Governor's Office of Planning & Research Releases Updated Draft CEQA Guidelines for SB 226

On May 1, 2012, the Governor's Office of Planning & Research ("OPR") released updated draft California Environmental Quality Act ("CEQA") Guidelines to implement Senate Bill 226 (Simitian). Passed by the Legislature in 2011, SB 226 directed OPR to develop a streamlined review process under CEQA for qualified infill development projects. The updated draft reflects public stakeholder comments submitted in response to OPR's proposed draft SB 226 guidelines, CEQA Guidelines Section 15183.3, which were released in January 2012. As discussed below, the updated draft contains notable differences from the proposed draft, but retains the same high standard to qualify for the exemption. This standard has been and remains the primary source of contention regarding the SB 226 draft guidelines.

The updated draft, like the proposed draft, requires that a project satisfy three requirements to be eligible for streamlined review: (1) the project must be located in an urban area on a site that has been previously developed or is surrounded by at least 75 percent urban uses; (2) the project must satisfy the performance standards set forth in proposed Appendix M (discussed below); and (3) the project must be consistent with the general use designation, density, building intensity, and applicable policies set forth in an applicable sustainable communities strategy (SCS) or an alternative planning strategy.

Appendix M sets forth the specific performance standards that any infill project must achieve to qualify for streamlined CEQA review. As originally proposed, to qualify, the project was required to: (1) include renewable energy components, such as solar rooftops, where feasible; (2) include components that promote the use of transit or active transportation (e.g., walking, bicycling); (3) be consistent with the provisions of a plan for land uses surrounding any existing or proposed transit stations, such as a transit station area plan, within one-half mile of the project site; and (4) in certain cases, undertake soil and water remediation.

The updated draft makes the following revisions to the proposed Appendix M:

• Maintains the renewable energy component requirement, but now only encourages that residential projects include on-site renewable power generation while mandating non-residential projects to include on-site renewable power generation, where feasible;

• Maintains, but makes minor modifications to, the soil and water remediation requirements;

• Eliminates the active transportation and transit station area plan consistency requirements; and

• Adds a new provision requiring the project to comply with public health policies and standards identified in local land use plans if the project includes residential units located within 500 feet of a high volume roadway or other readily identifiable stationary source of air pollutants.

Under both drafts, once the lead agency determines that the project satisfies the eligibility requirements, including the performance standards set forth in Appendix M, the lead agency must then determine what level of streamlined review is appropriate for the project. If an environmental effect of an eligible infill project was addressed as a significant effect in a prior planning-level EIR (e.g., a general plan or specific plan EIR), then that effect need not be analyzed again. If, however, an effect was not analyzed in a prior EIR or is more significant than previously analyzed in a prior EIR (this is characterized as a "new specific effect"), the lead agency must determine whether such effects can be substantially mitigated by uniformly applicable development policies. If the effects can indeed be mitigated, the project need not be analyzed further and a notice of exemption ("NOE") may be posted. If the effects cannot be mitigated, the lead agency must prepare an "Infill EIR," an expedited version of a traditional EIR which need not address growth-inducing impacts or alternative locations, densities or building intensities.

Perhaps the most significant difference between the drafts is the newly added provision that determinations made pursuant to the section are questions of fact that are to be resolved by the lead agency. This provision was added in response to comments requesting that the guidelines specify which standard of review applies to determinations made under the section. Although the provision does not specifically state the applicable standard of review, OPR, in its response to comments, maintains that the new language was added to support OPR's view that the deferential substantial evidence standard will govern an agency's determinations made pursuant to the section.

The updated draft SB 226 Guidelines contain significant revisions to the originally proposed draft. Notwithstanding these revisions, the updated draft continues to set an extraordinary high eligibility standard and contains performance standards that are difficult to satisfy. These regulatory hurdles call into question whether SB 226 will indeed allow many infill development projects to take advantage of streamlined environmental review. The practical effect of SB 226, however, has yet to be seen. In the meantime, OPR is currently accepting public comments on the revised draft until June 1, 2012.

A copy of the revised guidelines can be found here.

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