Public Hearing on the Proposed Amendments to the Commissions Regulations for Implementation of the California Environmental Quality Act

Introduction

On April 1, 2021, the Commission authorized staff to initiate the rulemaking process, in accordance with the Administrative Procedure Act, to adopt proposed amendments to the Commission’s regulations for amendments to the Commissions regulations for implementation of the California Environmental Quality Act.  On June 23, 2021, the Commission issued a Revised Notice of Proposed Rulemaking, which commenced a public review and comment period, and posted on the Commission’s website the Notice of Proposed Rulemaking, the text of the proposed amendments, the Initial Statement of Reasons, and other documents in the rulemaking file. 
At the Commission meeting on August 19, 2021, the Commission will hold a public hearing on the proposed amendments to its enforcement procedures regulations.  Written comments will be accepted through 5:00 p.m. on August 19th.  The Commission may vote on the proposed amendments at a subsequent meeting.

Background

The Commission has adopted a set of regulations that are codified at Title 14 of the California Code of Regulations, Division 5, sections 10110-11990.  Chapter 15 of the regulations is entitled “Implementation of California Environmental Quality Act” (“CEQA”), and includes two subchapters:  Subchapter 1, entitled “When the Commission is the Lead Agency,” and Subchapter 2, entitled “When the Commission is a Responsible Agency.”  The CEQA lead agency is the public agency that “has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment.”  Pub. Res. Code § 21067; 14 C.C.R. § 15367.  A responsible agency is a public agency other than the lead agency which has responsibility for carrying out or approving a project.  Pub. Res. Code § 21069; 14 C.C.R. § 15381. 

In the permitting context, BCDC typically is a responsible agency because by statute (Gov’t Code 66632(b)), the city or county that has jurisdiction over a proposed project is required to grant its local discretionary approval before the Commission acts on a permit application.  Therefore, the local jurisdiction is usually the lead agency and prepares the CEQA environmental document on which BCDC relies as a responsible agency.  On rare occasions, BCDC may act as the lead agency in considering a permitting application.  In the planning context, BCDC may be either the lead agency or a responsible agency, depending on the nature of the planning project and/or the identity of the project proponent.  For example, BCDC is the lead agency for proposed amendments to the San Francisco Bay Plan or to any of the special area plans adopted by the Commission.  BCDC is a responsible agency when considering amendments to a component of the Suisun Marsh Local Protection Program proposed by Solano County or a local jurisdiction in Suisun Marsh and may be a responsible agency on other planning matters.

Public Resources Code Section 21080.5 provides that, when a state agency is acting as the lead agency, a regulatory program of a state agency shall be certified by the Secretary of the Resources Agency (“Secretary”) as being exempt from the CEQA requirements for preparing environmental impact reports, negative declarations, and initial studies if the Secretary finds that the program meets the criteria contained in that code section.  Pub. Res. Code § 21080.5(a); 14 C.C.R. § 15250.  A certified program remains subject to other provisions of CEQA such as the requirement that an activity will not be approved as proposed if there are feasible alternatives or feasible mitigation measures available that would substantially lessen any significant adverse effects that the activity may have on the environment.  Pub. Res. Code § 21080.5(d)(2)(A); 14 C.C.R. § 15250.  In addition, the regulations adopted by an agency administering a certified program are required to include provisions for the orderly evaluation of proposed activities and the preparation of written documentation in a manner consistent with the environmental protection purposes of the regulatory program.  Pub. Res. Code § 21080.5(d)(2)(B); 14 C.C.R. § 15252. 

In July 1979, the Secretary certified the Commission’s permitting and planning programs under the McAteer-Petris Act (“MPA”) and the Suisun Marsh Preservation Act (“SMPA”) as meeting all the requirements for certification under Public Resources Code Section 21080.5.  See 14 C.C.R. § 15251 (h).  The Commission’s certified programs include its permitting and planning regulations as well as its regulations for implementation of CEQA.  Among other provisions, the Commission’s regulations for implementation of CEQA provide for preparation of a substitute document, in lieu of an environmental impact report or a negative declaration, when the Commission is the lead agency on a proposed activity.  Specifically, when the Executive Director determines that a proposed activity is not statutorily or categorically exempt from CEQA and may have a significant adverse effect on the environment, the regulations provide that the Commission shall prepare an environmental assessment that contains specified information and shall include the environmental assessment in the permit application summary or the staff planning report.  14 C.C.R. §§ 11511, 11521.

BCDC’s Chief Counsel has conducted a comprehensive review of the Commission’s regulations for implementation of CEQA, which were last amended in 1996.  Based on that review, many necessary or desirable changes to the regulations were identified.  In consultation with staff counsel, BCDC’s previous Chief Counsel has drafted the accompanying set of proposed amendments to these regulations.

