Legal Alerts Jan 15, 2019

Comprehensive Update to the State CEQA Guidelines

Approved by California Natural Resources Agency

Comprehensive Update to the State CEQA Guidelines

Following several years of public involvement, the California Natural Resources Agency approved a Comprehensive Update to the California Environmental Quality Act Guidelines. The Office of Administrative Law approved the update on Dec. 28, at the end of a formal administrative rulemaking process. The Governor’s Office of Planning and Research had sent the proposed update to the Natural Resources Agency in January 2018. Also released in December is a Technical Advisory, issued by OPR that, while non-binding, offers guidance regarding how to analyze transportation impacts under Senate Bill 743.
 
In its comprehensive update, the Natural Resources Agency approved changes or additions to nearly 30 different sections of the Guidelines, added two sections and amended several appendices — including the widely used Appendix G–Initial Study “Checklist.” The numerous revisions to the Guidelines, including efficiency, substantive and technical improvements, often to address recent case law. Among others, the updates include:

  • Clarification of the existing CEQA exemptions for consistency with case law, including the use of the “existing facilities” categorical exemption and the “emergency” statutory exemption.
  • Elaboration on the elimination of redundancy in environmental review through the use of “tiering.”
  • Clarification on the difference between “tiering,” and CEQA’s more specific “streamlining” provisions, as “tiering” describes one mechanism for streamlining the environmental review process, but where other methods have more specific provisions, those provisions shall apply.
  • Clarification of baseline requirements for consistency with recent case law, including elaborating on the use of historic conditions as the baseline where environmental conditions fluctuate, and describing exceptions to the general rule and hypothetical conditions.
  • Guidance on “pre-commitment” issues consistent with the 2008 California Supreme Court case Save Tara v. City of West Hollywood, including the types of activities that an agency may (or may not) typically engage in prior to the completion of CEQA review.
  • Addressing the California Supreme Court’s 2007 decision in Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova regarding the analysis of water supply impacts, by requiring analysis of a proposed project’s possible sources of water supply over the life of the project as well as consideration of the impacts of supplying that water to the project.
  • Clarification of consultation requirements for Notices of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration, as well as for draft EIRs, by providing that “the lead agency should also consult with public transit agencies with facilities within one-half mile of the proposed project.”
  • Added new “Energy” and “Wildfire” resource categories to the Initial Study/Appendix G checklist. The addition of “Energy” arguably broadens the obligations of public agencies to consider energy impacts, which previously were often reviewed only in EIRs pursuant to Guidelines Appendix F. The checklist revisions specifically ask that agencies analyze and mitigate environmental effects “due to wasteful, inefficient, or unnecessary consumption of energy.” The addition of “Wildfire,” in response to SB 1241, focuses on the effects of new projects in creating or exacerbating wildfire risks. 


Additionally, the update package includes long-anticipated revisions under SB 743, which will require that lead agencies evaluate traffic impacts based on vehicle-miles-traveled, or VMT, instead of a more traditional level-of-service, or LOS, basis. New Guideline section 15064.3 phases in the use of VMT on a state-wide basis, mandating its use no later than 2020. The concurrently issued Technical Advisory includes guidance on how to assess VMT, develop thresholds of significance, analyze safety issues and develop mitigation measures.
 
Public agencies should also take note that, pursuant to State CEQA Guidelines section 15007, these changes to the Guidelines apply prospectively only. However, “[p]ublic agencies shall comply with new requirements in amendments to the Guidelines beginning with the earlier of …. [t]he effective date of the agency’s procedures amended to conform to the new Guideline amendments; or [t]he 120th day after the effective date of the Guideline amendments.”
 
For more information regarding the updated CEQA Guidelines, please contact one of the attorney authors of this Legal Alert listed at right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
 
Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Facebook @BestBestKrieger and on Twitter @BBKlaw.
 
Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Continue Reading