Reforming How CEQA is Applied: A Look at the Process Through the Eyes of a Practitioner

by Daniel G. Conaty
Parsons Engineering Science

The Environmental Monitor
Fall 1996

INTRODUCTION

In recent years there have been several attempts in the state legislature to pass legislation to reform California's preeminent environmental law, the California Environmental Quality Act (CEQA). CEQA reform has been considered from all angles, yet, very few substantive changes have been made by the legislature since the passage of Mitigation Monitoring Plan requirements under AB3180. Similarly, while CEQA has been finely honed by judicial decisions over the past 25 years, I know of no seminal decisions over the last 5 years. Clearly, the law has been amply studied and refined.

With the maturation of CEQA and apparently no mandate at the present time to make dramatic legislative changes, perhaps we should look less at passing major reforms to CEQA, and more to the education of governmental and private-sector practitioners in achieving effective implementation of the law. I am not suggesting that we, as CEQA practitioners, are not keeping abreast of procedural, judicial and legislative aspects of CEQA. However, it is recommended that the educational framework be more focused on how to work through the process to achieve better projects.

Toward this end, the focus of this paper is on some approaches to more effectively navigate through the CEQA process. The main concept discussed in this paper is on using the CEQA process to enable better planning. More emphasis on the alternatives analyses process is also recommended as a way to improve the effectiveness of environmental documents.

PROCEDURAL CEQA

CEQA is often viewed as a procedural process as opposed to a planning process. CEQA is frequently used and viewed from the standpoint of simply following the "CEQA Process Flow Chart" from Point A, Definition of Project, to Point Z, Notice of Determination. CEQA workshops, and similar conventions, reinforce this thought process. These workshops largely expound on three procedural perspectives. These are: 1) the "how to" procedures of CEQA; 2) approved and proposed legislation which affects or could affect these procedures; and 3) CEQA litigation which interpret the law and procedures.

It is not the purpose of this paper to assert that these workshops are misdirected. The workshops are a critical component in providing education to public and private sector practitioners on the CEQA law and the Guidelines. Indeed, the best way to get from Point A to Point Z while preparing a legally-defensible document is important, but we should also be studying innovative ways to apply CEQA.

As this paper was being produced, it was noted that the 1997 Association of Environmental Professionals Conference Committee has planned a series of sessions which should help bridge this chasm. The theme will be "Making the Grade: Report Card on the Environment." Topical sessions planned include, AInnovative Methodologies in Environmental Impact Assessment (EIA)@ and AIdentifying and Improving the Effectiveness of EIA.@ This curriculum is certainly a step in the right direction for those involved with the EIA profession.

ENVIRONMENTAL PLANNING THROUGH THE CEQA PROCESS

Applied CEQA approaches described in this paper are not necessarily new or innovative. They are common sense and based on practical experience. These approaches are increasingly being used by environmental professionals when the opportunity exists. For example, the development of the "Mitigated Negative Declaration" and its subsequent codification has encouraged many project proponents to look at (planned) methods to avoid significant impacts upfront and to incorporate these methods into the project design.

There is a need for environmental professionals to network with each other about these practical approaches toward environmental document preparation. Many practitioners are still involved with cases where opportunities to effectively use CEQA to achieve better results are foregone. For example, I was recently indirectly involved with a project that was 100 percent designed before the environmental impact report (EIR) "hit the street." Other environmental documents clear the CEQA process but virtually ignore obvious concerns of regulatory agencies.

The concepts discussed below for using the CEQA process to achieve good environmental planning are as follows: 1) conduct an enhanced Early Consultation process; 2) when practical, prepare impact analyses in conjunction with the conceptual/preliminary design process; and 3) prepare effective alternatives analyses.

These approaches are discussed individually below. Since these "lessons" were learned primarily through practical experience, two case studies are provided as examples. Both are water utility projects which would be located in or adjacent to sensitive coastal wetland resources.

