Recently, the Department of Water Resources posted a short video providing an overview of the California Environmental Quality Act and the preparation of environmental documents for the Delta Conveyance Project. The video was narrated by Ken Bogdan, Senior Staff Counsel for the Department of Water Resources; this post is based in part on the video, with extra information added from internet sources and the Notice of Preparation.
WHAT IS CEQA?
In 1970, the California Environmental Quality Act was signed into law following the enactment of the National Environmental Policy Act. State lawmakers wanted to supplement the new federal law with even stricter standards for regulating pollution and preserving the natural environment.
The California Environmental Quality Act generally requires state and local government agencies to inform decision makers and the public about the potential environmental impacts of proposed projects, and to reduce those environmental impacts to the extent feasible.
“The idea is that the public agency needs to disclose potential environmental impacts of a project, determine if there are significant impacts and if there are ways to avoid or reduce those impacts and as a part of the approval process, and where those alternatives or mitigation features are feasible, the agency has to adopt them,” said Mr. Bogdan. “This is done in a process that requires an agency to give notice and reach out to other agencies who have expertise, as well as the public who might be interested in certain issues that could be affected by the project.”
AGENCY ROLES IN THE CEQA PROCESS
All state and local public agencies are required to comply with CEQA.
The lead agency is the public agency which has the principal responsibility for carrying out or approving a project. The lead agency decides whether an Environmental Impact Report or Negative Declaration is required for a project, and prepares the appropriate document. In this case, the Department of Water Resources is the lead agency.
A responsible agency is a public agency which proposes to carry out or approve a project for which a lead agency is preparing or has prepared an environmental document. For the purposes of CEQA, the term “responsible agency” includes all public agencies other than the lead agency which have discretionary approval power over the project.
A trustee agency is a state agency that has jurisdiction by law over natural resources affected by a project which are held in trust for the people of the State of California. The four Trustee agencies are: California Department of Fish and Game, State Lands Commission, California Department of Parks and Recreation and the University of California (Natural Reserve System).
THE CEQA PROCESS
The CEQA process, in general, has multiple steps.
First, an action proposed. The agency must then decide if action is a project subject to CEQA. CEQA defines a project as an action which has the potential to result in significant physical change in the environment, directly or ultimately.
If the agency decides it’s a project as defined by CEQA, then the agency looks to see if an exemption applies. There are statutory exemptions written into the law for specific activities that do not need CEQA compliance; there are also categorical exemptions for certain classes of activities.
If there are no exemptions that would apply to the project, the agency needs to determine if there’s a potential for a significant environmental impact. They typically do this by preparing an initial study, although an agency can determine at the outset that an EIR is required.
If there are no significant impacts, the agency prepares a negative declaration. If there are potential significant impacts, but the agency can adopt mitigation to address all of those issues that have been raised as part of the record, they can prepare what’s called a mitigated negative declaration. Otherwise, the agency is preparing the environmental impact report.
The public is involved in CEQA at many stages. Public involvement starts during the scoping process, which is used to determine what environmental impacts will be studied and what type of environmental document will be needed. Next, there is a formal comment period after the initial environmental document is circulated. Finally, there are hearings, sometimes during and always after the public comment period. Ultimately, the decision remains with the agency on whether or not to permit a project; CEQA ensures that the agency understands the full impacts of the project and has mandated mitigation where feasible.
At the end of the process, the public agency needs to show that they’ve documented the potential impacts, studied whether the alternatives are feasible, the mitigation measures are feasible, adopted all of those feasible measures, and only then can the agency decide if they will approve the project or not.
THE CEQA PROCESS FOR THE DELTA CONVEYANCE PROJECT
Currently, the Delta Conveyance project is at the first step of preparing the environmental documents and has issued the Notice of Preparation to start the scoping process. The purpose of scoping is to inform the public of the proposed project, disclose the preparation of an Environmental Impact Report (EIR) and the potential impacts being reviewed, and solicit guidance from the public and agencies on environmental issues by receiving comments on the Notice of Preparation.
The Department’s Notice of Preparation for the Delta conveyance project includes a description of the proposed project, a description of the probable environmental effects, and a map and project location so the public knows where the effects could occur. The notice also lists the scoping meetings, of which there are seven being held across the state during February.
In the video, Ken Bogdan reviewed the key elements for public comment and suggested elements for people to consider.
Project description: The Notice of Preparation describes the proposed project and the location. Is the project description clear and understandable? Two optional corridors for the tunnel have been presented; are there other corridors that they should consider?
Environmental setting and baseline: Does the agency understand the issues that currently exist within that map that they presented, within the scope of the potential effects of this project? Does the agency consider them all? Are they using the best information? Are there things that the agency should be understanding before finishing their environmental impact report?
Impacts to resources: What are your concerns related to a certain resource and those impacts? Are there direct impacts you’re concerned about? Are there indirect impacts?
Cumulative issues: Are there other actions that by other entities that would have a cumulative effect on that resource that would affect the conclusions?
