OPR: SB 226 Guidelines Aren't Complex, Just New

 

Last week, I posted a blog from the American Planning Association, California Chapter, conference suggesting that the new guidelines to implement the streamlining of environmental review for infill projects under SB 226 might be making the whole process even more complicated. Relying on comments by Ron Bass and Terry Rivasplata of ICF International, I titled the blog, “Streamlining CEQA is Really Complicated,” and I concluded that because CEQA is a complicated law, simplifying it really is a complicated matter.

Well, the Governor’s Office of Planning and Research disagrees. OPR Senior Counsel Chris Calfee, who worked on the guideline changes, wrote to CP&DR with a 1 1/2-page response, which I’ll reproduce in its entirety below. Here are a couple of highlights from Calfee’s response:

On EIRs:
As a practical matter, … infill projects can avoid lengthy EIRs and instead be approved on the basis of a checklist, without going through new public review, preparing responses to comments, or a statement of overriding considerations.  [This is a very big change in the law, and one that should not be overlooked.]

On criteria for the streamlining and related matters:
Still think that SB 226 is too complex to be helpful?  Compare SB 226 to other CEQA streamlining for infill.  The Guidelines, for example, avoid the prescriptive criteria found in the statutory exemption for infill.  (Pub. Resources Code § 21159.24.)  They also avoid the inflexibility of the master EIR process.  (Pub. Resources Code § 21157 et seq.)  Under the proposed Guidelines, programmatic review need not specifically identify future infill projects, and it does not need to be less than five years old.  The programmatic review does not even need to be contained in one document, but can instead consist of a program EIR plus supplements and addenda.  Finally, unlike tiering in section 21094, the proposed Guidelines do not require the programmatic document to reduce all impacts to a less than significant level.

Here is Calfee’s complete response, with hyperlinks:


SB 226:  Complex, or Simply New?

A little over one year since Gov. Brown signed SB 226 (Simitian, 2011), CEQA Guidelines implementing its new infill streamlining provisions are now close to adoption.  This blog recently observed that SB 226 is too complex.  The Guidelines, though, are not really complicated – they are just new.  Get to know them, and you will find a valuable streamlining tool. 

SB 226 streamlines the CEQA process for infill development.  For decades, state policy has favored infill because it conserves natural resources and is an efficient way to grow.  More recently, we have also recognized infill as a key strategy to reduce greenhouse gas emissions.  Since many urban environments are already impacted, however, new infill may contribute to existing cumulative impacts.  As a result, new environmental impact reports may be required, even for relatively small projects.  [For more on why SB 226 treats infill projects differently, see the Office of Planning and Research’s explanation of the proposed Guidelines.] 

SB 226 creates an easier path for infill development by narrowing the scope of impacts that need to be analyzed at the project level.  Impacts of a project that were already addressed at a programmatic level are not subject to CEQA, even if those impacts remain significant.  Impacts that are addressed by local development policies or standards, such as construction noise ordinances and traffic impact fees, are not subject to CEQA either, even if such policies do not fully mitigate the impact.  As a practical matter, this means infill projects can avoid lengthy EIRs and instead be approved on the basis of a checklist, without going through new public review, preparing responses to comments, or a statement of overriding considerations.  [This is a very big change in the law, and one that should not be overlooked.] 

Even if an EIR is needed to address a new or more severe impact, that EIR is focused on just the new impact, and does not look at growth inducing impacts or a full range of alternatives.  The proposed new Guidelines Section 15183.3 and proposed Appendix N walk users through this process step-by-step. 

To be eligible, a project needs to be within an incorporated city on an infill site (i.e., previously developed or mostly surrounded by other development), and be consistent with an adopted sustainable communities strategy or alternative planning strategy.  It also needs to implement the performance standards in proposed new Appendix M of the Guidelines.  While the statute requires the standards to promote a wide range of state goals, the Guidelines focused on the simplest way to achieve those goals: reducing vehicle travel.  To maximize flexibility in project location and design, the Guidelines created several options to satisfy those standards.  Generally, a project will be eligible if it locates in an area that already has lower than average regional vehicle miles traveled (something that MPOs are currently mapping using data developed during the SB 375 process), or by locating near public transit or project-users.  Since the performance standards are written into the Guidelines, and not embedded in the statute, they can be updated and refined as necessary.

Still think that SB 226 is too complex to be helpful?  Compare SB 226 to other CEQA streamlining for infill.  The Guidelines, for example, avoid the prescriptive criteria found in the statutory exemption for infill.  (Pub. Resources Code § 21159.24.)  They also avoid the inflexibility of the master EIR process.  (Pub. Resources Code § 21157 et seq.)  Under the proposed Guidelines, programmatic review need not specifically identify future infill projects, and it does not need to be less than five years old.  The programmatic review does not even need to be contained in one document, but can instead consist of a program EIR plus supplements and addenda.  Finally, unlike tiering in section 21094, the proposed Guidelines do not require the programmatic document to reduce all impacts to a less than significant level.

The Office of Planning and Research and the Natural Resources Agency did extensive outreach in developing the Guidelines, and actively sought input from working practitioners at the local and regional levels, as well as builders, environmental organizations and other stakeholders.  They took seriously concerns about complexity and ease of implementation.  According to comments submitted by the Association of Environmental Professionals, the proposed Guidelines “are clear, concise and well-organized.”  Planners, agency staff and developers that spend a little time with them may find that they agree.