Early Consultation

The link between the environmental laws and permit review requirements of regulatory agencies is clearly established in the California Environmental Quality Act (CEQA). CEQA states that "any public agency with jurisdiction by law over natural resources affected by the project....may request one or more meetings between representatives of those agencies for the purpose of assisting the lead agency to determine the scope and content of the....environmental impact report." [Public Resources Code, Section 21080.4(b)].

Responsible agencies will use analyses in the environmental document as a basis for issuing or denial of a permit. Through early consultation with the permitting agency and by addressing fundamental environmental issues head-on at an early stage in the process, delays due to additional environmental analysis and/or project redesign can be avoided.

The Notice of Preparation (NOP) process is a form of Early Consultation. The NOP is to be sent out by the lead agency to all responsible state, federal and local agencies as well as to trustee agencies which may have jurisdiction over the project. Responsible agencies are those with discretionary approval power over a project. They will typically use the Final EIR as one basis for their project decision. Consequently, early input from these agencies is key to avoiding surprises after EIR approval.

A frequent complaint among EIR preparers, including myself, is that NOP responses from responsible agencies are oftentimes wholly inadequate form letters. However, each of these agency letters, adequate or not, provide the name and telephone number of a contact person. The EIR preparer should contact this person and attempt to determine what the agency=s staff concerns are with respect to their purview. A satisfactory response may not be provided, but it is well worth the try!

The CEQA Guidelines, Section 15082(c) encourage the lead agency to hold meetings with responsible agencies to "expedite the consultation." These forums familiarize the responsible agencies with upcoming projects and provide the lead agency with feedback regarding the most important issues that should be addressed in the environmental document. An excellent opportunity for meeting with regulatory agencies early-on during a project is provided by the U.S. Army Corps of Engineers, which convenes quarterly, multi-agency "pre-consultation" meetings to discuss likely permitting issues associated with projects.

Since permitting agencies have permit authority over projects and the power to stop a project, for some projects it is extremely important to consult with them during the CEQA to ensure that their concerns are addressed in the environmental document. A permitting agency complies with CEQA by considering the environmental document and "reaching its own conclusions on when and how to approve the project involved." If the responsible agency believes that an EIR is not adequate for its use, then the agency has the option to take the issue to court or prepare a subsequent EIR [CEQA Guidelines, Sections 15096(a) and (e)]. Both of these optional approaches would result in undesired permitting and project delays.

Coordination with Conceptual/Preliminary Design Process

As an employee of engineering firm, I often work closely with the design engineers to evaluate cost-effective ways to lessen the environmental effects of a project. However, most clients do not permit the engineering designer to also prepare the CEQA compliance document. So, in preparing permit compliance documentation for these projects, I often observe how other firms consult with our engineers. Usually, but not always, the consultation is in the form of a letter requesting information about the project's design. Very little consultation may occur after the project kick-off meeting.

To a large extent, this meager amount of coordination is understandable. EIR preparers attempt to establish a definitive project description early on as a basis for analyzing environmental impacts. In some instances, the project has not even been preliminarily designed; consequently, there are not any designers or architects with which to consult.

However, when the opportunity exists, EIR-preparers should not miss opportunities to meet with the design engineers or architects to determine as much as possible about the project, including the feasibility of potential measures to avoid or minimize environmental impacts. For large and/or complex projects, this consultation should entail frequent, on-going dialog between the client, the project engineer, and the consultant. It is the CEQA consultants job to make the client aware that this extra-effort is not only necessary, but can save time and money in the long run.

Key questions that are sometimes neglected when consulting with the design firm include, but certainly are not limited to: 1) where will the staging area(s) for the project be located? 2) the access roads? 3) how much groundwater will be discharged during design and operation of the project and is water quality data available? 4) amount of excavation material to be removed? 5) number, frequency and duration of truck trips? 6) specific number and types of

equipment; and 7) number of workers?

Effective Alternatives Analysis

Alternatives analysis is the essence of project planning. However, often alternatives evaluations in EIRs entail assessment of one or more alternatives that the project proponent has no intention of ever implementing. One of the most frequent public comments, justified or not, is that a specific alternatives analysis process is biased in favor of the proposed project alternative.

