January 30, 1995 - From the January, 1995 issue

CEQA Update: 1994 Legislation & Guidelines

In preparation for even more reform in CEQA in 1995, Clare Bronowski reflects back on two CEQA bills passed in 1994 as well as updated State CEQA Guidelines. 

Two significant California Environmental Quality Act (CEQA) bills passed in 1994 and the State CEQA Guidelines were also updated last year. These measures enacted some substantive changes and many technical revisions to CEQA. The end result, while attempting to provide clarification and simplification, appears to be more, rather than less, regulation. However, the 1994 CEQA and CEQA Guidelines revisions will help provide more guidance and eliminate speculation in the preparation of environmental documents. An agency can rely more heavily on the new CEQA Guidelines with their expanded provisions reflecting recent case law. The goal of certainty in the process has not yet been achieved, but the new requirement to update the Guidelines every two years should be a significant step towards meeting this goal. 

AB 314 was enacted as urgency legislation effective October 1, 1994. As the story goes, Governor Wilson intended to veto this legislation, but the veto notice was misplaced along with several others and thus the bill became law through an oversight. SB 749 took effect on September 30, 1994, also as an urgency statute. Generally the provisions of both bills clarify parts of the law that were either ambiguous or not plainly spelled out in the statute itself.

For example, the requirement for a statement of overriding considerations, formerly found only in the Guidelines, is now added to the statute. The new master EIR process is clarified with specific provisions concerning when a master EIR may be used for a subsequent project. Lead agencies are now authorized to substitute mitigation measures in mitigated negative declarations with an equivalent or more effective mitigation measure without triggering recirculation for public comment. 

Of special note is a new notification provision requiring Notices of Determination (NODs) to be mailed to requesting parties. The statute of limitation as to those requesting parties will not run until those NODs have been mailed. This is an important new requirement that must now be checked with the lead agency. The failure to mail a notice to a requesting party (rather than just filing and posting the notice) can now extend the time in which a CEQA challenge can be filed in court. 

Much of AB 314 and SB 749 concentrates on CEQA litigation procedures. The intent of these provisions is to speed up the court process and require bearings to be set and briefings to be completed within a specified time frame. The CEQA law always intended that CEQA cases be given a preference and be set up as a fast track process so that projects would not be held in "CEQA limbo." Over time these priorities have been eroded so that litigation often drags on for years. SB 7 49 provides the minimum materials that must be provided in the administrative record. The list is comprehensive and would tend to favor the lead agency against a CEQA challenger by insuring that all materials which could provide substantial evidence for the agency's decision are included, despite a challenging party's desire to abbreviate the materials to reduce the cost of the administrative record. 

Recently, the Los Angeles Superior Court Presiding Judge convened an Ad Hoc Committee on CEQA Litigation to prepare a set of Local Rules designed to speed up CEQA litigation in Los Angeles County. The proposed Local Rules specify the content and form of the administrative record in a CEQA case to ensure completeness and uniformity and set very tight deadlines for CEQA cases to be briefed and heard. Currently the local CEQA rule has been put on hold in order to assess the impacts of the new bills which deal with the same subject matter. 

SB 749 includes a new exemption from CEQA for affordable housing. In an attempt to reduce the cost of affordable housing and to abbreviate the development process, certain housing projects are now totally exempt from environmental review. To qualify for this exemption a development must contain 45 units or less, on two acres or less, in an urban area; all units must be maintained as low or low-and­moderate income units. The project must be consistent with the general plan and existing zoning, and there must be no hazardous contaminants or unusual circumstances. 

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The Office of Planning and Research, which is responsible for preparation of the CEQA Guidelines, also adopted amendments in 1994. Changes to CEQA in 1993 strengthened the provisions requiring updating of the Guidelines, TheOffice of Planning and Research must now adopt (not just propose) Guideline amendments every two years. The new Guidelines effective in 1994 now spell out certain CEQA procedures, including procedures involving the initial study, public notice, and mitigated negative declarations, which were already common practice. 

One significant new Guideline deals with recirculation of an existing EIR. The CEQA Guidelines now contain definitions of when "significant new information" will require recirculation of an EIR. The Guidelines follow recent case law which finds that new information is significant if it shows that a new significant environmental impact would result from the project or from a new mitigation measure. The Guidelines also add an important provision that a decision by an agency not to recalculate an EIR (in the face of new information) must be supported by substantial evidence in the record. It is now important when preparing findings for certification of an EIR to include a finding regarding recirculation, if the issue has been raised in the administrative process, and to point to evidence which supports the agency's determination that recirculation is not necessary.

This approach was supported by a recent federal case decided under the National Environmental Policy Act (NEPA) which mirrors closely the provisions of CEQA. In a case about the proposed toll road from Newport Beach to San Juan Capistrano (decided December 2, 1994) the court rejected a contention that the recent fires in Laguna Beach required preparation of a supplemental environmental document. The court found that the agency had properly reviewed the effects of the fire. The court found that there was substantial evidence to support the agency's decision that, although the fire altered the potential for erosion and run off in the area, the impact was not signifi­cantly different from that analyzed fire in the existing document. Therefore, the new fact of the alone did not require recirculation. 

The CEQA Guidelines have also been amended to clarify the process for the selection of reasonable alternatives to the project. The Guidelines now clarify what factors may be taken into account when addressing the feasibility of alternatives. Some of these factors are economic viability, availability of infrastructure, jurisdictional boundaries, and whether the project applicant can reasonably acquire the alternative site. This provision restates and clarifies existing· case law. 

A provision has also been added to the Guidelines regarding alternative locations. The Guidelines clarify that only locations that would avoid any of the significant effects of the proposed project need be considered in the EIR. 

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