CEQA Reform? What's In and What's Out with SB 731 (And What's Next...)

by Manatt, Phelps & Phillips, LLP
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Lauded as the CEQA Modernization Act of 2013, Senate President Pro Tem Darrell Steinberg’s SB 731 includes a number of amendments to CEQA that appear intended to appeal to a wide variety of interest groups. SB 731 replaces the idea of CEQA reform with CEQA modernization, implying that the bill makes changes to CEQA to bring the law current rather than overhauling the decades-old statute.

We’ve analyzed SB 731’s proposals and tagged them as good, bad, or status quo, and we’ll continue to follow SB 731 as it winds its way through the Legislature. While it’s too early to predict whether SB 731 will meet success in the legislative session – one thing is for certain: CEQA modernizing is the new CEQA reform.

SB 731’s Proposed CEQA Modernization What do these changes mean for project proponents?
For residential, mixed-use residential, or employment center projects in transit priority areas:
  • Aesthetic impacts would no longer be considered significant impacts on the environment but remain subject to local jurisdiction under design review/architectural review ordinances.
  • The Resources Agency is required to adopt statewide standardized thresholds of significance for noise, transportation and parking impacts.
  • Allows local governments to impose more stringent thresholds of significance.
Good: Removes a subjective matter from environmental review, resulting in possible time/cost savings for qualifying projects.

Potentially Bad: Noise, traffic and parking are quintessential local issues. Statewide standards may result in local battles over the need for more specific local thresholds of significance, and the nature/scope of local thresholds.
 
New requirement that a lead agency make available draft CEQA findings for public review at least 15 days prior to the proposed project approval date and provide a public “notice of availability” of the findings. Bad: Additional noticing will result in increased processing costs for project proponents and could result in significant delay if revisions to findings and additional public review are necessary.
 
Allows for concurrent preparation of an administrative record with project processing at the applicant’s expense. Currently written such that only the applicant may make this request. All record information must be posted on a website as soon as the draft environmental document is released and on an ongoing basis throughout the processing of the project. Potentially Bad: May encourage CEQA litigation since administrative record will already be prepared (and paid for) at time of project approval.

Potential to expedite CEQA litigation as delays related to administrative record preparation will be eliminated.

Provision of information concurrently with project processing will result in increased processing costs for project proponents related to maintenance of websites and processing of documents for administrative record purposes as those documents are received.

Potential for mistakes in preparation of record by lead agency during project processing, without any real opportunity for applicant to remedy.
Allows for “tolling agreements” for up to eight years to delay litigation for settlement. Currently written to require agreement of party alleging noncompliance, public agency and applicant. Status quo: No change to existing law or policy.
For all projects for which a mitigation monitoring and reporting plan was approved, SB 731 requires the lead agency to prepare an annual report on the project’s compliance with the MMRP. Potentially Bad: Heightened local agency oversight of project implementation and ongoing CEQA compliance.

Additional opportunities for CEQA lawsuits where report identifies deficiencies with implementation of mitigation measures.

Additional annual costs to project proponents until satisfaction of all MMRP conditions.
Adds clarifying language to the existing CEQA exemption for residential development projects consistent with a specific plan for which an EIR was previously certified. Status quo: No change to existing law or policy.
Makes clear that applicants for renewable energy projects may tout the environmental benefits of the projects during the CEQA process. Status quo: No change to existing law or policy.
Provides that it is the intent of the Legislature to amend Section 21091 of the Public Resources Code to prohibit and restrict late hits and document dumps if a project proponent or lead agency has not substantively changed the draft EIR or modified the project. Status quo: While the legislation states that it intends to make changes to Section 21091, no changes to Section 21091 are actually proposed in SB 731 as currently drafted.
Allows the courts flexibility to craft writs of mandate to require revisions only to those sections of the environmental document found to be in violation of CEQA. Status quo: No change to existing law or policy.

 

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