What’s New with Environmental Review?

1. What’s New with Environmental Review? Gregg Downing, Environmental Review Coordinator Minnesota Environmental Quality Board (EQB) Ciara Schlichting, AICP, Associate Bonestroo

2. Presentation Overview • Recent environmental review changes • Future directions • Alternative Urban Areawide Review (AUAR) updates • Considerations for integrating environmental review and comprehensive planning

3. Presentation Overview • Recent environmental review changes • Future directions • Alternative Urban Areawide Review (AUAR) updates • Considerations for integrating environmental review and comprehensive planning

4. 2009 Rule Amendments • Amendments went into effect in November 2009 • Second round of amendments during Pawlenty Administration (“phase 2”) • Phase 1 went into effect in 2006 – mostly minor revisions – changed thresholds for a few EAW categories

5. 2009 topics addressed: • Mandatory EAW/EIS categories for projects in shorelands • Revised treatment of “cumulative potential effects” (following CARD decision) • Revisions to Alternative Urban Areawide Review process (AUAR process) • Miscellaneous other revisions

6. New Shoreland Categories • Apply to residential, resort, RV parks, campgrounds, commercial, & aggregate mining projects (if in shoreland) • New residential shoreland thresholds apply only outside the Twin Cities metro area • Some residential thresholds as low as 15 lots/units (currently 50 is lowest)

7. New EAW & EIS Categories • Residential development in shorelandsoutside the TC metro area • Resorts, campgrounds & RV parks in shorelands • Land conversions in Shoreland (including conversions due to nonmetallic mineral mining)

8. New EAW & EIS Categories New category details found at: 4410.4300, subparts: 12.C; 19a; 20a; 36a 4410.4400, subparts: 9.C; 14a; 26; 27 4410.4600, subpart 12.B (exemption) Same information summarized in 2010 Guide to MN Env. Review Rules, chapt. 7

9. New EAW & EIS Categories • Thresholds vary according to density of project and whether in a “sensitive area” • Density refers to % “common open space” and # lots compared to SL rule standards

10. Sensitive shoreland areas include: • special protection districts designated by local government • lakes or bays of lakes classified as natural environment designated by DNR • trout lakes and streams designated by DNR • wildlife lakes designated by DNR • migratory waterfowl feeding and resting lakes designated by DNR • outstanding resource value waters designated by MPCA

11. Cumulative Potential Effects • EQB’s response to 2006 CARD decision • Generally consistent with CARD but takes some concepts a step further • “Cumulative impacts” – same definition as now; used only for Generic EISs • ‘Cumulative potential effects” – used for project-specific review; new definition based on CARD

12. Cumulative Potential Effects • CPE = combined effects of project plus those of other projects in environmentally-relevant area that may affect same environmental resources (note: changed from CARD’s “surrounding area”) • Include future projects if are actually planned or if basis of expectation has been laid (note: same as CARD)

13. Added definition of “basis of expectation” Project is reasonably likely to occur and sufficiently detailed information is available re impacts to contribute to understanding CPE In deciding likelihood of project consider: • If applications filed • If detailed plans and specs prepared • What comp plan or zoning indicates • What historic/forecasted trends indicate • Other relevant factors

14. Revised criterion for deciding if an EIS is required due to CPE Consider: • If total CPE is significant • Significance of project’s contribution viewed in connection with other contributions • If there is a plan to deal with CPE and project complies (e.g., TMDL plan) • Efforts of proposer to minimize contribution

15. Other Revisions re Cumulative Potential Effects • Explicit requirements to identify and analyze relevant CPEs in EAWs, EISs, and AUARs • Past projects can be treated as part of “existing conditions” or “background”

16. 2 major AUAR process amendments • If AUAR includes a large specific project, added a required “scoping process” at beginning • Corrected Court of Appeals “mistake” in River’s Edge case: rules now declare that AUAR boundary is not the limit for analysis of impacts

17. Other amendments • Clarify that adoption/amendment of Comp Plans and zoning ordinances & rezoning (unless for benefit of specific project) are exempt governmental activities

18. Presentation Overview • Recent environmental review changes • Future directions • Alternative Urban Areawide Review (AUAR) updates • Considerations for integrating environmental review and comprehensive planning

19. Future Rule Changes • Amendment to “Air Pollution” mandatory EAW threshold likely with respect to Greenhouse Gases • Other amendments? • Update Solid Waste mandatory categories to account for recent technologies • Update Fuel Conversion mandatory categories to account for recent technologies • Other?

