Water Board Certified Regulatory Program CEQA Training for

Water Board
Certified Regulatory Program
CEQA Training
for
Basin Planning and TMDLs
April 2008
http://www.waterboards.ca.gov/academy
1
Introduction
to CEQA for Certified
Regulatory Programs
Terry Rivasplata, Jones & Stokes
Steven Blum, OCC
2
Why Are We Here?

To understand the rationale behind CEQA well
enough to manage a CEQA process well and
prepare excellent CEQA documentation

To understand the differences between “normal”
CEQA and CEQA for Certified Regulatory
Programs (and they’re not as big as you think)

To prepare staff to do an excellent job of
developing CEQA analyses in the future
3
What is CEQA?
 A process designed to reveal potential
environmental impacts of a project
 A vehicle that empowers citizens to
influence environmental decision-making
 A process not a permit
 A legal requirement that can ensure
 Real public participation
 Mitigation of adverse impacts, whenever
feasible
4
Who Must Comply with CEQA?
 CEQA requirements apply to California
public agencies (state and local)
 Projects proposed by private entities
come under CEQA when state or local
permits are required
5
How CEQA Works
 “CEQA is intended to be interpreted in a
manner that affords the fullest possible
protection of the environment”
(Friends of Mammoth v. Board of Supervisors 8 Cal.3d 247)
 Relies on strict adherence to process
as a way to ensure public participation
in government decision making
6
How CEQA Works
 Environmental analysis must include:
 A description of project
 Potential significant impacts
 Review of mitigation and alternatives that
will avoid impacts
 Review of cumulative impacts
 All environmental documents are subject
to both public and public agency review
and comment
7
Finding CEQA
 CEQA statute: Public Resources Code
§21000 et seq. (California Environmental
Quality Act)
 CEQA Guidelines: 14 CCR §15000 et seq.
 SWRCB implementation regulations:
23 CCR §3720 et seq.
 Updated statute, guidelines, caselaw,
other info: http://www.ceres.ca.gov/ceqa
8
What is a “Project?”

The “whole of an action” that may cause either
 A direct physical change in the environment
 A reasonably foreseeable indirect physical
change in the environment

Public agency issuance of a grant, loan, or
other financing of a project
 Categorical exemption for studies (Guidelines
§15306)
Guidelines §15378
9
What is a “Project?”
 Adoption of a plan or policy that may
result in a significant environmental impact
 Issuance of a permit, license, or entitlement
 NPDES permits are exempt from CEQA
Guidelines §15378
10
What are Significant Impacts?

A “significant impact” causes a substantial or
potentially substantial adverse change in
physical conditions in the project area

Environmental review must consider:
 Direct impacts
 Reasonably foreseeable indirect impacts
 Impacts to the environment including impacts
not regulated by the lead agency
Guidelines §15382
11
Levels of Analysis
 If the project has no potential for
significant adverse impacts:
Negative Declaration
 If significant impacts can be mitigated to
insignificance:
Mitigated Negative Declaration
 If potential remains for significant impacts:
Environmental Impact Report
12
Certified Regulatory Programs

Agency programs designed to protect the
environment and ensure public participation
 Certified by Secretary of the Resources Agency

Exempt from document formatting requirements
of standard CEQA process (similar content)
 Examples:
• Basin Planning and policies including TMDLs (Water Boards)
• Timber Harvest Plans (Dept of Forestry and Fire Protection)
• Coastal Development Permits (California Coastal Commission)
13
Case Law Defining SEDs
 Since certification of the Basin Plan
program, our work has become more
controversial and subject to litigation
 Case law has been defining and refining
requirements for SED
 Required elements
 Level of detail
 Organization of SED
14
Case Law – Lessons Learned
 L.A. River Trash TMDL – City of
Arcadia
 Deer Creek Temperature – California
Sport Fishing Alliance
 L.A. River Metals TMDL – Alternatives
Analysis Case
 Others…
15
15
Certified Regulatory Programs
 Subject to most “normal” CEQA
requirements
 Cross-agency consultation
 Public disclosure and review
 Notice, scoping, reasonable range of
compliance methods, alternatives analysis,
mitigation, cumulative impacts analysis,
findings (resolution)
16
CRP Requirements
 Project documents constitute “substitute
environmental documentation” (SED)
 Basin Plan amendment
 Supporting Staff Report
 Checklist/environmental analysis
 Comments
 Responses
 Resolution
17
SED Levels of Analysis
 Neg Dec-level
SED
 Mitigated
Neg Dec-level
SED
 EIR-level SED
18
Environmental Analysis
 Meets CEQA objectives:
 Considers potential impacts
 Considers range of compliance methods
 Evaluates mitigation, alternatives to the
project, cumulative Impacts
19
CRP Process
 Basin Plan amendments under the CRP
follow the public process for Basin
Planning
 Noticing and public review periods
 SED elements and organization
 Follow Water Board CEQA regulations
(currently under revision)
 State Board SED process satisfies the
CEQA procedural requirements as well
20
Questions?
21
Basin Planning
Overview
Rik L. Rasmussen
Senior Environmental Scientist
Chief, Planning, Standards, and
Implementation Unit
22
TMDLs and Basin Plan
Amendments

CWA §303(d)(2) & §303(e)
 EPA Approved TMDLs must be incorporated into
State Water Quality Management plan
 Should be incorporated during Continuous Planning
Process

CWA §303(c)
 Changes to Water Quality Standards
• Objectives
• Beneficial Uses
• NPDES Compliance Schedule Provisions
23
TMDLs and Basin Plan
Amendments (cont’d)
 Porter-Cologne
 §13242 requires Program of Implementation
for Water Quality Objectives
 Administrative Procedures Act
 “Rule of General Applicability”
 Serial Actions
• Implementation will take multiple actions of the
Water Board
24
25
Overlapping Legal Requirements?
Notice


Porter-Cologne
 Government Code
• §6061 Publication for one day in a Newspaper
• §6061.3 Publication for 3 days for Prohibitions
CEQA
 45 Day for “Notice of Filing” (23 CCR §3777)

Clean Water Act
 45 Day Notice (33 US Code §1251 et. Seq.)

