The latest revisions are the third set to be proposed and adopted by the Resources Agency since 1993. Over the past five years, over 120 sections to the CEQA Guidelines have been revised and updated. This latest set revises approximately sixty (60) sections. This article highlights the twenty (20) or so of those revisions which have received the most attention during the public comment period and which are likely to be of most immediate interest to CEQA practitioners. They are grouped by topic: determining significance, determining the scope of priate analysis in an EIR, exempting environmentally beneficial activities, and improving CEQA’s roadmap. 

No subject addressed in the CEQA Guidelines over the past few years has been more controversial than the revisions assisting lead agencies in the job of determining the significance of effects which may be caused by projects they are reviewing. Arguably, the two most important discretionary determinations that a lead agency must make in the CEQA process are whether the environmental consequences of the project are "potentially significant" and whether the environmental consequences of the project are, in fact, "significant" on the basis of the information in the environmental impact report ["EIR"]. And, it is easy to see why these two issues are so debated and so controversial. Both decisions affect the timing and cost of projects and the amount of environmental protection, either by requiring the preparation of an environmental impact report ["EIR" } and/or by requiring the project to avoid or mitigate those effects found significant.

Guidance to lead agencies in making these critical determinations is found in several sections of the Guidelines. Section 15064 provides the basic guidance to lead agencies in determining the significance of a project’s effects. Section 15065 provides the conditions for which lead agencies are mandated to determine significance and thus, require preparation of an EIR or require mitigation to reduce the effect to less than significant in order to prepare a mitigated negative declaration. Appendices G and I provide optional tools to assist lead agencies in determining the significance of particular effects.

Responding to this criticism and in a modest attempt to fulfill the recommendations of these expert commentators, the latest revisions: (1) clarify the role of regulatory standards in determining significance; (2) add a section to encourage lead agencies to develop and publish cognizable thresholds of significance; (3) assist lead agencies in the threshold determination of whether a project’s impact is cumulatively considerable; (4) merge and enhance Appendices G and I to provide a better tool to lead agencies in determining the level at which an effect is significant; and (5) add a section to address impacts to historical and archeological resources.

Effective August 24, 1998, subsection (i) of 15064 is revised to guide lead agencies to rely on the vast body of regulatory standards have been adopted over the past few decades establishing levels at which impacts to a particular resource is a substantial or potentially substantial adverse effect on a particular environmental resource. The change to §15064(i) is intended only to direct lead agencies to consistently and predictably refer to standards in their significance determination under CEQA. It is important to note that subsection (i) only applies to the extent that there exists a standard for a particular effect being examined by the lead agency and that standard has undergone rigorous public review and otherwise meets the conditions of the subsection.

In addition to encouraging more predictable reliance on existing regulatory standards, new section 15064.7 attempts to stimulate more certainty and consistency by encouraging lead agencies to develop and publish the thresholds that the agency uses in determining the significance of environmental effects caused by projects under its review.

Additionally, once a threshold of significance has been published, any interested party may be able to ascertain the standard of significance for a particular resource in a certain community. By knowing the standard in advance, thresholds may likely encourage increased use of alternative designs and locations to substantially lessen the potential significant environmental impact of projects. At a minimum, it provides public agencies with a method of putting in place a degree of predictability in their significance determination process.

This subsection also provides a definition of a "de minimis" impact as an incremental contribution where the environmental conditions would be essentially the same whether or not the proposed project is implemented and explains that such minimal impacts do not trigger the need to prepare an EIR. It also permits lead agencies, similar to section 15064(i) for individual significance, to determine that an incremental effect is not cumulatively considerable where the project complies with the requirements of a previously approved plan or program that will avoid or mitigate the cumulative problem.

Several new and notable questions are added to the new Appendix G. Lead agencies are asked to consider impacts to candidate, sensitive and species of special concern under the biological resources heading. Questions regarding effects to water efficient or fire resistent landscaping, and other drought and flood impacted areas are added to the checklist. A new heading is added grouping questions related to impacts to agricultural resources. Lead agencies are asked to consider a broader array of impacts on agricultural resources and the existing requirement to consider "prime" farmland is expanded to include "unique" farmland and "farmland of statewide importance." Lastly, as required by a recent revision to the statute, the new Appendix G incorporates the Land Evaluation Site Assessment model prepared by the Department of Conservation as an optional model for determining when conversions of farmland are significant.

