The Governor’s Office of Planning and Research (OPR) will undertake a comprehensive review of the CEQA Guidelines (14 Cal.Code Regs., §15000 et seq) this year and is currently soliciting public input – to be provided not later than COB on February 14, 2014 – on specific possible topics it has developed as a result of stakeholder suggestions and published on its website. OPR’s 7-page document, dated December 30, 2013, and entitled “Possible Topics to be Addressed in the 2014 CEQA Guidelines Update,” can be found at http://www.opr.ca.gov/docs/PossibleTopics2014CEQAGuidelinesUpdate.pdf.
More than two dozen Guidelines sections and topics for potential revision are set forth in OPR’s list, as to which it is soliciting public input, including specific proposed regulatory language. Among the many interesting proposals being considered for the update are:
- § 15051 – proposed clarification of when the lead agency may be determined by agreement, in contrast to the general rule that the agency acting first is “normally” the lead.
- § 15061(b)(3) – proposed replacement of the phrase “general rule” with “common sense exemption” to employ the Supreme Court’s favored terminology. (See Muzzy Ranch v. Solano County ALUC (2007) 41 Cal.4th 372.)
- § 15064 – among other things, proposed addition of a definition of “regulatory standard,” and explanation of when a standard may appropriately be used in determining significance of an impact under CEQA.
- § 15064.4 – among other things, proposed clarifications that GHG emissions analysis is required, what role the Scoping Plan plays in the process, and that “business as usual” (or hypothetical baseline) analysis is not appropriate.
- § 15083 – proposed clarification that the lead agency may share an administrative draft EIR, or portions, with the project applicant to ensure accuracy of the project description and mitigation measures.
- § 15088 – proposed clarifications, in accordance with cited caselaw, that responses to general comments may be general, and that comments that do not explain their basis or the relevance of submitted evidence require no response.
- § 15091 – among other things, proposed clarification of the difference between (1) feasibility of alternatives for purposes of EIR analysis and (2) actual feasibility for purposes of making finding (i.e., at the project approval stage).
- § 15125 – proposal to provide guidance regarding use of alternative baselines, including effects of climate change, future baselines for large-scale infrastructure project analysis, historic use, and unpermitted uses.
- § 15126.4 – proposed provision of guidance on when an agency may appropriately defer details of mitigation, among other things.
- § 15155 – proposal to provide further water supply analysis guidance.
- § 15168 – proposal to provide further guidance regarding when a subsequent project is “within the scope” of a “program” EIR.
- § 15269 – proposal to clarify the emergency exemption does not preclude projects requiring some long-term planning. (See Cal Beach Advocates v. City of Solana Beach (2002) 103 Cal.App.4th 529.)
- § 15357 – proposed augmentation of the definition of “discretionary project” to provide further guidance on the ministerial/discretionary distinction which determines CEQA’s applicability.
- § 15370 – proposed clarification that “preservation in perpetuity” can constitute appropriate mitigation.
- § 15378 – proposed revision of the definition of “project” to more clearly address pre-approval agreements.
In addition to these and other proposed topics for guidelines revisions – many of which are obviously intended to incorporate principles established by an abundance of relevant recent caselaw – OPR will consider proposed changes to Appendixes G (Environmental Checklist) and J (Examples of Tiering), and new Appendixes addressing mitigation monitoring and reporting, a supplemental review checklist, and transportation analysis (to provide, inter alia, guidance on a non-LOS analysis of transportation impacts). Proposals to clarify § 15126.2 and the “CEQA-in-reverse” issue, however, will be held in abeyance until the Supreme Court renders its decision in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2013) 218 Cal.App.4th 1171, a case in which it recently granted review limited solely to this issue. (Supreme Court Case No. S213478; see my posts dated December 9, 2013, and January 15, 2014, regarding this case.)
Concurrently – and significantly, although the details are beyond this post’s scope – OPR released and sought comments (also by Valentine’s Day) on a preliminary evaluation document outlining possible changes from the traditional LOS methodology of traffic impact analysis, ostensibly pursuant to legislative direction in SB 743, the key CEQA reform bill passed last year. (OPR somewhat surprisingly indicates in that document that it has legislative authority to establish statement standards applicable to all land use and transportation projects – not just those in transit priority areas.)
Again, CEQA stakeholders and concerned citizens should provide their input on OPR’s proposals by not later than COB, February 14, 2014.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.