Administrative Procedures Act
 CWA Public Participation (Gov.’t Code §11353(b) (4))
26
Overlapping Legal Requirements?
Economics
 Porter-Cologne
 When adopting new or revised water qualtiy
objectives
• must “consider economics” (CWC §13241)

When adopting an agricultural water quality
control plan (CWC § 13141)
• Estimate total costs of program
• Identify potential funding sources
27
Overlapping Legal Requirements?
Economics (Cont’d)
CEQA §21159 :
Adoption of a rule or regulation requiring the
installation of pollution control equipment, or a
performance standard or treatment
requirement
28
Response to Comments

Peer review (Health and Safety Code §57004)
 Written response in record

Public comments (23 CCR §3779; 40 CFR Part 25;
Administrative Procedures Act)
 Written response available at hearing
 Oral response
 CEQA comments
 Late comments
 Summary of oral comments?
29
Hearing Requirements

Porter-Cologne
§13244 (Regional Board), §13245 (State Board)

CEQA
 Requires Agencies to develop CEQA procedures
 Procedures must be consistent with all CEQA
requirements (Joy Road Area Forest and Watershed Association v.
CDF, 142 Cal.App.4th 656)

Clean Water Act
 Comply with public participation requirements

Administrative Procedures Act
 Defers to Porter-Cologne and CWA
30
31
State Board
Liaisons
Water Quality Standards
Contacts

Joanna Jensen –
Regions 2 and 6

Stephanie Rose –
Freshwater Bacteria

Michael Buckman –
Regions 3, 7, & 4*

Tom Kimball –
Methylmercury Fish
Tissue Objectives,
Selenium

Steve Camacho –
Cadmium and Nutrients.
 Nirmal Sandhar –
Regions 9 & 8

Mitchell Goode –
Regions 1 & 5
 Nicholas Martorano –
Regions 4 & 5*
* Backup
 David Edwards –
Chlorine Policy, Toxicity
Control Provisions (SIP)
32
Questions?
33
The Project Description:
Framing the CEQA
Analysis
Terry Rivasplata
34
34
When to Prepare
the Project Description
 Early enough to allow analysis to affect
project design
 When you can write a description
that will be meaningful to stakeholders
35
35
Key Elements
of the CEQA Analysis
 Project description
 Includes project objectives
 Environmental setting/baseline
 Checklist
 Significant environmental effects
 Mitigation or alternatives that reduce
effects
Guidelines §15120
36
36
Key Elements
of the CEQA Analysis (cont’d)
 Evaluation of alternatives to the project
 Cumulative impacts analysis
 Comments and responses to comments
 Findings and resolution
Guidelines §15120
37
37
The Project Is…
 The whole of the “action” and all foreseeable
associated construction operations and
related activities
 Action by the Board to adopt the TMDL or
BPA
 Not just a planning project: results in real actions
that may affect the environment
 Reasonably foreseeable actions by other
agencies in response to Board action
Guidelines §15378 and §15124
38
Project Description
 Crucial starting place for environmental
analysis
 Be comprehensive
 Includes statement of project objectives,
which helps frame alternatives analysis
 Describes project location
 Regional map
 Detailed local map
 Watershed or other project boundaries
Guidelines §15124
39
39
Project Description
(Cont.)

Narrative explanation of project’s technical,
economic, and environmental characteristics



List of parties subject to the BPA
Statutory and regulatory bases for action
Reasonably foreseeable future phases
 Adaptive implementation phases
 Changes or amendments to present action
40
40
Project Description
(Cont.)
 List of agencies that will use the SED in
their decision making
 List of permits and other approvals
required to implement the project
 Related environmental review and
consultation requirements
41
41
Project Description Tips




Develop early in the process
Clearly define project objectives
Describe related regulatory processes
Provide sufficient detail for evaluation and
review of environmental impacts:
 “The description of the project…should not supply
extensive detail beyond that needed for evaluation
and review of the environmental impact.”
Guidelines §15124
42
42
Environmental Setting:
Describing the Baseline

The “environmental setting” describes the
physical environmental conditions and
land uses before the project begins
 Normally the baseline for determining significance
of impacts

Accurately defining the baseline is key to
evaluating impacts
 TMDLs and some BPAs look both ways
• Water quality will improve
• Compliance methods will probably have impacts
Guidelines §15125
43
43
Environmental Setting

Presentation of regional (or watershed) setting
can be critical to assessing environmental
impacts

Each resource issue may have its own setting,
based on the affected area
 E.g., migrating wildlife
 Each CEQA topic area may have its own regional
setting (included in Explanations to the Checklist)
44
44
Questions?
45
CEQA Scoping
Naomi Feger
Planning TMDL Section Leader
Region 2
46
Today’s Presentation
 Purpose of CEQA Scoping
 Benefits of Scoping
 When to scope?
 Public Notice of scoping session
 Conducting the scoping meeting
 Meeting management
47
Purpose of Scoping
 Scoping is required for projects of
“statewide, regional or area-wide
significance.” (CEQA §21083)
 Invite public input early in the process –
head off future problems
 Solicit comments on the scope of our
environmental analysis
48
Benefits of Scoping
 Opportunity to inform the stakeholders
about Project
 Helps to identify range of actions,
alternatives, mitigation measures,
and significant effects to be analyzed
 Incorporate modifications early to
resolve potential problems
49
When to Scope?
 “As early as possible” (Guidelines §15083)
 When you can present and discuss
 Project objectives
 Draft Project description
 Reasonably foreseeable compliance measures
i.e., potential implementation requirements –
specific actions or measures
 Reasonable alternatives
 For TMDLs, generally at Project Report stage
50
Noticing the Scoping Meeting
 Notify as broadly as feasible
 At least 30 days notice suggested
 Publish notice for one day in an
“appropriate newspaper”
 Notice by mail and email
 Post on website
51
And the Notice Goes To…
 All interested parties
 Organizations or individuals who filed
written requests for notice
AND
 Everyone else
 Any responsible agency
 Any public agency with legal jurisdiction
related to the project
52
Conducting the Scoping
Meeting
53
Conducting the Scoping
Meeting

Take advantage of the meeting to combine it
with a public workshop

Make clear distinction between public workshop
and CEQA scoping

Options for meeting record
 Audio recording
 Meeting notes or summary
 Court reporter and transcript
54
Conducting the Scoping
Meeting
 Manage expectations by clarifying the
purpose of the meeting:
 Explain the project and the steps in the
process
 Explain our obligation under CEQA
 Hear stakeholders’ comments, concerns, and
ideas – not debate issues or make decisions
 Review agenda and meeting ground rules
55
Prompting Discussion


