CEQA: An Introduction
By: Rebekah Jensen
When you drive past an active construction site – say, the future home of an elementary school – you might assume that you are looking at a project that is just getting started. After all, construction may take a year or more, and then there is the work of furnishing and equipping all the classrooms, and then you’ll need a fleet of buses, not to mention faculty and staff.
But in California, breaking ground for a school or any other major project signals a finish line of sorts, because it means the project stakeholders have successfully completed the California Environmental Quality Act (CEQA) review process.
What is CEQA and why does it matter?
Signed into law in 1970 by then-Governor Ronald Reagan, CEQA requires state and local agencies to consider the environmental effects of the projects under their discretion. More than that: agencies must disclose these effects to the public, and when effects are significant, they must be reduced, if at all feasible, through use of mitigation measures, selection of a different project alternative, or some other means.
CEQA matters…
To taxpayers because it encourages transparency in public agency actions, and because it holds agencies accountable for the decisions they make
To agencies because it drives a substantial share of their decision-making process, encourages consensus-building, and helps them safeguard the environmental values under their jurisdiction
To project proponents because it provides a predictable framework for project approvals, brings stakeholders together early in the planning phase to prevent problems later, and minimizes the potential for environmental violations and other liabilities
Because it highlights and has the potential to advance important conversations about environmental justice and sustainability with diverse stakeholders, including conservation groups, local residents, and indigenous communities.
Because it considers the health and well-being of current and future generations of Californians alike.
When does CEQA apply?
To be clear, CEQA applies not only to a public agency’s own projects, but to private projects that they review and authorize. The key is that the project must in some way cause a physical change in the environment – either directly or indirectly – and that the agency’s involvement with the project must be discretionary rather than ministerial.
But whoa, what’s all this jargon? Let’s unpack it together. Ministerial actions are those that are essentially done by rote, following a prescribed procedure and without regard to one’s own judgment or discretion; examples in your local jurisdiction may include grading or building permits. By contrast, discretionary permits and approvals require careful review and deliberation, and sometimes even a vote by a decision-making body. Examples include conditional use permits, zoning changes, and certain state agency approvals such as Water Quality Certifications and Lake or Streambed Alteration Agreements.
Going back to our elementary school example, it is easy to see how CEQA would come into play. Physical change in the environment? Check. Discretionary action by a public agency? If it is a public school, obvious check. If it is a private school, still a likely check, because discretionary approval from one or more public agencies will probably be needed to address zoning issues, natural resources permitting, or other factors.
Whose job is it?
As we’ve learned, a project’s need for CEQA is tied to its need for discretionary approvals from state and local agencies. The agency with chief responsibility for approving or denying a project is referred to as the CEQA lead agency. The lead agency essentially captains the CEQA process. It is tasked with determining the level of review that is required, coordinating with other involved agencies, handling public outreach, completing the review, and preparing a slew of documentation.
So if a private entity wants to develop a project, can they just sit back while the lead agency deals with CEQA? Not exactly. State and local agencies often do not have the resources to handle all the discrete tasks required for a CEQA review, and may choose to put this onus on the project proponent. In such cases, while the lead agency remains ultimately responsible for the review, the project proponent shoulders the economic and logistical burden, usually by hiring a planning firm or other CEQA practitioner to complete the necessary studies and paperwork.
In many cases, specialized consulting firms are brought in to handle aspects of the environmental analysis. Live Oak Associates is one such firm. We zero in on one piece of the puzzle: a project’s potential impacts on biological resources and how these impacts can be avoided or mitigated. We then document our analysis for inclusion in the larger CEQA study.
But what does CEQA actually entail?
CEQA requires a comprehensive examination of a project’s effects on the environment – but the environment is a big place! What, specifically, does CEQA ask project stakeholders to consider? And how is a CEQA review carried out? As follows is a discussion of how CEQA is designed to work. However, in reality, the process does not always follow the intended design.
The CEQA Statute and accompanying CEQA Guidelines are relatively vague when it comes to the topics to be addressed during a CEQA review. However, the CEQA Guidelines include a sample questionnaire, the Appendix G Checklist, that walks lead agencies (and CEQA practitioners) through key topics and helps them identify any issues in need of further analysis and documentation.
Some of these topics include:
Aesthetics
Agriculture and Forestry Resources
Air Quality
Biological Resources
Cultural Resources
Geology / Soils
Greenhouse Gas Emissions
Hydrology / Water Quality
Noise
Population / Housing
Transportation
Utilities / Service Systems
Wildfire
The process of determining which environmental topics are at issue for the project, and whether any environmental impacts are likely to be significant, is referred to as the Initial Study. The Initial Study drives the rest of CEQA, as it establishes which of the three levels of review and associated documentation are required: the Negative Declaration (ND), Mitigated Negative Declaration (MND), or Environmental Impact Report (EIR).