These revisions are precedent-setting in their endorsement of the first set of standardized mitigation measures for historic resources. The new sections provide that projects following the Secretary of the Interior’s Standards for Treatment of Historic Properties shall be considered as mitigated to a level of less than significant. Among other provisions, they put lead agencies on notice that, in many circumstances, the very popular method of mitigating impacts on historical resources by way of documentation (e.g. historic narrative, photographs or architectural drawings) will not mitigate the effects to a point where clearly no significant effect on the environment would occur. Additionally, a new categorical exemption, section 15331, is added for projects limited to restoration or rehabilitation of historical resources consistent with the Secretary of the Interior’s Standards.

Several revisions in Article 9 of the CEQA Guidelines, entitled "Contents of EIRs," are an effort to restore CEQA and the EIR as an information document that can lead to better decisions and decisions which more accurately reflect the environmental consequences of projects over which the public agency has decision-making authority. These revisions provide a clear description of the environmental setting, a definition of the baseline, and provide guidance on how to discuss the no project alternative, on the scope of cumulative impact analysis and the focus of a responsible agency’s review of a draft EIR.

The Guidelines require a description of the environmental setting "before the commencement of the project" in order to examine and analyze the effects of the physical change in the environment after the project is commenced and completed. "Before the commencement of the project" has been one of those unfortunate terms which has been subjected to much debate and a near infinite variety of interpretations over the past twenty years. Many have interpreted this to require an EIR to reconstruct a past setting (e.g. pre-CEQA) or a future setting (e.g. post-traffic or infrastructure improvements). Efforts spent on EIRs describing and predicting historical or future conditions may be interesting and intellectually-challenging to the preparer, but they are costly, time-consuming and, more importantly, they don't describe the environment which actually exists "before the commencement of the project."

Section 15130 has been amended to include much of the same criteria found in new subsection 15064(j) for determining the significance of a cumulative impact. Guidance has been added to assist lead agencies in determining the scope of analysis. Subsection (b)(1)(B)3 encourages lead agencies to adopt a standardized approach regarding the geographic range for analyses. Subsection (b)(1)(B)2 defines the scope of probable future projects by providing a list of projects that are reasonable to anticipate, such as projects for which an application has been received, projects included in adopted capital improvement programs or public projects for which money has been budgeted.

The California Policy Seminar reported:

Acknowledging, as the California Policy Seminar report found that "project by project review of impacts is not adequate for identifying and mitigating cumulative development impacts," and "[e]ven when cumulative impacts are properly identified, there is usually very little that can be done at the (specific) project approval stage to ameliorate them," subsections (d) and (e) of 15130 encourage broader regional planning to avoid and/or mitigate cumulative impacts. Here and elsewhere, the revisions encourage an expanded use of tiering from specific, area, redevelopment and general plans for identification, analysis and mitigation of localized cumulative environmental impacts. See sections 15152, 15183 and Appendix J - the new graphic guide to tiering.

Revisions to section 15204 emphasize that CEQA requires a good faith disclosure but not an exhaustive, bulletproofing exercise where every research or study or information requested or suggested is required. It asks reviewers to base their comments on facts and opinions supported by facts. It requires responsible and trustee agencies to base their comments on information germane to its expertise and to provide as much detailed information as it can about how the lead agency can mitigate significant effects identified by them. These revisions, with others in Article 9, aspire to restore the EIR as an information tool to assist public agencies in understanding the actual environmental consequences of activities they undertake or approve.