The more concrete information you provide, the
better the discussion will be
Take time to explain CEQA requirements and
process, including terminology e.g.,
 Significant and potentially significant impacts
 mitigation
 cumulative impacts

Ask for input
“Do you foresee any significant or potentially significant
adverse environmental impacts?”
56
Meeting Management
 Be clear about how staff will use/honor
comments
 Explain that we’re not required to respond in
writing, but staff will consider comments as we
develop the environmental analysis
 Identify time frame for submission of
comments, provide staff contact info
 Note comments on flip chart; ALSO take
notes on a laptop, or bring a note-taker
57
Depending on Your Stakeholders…

Depending on the stage of your project, level of controversy,
time/resource constraints and public interest…

You may choose to
 Develop a stakeholder involvement plan
 Consider using a facilitator (neutral moderator/ WB staff)
 Format your official notice formally or informally
 Present a blank or a draft checklist
 Present draft alternatives
58
Potential Meeting Handouts

Basin Planning/TMDL flowchart or other
simple, helpful handout

Preliminary project report or description
of proposed activity


Blank or draft checklist

List of references relied on for research to
date; websites, staff contacts
List of alternatives identified to date
(optional)
59
Take Home Message
 Emphasize and re-emphasize that Board
decisions have not been made, and public
input will be considered
 Prominently mark all materials “DRAFT”
 Note CEQA’s requirement to evaluate an actual
project, not just an idea…
 No requirement to respond to all comments
60
Scoping Summary
 Scoping provides valuable input
 Local conditions
 Stakeholder concerns - early in process
 First formal step in CEQA – opportunity to
get project on good footing
 Manage expectations – communicate
meeting objectives clearly
61
Questions?
62
Completing
the CEQA Checklist
Terry Rivasplata
63
Purpose of the Checklist
 Used to evaluate environmental effects
 Promotes a consistent approach
 Requires review of all environmental impacts
(not just water quality)
 Provides framework for environmental
analysis
 Requires explanations for each
determination
64
Use the Correct Checklist
 Correct for Certified Regulatory Programs
 State Board CEQA regulations Appendix A
 Framework for SED environmental analysis
 Under revision for Water Boards
 Incorrect for CRP processes
 CEQA Guidelines Appendix G
 Model checklist for initial study preparation
 Used for “normal” CEQA
65
What Topics Are Covered?








Aesthetics
Agricultural resources
Air quality
Biological resources
Cultural resources
Geology and soils
Hazards and
hazardous
materials
Hydrology and water
quality








Land Use/planning
Mineral resources
Noise
Population and
housing
Public services
Recreation
Transportation and
traffic
Utilities and service
systems
66
Water Quality and Beyond…

Lead agency must analyze all environmental impacts in
all topic areas—not just water quality
 Provide sufficient technical basis for all determinations

Analysis must provide enough information to allow Board
members to make an independent judgment to approve
the SED
 Lead agency must take full ownership of contents and validity of
the SED
 May incorporate technical input from others
 May even use draft prepared by dischargers or others, as long
as analysis reflects our best work and judgment
67
68
Determining “Significance”
 “Fair argument”
 Thresholds from other agencies’ plans
and regulations
 Mandatory findings of significance
(Checklist XVII)
69
“Fair Argument” Test
 If anyone presents evidence that a project
may have a significant effect on the
environment, the lead agency must prepare
an EIR-level SED—even when presented
with contrary evidence
 The SED must analyze each of these
potentially significant effects
 City of Arcadia case (LA Trash TMDL)
CEQA Guidelines 15064(f)
70
More about Fair Argument
 A fair argument must be based on
evidence:
 Facts, supposition predicated upon facts,
and/or expert opinion based on facts
 NOT unsupported opinion or controversy
alone
 A fair argument may be raised at any time
while the administrative record is open
 From beginning the process until the final
decision
71
Fair Argument and SED
 Even if an impact doesn’t reach a threshold
of significance, a fair argument can cause
the lead agency to treat the impact as
significant in the SED
 The SED must identify these effects as
potentially significant
 Further analysis will be required to evaluate
these impacts
 Mitigation measures may reduce significance of
these impacts -- Mitigated Neg Dec-level SED
72
Thresholds of significance
 Established standards may define when
an impact is significant
 Standards of other agencies
• Examples: water quality standards, noise
ordinances, air quality standards, etc.
 Many of these are published in agencies’
regs, guidelines, or plans
73
Thresholds of Significance (cont’d)
 These help
determine when
an impact can be
considered less
than significant
 However,
thresholds are
trumped by a
“fair argument”
74
Mandatory Findings of Significance

Check the left column box on Question XVII if
the project will:
 Substantially degrade environmental quality
 Substantially reduce fish or wildlife habitat
 Cause a fish or wildlife habitat to drop below selfsustaining levels
 Threaten to eliminate a plant or animal community
 Substantially reduce numbers or restrict range of
a rare, threatened, or endangered species
 Eliminate important examples of major periods of
California history or prehistory
75
Mandatory Findings of Significance,
cont’d
 Or, check the left box if the project will
 Cause substantial adverse effects on humans
 Achieve short-term environmental goals to
detriment of long-term goals
 Result in possible cumulative impacts
 (partial list; see Guidelines §15065)
76
Checklist Categories:
The Four Columns
 Potentially significant impact
 Less than significant with mitigation
incorporated
 Less than significant impact
 No impact
77
Potentially Significant Impact
 The project may have a substantial
adverse impact on the environment
OR
 Mitigation has been identified but is
within jurisdiction and discretion of others
to impose
 Any one check in this column requires an
EIR-level SED (or mitigation/recirculation)
78
Less than Significant
With Mitigation Incorporated

Mitigation must be within Water Board authority,
or relatively certain to be required by another
agency

Neg Dec or Mitigated Neg Dec-level SED
possible if:
 There are no checks in the potentially significant
column
 AND
 All mitigation measures are incorporated into the
project before public document review

Incorporation of mitigation after public review
may require recirculation
79
Less Than Significant Impact

Environmental
impact is not
substantial
OR

Impact is not adverse
80
No Impact
 The project will
not affect the
resource being
analyzed
81
Scan Your Checks!

