2017 CEQA Issues: Housing , Infrastructure & the Changing Federal Environment

1. 2017 CEQA Issues:Housing, Infrastructure & the Changing Federal Environment March 15, 2017 Capitol, Room 126

2. Today’s speakers • Devon Muto, AEP President, Devon.Muto@icfi.com • William Halligan, Esq., AEP Executive Vice President, whalligan@placeworks.com • Betty Dehoney, CEP, PMP, ENV SP, AEP Legislative Review Committee, betty.dehoney@hdrinc.com

3. Today’s Agenda • Who is AEP? • What is CEQA? • Housing and CEQA • Infrastructure and CEQA • The Changing Federal Environment • Bills We Are Tracking • Questions, Answers

4. Who is AEP? • AEP is a non-profit organization of professionals working to improve their skills as environmental and resource managers. • Since its formation in 1974, AEP has grown to over 1,700 members including planners, environmental scientists, biologists, lawyers, noise specialists, transportation planners, archeologists, geologists, engineers, and other professionals in numerous disciplines.

5. Our Mission • “To enhance, maintain, and protect the quality of natural and human environment; encourage and carry on research and education for the benefit of the public and concerned professionals in all fields related to environmental planning and analysis; improve communication and advance the state of the art among people who deal with the environmental planning, analysis and evaluation process; and improve public awareness and involvement in the environmental planning, analysis, and review process.”

6. What is CEQA?

7. CEQA Origins • 1969: The National Environmental Policy Act (NEPA) is enacted. (Federal) • 1970: California Environmental Quality Act (CEQA) is enacted. (State) • CEQA (the Statute): Established by Legislature • …and continuously modified by Legislature • …and “interpreted” by the Courts

8. The Rules • The Statute • Public Resources Code §§ 21000-21178 • The Guidelines • California Code of Regulations Title 14, §15000 et seq. • The Courts

9. The Process • The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects

10. Types of CEQA Documents • Categorical Exemptions • Initial Studies • Negative Declarations • Mitigated Negative Declarations • Environmental Impact Reports

11. Housing and CEQA

12. Housing and CEQA • The state is building at least 100,000 fewer units a year than it needs to keep pace with population growth, according to a Brown-administration report released in January 2017 • One-third of the California renters spend more than half their income on housing, and the state’s homeless population is dramatically higher than the rest of the country.

13. Housing and CEQA • CEQA gets a bad rap for housing costs and delays, while it can be a significant driver, other key drivers are … • trying to force projects through in bad locations • not listening to stakeholders • impact fees • inefficient approval processes • non-supportive jurisdictions • cities lack the political support to approve new housing projects • No growth and slow growth initiatives • poor project design (failure to consider site limitations, and project scale and context)

14. Other impediments to Housing • No Growth and Slow Growth Initiatives • SOAR Initiative (Ventura County) • Measure S (City of Los Angeles) - Failed • Greenlight Initiative (City of Newport Beach) • Repeal of high-density/mixed-use housing specific plan (Huntington Beach) – Lawsuit filed by Kennedy Commission

15. Housing and CEQA • CEQA contains key provisions for streamlining project approvals… • Infill (although current statutory exemptions are underused because of complexity) • Exemptions for affordable housing • Transit Priority Areas • Exemption for projects consistent with a specific plan and its EIR • General and community plan consistency • Subsequent EIR provisions

16. Housing and CEQA • CEQA could be still be improved… • Simplify/expand exemptions for infill and affordable housing • Limit “late hits” • Improve use of tiering • Promote greater use of mitigated negative declarations

17. Housing and CEQA • Other Housing Solutions • Improve local government support (incentives, penalties, and mandates) • Replace redevelopment funding • Grants for specific plans and program EIRs

18. Infrastructure and CEQA

19. Infrastructure and CEQA • CEQA Tools to Promote Infrastructure and Housing – Exemptions: • Statutory • Avoid CEQA review for specific projects or types of projects (policy decision) • Categorical • Avoid CEQA review for classes of projects, if they would not have a significant impact

20. Statutory ExemptionsArticle 18 • Ongoing project • Feasibility and planning studies • Adoption of Waste Discharge requirements • Timberland preserves • Adoption of Coastal plans and programs • General plan time extension • Financial assistance to low or moderate income housing • Ministerial projects • Emergency projects (Oroville Dam?) • Projects which are disapproved • Early activities related to thermal power plants

21. Statutory ExemptionsArticle 18 • Olympic games • Rates, tolls, fares and charges • Family day care homes • Specified mass transit projects • State and regional transportation improvement programs (plans only) • Projects located outside California • Application of coatings • Housing for agricultural employees • Affordable housing exemption • Infill residential projects (up to 4 ac and 100 units) • Air quality permits

