application, and they decide that the project is not CEQA exempt, they will prepare an Initial Study (IS). The purpose of the study is to show the potential environmental impacts due to the project and decide the type of subsequent CEQA documents needed.
The Initial Study often takes the form of a standardized list of questions organized by issue area or factor of concern (see CEQA Guidelines, Appendix G). An agency does not have to use the checklist, but the scope and content of the study must conform with the guidelines. The graphic below shows the twenty-one environmental factors of concern addressed in the checklist.
The California Natural Resources Agency adopted revisions to the CEQA Guidelines effective 28 December 2018, including revisions to the checklist questions. The changes were mostly made to reduce redundancy, provide more clarity, and align the Guidelines with court rulings and changes in law. These changes took effect while the Hollywood Community Plan Update was underway (see Appendix P of the Final EIR). Major changes include:
Aesthetics. Added qualifier that the checklist questions about aesthetics do not apply to projects located in a transit priority area. Aesthetic impacts for such projects shall not be considered significant.
Transportation. Checklist question revised to address vehicle miles traveled (VMT) as the measure for evaluating traffic impacts instead of Level of Service.
Wildfire. New question focuses on whether a project on land that is classified as a very high fire severity zone would substantially impair emergency response or evacuation plans, or require the installation or maintenance of associated infrastructure that may exacerbate fire risk, impact the environment, or expose people or structures to significant risk, including subsequent flooding or landslide.
For each question, the lead agency must decide the level of impact expected. Impact is rated on a four-level scale that ranges from lowest “none or beneficial” up to highest “significant and unavoidable.” The two in-between impact ratings include “less than significant” and “less than significant with measures taken to reduce impact (i.e., mitigation).” In addition to checking the boxes as to the expected level of impact, the lead agency must provide:
A brief explanation for all answers except “No Impact” answers that are adequately supported by the information sources cited.
A “No Impact” answer should be explained when it is based on project-specific factors and general standards.
All answers must consider the whole action involved, including off-site as well as onsite, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts (note: recent regulatory changes affect the need to consider cumulative impacts depending on project type).
The lead agency must describe potential mitigation measures, and briefly explain how they reduce the effect to a less than significant level.
Back in 2006, the City of Los Angeles issued their CEQA Thresholds Guide to help city staff assess the level of impact to be assigned to each question. The Guide was used in preparing the Initial Study and to ensure the consistency of analysis. The Guide provides a clear set of criteria for screening potential impacts and a second set of criteria for determining the significance of those impacts. Recently, City Planning has ruled that the Thresholds Guide is no longer official, and instead, has adopted the CEQA Appendix G Checklist as the official thresholds of significance for the City.
If City Planning took the time to actually read the CEQA Checklist, and all of the supporting documentation regarding the purpose of State revisions, they might see that their action violates the law. The CEQA Checklist specifically does NOT set the threshold of significance, but only sets a minimum basis for the scope of analysis. Each lead agency must develop their own set of thresholds (the reason why the 2006 Guide was originally prepared). A lead agency cannot delegate their responsibility for setting thresholds to the state.
Negative Declaration
If the lead agency judges the project to result in no impact, or less than significant impact, they will prepare a Negative Declaration (“neg dec” or ND) and a Notice of Intent (NOI) to adopt the ND. An ND is a brief report that describes the reasons that the proposed project, not exempt from CEQA, will not have a potentially significant impact on the environment.
The NOI provides public notice and supplies information as to where the ND may be viewed, the review period (not less than 20 days; 30 days if state, regional, or areawide project), and how public comment can be given. Following the public review and comment period, the ND may be revised. For a project involving land use, the ND then goes to the City Planning Commission (CPC) for review and approval, followed by the City Council Planning and Land Use Management (PLUM) Committee, and then on to the full City Council. If the ND is adopted by the Council, a Notice of Determination (NOD) will be sent to the Los Angeles County Clerk.
Should the Initial Study find potentially significant impacts that can be mitigated to less than significant, the lead agency will issue a Mitigated Negative Declaration (MND). Then, as before, the lead agency will prepare and issue an NOI to inform the public that it plans to adopt the MND. The sequence of events following issuance of the NOI for the MND is the same as discussed above for an ND.