Any check in the far left column requires an
EIR-level SED
 If applicable, consider additional mitigation/
recirculation
•
If all checks are in the right three columns, you
get to do a Neg Dec-level SED!
 Unlikely for TMDLs—where we can’t specify manner
of compliance, and must specify reasonable range of
compliance measures and analyze
 For CRPs, distinction between Mitigated Neg Decand Neg Dec-level SEDs is largely immaterial
82
Explanations
 Support each check with an Explanation
 All checklist conclusions must be supported
by evidence and analysis
 Sometimes this is simple
 Sometimes it requires research or additional
studies (include in analysis)
 Sometimes it requires technical expertise or
analysis
 If you include explanations in the Staff
Report, reference location in checklist
83
Example: Air Quality


Consult with local/regional air quality districts


Describe regional air quality plans and policies

Will the project result in direct or indirect
significant impacts on air quality?
Describe air quality regulatory status (e.g.,
attainment/non-attainment)
Describe existing ambient conditions and
emissions
 Determination may depend on environmental setting
84
Resources
 There are resources available to help
analyze project impacts
 The handout lists resources by subject
 Use these resources to start researching
the baseline, the resource issues,
thresholds/standards, significance, and
cumulative impacts
85
Questions?
86
Reasonably
Foreseeable
Compliance Measures
Sandi Potter
Engineering Geologist
87
Why do we consider options for
compliance?
“An agency…shall perform, at the time of the
adoption of a rule or regulation requiring the
installation of pollution control equipment, or
a performance standard or treatment
requirement, an environmental analysis of the
reasonably foreseeable methods of compliance”
CEQA §21159(a)
88
Required Analysis

The environmental analysis shall, at
minimum, include all of the following for each
alternative compliance measure:

An analysis of reasonably foreseeable
alternative means of compliance with the rule or
regulation

An analysis of the reasonably foreseeable
environmental impacts of the methods of
compliance
 An analysis of reasonably foreseeable feasible
mitigation measures
CEQA §21159(a)
89
The Environmental Analysis
Must Consider…
 A reasonable range of:
 Environmental factors
 Economic factors
 Technical factors
 Population and geographic areas
 Specific sites
“Nothing in this section shall require the
agency to conduct a project level analysis”
CEQA §21159(c) and (d)
90
Level of analysis…
“In the preparation of this analysis, the
agency may utilize numerical ranges or
averages where specific data is not
available; however, the agency shall not
be required to engage in speculation or
conjecture.”
CEQA §21159(a)
91
What is a Compliance
Measure?
 An on-the-ground action to implement the
TMDL
 An action by which a discharger might
comply with a regulation, performance
standard, or treatment requirement
 Examples
 Installation of trash interceptor
 Repair of eroding roads
 Isolation or removal of mine waste
CEQA §21159(a)
92
Present a Range of
Compliance Measures
 You need only include a reasonable
range, not every conceivable
compliance option
 No need to consider every subtle
variation on a given compliance
measure
93
What is Reasonable?
 Standard BMPs in common use
 Proven technology
 Documented and readily available
innovative techniques
94
What May Not be Reasonable?
 Untested technology or technology in very
early stages of development
 A very costly compliance option when
there are many more economical options
available
 Explain in the SED why suggested
compliance measures were not
considered
95
What is Feasible?
“’Feasible’ means capable of being
accomplished in a successful manner
within a reasonable period of time,
taking into account economic,
environmental, legal, social, and
technological factors.”
Guidelines §15364
96
Economic Considerations
 For other types of “projects” CEQA
focuses only on environmental impacts
or social and economic impacts only to
the extent that they result in secondary,
indirect environmental impacts
 When we require a “performance
standard” we need to consider
economic factors (CEQA §21159(c))
97
Economic Analysis
 Remember…
 Your cost estimate will be based on your
list of reasonably foreseeable
compliance measures
 If you develop your list in the impacts
section you will have consistency
throughout your analysis
 We have a session dedicated to
Economics later today
98
Determining Potential Impacts
of Compliance Measures
 Develop a list of compliance measures
from implementation plan
 Determine environmental impacts for
each compliance measure
 Recommend mitigation measures to
reduce impacts
99
Examples of Implementation
Requirements from
TMDL Implementation Plans
(1) Reduce erosion from roads by 50%
(2) Prohibit discharges of human waste
from all vessels
(3) Reduce erosion from mine waste
100
Impacts & Mitigation Measures
Abandoned mine site, Marin County
101
Examples: Reasonably
Foreseeable Compliance Measures
Implementation
Action
Reduce Erosion
from Mine
Waste
Compliance Measure



Re-grade and plant
Remove, bury and cap on site
Remove and dispose off site
102
Examples: Environmental Impacts
Implementation
Action
Compliance
Measure
Reduce Erosion Remove and
dispose of
from Mine
off-site
Waste
Environmental
impacts
Earthmoving could
cause dust
Haul trucks could
increase traffic
and noise
103
Impacts and Mitigation Measures
Major redevelopment project, Monterey County
104
Possible Mitigation Measures
Action
Compliance
Measure
Impacts
Mitigation
Measures
Daily watering
of bare soil
Remove
Reduce
and
Erosion from
dispose
Mine Waste
offsite
Earthmoving
Implement
could cause dust
traffic control
measures
Haul trucks could
Implement
increase traffic
noise
and noise
reduction
measures
105
Mitigation Measures
Watering and dust control during grading
106
Summary

Translate your TMDL implementation plan
actions into likely on-the-ground compliance
measures

Document your rationale for determining that
compliance measures being evaluated are
“reasonably foreseeable”

Identify impacts associated with compliance
measures

List possible mitigation measures to reduce
or eliminate impacts
107
What’s Next?