Public Resources Code §21084 authorizes the Secretary of the Resources Agency to prepare lists of classes of projects which have been determined not to have a significant effect on the environment and hence be exempt from CEQA. As with all the current categorical exemptions, for example, new construction of small structures (15303) or minor additions to schools (15314), the Secretary defines a subset of projects with conditions that as a class do not have a significant effect on the environment. These revisions create three new categorical exemptions for activities which are environmentally beneficial (15330, 15331, 15332), clarify and update three existing categorical exemptions (15301, 15316, 15325), and make complete the list of exceptions to use of a categorical exemption (15300.2).

Agency dealt with each concern by adding a restriction to eliminate the possibility raised by the commentor. The restrictions included are very clear and limit the application of this section (i.e. exemption cannot be relied upon if the action requires on-site use of a hazardous waste incinerator, involves the relocation of persons or business or potential release of volatile organic compounds) so that the potential for the occurrence of a significant effect is eliminated. Further, any actions relying on this exemption must be consistent with state and local environmental permitting requirements. Delineated examples, such as construction of temporary surface caps, are included.

The other notable new exemption creates an incentive to prevent urban sprawl and preserve agricultural land by exempting a narrow class of infill development projects without some of the restrictions that have made the statutory infill exemptions unworkable.

According to practitioners and others involved in CEQA practice, the comparable statutory exemptions are of little practical value given the plethora of restrictions attached to their use. The result is that developers look elsewhere other than urban, previously developed areas to develop. Those areas usually happen to be agricultural lands, open space, etc. at the fringe of the urban limits where land is plentiful and cheap. Proposed section 15333 attempts to prevent that from occurring by encouraging development in previously developed areas, with restrictions to ensure that the Secretary can make the requisite finding of no significant effect, but not as many restrictions as contained in statute to ensure practical application.

Two existing categorical exemptions are expanded to promote local efforts to preserve and expand habitat areas and open space and provide incentives to create ownership interests in land for open space and habitat. Sections 15325 expands the existing exemption for transfers of land to preserve open space to "habitat" and "historic resources." It also expands the methods for such transfers from acquisition to "acquisition, sale or other transfer" to give proper recognition of the fact that public agencies may not only acquire but transfer rights to another agency, non-profit entity, land trust, or individual for purposes of preservation or restoration. Section 15316 has similarly been expanded to permit innovative transactions in order to establish a park.

Lastly, many revisions recognize that public input and access is a hallmark of CEQA and a vital component of its effectiveness as a force for environmental protection. The revisions encourage public agencies to use the Internet for all of their notice and posting requirements and direct public agencies to submit environmental documents in electronic form, where available, to the Office of Planning and Research. (Sections 15062, 15075, 15085, 15202 and sections 15205, 15206, respectively.)

This third, most comprehensive, and ambitious revision to the CEQA Guidelines during the Wilson Administration reflects the thinking that has developed since the 1991 Ueberoth report and in subsequent reports of the Little Hoover Commission, the Legislative Analyst Office, the Bay Area Economic Forum, the State Bar and Associations of Planners and Environmental Professionals on the problem areas in CEQA. It reflects the thoughtful comments received by the public in over seven (7) solicitations for written comments and oral comments made at over ten (10) public hearings in the past five years. In addition, it reflects upon other natural resources policy goals that have marked Doug Wheeler’s tenure as Secretary of the Resources Agency, such as agricultural land conservation, historical resource protection, ecosystem habitat planning and the creative and innovative ways his Agency has pursued these goals.

These revisions restore a degree of certainty, predictability and rationality to the regulations that are the roadmap to public agencies in implementing CEQA. They more accurately reflect the complex and interrelated universe of environmental laws and regulations that has matured with the CEQA process in addition to resolving the problems identified and studied since the last revision of the Guidelines in 1986. The revisions bring definition and clarity to the many vague and subjective standards such as "significant effect," "substantial evidence," "probable future projects", and the scope and requirements of alternatives analysis and cumulative effects analysis. These revisions also provide a much needed update to the Guidelines to bring greater comprehension to reflect recent statutory changes and case law.

And, it is hoped that in so doing, these regulatory accomplishments will have helped restore CEQA to its primary purpose of informing decision-makers of the environmental consequences of their actions and, more importantly, will have increased the ability of public agencies to make on-the-ground, substantive environmental protection.