Notice of Planning
If mitigation cannot reduce impacts to below significant, the lead agency will issue a Notice of Planning (NOP) for the preparation of an EIR. An NOP is a notice sent by the lead agency to notify the responsible agencies and the public. The purpose of this notice is to ask for guidance as to the scope and content of the EIR. The NOP also starts the clock on a 30-day public scoping period. During this time, the public may supply comments, and the lead agency may hold public meetings, depending on project scope.
Environmental Impact Reports
At the close of the scoping period, the lead agency will begin work on the Draft Environmental Impact Report (DEIR). By law, the DEIR must assess not only the proposed project, but one or more alternatives to the proposed project, including a “no project” alternative. The intent of this exercise is to provide both regulators and the public with a range of data as to environmental impact versus project scope.
A brief side note based on personal observation. Some developers abuse this aspect of CEQA by submitting a premature or ill-defined project plan. They let the EIR process decide the scope of their project. Or they submit a project of excessive size, knowing that the approved scope will be reduced. Lead agencies are complicit in this act when they rush to accept plans that are ill-defined or incomplete. Major time and effort are wasted both by the agency in assessing such plans, and by those public members who take the time to review the plan and provide comment.
Upon the release of the DEIR, the lead agency will file a Notice of Completion (NOC) with the County Clerk and publish a Notice of Availability (NOA). The NOA notifies the public that the DEIR is available for review and comment. Not less than 45 days are allowed for public review and comment (increased from 30 days as of 1 January 2022). Depending on the type and extent of comments, the DEIR may go ahead to Final (FEIR), or it may be revised and be recirculated for another round of public review and comment.
Issues of Concern
Given the size and complexity of many DEIR’s, the FEIR will often be released as a smaller document that only addresses comments received and references the changes made in scope during the regulatory review process. Sections will be reissued only if they have been rewritten to effect substantial change. New sections may be written to address new concerns. Seldom is the FEIR issued as a complete stand-alone document.
This piecemeal presentation makes tracking changes difficult, especially when such changes are not clearly called out. The basis and rationale for making changes may be buried deep in studies and attachments that were part of prior submittals. Recently made changes may be justified based on assumptions that conflict with prior assumptions. Minor unidentified changes are typically not an issue when impacts are reduced, but a change leading to greater impact can lead to legal challenge. This may occur when the agency and the public disagree on the matter of change versus impact.
It is also important to point out that the presence of a potentially significant impact, even after the adoption of mitigation and control measures, does not automatically lead to rejection of the project. The City Council can approve the project, but they must issue a finding of “over-riding consideration” to do so. This action requires them to clearly acknowledge that the project may result in significant impacts, but there are over-riding considerations of greater importance to the public.
Access to CEQA Reports
CEQA reports prepared and published by the City of Los Angeles Department of City Planning (DCP) are available on their website. Published declarations (both ND and MND) are organized by date of publication, environmental case number, project title and/or address, and Council District. Published NOPs, DEIRs, and FEIRs are listed by environmental case number and project title. A new type of report, a Sustainable Community Environmental Assessment (SCEA) has its own section tab.
Another online source for published declarations and environmental reports is the California State Clearinghouse database. They receive environmental reports from all lead agencies throughout California. One can filter their database by agency and download a detailed Excel spreadsheet. Fields of interest include report type, report title, date of publication, points of contact, project site location, and a link to the document on the State website.
In Closing
Next time, I’ll discuss the impact of Sustainable Communities (SC) and Transit Priority Projects (TPP) on the CEQA process. Sacramento has approved major changes in the law to streamline the process and speed up permitting. These same changes also silence the voice of the people living in the targeted area. This is why smart city planning and getting the local Community Plans right is of such critical importance.
Part 1 of this post originally appeared on the Hollywood Heritage Preservation Resource Center website on 18 Sept 2023. I am indebted to members of the Hollywood Heritage Preservation Committee for their review and support and to Carlyle Coach for assistance with the graphics.
The information presented in this blog is for informational purposes only and no claim is made as to the legal accuracy of the information provided. CEQA regulations are complex and subject to change. Readers seeking additional information should consult the 2023 CEQA Statues & Guidelines handbook issued by the Association of Environmental Professions.