Training exercises to practice identifying reasonable
foreseeable compliance measures and environmental
impacts & mitigation measures

Breakout sessions after lunch today (compliance
measures) and tomorrow morning (impacts and
mitigations)
 Bioaccumulatives
 Nutrient/Pathogens
 Sediment/Temperature
 Trash
108
Questions?
109
Impacts and Mitigation
Measures
Steven Blum
110
What is an Impact?
 “Impacts” = “Effects” (Guidelines §15358)
 CEQA focuses on physical changes
 Purely economic or social impacts (e.g.
property values) are not environmental
impacts subject to CEQA analysis
111
Significant Impacts

A significant impact is a “substantial or
potentially substantial adverse change
in…physical conditions” (Guidelines §15382)

Economic or social impacts may be considered
significant only if they lead to environmental
impacts
 May help determine whether physical change is
significant
 Must be examined if they lead to physical change
(e.g., “urban decay”)
112
Potentially Significant Impacts
 Direct impacts
 Effects directly attributable to project
 Reasonably foreseeable indirect impacts
 Temporary impacts
 Impacts removed in time and space
 Impacts of implementing a reasonable range
of compliance measures (e.g. construction,
air quality and noise)
113
113
More
Potentially Significant Impacts
 Growth-inducing effects
 Will the project lead to additional growth?
 Cumulative effects
 Project’s contribution in combination with
effects of other projects
114
Typical SED Impacts
 Basin plans/TMDLs: Not just a plan on
paper
 Basin Planning projects rarely result in direct
impacts from construction (but it’s possible)
 Indirect impacts from compliance projects
115
More Typical SED Impacts
 The SED must examine and disclose all
reasonably foreseeable indirect impacts
 Adverse impacts of the plan/TMDL
 Temporary impacts
 Indirect impacts usually derive from
implementation of alternative compliance
measures
116
Cumulative Impacts

A cumulative impact is:
 Two or more individual impacts which, taken together,
result in a significant impact (Guidelines §13555)
• Includes impacts resulting from past, present, reasonably
probable future activities

Individual impacts may be less than significant
taken by themselves

Practical view: an impact that results from the
contributions of many actions
 Example:

Global Warming
More detail coming in the next presentation!
117
Mitigation and
Certified Regulatory Programs
 Basin Plan amendments/TMDLs include
alternative compliance measures that may
result in significant effects
 Board cannot normally specify means of
compliance
 BUT the SED must include a menu of
mitigation measures for each significant
impact, for each alternative compliance
method that dischargers may undertake
118
Mitigation in the SED
 For every potentially significant impact,
the SED must identify available mitigation
measures that will reduce or avoid the
impact
 If the mitigation measure is not assured,
it may not serve as the basis for a
determination of “less than significant”
 Mitigation measures are not required for
insignificant effects
119
Mitigation in the SED


Mitigation measures must be “feasible”
If part of a determination of “less than
significant,” mitigation measures must be fully
enforceable
 If you are certain that measure(s) will be implemented
by either the lead or responsible agencies, check box
for “less than significant with mitigation incorporated”
 If implementation of measure(s) is discretionary by
another agency check box for “potentially significant
impact”
120
Mitigation in the SED
 If mitigation is infeasible, the SED must
explain why
 Legal, economic, technical, other reasons
 Formulation of mitigation measures cannot
be deferred, but measures may specify
mitigating performance standards which
may be accomplished in more than one
way
121
Five Types of Mitigation
Avoidance
Avoid the impact altogether by not taking certain
actions or parts of an action
Minimization
Minimize impacts by limiting the degree or
magnitude of the action and its implementation
Rectification
Rectify the impact by repairing, rehabilitating, or
restoring the affected environment
Reduction/
elimination
Reduce or eliminate the impact by repairing,
rehabilitating, or restoring the affected environment
Compensation
Compensate for the impact by replacing or
providing substitute resources or environments
122
Avoidance
Avoid the impact altogether by not taking certain
actions or parts of an action
123
Rectification
or Restoration
Rectify the impact
by repairing,
rehabilitating, or
restoring the
affected
environment
124
Compensation
Compensate for the impact by replacing or providing
substitute resources or environments
125
The Menu of Mitigation Measures
 SED must identify WHO will be responsible
for implementing and enforcing the measures
 For each potentially significant impact, the
SED must explain HOW the implementing
agency can mitigate that impact
 Think creatively about other Water Board
authorities and our ability to require mitigation
 Such as site cleanup orders, conditional waivers,
general permit conditions…
126
Summary

Basin Plan amendment may result in significant
adverse impacts

TMDLs and some BPAs must analyze reasonably
foreseeable compliance methods

Compliance measures may result in adverse
impacts


SED must analyze and disclose adverse impacts
SED must include a menu of mitigation measures
that would mitigate each of the impacts
127
Questions?
128
Alternatives Analysis
Steven Blum
129
Alternatives Analysis
 When is an Alternatives Analysis
required?
 What is a “reasonable range of
alternatives?”
 What is required in the analysis?
 Examples of TMDL Alternatives
 Elements of Alternatives Analysis
130
The Alternatives Analysis
 Evaluate alternatives to The Project that
might reduce impacts to the environment
 Not to be confused with the requirement
under CEQA §21159 for evaluation of
alternative means of compliance
131
Purpose of the Alternatives Analysis
 To reduce or avoid environmental
impacts
 Show the public that we considered a
range of solutions to the water quality
problem
 Foster informed decision-making and
public participation
132
Requirement for Alternatives
Analysis
 Alternatives analysis not needed for a
Neg Dec-level SED
 Required for adoption of standards,
rules, regulations, or plans (23 CCR §3777)
 Required for an EIR-level SED
(Guidelines §15126.6)
133
Requirement
for an EIR-level SED
 Analysis of alternatives to the proposed
activity that may avoid or reduce any
significant effects
OR
 A statement that the agency’s review of
the project showed that the project will
have no significant or potentially significant
effects; therefore no alternatives are
proposed. (Guidelines §15252)
134
Reasonable Range of Alternatives

The range of alternatives required in an EIR
is governed by a “rule of reason” – those
alternatives necessary to allow a reasoned
decision (Guidelines §15126.6(f))


Alternatives must be feasible

General rule: more than 2 and fewer that 6
Alternatives should achieve most or all of the
project objectives and reduce environmental
impacts
135
Limits of the Alternatives Analysis

The environmental document “need not
consider an alternative whose effect cannot
be reasonably ascertained and whose
implementation is remote and speculative.”
(Guidelines §15126.6(f)(3))

Even though it’s generally not sensible to
have a “no project” alternative for a TMDL,
we need to include it in the SED
136
What Counts as an “Alternative”?
 Alternatives should include a range of
activities that:
 Attain most of the project objectives
 Avoid or substantially lessen one or more
of the significant effects of the project
Guidelines §15126.6(c)
137
Considering Alternatives to
TMDL Projects

Consider (for example):
 Alternative regulatory strategies considered but not
pursued (site specific objectives, standards action, etc.)
 Alternative implementation approaches that were
considered but not further analyzed
 Alternatives suggested during scoping and not further
analyzed

Provide a brief explanation of why each alternative
does not fulfill project objectives
138
Examples of TMDL Alternatives
 Alternative means of achieving the
objectives of the TMDLs, suggested by
stakeholders or others
 Alternative methods for calculating the
TMDL or allocating loads
 Adjustments to implementation time frame
 Standards action (change in WQO or BU)
139
The No-Project Alternative


The no-project alternative must be considered
“No Project” can be defined as:
 No action: Not preparing a TMDL
 US EPA prepares a Technical TMDL instead

“The no-project alternative does not achieve
any of the project’s objectives, and is
inconsistent with legal requirements and
the mission of the Water Boards.’”