Mitigation: What are the ways to avoid, reduce, or compensate for the impacts that may occur?
Growth-inducing impacts: Would the project cause other indirect effects related to growth?
Alternatives: Do you have suggestions for alternatives that would avoid or reduce impacts are potentially feasible? DWR’s requirement is to study a reasonable range of alternative and meaningful evaluation in the EIR, not just focusing on the proposed project. DWR has proposed a certain capacity for the project; are there other capacities and operations that DWR should be considering?
“When you’re suggesting alternatives, make sure those alternatives meet the project objectives, are potentially feasible, and maybe more importantly then any of them, is that they in some way would avoid or reduce impacts of the proposed project,” said Mr. Bogdan. “CEQA focuses on physical effects to the environment. So when you’re commenting, if your comments are beyond the physical effects on the environment, DWR will consider those but may not be addressing them in the CEQA process.”
DELTA CONVEYANCE PROJECT DESCRIPTION
The following is the project description from the Notice of Preparation:
As the CEQA lead agency, DWR’s underlying, or fundamental, purpose in proposing the project is to develop new diversion and conveyance facilities in the Delta necessary to restore and protect the reliability of State Water Project (SWP) water deliveries and, potentially, Central Valley Project (CVP) water deliveries south of the Delta, consistent with the State’s Water Resilience Portfolio.
The above stated purpose, in turn, gives rise to several project objectives. In proposing to make physical improvements to the SWP Delta conveyance system, the project objectives are:
To address anticipated rising sea levels and other reasonably foreseeable consequences of climate change and extreme weather events.
To minimize the potential for public health and safety impacts from reduced quantity and quality of SWP water deliveries, and potentially CVP water deliveries, south of the Delta resulting from a major earthquake that causes breaching of Delta levees and the inundation of brackish water into the areas in which the existing SWP and CVP pumping plants operate in the southern Delta.
To protect the ability of the SWP, and potentially the CVP, to deliver water when hydrologic conditions result in the availability of sufficient amounts, consistent with the requirements of state and federal law, including the California and federal Endangered Species Acts and Delta Reform Act, as well as the terms and conditions of water delivery contracts and other existing applicable agreements.
To provide operational flexibility to improve aquatic conditions in the Delta and better manage risks of further regulatory constraints on project operations.
POTENTIAL ENVIRONMENTAL EFFECTS TO BE ANALYZED
This is also copied directly from the Notice of Preparation.
DWR as the lead agency will describe and analyze the significant environmental effects of the proposed project. DWR did not prepare an initial study so none is attached; the EIR will include the suite of resource categories contained in Appendix G of CEQA Guidelines. Probable effects may include:
Sign up for email list: DWR is maintaining a mailing list for anyone to get notice and information about the project. You can sign up on this page. Look in the right-hand sidebar under “Stay Connected”.
Submit your comments on the Notice of Preparation: Give your input, submit comments in writing, participate and comment at the scoping meeting or submit a written comment at the scoping meeting. Written comments are due by March 20, 2020.
Review the draft Environmental Impact Report and submit comments: When the draft Environmental Impact Report comes out, be sure to review it and submit comments that are on the substantive issues in the document. Attend and participate in the public meetings that will occur for the draft documents.
HOW TO SUBMIT YOUR WRITTEN COMMENTS
Written comments on this part of the Scoping process will be accepted until 5 p.m. on March 20, 2020.
Via Mail: Delta Conveyance Scoping Comments, Attn: Renee Rodriguez, Department of Water Resources, P.O. Box 942836, Sacramento, CA 94236
WHAT’S NEXT FOR THE DELTA CONVEYANCE PROJECT ENVIRONMENTAL REVIEW
Once the scoping process is completed, the Department of Water Resources will begin the preparation of an environmental impact report that will identify potential significant impacts and identify ways to avoid or reduce those impacts, mitigate when feasible, and analyze alternatives. There will be additional analysis, studies, surveys, and data to collect the information needed for the agency to analyze potential environmental impacts.
The Department of Water Resources will then issue a draft Environmental Impact Report that will detail all the potential environmental impacts that could occur with the proposed project, as well as alternatives. There will be a public review and comment period; other agencies will also comment on the draft EIR. The Department will ultimately issue a final Environmental Impact Statement.
“The agency needs to consider all of those things,” said Mr. Bogdan. “This way, the EIR process shows how the agency was able to prevent environmental damage where feasible by adopting those mitigation measures, by adopting those alternatives and at the end of the EIR process, the agency is required to do findings and possibly a statement of overriding consideration related to those particular significant impacts and were we able to mitigate them.”
It is only at the end of the process that the agency decides whether to approve the project.
Mr. Bogdan points out that the proposed project as described in the Notice of Preparation may not be the project that the agency approves at the end of the process. “There might be additional mitigation or there may be another alternative that the agency has approved, so the start of this process does not mean that it, the agency has made up its mind,” he said. “Just the opposite. The agency is getting information to understand what are the impacts and what are the alternatives, what’s the mitigation, and do we, at the end of the day, approve this project?”