NDs and MNDs are relatively simple affairs, reserved for projects that either won’t significantly impact the environment (ND), or won’t significantly impact the environment after certain mitigation measures are adopted (MND). NDs and MNDs are held to the spirit of CEQA, in that they must push the project and its environmental effects into public view. But unlike the much more rigorous EIR, NDs and MNDs only require one public notice, and a public review period of only 30 days.
EIRs are for projects that are likely to significantly affect the environment, even after mitigation measures are incorporated. Predictably, the EIR process is much more rigorous than that of the light-duty ND and MND. For one thing, EIRs are expected to go into greater detail in examining a project’s environmental impacts. For another, they must compare the project’s environmental impacts to those of a range of project alternatives, or alternate scenarios for meeting project objectives (e.g. through changes in project location, scope, or design). And finally, they require more public participation – not only a longer public review period, at 45 days, but several public notices published at key junctures throughout the review period.
Following the public review period, the lead agency considers any comments received and determines whether changes to the project are warranted. A lower-impact project alternative may be selected. Controversial project elements may be modified or dropped. Mitigation measures may be revised, or new measures adopted, to address various resource concerns. The review concludes with the lead agency approving the final CEQA document and committing to any required mitigations through the adoption of a Mitigation Monitoring and Reporting Program (MMRP).
Speaking of mitigation…
Projects that undergo MND- or EIR-level CEQA review must invariably commit to mitigation measures to lessen their environmental impact. These measures can run the gamut from simple dust abatement practices during construction to expensive compensatory mitigation schemes. Measures that Live Oak Associates commonly works with include preconstruction surveys for sensitive natural resources, construction setbacks for resource protection, sensitive species salvage and relocation, environmental awareness training for construction personnel, biological monitoring during construction, revegetation efforts, and in-lieu fee payment and other types of compensatory mitigation.
Although it is the lead agency that formally commits projects to mitigations through the MMRP, the responsibility to see these mitigations through is often delegated to others. For private projects, the responsible party is generally the project proponent, who may then choose to contract the mitigations out to construction firms, consultants, or other entities.
School’s almost out…
This has been a whirlwind introduction to CEQA, and it’s almost over. For a wrap-up, let’s circle back to our elementary school example. The school is fictitious, but I’m going to attempt to bring it to life by fleshing out the details a bit.
Located in unincorporated Fresno County, the proposed Kings River Arts Academy is a private K-8 school for artistically-inclined youngsters. It’s the brainchild of the Kings River Arts Foundation (KRAF), a nonprofit organization. A savvy project proponent, KRAF hired a planning firm for the project several years ago and has been working closely with the County of Fresno, the project’s lead agency, ever since.
Early on, it was determined that the project would need a conditional use permit, and therefore CEQA review. What’s more, because the project would remove several vernal pools known to be occupied by the vernal pool fairy shrimp, an impact that would remain significant even after mitigation, the project would require an EIR.
The planning firm got to work. A Notice of Preparation was published, and a public scoping meeting held. Consultants were hired and technical studies conducted. The draft EIR was prepared and circulated, and many comment letters were received. The planning firm collaborated with KRAF, the County of Fresno, and key consultants to prepare responses to the comments and make requisite changes to the EIR. At long last, the County certified the final EIR and adopted the MMRP. Then, and only then, could the project’s conditional use permit be issued.
The rest is history. KRAF hired a construction contractor and arranged for implementation of the project’s required mitigation measures. Construction proceeded in the least environmentally damaging way possible, with both KRAF and the County highly involved in the process to ensure consistency with the EIR. Word on the street is that the Kings River Arts Academy will welcome its first 50 students this fall!
Summer Reading
You may have spotted a few loose ends along the way. For one thing, did you notice that I used the word “significant” rather, well, significantly? That’s because in the world of CEQA, significant and its antithesis, less-than-significant, have a particular meaning. Stay tuned for another blog post that explores this in more detail.
You may also have some questions about those hypothetical vernal pools I mentioned. The made-up Kings River Arts Academy project underwent CEQA, but isn’t there more they need to do to address impacts to those pools and their resident fairy shrimp?
The short answer is yes. The long answer will be fleshed out in future articles about the Clean Water Act and Endangered Species Act.
Live Oak Associates provides a comprehensive range of biological consulting services to organizations throughout California. Partner with us to discover how our team can help you with your next project.
