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Water BoardWater BoardCertified Regulatory Program Certified Regulatory Program

CEQA Training CEQA Training forfor

Basin Planning and TMDLsBasin Planning and TMDLs

April 2008April 2008

http://www.waterboards.ca.gov/academy

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Introduction Introduction to CEQA for Certified to CEQA for Certified Regulatory ProgramsRegulatory Programs

Terry Rivasplata, Jones & StokesTerry Rivasplata, Jones & Stokes

Steven Blum, OCCSteven Blum, OCC

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Why Are We Here? Why Are We Here?

To understand the rationale behind CEQA well To understand the rationale behind CEQA well enough to manage a CEQA process well and enough to manage a CEQA process well and prepare excellent CEQA documentationprepare excellent CEQA documentation

To understand the differences between “normal” To understand the differences between “normal” CEQA and CEQA for Certified Regulatory CEQA and CEQA for Certified Regulatory Programs (and they’re not as big as you think)Programs (and they’re not as big as you think)

To prepare staff to do an excellent job of To prepare staff to do an excellent job of developing CEQA analyses in the futuredeveloping CEQA analyses in the future

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What is CEQA?What is CEQA?

A process designed to reveal potential A process designed to reveal potential environmental impacts of a project environmental impacts of a project

A vehicle that empowers citizens to A vehicle that empowers citizens to influence environmental decision-makinginfluence environmental decision-making

A A processprocess not a not a permitpermit

A legal requirement that can ensureA legal requirement that can ensure

Real public participationReal public participation

Mitigation of adverse impacts, whenever Mitigation of adverse impacts, whenever feasible feasible

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Who Must Comply with CEQA?Who Must Comply with CEQA?

CEQA requirements apply to California CEQA requirements apply to California public agencies (state and local)public agencies (state and local)

Projects proposed by private entities Projects proposed by private entities come under CEQA when state or local come under CEQA when state or local permits are requiredpermits are required

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How CEQA Works How CEQA Works

““CEQA is intended to be interpreted in a CEQA is intended to be interpreted in a manner that affords the fullest possible manner that affords the fullest possible protection of the environment” protection of the environment” ((Friends of Mammoth v. Board of SupervisorsFriends of Mammoth v. Board of Supervisors 8 Cal.3d 247) 8 Cal.3d 247)

Relies on strict adherence to process Relies on strict adherence to process as a way to ensure public participationas a way to ensure public participationin government decision makingin government decision making

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How CEQA WorksHow CEQA Works

Environmental analysis must include: Environmental analysis must include: A description of projectA description of project

Potential significant impactsPotential significant impacts

Review of mitigation and alternatives that Review of mitigation and alternatives that will avoid impactswill avoid impacts

Review of cumulative impactsReview of cumulative impacts

All environmental documents are subject All environmental documents are subject to both to both publicpublic and and public agencypublic agency review review and comment and comment

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Finding CEQA Finding CEQA

CEQA statute: Public Resources Code CEQA statute: Public Resources Code §21000 et seq. (California Environmental §21000 et seq. (California Environmental Quality Act) Quality Act)

CEQA Guidelines: 14 CCR §15000 et seq. CEQA Guidelines: 14 CCR §15000 et seq.

SWRCB implementation regulations: SWRCB implementation regulations: 23 CCR §3720 et seq. 23 CCR §3720 et seq.

Updated statute, guidelines, caselaw, Updated statute, guidelines, caselaw, other info: other info: http://http://www.ceres.ca.gov/ceqawww.ceres.ca.gov/ceqa

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What is a “Project?”What is a “Project?”

The “whole of an action” that may cause either The “whole of an action” that may cause either

A A direct physical changedirect physical change in the environment in the environment

A reasonably foreseeable A reasonably foreseeable indirect physical indirect physical changechange in the environment in the environment

Public agency issuance of a grant, loan, or Public agency issuance of a grant, loan, or other financing of a projectother financing of a project

Categorical exemption for studies (Guidelines Categorical exemption for studies (Guidelines §§15306)15306)

Guidelines §15378

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What is a “Project?”What is a “Project?”

Adoption of a plan or policy that may Adoption of a plan or policy that may result in a significant environmental impact result in a significant environmental impact

Issuance of a permit, license, or entitlementIssuance of a permit, license, or entitlement

NPDES permits are exempt from CEQANPDES permits are exempt from CEQA

Guidelines §15378

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What are Significant Impacts? What are Significant Impacts?