Landis et al. (1995), in noting the oftentimes ineffective results of CEQA alternatives analyses, recommends that these analyses should either be conducted to yield useful results or eliminated altogether. Elimination of the alternatives analysis is not the solution to poor planning at the program or project levels. More legislation is probably not the answer either. There is plenty of flexibility with the existing law to achieve better-planned projects through use of the alternatives analysis process. But how can the process be implemented to produce more meaningful results while avoiding an overly cumbersome analytical process?

With the National Environmental Policy Act (NEPA), alternatives analysis is better integrated into the EIA review process. Each alternative is given equal consideration/weight. This process probably leads to better planning through the EIA process but it also can result in long, cumbersome environmental documents.

An increasingly popular strategy in EIA, which we have been successful with at Parsons Engineering Science, is to use the alternatives analysis process as a planning mechanism. Some project proponents are supportive of using the CEQA process to achieve the development of a "Planned Alternative" as the "Preferred Alternative." In this way, preparation of a CEQA document is a "living process" where the Project Description is modified in response to environmental and socioeconomic characteristics of the study area. In essence, the Project Description is largely developed in response to impact analysis results.

Such an approach can be particularly effective for projects which are located in or near wetlands and/or in sensitive coastal environments. As part of the Clean Water Act, Section 404 permitting process, the Corps of Engineers requires that an Alternatives Analysis be prepared to evaluate the relative impacts of each alternative and to determine the Least Environmentally Damaging Practicable Alternative (LEDPA). In its evaluation of a project, the Corps of Engineers must first determine whether avoidance of the wetland resource is possible. If not, resource impacts must then be minimized and mitigation of the lost wetlands is required. The California Coastal Commission will also require alternatives analyses when sensitive coastal resources could be permanently or temporarily affected.

Timing of alternative analysis preparation is important because the results can affect the project design process. When designing in a sensitive wetland environment, for example, the LEDPA should be considered as part of the project design prior to or as part of the environmental document preparation process.

If a joint NEPA/CEQA Document is prepared, the EA or EIS alternatives analysis should be adequate for fulfillment of Corps of Engineers requirements for alternatives analyses under Section 404 of the Clean Water Act. However, under CEQA, alternatives do not have to be analyzed with the same level of detail as the proposed project. But if it is known at the outset that a 404 Alternatives Analysis will ultimately be required by the Corps of Engineers, then a thorough analysis of alternatives should be conducted as part of the CEQA process. If the CEQA process is done correctly, then the LEDPA would be considered during lead agency project approval and the Corps of Engineers will be more likely to concur with the lead agency's selection of the proposed project alternative.

CASE STUDIES

The two case studies described below present contrasting approaches toward implemen-tation of CEQA. The first case is an example of a proactive approach to a CEQA study, with the result being integration of environmental considerations into the project design. With the second case, we were more in a reactive mode during the permit review stage wherein critical project decisions were based on a weak EIR.

Groundwater Conjunctive Use Project

Background

This project would involve a lease agreement between a federal agency (Base) and local water district (District) to conjunctively manage groundwater resources at a major west coast military base. Proposed project facilities consist of wells, transmission pipelines, pressure regulating facilities, and chlorination facilities to provide: potable water to the existing District regional system; treated imported water to the Base local potable water system, if necessary; and, imported water to recharge local groundwaters when available. Project facilities would be designed with the capability to transport basin groundwater and banked water to the District's service area and to deliver imported water to the Base service area.

The Environmental Process

This groundwater conjunctive use project is an example of how a project can be planned during the CEQA process to avoid significant impacts while still achieving project objectives. After a concept plan was presented by the District, four alternatives were selected for analysis, including a No Project Alternative, the Engineer=s Preferred Alternative, the LEDPA, and an Off-Site Alternative. Extensive field work was then conducted to identify the location of sensitive biological and archaeological resources in the project area. We also utilized groundwater hydrological modeling results prepared by another firm. It was at this stage that a simple constraints analysis was conducted to determine the LEDPA project description. This process required regular discussion between the local and federal lead agency representatives, the project engineers, and the environmental team.

