Water Board Certified Regulatory Program CEQA Training for Basin Planning and TMDLs

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Water BoardCertified Regulatory Program CEQA
Training forBasin Planning and TMDLs

• April 2008

http//www.waterboards.ca.gov/academy
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Introduction to CEQA for Certified Regulatory
Programs

• Terry Rivasplata, Jones Stokes
• Steven Blum, OCC

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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 theyre not as big as you think)
• To prepare staff to do an excellent job of
  developing CEQA analyses in the future

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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

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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

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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 participationin government
  decision making

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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

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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

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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
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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
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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
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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

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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)

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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

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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

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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)

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CRP Requirements

• Project documents constitute substitute
  environmental documentation (SED)
• Basin Plan amendment
• Supporting Staff Report
• Checklist/environmental analysis
• Comments
• Responses
• Resolution

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SED Levels of Analysis

• Neg Dec-level SED
• Mitigated Neg Dec-level SED
• EIR-level SED

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Environmental Analysis

• Meets CEQA objectives
• Considers potential impacts
• Considers range of compliance methods
• Evaluates mitigation, alternatives to the
  project, cumulative Impacts

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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

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Questions?
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Basin Planning Overview

• Rik L. Rasmussen
• Senior Environmental Scientist
• Chief, Planning, Standards, and Implementation
  Unit

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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

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TMDLs and Basin Plan Amendments (contd)

• 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

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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))

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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

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Overlapping Legal Requirements?Economics (Contd)

• CEQA 21159
• Adoption of a rule or regulation requiring the
  installation of pollution control equipment, or a
  performance standard or treatment requirement

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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?

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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

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• State Board Liaisons
• Joanna Jensen Regions 2 and 6
• Michael Buckman Regions 3, 7, 4
• Nirmal Sandhar Regions 9 8
• Mitchell Goode Regions 1 5
• Nicholas Martorano Regions 4 5
• Backup

• Water Quality Standards Contacts
• Stephanie Rose Freshwater Bacteria
• Tom Kimball Methylmercury Fish Tissue
  Objectives, Selenium
• Steve Camacho Cadmium and Nutrients.
• David Edwards Chlorine Policy, Toxicity Control
  Provisions (SIP)

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Questions?