Articles Tagged with CEQA Guidelines

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I. OVERVIEW OF CEQA DEVELOPMENTS IN 2019

A. The Supreme Court decision in August 2019 in Union of Medical Marijuana Patients held that all zoning changes are not automatically CEQA “projects;” they must still meet the statutory standard of an activity with direct impact or reasonably foreseeable indirect impact.

B. Together with the late 2018 decision on Sierra Club v. County of Fresno, on air quality analysis and EIR standard of review issues, the issuance of the Union of Medical Marijuana Patients decision cleared the backlog of CEQA cases at the Supreme Court.

C. Protecting Our Water & Environmental Resources v. Stanislaus County, regarding whether well permits are ministerial or discretionary, is still pending. In December 2019, the Supreme Court granted review in County of Butte v. Department of Water Resources, regarding whether the Federal Power Act preempts CEQA as it may apply to state hydropower licensing actions, so there are now two CEQA cases pending at the state’s highest court.

D. There were 15 decisions from the various Courts of Appeal, a lower pace in than in prior years (there were 17 decisions, but two were depublished). One of the key decisions was McCorkle Eastside Neighborhood Group that design review did not include discretion over environmental impact issues, so city had no discretion and CEQA not triggered.

E. The Legislature enacted a number of bills in 2019, mostly exemptions relating to the housing and homeless crises.

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As California developers and public agencies well know, the entitlement process in our state is driven by CEQA, the California Environmental Quality Act.  CEQA, in turn, functions pursuant to the CEQA statute and the “CEQA Guidelines.” If you’ve ever wondered who writes those CEQA Guidelines, the answer is “the Governor’s Office of Planning and Research,” or “OPR.”  The CEQA Guidelines reflect OPR’s interpretation of CEQA’s statutory requirements, its reading of case law construing CEQA, and its take on “practical planning considerations.”  As a result, this little known operation in the Governor’s office plays a pivotal role in California’s entitlement process.  CEQA Guidelines are formally adopted by the Natural Resources Agency following review by the Office of Administrative Law, but OPR basically writes the Guidelines.

This year, OPR is engaged in two separate endeavors to amend the CEQA Guidelines.  One ongoing effort is the product of SB 743, legislation adopted in 2013 which likely will revolutionize the way traffic impacts in California are evaluated and mitigated by focusing on vehicles miles travelled (VMT) rather than level of service (LOS).  We have discussed with you in prior “Lay of the Land” posts the potential implications of the new SB 743 Guidelines being prepared by OPR.

The other effort began two years ago, when OPR announced its intent to consider a broad range of revisions to the CEQA Guidelines.  OPR solicited public comments and received a very large number of comments making a wide variety of suggestions.  Since then, OPR has been considering the many comments and suggestions received, and OPR has now, on August 13, released a preliminary draft of proposed Guidelines amendments based on the public suggestions and OPR’s own ideas.  The public is invited to comment, through October 12, and this is an important opportunity for stakeholders in the CEQA process to evaluate the proposals and weigh in with comments.  In contrast to recent Guideline amendments on particular topics such as greenhouse gas emissions, this is the first overall update of the Guidelines in many years. Continue reading →