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

1. Water BoardCertified Regulatory Program CEQA Training forBasin Planning and TMDLs April 2008 http://www.waterboards.ca.gov/academy

2. Introduction to CEQA for Certified Regulatory Programs Terry Rivasplata, Jones & Stokes Steven Blum, OCC

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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

16. 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)

17. CRP Requirements • Project documents constitute “substitute environmental documentation” (SED) • Basin Plan amendment • Supporting Staff Report • Checklist/environmental analysis • Comments • Responses • Resolution

18. SED Levels of Analysis • Neg Dec-level SED • Mitigated Neg Dec-level SED • EIR-level SED

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

20. 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

21. Questions?

22. Basin Planning Overview Rik L. Rasmussen Senior Environmental Scientist Chief, Planning, Standards, and Implementation Unit

23. 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

24. 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

26. 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))

27. 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

28. 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

29. 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?

30. 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

32. 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)

33. Questions?