Revision of CEQA Guidelines Near Completion
After a long and contentious effort, the Wilson administration has submitted final revisions of the state's California Environmental Quality Act Guidelines to the Office of Administrative Law. OAL will now review them and decide before the end of October which revisions to approve.
The final revisions include some of the most controversial guideline changes, which have been strongly opposed by some environmental groups and Democratic legislators.
But the final shape of the revisions is far from over. Maureen Gorsen, general counsel for the Resources Agency, said there's the possibility that the revisions will be withdrawn by the Resources Agency if OAL finds problems. Additionally, lawsuits may be filed over anything OAL approves, and the guidelines could also be changed with the election of a new governor.
The revisions have been underway since 1993, with little acrimony on many of the changes.
"The overall process was very healthy," said Al Herson, president of Jones & Stokes Associates. Herson said many of the changes were practical and provide more certainty in CEQA work.
But over the past two years, some revisions have sparked a flurry of comments and criticism from attorneys and planning groups. State Senator Byron Sher, D-Palo Alto, suggested in a hearing last year that the Wilson administration was trying to change CEQA through regulations after failing to so legislatively, a charge Resources Secretary Douglas Wheeler vigorously disputed.
In June, when additional revisions were released by the Resources Agency, Sher wrote that many of the changes still continued to conflict with state and case law.
Gorsen said that 7 of the 60 proposed revisions in the latest group were controversial, dealing with such issues as cumulative impact analysis, baselines, and mitigation monitoring and reporting.
Gorsen submitted the revisions to OAL on September 11, and few people had seen the submission package before mid-September.
Many changes were made to the revisions after the latest rounds of public
comment. One particularly disputed area was various parts of Section 15064, which Gorsen described as the section that "assists lead agencies in figuring out just when an impact is significant."
William Yeates, an attorney for the Mountain Lion Foundation, had told Sher's Senate Environmental Quality Committee at a hearing last year that he was particularly concerned about section 15064.7, which proposed to change the manner in which agencies are allowed to establish thresholds of significance. It would have created a rebuttable presumption, Yeates explained, which would have made it harder for citizens to sue over projects. But the rebuttable presumption language was eliminated.
"The word presumption bothers a lot of people, so I took it out everywhere," Gorsen said.
The final version that was sent to OAL, Yeates said, "took care of a lot of my concerns."
Yeates was also pleased with the resolution of the controversy over revisions to Section 15064(j)(2), which proposed to allow a lead agency to ignore a cumulative impact if it complied with a previously approved plan, and make other changes regarding cumulative impacts. Under the proposed revisions, the Wilson administration had originally chosen to follow the precedent of a case on cumulative impacts, San Joaquin Raptor/Wildlife Rescue Center v. Stanislaus County 27 Cal.4th 713 (1994).
But Yeates said that change was scrapped, and that the statutory definition is instead being followed.
"The guidelines with these revisions are closer to what they're supposed to be," Yeates said. "They have tried their best to try to accommodate a lot of public criticism."
The Resources Agency had also received complaints over its plans to scrap Appendix G from EIRs. That appendix lists types of projects that "will normally" have a significant effect on the environment.
Sher noted in a letter he sent to the Resources Agency in June 1998 that the appendix "serves to implement a statutory requirement and is specifically referenced in statute."
Gorsen said that there is now a new Appendix G, which combines some of the language from the earlier Appendix G with the language from the earlier Appendix I.
On the controversial issue of the baseline environmental setting, the Resources Agency had first proposed revising Section 15125 to set the baseline at the time an application for a project is submitted. Under the revisions sent to OAL, the baseline is now set at the time of the notice of preparation, Herson said.
Herson said that if OAL approves the revisions, new questions will arise over their implementation. He wondered, for instance, how the revisions will apply to current projects.
Meanwhile, revisions to Section 15064(I), which sparked criticism in 1996 and 1997, was approved by the OAL on August 24. The new guideline specifies how existing environmental standards are to be used in determining whether or not environmental impacts of a project are significant.
The new guideline applies generally to environmental standards, and replaces a provision that applied only to air and water standards, according to Michael Zischke, an attorney representing business groups.
"Many lead agencies have adopted their own significance standards, and this new Guideline should give greater legal standing to those thresholds," Zischke wrote in an advisory to clients.
"That was a very controversial change and I'm still waiting for the ball to drop," Gorsen said.
Gorsen said some environmental attorneys interpreted the changes on 15064(I) to mean an end to CEQA, since they "want to redefine the threshold for each project."
Some experts had interpreted earlier proposed changes to Section 15064(I) as requiring the creation of uniform, mandatory significance thresholds statewide. But the Wilson administration appeared to back away from those changes after it received criticism.
J. William Yeates, Mountain Lion Foundation/California Legal Advocates for Wildlife, (916) 446-5475.
Al Herson, Jones & Stokes Associates, (916) 737-3000.
Maureen Gorsen, general counsel, Resources Agency, (916) 653-5656.