Major challenges with the project involved balancing the need for water storage with several varying environmental issues, including:

$ Potential direct loss of sensitive biological habitats and species during construction;

$ Potential impacts to a National Register-eligible archaeological site;

$ Potential indirect biological impacts due to groundwater drawdown; and

$ Land use compatibility issues associated with developing utilities at a major military installation, in the coastal zone, and on land being leased for state park and agricultural uses.

These environmental concerns largely dictated the proposed location of pipelines and well sites. The pipeline alignment location was selected after detailed field studies were conducted for biological and archaeological resources. The pipelines would be situated along an agricultural service road at the margin of a wetland, and were to be configured such that permanent loss of wetland habitat and disturbance of archaeological sites are avoided. The pipeline corridor width would be constricted to approximately 8 meters (m) at some locations to avoid temporary loss of sensitive riparian woodland habitat.

Project construction activities may also be constrained by environmental considerations. Construction timing may be an issue if it coincides with nesting activities of sensitive bird species in the vicinity. Project construction would also involve the temporary closure of a coastal access route used for various forms of recreation and camping. This coastal access would have to be maintained during construction; however, options are constrained by a freeway on one side an archaeologically sensitive area on the other side of the access road.

A key issue addressed in the environmental document was the operational effect of groundwater drawdowns on sensitive habitats and species located within the basin. The basin is home to several riparian woodland habitats and associated wetlands, as well as several sensitive animal species that depend upon these habitats.

Options for avoiding potentially significant impacts associated with groundwater drawdown were assessed. These involved a creative scheme for managing groundwater levels to ensure that enough groundwater is available to meet the requirements of sensitive habitats in the lower basin. Operation of the project would almost certainly be associated with detailed in-field monitoring to confirm modeling results and monitor vegetation. The groundwater needs of each habitat type are also not well understood and would be better defined with monitoring.

The LEDPA (proposed project) was selected based upon avoidance of impacts to sensitive habitats and a significant archaeological site. For the District, the LEDPA alternative to route the pipeline along the roadway and across an agricultural field was not substantially more expensive than an Engineer's Preferred-alignment Alternative. It was a time consuming and occasionally contentious process to convince the local and federal lead agencies and the project engineers that spending more time and money to plan a project with cognition of the sensitive environmental resources would be worthwhile.

Water and Wastewater Utilities Improvement Project

Background

The project proponent planned to a construct a new pump station and associated water and wastewater pipelines as part of a major utilities improvement project. The new pump station, located on the fringe of a coastal lagoon, is intended to replace an undersized and over-burdened facility in the middle of the lagoon.

In the initial plan for the new pump station, the work was to be undertaken in conjunction with the widening and straightening of a road adjacent to the lagoon. New pipelines would have been built entirely within the roadway, and the new pump station would have been located adjacent to the new road. An EIR based on the joint project was prepared by another firm in 1990.

Plans for the improvement of the road were subsequently withdrawn due to environmental considerations. Following meetings with community representatives, a new site for the pump station was selected to reduce the visual impacts of the facility. It was later determined that the selected site was partially occupied by a rare plant species. Based largely on these environmental considerations it was determined that the pump station would be situated on disturbed fill at the margin of the lagoon, and would be configured such that permanent loss of wetland habitat is avoided. Temporary impacts at the site would also be minimized by restriction of the construction area to no more than 4.5 m from the toe of pump station pad.

A significant effort was required to address the comments and concerns of the permitting agencies, particularly the Coastal Commission and the Corps of Engineers. This required a thorough review of all practicable alternatives, as well as a review of all possible alternatives that would avoid impacts to wetlands. The work required went far beyond the work done in the original EIR and involved evaluation of alternative pump station sites, construction methods, and pipeline alignments.

The Environmental Process

This utilities improvement project is an example of how a project can get off track when the environmental and design processes are not in sync. Like the groundwater conjunctive use project, environmental considerations largely controlled the project design. However, with this project, the EIR was approved with inadequate consideration of options available to avoid or minimize significant biological effects. Consequently, delays and project redesign resulted.