A “significant impact” causes a A “significant impact” causes a substantialsubstantial or or potentially substantialpotentially substantial adverse change in adverse change in physical conditions in the project area physical conditions in the project area

Environmental review must consider: Environmental review must consider:

Direct impacts Direct impacts

Reasonably foreseeable indirect impactsReasonably foreseeable indirect impacts

Impacts to the environment including impacts Impacts to the environment including impacts notnot regulated by the lead agency regulated by the lead agency

Guidelines §15382

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Levels of AnalysisLevels of Analysis

If the project has no potential for If the project has no potential for significant adverse impacts: significant adverse impacts: Negative DeclarationNegative Declaration

If significant impacts can be mitigated to If significant impacts can be mitigated to insignificance: insignificance: Mitigated Negative DeclarationMitigated Negative Declaration

If potential remains for significant impacts: If potential remains for significant impacts: Environmental Impact ReportEnvironmental Impact Report

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Certified Regulatory Programs Certified Regulatory Programs

Agency programs designed to protect the Agency programs designed to protect the environment and ensure public participationenvironment and ensure public participation

Certified by Secretary of the Resources AgencyCertified by Secretary of the Resources Agency

Exempt from document formatting requirements Exempt from document formatting requirements of standard CEQA process (similar content)of standard CEQA process (similar content)

Examples: Examples:

• Basin Planning and policies including TMDLs (Water Boards) Basin Planning and policies including TMDLs (Water Boards)

• Timber Harvest Plans (Dept of Forestry and Fire Protection) Timber Harvest Plans (Dept of Forestry and Fire Protection)

• Coastal Development Permits (California Coastal Commission) Coastal Development Permits (California Coastal Commission)

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Case Law Defining SEDs Case Law Defining SEDs

Since certification of the Basin Plan Since certification of the Basin Plan program, our work has become more program, our work has become more controversial and subject to litigation controversial and subject to litigation

Case law has been defining and refining Case law has been defining and refining requirements for SEDrequirements for SED Required elementsRequired elements

Level of detailLevel of detail

Organization of SEDOrganization of SED

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Case Law – Lessons Learned Case Law – Lessons Learned

L.A. River Trash TMDL – City of L.A. River Trash TMDL – City of Arcadia Arcadia

Deer Creek Temperature – California Deer Creek Temperature – California Sport Fishing AllianceSport Fishing Alliance

L.A. River Metals TMDL – Alternatives L.A. River Metals TMDL – Alternatives Analysis CaseAnalysis Case

Others…Others…

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Certified Regulatory ProgramsCertified Regulatory Programs

Subject to most “normal” CEQA Subject to most “normal” CEQA requirementsrequirements

Cross-agency consultation Cross-agency consultation

Public disclosure and reviewPublic disclosure and review

Notice, scoping, reasonable range of Notice, scoping, reasonable range of compliance methods, alternatives analysis, compliance methods, alternatives analysis, mitigation, cumulative impacts analysis, mitigation, cumulative impacts analysis, findings (resolution)findings (resolution)

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CRP Requirements CRP Requirements

Project documents constitute “substitute Project documents constitute “substitute environmental documentation” (SED)environmental documentation” (SED) Basin Plan amendmentBasin Plan amendment

Supporting Staff ReportSupporting Staff Report

Checklist/environmental analysisChecklist/environmental analysis

CommentsComments

ResponsesResponses

Resolution Resolution

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SED Levels of AnalysisSED Levels of Analysis

Neg Dec-level Neg Dec-level SEDSED

Mitigated Mitigated Neg Dec-level Neg Dec-level SEDSED

EIR-level SEDEIR-level SED

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Environmental AnalysisEnvironmental Analysis

Meets CEQA objectives: Meets CEQA objectives:

Considers potential impactsConsiders potential impacts

Considers range of compliance methods Considers range of compliance methods

Evaluates mitigation, alternatives to the Evaluates mitigation, alternatives to the project, cumulative Impactsproject, cumulative Impacts

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CRP Process CRP Process

Basin Plan amendments under the CRP Basin Plan amendments under the CRP follow the public process for Basin follow the public process for Basin PlanningPlanning

Noticing and public review periodsNoticing and public review periods

SED elements and organizationSED elements and organization

Follow Water Board CEQA regulations Follow Water Board CEQA regulations (currently under revision)(currently under revision)

State Board SED process satisfies the State Board SED process satisfies the CEQA procedural requirements as wellCEQA procedural requirements as well

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Questions?Questions?

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Basin Planning Basin Planning OverviewOverview

Rik L. RasmussenRik L. Rasmussen

Senior Environmental ScientistSenior Environmental Scientist

Chief, Planning, Standards, and Chief, Planning, Standards, and Implementation UnitImplementation Unit

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TMDLs and Basin Plan TMDLs and Basin Plan AmendmentsAmendments

CWA §303(d)(2) & §303(e) CWA §303(d)(2) & §303(e) EPA Approved TMDLs must be incorporated into EPA Approved TMDLs must be incorporated into

State Water Quality Management planState Water Quality Management plan

Should be incorporated during Continuous Planning Should be incorporated during Continuous Planning ProcessProcess

CWA §303(c)CWA §303(c) Changes to Water Quality StandardsChanges to Water Quality Standards

