December 17, 2017

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OPR Releases Comprehensive Package of Proposed Amendments to CEQA Guidelines

After a four-year long process, on November 27, 2017, the Governor's Office of Planning and Research (OPR) announced the availability of a comprehensive package of proposed amendments to the California Environmental Quality Act (CEQA) Guidelines (Title 14 of the California Code of Regulations). Some of the significant proposed changes to the CEQA Guidelines include: 

  1. Changing the method of transportation impacts analysis from a carrying capacity approach ("level of service") to a "vehicle miles travelled" calculation for most projects.
  2. Promoting the use of existing regulatory standards as thresholds of significance.
  3. Supplementing CEQA's water supply analysis requirements. 

This package also contains certain other measures that OPR purports will result in efficiency, substantive, and technical improvements to CEQA, much of which was proposed by OPR in a preliminary discussion draft released in August 2015 (please click here for our Legal Alert regarding the August 2015 discussion draft).

The Natural Resources Agency will soon begin the formal administrative rulemaking process under the Administrative Procedure Act to amend the CEQA Guidelines. The Resources Agency's formal rulemaking process will include additional public review, which could result in further revisions to the CEQA Guidelines. The Secretary for the Natural Resources Agency will then adopt the changes, and the Office of Administrative Law (OAL) must then review and approve of the changes. Following OAL approval, the proposed CEQA Guideline changes will go into effect.

Documentation and additional information regarding the updates to the CEQA Guidelines are available on OPR's website.  The proposed CEQA Guidelines, especially the changes proposed pursuant to SB 743 and regarding the GHG impacts analysis, have the potential to cause impacts on the CEQA approval process of several land use projects. Therefore, we recommend that the development community should be actively involved in the formal rulemaking process. Interested persons can sign up for the OPR's CEQA Guidelines List Serve to receive future notifications. Updated information about the rulemaking process will be also posted on the Natural Resources Agency website

Proposed Efficiency Improvements

OPR proposes several efficiency improvements including:

  1. Promoting the use of existing regulatory standards as "thresholds of significance."
  2. Updating the CEQA checklist in Appendix G to eliminate redundant questions and add new questions related to transportation and wildfire, pursuant to SB 743 and SB 1241.
  3. Changing the rules for easier use of programmatic environmental review provisions, including clarifying rules of tiering and guidance on when a later project is "within the scope" of a program environmental impact report. 
  4. Enhancing several CEQA exemptions, for example, by providing clarification on establishing "baseline" under the existing facilities exemption, and expanding the exemption for specific plan implementation. 
  5. Proposing a new section in the CEQA Guidelines regarding remand and remedies in CEQA litigation.

Proposed Substantive Improvements

Some of the proposed substantive changes include:

  1. Providing more guidance related to energy impacts analysis including requiring the energy impact analysis to include impacts from transportation, equipment use, location, and other relevant factors, and not just building design.
  2. Adding a new subdivision (f) to section 15155 to set forth the content requirements for a water supply analysis under CEQA. These updates require a proposed project to analyze its possible water supply sources, any uncertainties in supply, possible supply alternatives over the life of the project, and the environmental impacts of supplying that water to the project.
  3. Updating the transportation impacts analysis requirements pursuant to SB 743 to specify that vehicle miles travelled is the appropriate measure of transportation impacts for most projects. Automobile delay or the level of service method to assess transportation impacts will no longer be appropriate measures for most projects. 
  4. Updating the GHG impacts analysis to reflect the recent case law, including Ctr. for Biological Diversity v. Dept. of Fish & Wildlife (2015) 62 Cal.4th 204 and Cleveland Nat'l Forest Found. v. San Diego Assn. of Gov'ts (2017) 3 Cal.5th 497.

Proposed Technical Improvements

The proposed technical improvements include: changes related to evaluation of hazards pursuant to the Supreme Court decision in Cal. Bldg. Industry Ass'n v. Bay Area Air Quality Mgmt. Dist. (2015) 62 Cal.4th 369; clarifications on when it is appropriate to use projected future conditions as the environmental baseline; when agencies may defer specific details of mitigation measures until after project approval; and a set of changes related to the duty of lead agencies to provide responses to comments on a project. Some other changes address electing the lead agency, posting notices with county clerks, clarifying the definition of "discretionary," and technical changes to Appendices D and E to reflect recent statutory requirements.

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Hina Gupta, Allen Matkins, California Environmental Quality Act Lawyer, Land Use Attorney
Associate

Hina Gupta is an associate in the San Diego office of Allen Matkins where her practice involves a variety of land use and environmental matters, with a particular emphasis on entitlements and the California Environmental Quality Act (CEQA).

Hina received her Bachelor of Planning degree, first class with distinction, from the School of Planning and Architecture in New Delhi, and her Master of Planning degree from University of Southern California. She received her juris doctorate, with honors, from The George Washington University Law School...

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James Burroughs, Environmental land use Lawyer, Allen Matkins Law Firm
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James T. Burroughs is a partner in the firm's San Francisco office, where he specializes in environmental and land use law. He manages the permit entitlement process for proposed projects, and specializes in federal, state and local permits involving environmental and natural resource issues. This typically includes compliance with CEQA, NEPA, wetlands, endangered species, streams and rivers, stormwater discharges, and coastal development rules and all related enforcement actions. For large-scale projects, Jim's responsibilities will include development of a permitting strategy, managing environmental consultants and engineers in assembling permit support analyses, and negotiations and appearances before the various permitting agencies.

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Emily L. Murray, Environmental litigation Attorney, Allen Matkins Law Firm
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Emily L. Murray is a partner in our Los Angeles office whose practice focuses on environmental litigation, land use, and energy law.

Emily's litigation practice includes federal and state court litigation of environmental claims related to land use, water quality, air quality, and hazardous materials brought under the California Environmental Quality Act (CEQA), the National Environmental Protection Act (NEPA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Clean Air Act, the Clean Water Act, and the...

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