20. Legislative Developments • “Streamlining” of environmental review and permitting expected to be issue again • Legislative Auditor’s Office to report on “environmental permitting” for 2011 Legislative session • EQB also could be affected by executive branch reorganization and/or budget cuts

21. Other developments • Completed: Updated guidance: • 2010 revision of Guide to MN Environmental Review Rules • 2010 Errata for EAW Guidelines • In process: Revision of EAW form and EAW Guidelines – including “customized” EAW forms for certain projects • Future: Updated AUAR form & guidance (including how to update an AUAR)

22. Presentation Overview • Recent environmental review changes • Future directions • Alternative Urban Areawide Review (AUAR) updates • Considerations for integrating environmental review and comprehensive planning

23. When is an AUAR update required (see Subpart 7)? • Every five years • More development is proposed by developer or allowed by Comp Plan amendment • Change in public facilities (type or timing) that may increase adverse impacts • New information demonstrates that AUAR assumptions were in error and impacts were substantially underestimated • RGU discretion – other substantial changes

24. What is the required process? • The AUAR and Mitigation Plan must be revised by preparing, distributing, and reviewing revised documents in accordance subpart 5, items D to H (i.e., the Final AUAR 10-day objection period) • Persons not entitled to object to the documents may submit comments to the RGU suggesting changes in the documents.

25. What is the required content? • No rules • Limited guidance: • An AUAR update need not start “from scratch,” but rather needs only to revise information in the original documents to the extent necessary to reflect changes that have occurred.

26. Considerations for AUAR update content • Balance the “development” check book • Report updated plans, rules, regulation • Report mitigation plan implementation • Query readily available databases for new information • SHPO, DNR, MPCA • Review if there have been any substantial changes that significantly affect any assumptions or inputs in the original analysis that would require updates • Show your homework – include redlined AUAR document, staff report to RGU, etc.

27. Considerations for AUAR update process • Early notification to commenting agencies to solicit input • If the update is substantial, then: • consider adding a “draft” comment period and/or • extend the required 10-day comment period

28. Presentation Overview • Recent environmental review changes • Future directions • Alternative Urban Areawide Review (AUAR) updates • Considerations for integrating environmental review and comprehensive planning

29. “AUAR Certified” Comprehensive Plan • AUARs allow cities to study different scenarios, instead of assessing a definitive project • Unlike an EIS which is simply information for decision makers, AUARs require the preparation of detailed “Mitigation Plans” • Mitigation Plans are officially adopted by cities and they have the same weight as a local ordinance

30. “AUAR Certified” Comprehensive Plan • Local Governments prepare and adopt comprehensive plans that evaluate alternative future challenges and opportunities (scenarios) • They are required by law to adopt “official controls” to implement their plans

31. “AUAR Certified” Comprehensive Plan • Current EQB rules require Responsible Governmental Units (RGUs) to prepare EAWs and EISs regardless how completely the subject area or project was studied in their comprehensive plans or how effectively their official controls would mitigate adverse environmental effects

32. The Proposition • Why not modify the comprehensive planning process a bit to ensure that they satisfy the evaluation of scenarios as required by the AUAR rules? • Why not organize and design the Implementation chapters in our comp plans to effectively incorporate mitigation plans?

33. Why Pursue this Approach? Any future development in a community with a comprehensive plan that incorporated an AUAR and Mitigation Plan would be exempt from any future environmental review (Provided that future development was less than or equal to the intensity and characteristics of one of the scenarios it studied)

34. Benefits: • Avoids duplication and unproductive redundancy in the development approval process • Could save more than a year of time and thousands and in some cases millions of dollars • Can ensure that higher environmental performance is accomplished

35. Considerations: • There is nothing about this idea that violates any state law or rule • There have already been several very large AUARs that have been successfully prepared and implemented: • Maple Grove Gravel Mining Area, I-35E Corridor in Lino Lakes, Southbridge Area Shakopee, Twin Lakes in Roseville, 50-year Growth Area in Hutchinson

36. Considerations • Idea was recommended in the Legislative Citizens Commission on Minnesota’s Resources (LCCMR) Study: A Statewide Conservation and Protection Plan • Also included in the report prepared by the MPCA on streamlining environmental review

37. Next Steps: Mn Urban Land Institute (ULI) Initiative • Identify two pilot communities and evaluate their comprehensive plans • Design a process to incorporate an AUAR and Mitigation Plan into the comprehensive plan • Seek funding to carry out pilot AUARs