• ObjectivesObjectives

• Beneficial UsesBeneficial Uses

• NPDES Compliance Schedule ProvisionsNPDES Compliance Schedule Provisions

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TMDLs and Basin Plan TMDLs and Basin Plan Amendments Amendments (cont’d)(cont’d)

Porter-Cologne Porter-Cologne

§13242 requires Program of Implementation §13242 requires Program of Implementation for Water Quality Objectivesfor Water Quality Objectives

Administrative Procedures ActAdministrative Procedures Act

““Rule of General Applicability”Rule of General Applicability”

Serial Actions Serial Actions

• Implementation will take multiple actions of the Implementation will take multiple actions of the Water BoardWater Board

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Overlapping Legal Requirements?Overlapping Legal Requirements? Notice Notice

Porter-ColognePorter-Cologne Government CodeGovernment Code

• §6061 Publication for one day in a Newspaper§6061 Publication for one day in a Newspaper

• §6061.3 Publication for 3 days for Prohibitions§6061.3 Publication for 3 days for Prohibitions

CEQACEQA 45 Day for “Notice of Filing” (23 CCR §3777)45 Day for “Notice of Filing” (23 CCR §3777)

Clean Water ActClean Water Act 45 Day Notice (33 US Code §1251 et. Seq.)45 Day Notice (33 US Code §1251 et. Seq.)

Administrative Procedures ActAdministrative Procedures Act CWA Public Participation (Gov.’t Code §11353(b) (4))CWA Public Participation (Gov.’t Code §11353(b) (4))

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Overlapping Legal Requirements?Overlapping Legal Requirements?EconomicsEconomics

Porter-ColognePorter-Cologne When adopting new or revised water qualtiy When adopting new or revised water qualtiy

objectives objectives

• must “consider economics” (CWC §13241)must “consider economics” (CWC §13241)

When adopting an agricultural water quality When adopting an agricultural water quality control plan (CWC § 13141)control plan (CWC § 13141)

• Estimate total costs of programEstimate total costs of program

• Identify potential funding sourcesIdentify potential funding sources

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Overlapping Legal Requirements?Overlapping Legal Requirements?Economics Economics (Cont’d)(Cont’d)

CEQA §21159 :CEQA §21159 :

Adoption of a rule or regulation requiring the Adoption of a rule or regulation requiring the installation of pollution control equipment, or a installation of pollution control equipment, or a performance standard or treatment performance standard or treatment requirement requirement

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Response to CommentsResponse to Comments

Peer review Peer review (Health and Safety Code (Health and Safety Code §§57004)57004)

Written response in recordWritten response in record

Public comments Public comments (23 CCR (23 CCR §§3779; 40 CFR Part 25; 3779; 40 CFR Part 25; Administrative Procedures Act)Administrative Procedures Act)

Written response available at hearingWritten response available at hearing

Oral responseOral response

CEQA commentsCEQA comments

Late commentsLate comments

Summary of oral comments?Summary of oral comments?

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Hearing RequirementsHearing Requirements Porter-ColognePorter-Cologne

§13244 (Regional Board), §13245 (State Board)§13244 (Regional Board), §13245 (State Board)

CEQACEQA Requires Agencies to develop CEQA proceduresRequires Agencies to develop CEQA procedures

Procedures must be consistent with all CEQA Procedures must be consistent with all CEQA requirements requirements (Joy Road Area Forest and Watershed Association v. (Joy Road Area Forest and Watershed Association v. CDF, 142 Cal.App.4th 656) CDF, 142 Cal.App.4th 656)

Clean Water ActClean Water Act Comply with public participation requirementsComply with public participation requirements

Administrative Procedures ActAdministrative Procedures Act Defers to Porter-Cologne and CWADefers to Porter-Cologne and CWA

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State Board State Board LiaisonsLiaisons

Joanna Jensen – Joanna Jensen – Regions 2 and 6Regions 2 and 6

Michael Buckman – Michael Buckman – Regions 3, 7, & 4*Regions 3, 7, & 4*

Nirmal Sandhar – Nirmal Sandhar – Regions 9 & 8Regions 9 & 8

Mitchell Goode – Mitchell Goode – Regions 1 & 5Regions 1 & 5

Nicholas Martorano – Nicholas Martorano – Regions 4 & 5*Regions 4 & 5*

* * BackupBackup

Water Quality Standards Water Quality Standards ContactsContacts

Stephanie Rose – Stephanie Rose – Freshwater Bacteria Freshwater Bacteria

Tom Kimball – Tom Kimball – Methylmercury Fish Methylmercury Fish Tissue Objectives, Tissue Objectives, SeleniumSelenium

Steve Camacho – Steve Camacho – Cadmium and Nutrients.Cadmium and Nutrients.

David Edwards – David Edwards – Chlorine Policy, Toxicity Chlorine Policy, Toxicity Control Provisions (SIP)Control Provisions (SIP)

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Questions?Questions?