Discuss and explain choice
140
Elements of the Alternatives Analysis

Description of each proposed alternative
 Describe key aspects of the alternative (differing
from the proposed project)

Analysis of environmental effects of each
alternative
 Indicate ways in which the alternative could
feasibly accomplish most project objectives and
substantially lessen one or more significant
impacts (Guidelines 15126.6(c))
 Provide an analysis of advantages and
disadvantages of the alternative
141
Conclusion of Alternatives Analysis
Clearly state why the Water Board
has selected the proposed action
(particular TMDL allocations,
implementation actions, or schedule)
142
Tips

Develop alternatives based on regulatory
considerations, the environmental checklist, and
public comment

Present the alternatives analysis after the
checklist and explanations of potential impacts

Compare alternatives to potential impacts of the
proposed project

Make sure you actually evaluate the impacts of
the alternatives (“Rule of Reason,” Guidelines
15126.6(f))
143
Questions?
144
Analyzing
Cumulative Impacts
Steven Blum
145
Requirements:
Cumulative Impacts
 CEQA requires that we consider the
impacts of the project in the context of all
other projects in the area that might
contribute to additive environmental
impacts.
 Guidelines §15130 requires that a
cumulative impact analysis be included in
an SED for a project with any significant
impacts
146
What is a Cumulative Impact?
 Two or more individual effects which, when
considered together, are considerable or which
compound or increase other environmental impacts.
(a) The individual effects may be changes resulting from
a single project or a number of separate projects.
(b) The cumulative impact from several projects is the
change in the environment which results from the
incremental impact of the project when added to other
closely related past, present, and reasonably
foreseeable probable future projects. Cumulative
impacts can result from individually minor but
collectively significant projects taking place over a
period of time.
Guidelines §15355
147
Remember!
 Applies to all types of environmental
impacts, not only water quality
 Applies to all projects that could have
similar impacts, not only TMDLs or
water-related projects
148
Cumulative Impact Analysis
 The cumulative impact analysis must
identify:
 The cumulative incremental effect of the
project
 A brief explanation of why each cumulative
effect is or is not considered considerable or
significant
 The discussion must reflect the severity of the
impacts and their likelihood of occurrence
149
Cumulative Impact Analysis:
Projects to Consider

A list of past, present, and reasonably foreseeable
future projects producing related or cumulative
impacts
 Projects under consideration but not yet approved, for
example, general plans or HCPs
 Projects for which applications have been submitted
 Project ideas under serious public discussion
 However, we are not required to speculate!
(Guidelines §15145)
150
Cumulative
Impacts
Defining the Scope of the Analysis
 Define the geographic scope of the area
affected by the cumulative effects
 Summarize the expected environmental
effects to be produced by those projects
 Analyze the cumulative impacts of the
related projects
152
What is NOT a Cumulative Impact?
 If your project would have NO Impact in a topic
area it will not contribute to a cumulative impact to
that resource area (Refer to responses on your
checklist)
 Cumulative impacts adequately addressed in a
prior environmental document, community plan,
or State Board SED (Guidelines §15130(d)&(e))
 A project’s contribution is “less than cumulatively
considerable” if its proponent is “required to
implement or fund its fair share of mitigation
designed to alleviate the cumulative impact”
(Guidelines §15130(a)(3))
153
How to Determine Significance
of Cumulative Impacts
1. Review other projects
2. Determine where there are or will be similar
impacts
3. Determine the timing, location, and magnitude of
the impacts
4. Apply standard thresholds of significance
5. Apply Fair Argument to determine significance
If an impact is cumulatively considerable, treat it as
significant in the SED
154
CEQA Requirements for
Cumulative Impact Analysis

Determine whether the project contributes
to a significant cumulative impact

Determine whether your contribution is
“considerable” in cumulative context

Require mitigation to avoid contribution, if
feasible
Considerable contribution = significant effect
 Small ratio can be “considerable”
 Small contribution can be “considerable”
155
Scope of the
Cumulative Impact Analysis

Define the cumulative area of effect
 Might be beyond watershed – depends upon context


Different impacts have different areas of effect
CEQA’s requirements:
 Plan or projections approach
• Adopted plan or projections that describe the cumulative
impact
 List approach
• List of past, present, and reasonably foreseeable future
projects
156
Speculation v. Forecasting
 CEQA does not require speculation
 If analysis would be speculative, explain why
 CEQA does require forecasting
 Reasonable, good-faith effort is sufficient
 Places to look:
 General plan or capital improvement plans
 Projects approved, but not built
 Applications on file
157
Economic Analysis
Steven Blum
Alan T. Monji
Environmental Scientist
Region 9
158
Overview
 Legal requirements to consider economics
 Basin Planning and economic considerations
 Estimating cost of alternative methods of compliance
 Estimating cost of Agricultural Water Quality Control
Programs

What we learned from the
LA Trash TMDL
(City of Arcadia v. SWRCB)
 How to estimate costs
 Cost estimation examples
159
CEQA Requirement
 From CEQA §21159:
(3)(c) “The environmental analysis shall
take into account a reasonable range of
environmental, economic, and technical
factors, population and geographic areas,
and specific sites.”
160
Porter-Cologne Requirements
 From Water Code §13141
For an “agricultural water quality control
program” total cost estimates and potential
funding sources “shall be indicated”
161
Basin Planning and
Economic Considerations
 When establishing WQOs, the Board must
take economic considerations into account
(among other things; Water Code §13241)
 Cost analysis required by CEQA §21159
can substitute for §13241 analysis
(according to the LA Trash TMDL decision)
162
Limitations of Economic
Analysis

PRC §21159
(c) “The environmental analysis shall take into account
a reasonable range of…economic…factors.”
(d) “Nothing in this section shall require the agency to
conduct a project level analysis.”
(f) “Nothing in this section is intended, or may be used,
to delay the adoption of any rule or regulation for
which an analysis is required to be performed
pursuant to this section.”