Proposal and Rationale – Summary

The objectives of the proposed amendments are to improve the clarity of the Commission’s regulations for implementing CEQA and to update the regulations to incorporate statutory changes that have been made to CEQA since the Commission’s regulations were last amended.  The proposed amendments will also clarify that the Commission is authorized to recover from an applicant for a plan amendment or a permit its full costs to prepare an environmental assessment when it is the CEQA lead agency.  The Initial Statement of Reasons includes a section-by-section detailed description of the proposed amendments.
The proposed amendments to the regulations governing when the Commission is the lead agency would: 

  • Add a regulation to address the Commission’s obligations, upon completion of an environmental assessment, to consult with other public agencies having jurisdiction by law with respect to the proposed activity or which exercise authority over resources that may be affected by the proposed activity. 
  • Add a regulation to address how an environmental assessment will be made available for public review, clarify the requirement to prepare written responses to comments, and address how the written response to comments will be made available prior to the Commission’s consideration of a proposed activity. 
  • Add a regulation to: (1) address the Commission’s consideration and approval of an environmental assessment; (2) identify the documents that comprise the final environmental assessment; (3) address the findings to be made by the Commission if an environmental assessment identifies one or more significant environmental effects of a proposed activity; and (4) provide for adoption of a program for monitoring or reporting on revisions the Commission has required in a project or the measures it has imposed as conditions of approval to mitigate or avoid significant environmental effects.   
  • Add a regulation to restate the requirements, which are currently set forth in the Commission’s permitting and planning regulations, to file of a notice of decision   on a proposed activity with the Secretary.   
  • Clarify the two possible arrangements for retaining a consultant, when necessary and as selected by the Executive Director, to prepare an environmental assessment; delete the existing requirement that a consultant establish a fixed cost for preparation of an environmental assessment; and clarify that, notwithstanding the fees and costs estimated by the selected consultant, the applicant shall be responsible for all consultant fees and costs to prepare the environmental assessment.   
  • Confirm that before using an environmental assessment prepared by a consultant, the Commission shall subject the environmental assessment to the agency’s own independent review and analysis. 
  • Eliminate existing provisions that establish nominal fees that are intended, but clearly are insufficient, to cover the Commission’s costs to prepare an environmental assessment, and instead authorize the Commission to assess fees sufficient to recover its   full costs to prepare an environmental assessment.  Provide for monthly billing of costs incurred by the Commission and staff for preparation of an environmental assessment and require the applicant to pay such bills within 30 days of receipt. 

The proposed amendment to the regulations governing when the Commission is a responsible agency would: 

  • Acknowledge the duty of the Commission to respond to any request for consultation by the lead agency to ensure that the lead agency prepares an environmental document that meets the informational needs of the Commission.   
  • Delete as unnecessary and burdensome, to the applicant and staff, the existing requirement that an applicant prepare a written summary of any environmental document prepared by the lead agency.   
  • Delete as unnecessary and burdensome, to the Commission and staff, the existing requirement that the Executive Director include any final environmental document that is less than 10 pages in length, or a summary thereof if the document is longer than 10 pages in length, with the staff summary of the permit application.  Instead, consistent with current practice, require that the Executive   Director (through staff) consider the environmental effects of the proposed activity as described in any environmental document prepared by the lead agency and summarize the environmental information contained therein as relevant to the Commission’s statutory responsibilities in the application summary and/or staff recommendation on the permit application or in the staff planning report on a planning matter.    
  • Add provisions to: (1) address the findings to be made by the Commission if the lead agency’s environmental document identifies one or more significant environmental effects of a proposed activity; and (2) provide for adoption of a program for monitoring or reporting on revisions the Commission has required in a project or the measures it has imposed as conditions of approval to mitigate or avoid significant environmental effects.      

In addition to the changes summarized above, the proposed amendments would: 

  • Make certain editorial revisions for clarity, consistency, or conciseness.  
  • Revise the authority and reference citations for certain regulations to correct errors, add appropriate citations, and ensure consistency between or among regulatory provisions on the same topic. 

Alternatives

As discussed in the Initial Statement of Reasons, one alternative, referred to as Alternative 1, is that the Commission would not adopt any of the proposed amendments to its regulations for implementing CEQA.  Under this alternative, the Commission would continue to prepare environmental assessments, and to review CEQA environmental review documents prepared by other agencies, in accordance with its existing regulations.  The Commission will likely reject this alternative because it would not meet the objectives of the proposed amendments to improve the clarity of the Commission’s regulations for implementing CEQA, including clarifying that the Commission is authorized to recover its full costs to prepare an environmental assessment when it is the CEQA lead agency, and to update the regulations to incorporate statutory changes that have been made to CEQA since the Commission’s regulations were last amended.

Another alternative, referred to as Alternative 2, is that the Commission would adopt most of the proposed amendments, but as to certain regulations would adopt revised or alternative amendments.  This alternative could involve one or more sub-alternatives that would each be limited in scope and relate only to a particular section or subsection of the regulations.  Any specific formulations of Alternative 2 would be identified and developed based on public comments or comments made by Commissioners during or following the public hearing on the proposed amendments. 

Accompanying Documents

The following documents in the rulemaking file accompany this staff report and are also posted on the Commission’s website:
Text of the Proposed Amendments (PDF)
Initial Statement of Reasons (PDF)
Notice of Proposed Rulemaking (PDF)

Contact

Greg Scharff, Chief Counsel
(415-352-3655, greg.scharff@bcdc.ca.gov) (For Commission consideration on August 19, 2021)

August 6, 2021