22. Categorical Exemptions • Existing facilities (Class 1) • Replacement or Reconstruction (Class 2) • Actions by regulatory agencies for natural resources protection (Class 7) • Actions by regulatory agencies for protection of the environment (Class 8) • Minor additions to schools (Class 14)

23. Categorical Exemptions • Acquisition of housing for housing assistance programs (Class 26) • Small hydroelectric projects at existing facilities (Class 28) • Cogeneration projects at existing facilities (Class 29) • Minor actions to prevent, minimize, stabilize, mitigate, or eliminate the release or threat of hazardous waste or substances (Class 30) • Historical resource restoration or rehabilitation (Class 31) • Certain in-fill development (Class 32)

24. The Changing Federal Environment

25. Changing Federal Regulations - Potential Actions • Eliminating an Agency • Modifying a Regulation • Reduce Funding/ Implement Hiring Freeze

26. Eliminating a Federal Agency- Not as Easy as It Sounds • Existing regulations delegate implementation to an agency • Interdependencies between regulations can not easily be unraveled

27. Eliminate EPA? • Eliminating an Agency H. R. 861 • SECTION 1. Termination of the Environmental Protection Agency. • The Environmental Protection Agency shall terminate on December 31, 2018. • A slew of federal laws, including the Clean Air Act and the Clean Water Act, assume that the EPA exists and charge it with tasks. Just last year, Congress passed a new chemical safety law that handed new powers to the EPA. Any law seeking to “terminate the EPA” would have to amend all those older laws that delegate authority to the agency. You cannot easily do that in a 10-word sentence. https://www.theatlantic.com/science/archive/2017/02/congress-wont-terminate-the-epa/516918/

28. Modify a Federal Reg? How do you change a regulation • Proposes a Regulation • Notice of Proposed Rulemaking • Proposal is listed in the Federal Register • Public Comment Period • Considers Your Comments and Issues a Final Rule • The Regulation is Codified in the Code of Federal Regulations • Waters of US has taken years https://www.epa.gov/laws-regulations/basics-regulatory-process

29. Reduce Funding/ Implement Hiring Freeze WHITE HOUSE: Trump eyeing 24% cut to EPA budget The premise is that if funding is reduced or there is a reduction in staff, the environmental process will be cheaper • Laws still must be enforced • Permits take longer • Morale is low

30. Agency Responses

31. Applied challenges when regulations are changed • Lengthy Process • Increased uncertainty in implementation • No “Rule Book” • New regulations have uncertainty (no precedent) resulting in increased delays while agencies are trying to create the process to implement

32. Stakeholders are preparing for these changes- LITIGATION • If President Trump tries to overhaul the contentious Clean Water Rule, he may find himself in much the same legal quagmire as his predecessor. • (Amanda Reilly and Ariel Wittenberg, E&E News reporters, Published: Tuesday, March 7, 2017) • Former U.S. EPA boss Bill Ruckelshaus is warning the Trump administration: Voters will be "up in arms" if EPA doesn't do its job. • (Robin Bravender, E&E News reporter, Published: Tuesday, March 7, 2017)

33. NGOs soliciting financial support for litigation Examples: • http://www.pbs.org/newshour/rundown/environmentalists-battle-trump • https://www.nrdc.org/trump-watch • http://www.sierraclub.org/michael-brune/2017/01/trump-protest-resist-march

34. California Specific Concerns • Collaboration between Federal and State Agencies • Many times California tiers off of or jointly conducts environmental review (e.g., NEPA/CEQA, Endangered Species) • Potential to increase workload for state staff if Federal government decreases regulations or staffing • Increases delays for projects

35. Bills we are tracking

36. SB 224 (Jackson) – CEQA Baseline • This bill would require the lead agency, in determining the baseline physical conditions by which a lead agency determines whether a project has a significant effect on the environment, to consider the effects of prior illegal or unpermitted actions on the environment.

37. SB 80 (Wieckowski) – CEQA Noticing • This bill would require the lead agency to post CEQA notices on the agency’s Internet Web site. The bill would require the agency to offer to provide those notices by email.

38. AB 239 (Ridley-Thomas) – Infill Streamlining • It would amend the definition of urbanized area in section 21071 of the Public Resources Code. This bill would instead specify that the population density of the unincorporated area be at least 1,000 persons per square mile.

39. SB 1/AB1 – Transportation Package Expanding CEQA Streamlining for Road Repairs • Cities/counties over 100,000 can take advantage of streamlining. • This would open it up to all cities/counties. Advanced Mitigation Program • Creates program housed at Caltrans. • May purchase credits at mitigation/conservation banks, pay mitigation fees, fund Regional Conservation Investment Strategies, or fund Regional Advance Mitigation Plans. • Allows Caltrans and local transportation agencies to use the credits obtained under the program to fulfill mitigation requirements of planned transportation improvements.

40. The EndThank You for Coming!