In other words, we do the best we can…
163
The Economic Analysis
and the SED
 Do NOT provide an economic cost/benefit
analysis
 But DO include brief discussion of
 “Economic gain”
 The cost of NOT doing the TMDL
 Avoided cost
164
Estimating Costs of
Alternative Methods of Compliance
 Cost estimate required by PRC §21159
 Consider “reasonable range” of economic
factors (c)
 …but not of a “project level analysis” (d)
 Level of analysis may depend on
stakeholders and controversy around the
TMDL/BPA
165
Estimating Costs for
Agricultural Programs
 Cost estimate required by Water Code
§13141
 Same cost analysis methodology as for
other analyses
 However, must also identify potential
sources of financing
166
What We Learned about
Economics
from the LA River Trash TMDL
 Court did not rule on whether economic
analysis was required by Water Code
§13241
 The court ruled that CEQA §21159 analysis
also satisfied Water Code §13241
City of Arcadia v. SWRCB
167
Types of Costs
 Structural controls
 Non-structural controls
 Monitoring and reporting
 Amortization
168
How to Estimate Costs
 Elicit input from stakeholders
 Build on experience of other Regional Boards
 Reference BMP documents (EPA, Caltrans,
NRCS)





Select a range of appropriate BMPs
Consider affected acreage
Assign a cost to each BMP in the range
Keep scenarios simple
Clearly state your assumptions
169
Estimating Costs - Example:
Indicator Bacteria,
Beaches & Creeks

Urban areas: Residential (low and high),
commercial, industrial, military, park/rec,
transitional
BMP
10 % of
Watershed
Urban
Areas
Buffer
1504 acres
Strips
BMP
Area
752
Cost of
BMP/Acre
Construction
Cost
Maintenance Total
Cost
Costs
$13,000
$ 9.75 Mil
$241,000
$ 10
Mil
170
Estimating Costs, cont’d
BMP
Estimated Total Cost to
Treat 10 % of an
Urbanized Area (in
acres)
Estimated Yearly
Maintenance Cost
Vegetated Buffer
Strip
$2.4 - $5.6 mil
$60,200
Bioretention
$5.9 - $78.5 mil
$412,300 - $5.5 mil
Sand Filters
$8.3 - $32.7 mil
$1.1 - $4.3 mil
Infiltration Trench
$331,000 - $783,000
$66,200 - $156,600
Diversion
> $1 million per diversion
structure
> $10,000 per structure
171
Some War Stories from R9
 Rainbow Creek TMDL
 Indicator Bacteria Beaches and Creeks
– Project I
 TMDL project implementation costs
172
References
 City of Arcadia v State Water Resources Control Board.
 US EPA, 2000. Guidance for Developing TMDLs in
California. January 7, 2000.

SWRCB, 1999. Economic Considerations in TMDL
Development and Basin Planning. Memo from Sheila
Vassey, Office of Chief Counsel. October 27, 1999.

SWRCB, 1994. Guidance on Consideration of
Economics in the Adoption of Water Quality Objectives.
Memo from William Attwater, Office of Chief Counsel.
January 4, 1994.
173
Questions?
174
Responding to
Comments
Janet Cox
TMDL/Planning Communications
Region 2
175
Today’s Presentation
 Different types of comments
 Response strategy
 Organizing comments, and responses
 Preparing the Responses to Comments
document
 Recirculation and comments on a
recirculated SED
176
Range of Comments
on the SED
 Technical comments/questions about the
proposed Basin Plan amendment or TMDL
 Cost/economics questions
 Jurisdictional challenges
 Process comments/questions
 Opposition to governmental regulation
 General, non-specific criticism or unrelated
issues
 CEQA comments: re: environmental impacts,
mitigation, alternatives, checklist, CEQA process
177
CEQA Scoping Comments
 No legal requirement to respond in
writing if submitted before the
published comment period…
BUT
 Your environmental analysis must
demonstrate consideration of all
CEQA scoping comments
178
Written CEQA Scoping
Comments
 Respond in writing, along with all other
comment-period responses
 Not necessary to include a separate
CEQA section in the RTC document
179
CEQA Comments Received
After the Comment Period
 State Board’s CEQA regulations require
that we respond to late CEQA comments
 Water Board Administrative Procedures
Manual cites federal public participation
requirements:
“Responses to all significant comments,
criticisms and suggestions must be prepared”
180
Basin Planning Requirement
 Basin Planning procedures:
 Respond in writing to comments received
earlier than 15 days before Board adoption
 Attempt to respond in writing, or at least
respond verbally at the meeting, to comments
received within 15 days of the Board hearing
 This is the requirement until revised Water
Board regs are approved
State Board CEQA Regs Title 23 CCR §3779
181
Responsiveness Summary
“Responses MUST indicate what changes were
made to the draft amendment or give the reason
for not changing the draft amendment as
recommended. Responses to comments must
demonstrate comprehension of the intent of the
comment, and consideration of the comment by
giving the rationale if not accepting suggested
changes to the regulatory language.”
Administrative Procedures Manual Ch. 8, p. 30
182
Responsiveness Summary
 Summarizes changes to the SED and any
information not reflected in Board package
 New or late accepted comments
 Responses
 Indication if policy changed as a result, and
why
 To be added to the Admin Record and
posted on the website with final approved
documents
183
Example of CEQA
Comments and Responses
 “I suggested an alternative – controlling
mercury emissions in China – and you
ignored me!”
 “CEQA requires that a reasonable range of
alternatives be evaluated and that alternatives
be feasible. The SED evaluated the proposed
project and three alternative approaches to
controlling mercury inputs to the Bay. Although
controlling mercury emissions in China is highly
desirable, it is not feasible for this project,
because the Water Board does not have
jurisdiction or regulatory authority in China.”
184
Example of CEQA
Comments and Responses
 “You held your meetings in a scary neighborhood at
night, and I couldn’t come!”