Federal and state environmental laws emphasize the importance of close coordination and consultation between a lead agency and permitting agencies during the environmental document preparation process. In practice, interagency coordination is sometimes not as effective as intended by these laws. During the NOP process for this project, the Coastal Commission and Corps of Engineers prepared comment letters addressing impacts covered in the EIR. As required, the lead agency prepared responses to comments, but it was not until the permit compliance stage that back and forth dialog (and real progress) began.

At the EIR stage, the lead agency will typically develop responses to public comments that satisfy its decision-makers, however, during the permitting process, the lead agency must develop responses to comments that satisfy the concerns of the permitting agencies. This distinction was blatantly clear with the utilities improvements project, wherein the Coastal Commission and Corps of Engineers questioned several issues that had been casually dismissed in the EIR.

The CEQA and permitting processes are often perceived as separate components (tracks) with little or no coordination between the two. For this project, EIR and permit compliance in large part controlled the overall project schedule and compliance with a federally-mandated Consent Decree schedule. Although the EIR received approval from the lead agency=s decision makers, it proved to be deficient in several aspects: (1) the project description was not thoroughly defined; (2) important aspects of the project were not defined or thoroughly analyzed including dewatering effects, access road impacts, and staging area locations; (3) project alternatives were reviewed briefly and dismissed; and (4) some mitigation measures were not realistic or could not be implemented.

A deficient EIR was a definite disadvantage to the project=s progress in our attempts to secure permits from the Coastal Commission, Corps of Engineers, and other responsible agencies. In fact, after the virtual completion of the final design, the Corps of Engineers required the preparation of a comprehensive evaluation of basic project alternatives, an evaluation which should have been prepared at the outset of the project. We were challenged to demonstrate that the proposed project was the least environmentally damaging practicable alternative (LEDPA). After completion of the "final engineering design," it was necessary to again modify the configuration of the pump station to gain approval from the Coastal Commission and the Corps of Engineers so as to avoid any permanent impacts to wetland habitat. Lead agency communication with responsible agencies throughout the environmental and project design processes is clearly necessary to avoid pitfalls and meet tight project schedules.

CONCLUSION

As stated above, better integration of planning into the CEQA process can be achieved without reforming CEQA through legislation. However, in order for this process to work, project proponent flexibility in terms of project layout and design is required. To further facilitate this process, the CEQA practitioner should strive to attain a cooperative working relationship between and among his/her environmental consulting firm, the project proponent, the architectural/engineering design firm, and environmental regulators.

Two case studies were reviewed to illustrate these approaches. For both projects, environmental considerations effectively controlled the location of site facilities. The major difference between the two cases was that utility siting was considered during the environmental document preparation process for the first case and after environmental document certification for the second case.

Clearly, as an EIR preparer, there are projects where the opportunity to inject "planning" into the environmental process in not there. With some projects, there may not be much flexibility in terms of scheduling, the project proponent's willingness, or the public agency's opportunity or desire to be "innovative" with the CEQA process. The CEQA document for a public project is initiated when the budget is approved, which may or may not coincide with the design process. A developer may not wish to change the project's design in response to an environmental consideration.

However, it is the EIR consultant=s responsibility to give the client options for approaching the environmental process to achieve a better planned project with less regulatory hassles. In some instances, there are opportunities to craft better planned projects through the use of the CEQA process without costing more than at present. It is this concept which I believe should be communicated to developers, agency staff, and private consultants as part of CEQA workshops, agency internal training seminars, state AEP conferences, and the like.

REFERENCE

Landis, J.D., R. Pendall, R. Olshansky, and W. Huang. 1995. Fixing CEQA, Options and Opportunities for Reforming the California Environmental Quality Act. Published by California Policy Seminar. vol 1.

Daniel G. Conaty is a Project Manger with Parsons Engineering Science Inc. in San Diego where he is in charge of the Environmental Analysis Group.


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