“During TMDL development we held three public workshops,
a CEQA scoping meeting, and a public hearing on adoption of
the TMDL. (list dates and times) As required by law, these
meetings were held in accessible locations within Water
Board jurisdiction. Board staff consider the time and location
of meetings to maximize public participation. Contact
information is included in each official notice of a public
hearing, to assist people with special needs. However, it is not
necessary to attend a public meeting in order to comment on
our public documents. We respond, officially and in writing, to
all comments that we receive in writing.”
185
Response Strategy
 Take all comments seriously
 Respond in a way that demonstrates your
understanding of the question, or lack…
 Explain your reasoning
 Respond to CEQA comments in CEQA
context, using CEQA terms
186
Response Strategy
 Anticipate non-technical readers/
listeners
 Be open to making requested text
changes, as a courtesy
 “Thank you for your comment”
or
“Comment noted” is not an adequate
response!
187
Organizing Comments and
Responses: Possible Categories








CEQA/environmental
Implementation
Economic
Technical/methodology
Jurisdiction
Basin Planning/TMDL process
Peer review/scientific justification
General
188
Use a Spreadsheet to
Sort and Quote

Advantages of a sortable matrix of comments
 Avoid restating the same point
 Delegate types of responses to specific staff
 Track document development progress


Quote comment directly whenever possible
Sequential numbering helps in reassembly of
RTC document
189
Organizing Comments and Responses
190
Preparing the RTC Document
 Simplify the reader’s job of understanding
the project, and your responsiveness
 RTC document should stand on its own
with the BPA – these may be all some
people read, and they need to tell the story
 1:1 relation between comments and
responses
191
Writing Style and Tone

Your audience is non-technical: the public,
the Board, and the judge

SEDs “shall be written in plain language
…so that decision makers and the public
can rapidly understand the documents”
(CEQA Guidelines 15140)


Define technical terms, spell out acronyms

For the judge, cite relevant code and
cite/provide evidence
Voice: Use first person plural, third person,
NO second person.
192
Format of the RTC Document

Consider an introduction summarizing key and
frequent comments, “master” responses -- APM




Try not to restate responses
Refer to earlier comments; don’t refer forward
Use type styles to your advantage
Show changes stemming from comments in
underline/strikeout in the context of your
response
193
Recirculation
and Responding to
Second-Round Comments
194
Recirculation of the SED
 If, before adoption, new evidence arises
requiring substantial revisions to the SED,
the SED should be recirculated
 New comment period required prior to
adoption of revised SED
Guidelines §15088
195
New Information
Requiring Recirculation



Changes in the project or environmental setting

New mitigation measure proposed, which the
Board declines to adopt
A new significant environmental impact
Substantial increase in the severity of an
environmental impact, if not mitigated
Guidelines §15088.5
196
New Information
NOT Requiring Recirculation

Mitigation measures … are added that are not
required by CEQA, do not create new significant
environmental effects, and are not necessary to
mitigate an avoidable significant effect

The new information or document revision
“merely” clarifies or amplifies or makes
insignificant modifications to the SED

Mitigation measures are replaced with
equivalent or more effective measures
Guidelines §15088.5
197
Responding to Comments on
Recirculated Documents
 If the SED is substantially revised and
recirculated for a new round of comments
 We must notify all commenters of the need to
resubmit comments on recirculated
documents
 We need not respond in writing to firstcirculation comments.
Guidelines §15088.5(f) et seq.
198
Responding to Comments on
Recirculated Documents

If only part of the SED is revised and
recirculated, the lead agency may request that
reviewers limit second-round comments to
revised portions of the documents. Lead agency
then responds in writing to:
 All comments on unchanged sections of the firstround review documents
 All comments on revised sections of the recirculated
documents
Guidelines §15088.5
199
Questions?
200
Findings and Board
Resolution
Steven Blum
201
CEQA Findings in the
Board Resolution
 Resolution or separate appended
document contains findings critical to
surviving a legal challenge
 Findings must be supported by
substantial evidence in the record
Guidelines §15091
202
If there are No Significant
Impacts
 CEQA Findings must include
 Statement that Board has reviewed and
considered SED
 Finding that there is no potential for significant
adverse impacts
203
If There are Significant Impacts

One of these findings is required for each
significant impact:
 Mitigation has been incorporated in the project
 Mitigation is within another agency’s jurisdiction and
has been adopted or can and should be adopted by
that agency
 Project alternatives and mitigation measures have
been considered and are infeasible
• Infeasibility must be based on specific economic, legal,
social, technological or other considerations
Guidelines §15091
204
If There are Significant Impacts
(cont’d)
 Include brief statement of rationale for
each finding
 Statement of Overriding Considerations
must be included in the Board Resolution
(Guidelines §15093)
 Not a substitute for CEQA findings
Guidelines §15091
205
Statement of Overriding
Considerations

States that for each significant impact, lead
agency balances benefits and risks when
making its determination
 Benefits can be economic, legal, social, technological
or “other”
 Risks are unmitigated environmental impacts

Must be supported by substantial evidence in
the record
 Include evidence of benefits
206
In the Board Resolution
 Provide a history of the project
 State the date the Basin Plan was last
amended
 Provide 303(d) listing date (if applicable)
 Define the pollution problem or reason for
policy or Basin Plan amendment
 Provide dates for public notices, workshops,
peer review, board hearings, other important
milestones
207
In the Board Resolution (cont’d)
 Describe CEQA compliance
 State that Basin Planning/policy adoption
process is a Certified Regulatory Program
 State that the SED consists of the Basin Plan
amendment, Staff Report (including
environmental Checklist), comments,
responses to comments, and resolution
 State the these documents were provided to
individuals and public agencies for review and
comment
208
Now Therefore Be it Resolved…
 That the Basin Plan is being amended
 That the SED meets all requirements of
CEQA
209
Before the Gavel Falls…STOP!
 Was new
information
presented
that merits
recirculation?
210
After State Board
Approval…
211
Notice of Decision

After “final approval” of the BPA/TMDL/ policy,
the Regional Board must file a Notice of
Decision with the Resources Agency
 We interpret “final approval” to mean OAL approval

Filing begins 30-day statute of limitations on
lawsuits challenging the Board’s CEQA process

Failure to file results in a 180-day statute of
limitations
23 CCR §3781
212
Use of SED by Parties
Implementing Compliance Projects
 Agency implementing a compliance
project must prepare a subsequent or
supplemental environmental document,
with project-level impact analysis
 In some cases, may use previously adopted
SED for program-level analysis
 Must follow standard CEQA process
213
Questions?
214
Look for all training
materials on the
Planning Programs
Intranet (formerly the
TMDL Intranet)
waternet.waterboards.ca.gov/dwq/html/tmdl.html
215