MEETING MINUTES January 15, 2008 Attendees · MEETING MINUTES January 15, 2008 Attendees: ... The document went from 4 pages to 16, demonstrating how much legalese is required to

Minutes by: Cindy Preuss, Harris & Associates 1 Secretary, Nor Cal PUG

MEETING MINUTES January 15, 2008

Attendees: Alan Kurotori City of Santa Clara [email protected] Amber Parmer SASD [email protected] Anna Chrissanthis K/J [email protected] Bill Chavez SRCSD [email protected] Cara Ingebrigtsen Brown & Caldwell [email protected] Chris DeGroot City of Santa Clara [email protected] Cindy Preuss Harris & Associates [email protected] Colin Dudley Brown & Caldwell [email protected] Dan Crosby Carollo Engineers [email protected] Dirk Medema City of Walnut Creek [email protected] Erin Darling RMC [email protected] Jeanette Prentice SRCSD [email protected] Jennifer Glynn RMC [email protected] Jimmy Dang Kennedy/Jenks [email protected] Jonathan Lee WVSD [email protected] Jonathan Marshall RBF [email protected] Kevin Wang CDM [email protected] Lori Jones Brown & Caldwell [email protected] Nina Hawk City of Santa Clara [email protected] Pete Bellows Brown & Caldwell [email protected] Richard Robert Sac County [email protected] Rick Abbett SRCSD [email protected] Robin Cort RMC [email protected] Robin Gamble Napa Sanitation District [email protected] Rolf Ohlemutz Vallejo Sanitation & Flood Control [email protected] Rudy Portugal DSRSD [email protected] Russ Eberwein Harris & Associates [email protected] Sasha Mestetsky CCCSD [email protected] Stan Shogren K/J [email protected] Walk-Ins Alex Christensen Black & Veatch [email protected] Amy Miller HDR [email protected] Michael McCullough City of San Jose [email protected] Julia Nguyen City of San Jose [email protected] Alan Andaya City of San Jose [email protected] Huggen Angeles City of San Jose [email protected]

Presentation: Environmental Considerations with Pipeline Construction by Robin Cort and Erin Darling of RMC Water and Environment. Robin and Erin gave an overview of CEQA and NEPA requirements and applicability to various pipeline projects. In addition, regulatory permit requirements with various governing agencies were covered. The presentation slides were printed and provided to all in attendance, and are

Minutes by: Cindy Preuss, Harris & Associates 2 Secretary, Nor Cal PUG

attached at the end of these minutes. Rather than outline the presentation herein, the reader is directed to the detailed slides at back. A big thank you to Robin and Erin for this informative presentation! General: Seminar Status: Registration forms were sent out last week. We’ve had a lot of vendor interest for tabletop exhibits so these are expected to go fast. As a head’s-up, if individuals have issues getting their checks processed through their agency quickly to accompany their registration forms, these individuals are advised to send in the registration forms sans payment and indicate on the forms when the payment will be forthcoming. Paying at the door is an option as well. This year we expect approximately 175 people. 2008 Speaker Calendar: 2008 is filled up, but the presentations may change place within the year and some speakers have yet to lock in confirmation. As always, Cindy will give as much notice as possible if there is a topic change so that members may plan their attendance accordingly. The 8-hr course on CIPP will be held in October but the exact date has yet to be set. Classes will likely be held at CCCSD but notice will be given as locations are locked in. Bylaws Legal Review: Our Bylaws was revamped by the attorney. The document went from 4 pages to 16, demonstrating how much legalese is required to protect our group and governing body from lawsuits. The Executive Committee will return comments to the lawyer soon, and we expect adoption in March. IRS & State Attorney General’s Filing Status: Jonathan has a meeting with the accountant tomorrow afternoon. Will prepare schedule of annual filing forms and deadlines to keep us on track for future years. Per federal requirements, the financial statement will be posted to the PUG website once we figure out how to do that. Announcements & Project Discussions: The National No-Dig Conference in Dallas is coming up in April 2008. Next Meeting: Our next meeting will be held TUESDAY, MARCH 18, 2008 at the offices of Brown & Caldwell located at 201 N. Civic Dr., Suite 300, Walnut Creek, CA. The topic will be on Permitting Guidelines, given by Serge Glushkoff of the Department of Fish & Game. Please call (925) 827-4900 ext 176 or email [email protected] to RSVP.

Innovative Solutions for Water and the Environment

Environmental Considerations for Pipeline Construction: CEQA and Permitting RequirementsPresentation to Pipe Users Group Meeting

Presenters:Erin DarlingRobin Cort

January 15, 2008

Presentation Outline

• CEQA Overview • Common Challenges & the Future of CEQA• Key environmental permits

404 permitsStreambed alteration agreementsGeneral NPDES permit for construction (SWPPP)

CEQA Overview

• What is NEPA? CEQA?• When does CEQA apply?• Who are the main players in the CEQA process?• What is involved in the CEQA process?

National Environmental Policy Act of 1969

History• Signed into law on Jan 1, 1970• Developed in response to criticism that

environmental factors were being ignored

Key Points• Established a national policy to protect the

environment• Established the Council on Environmental

Quality (CEQ)• Required that all Federal agencies

integrate environmental concerns into their planning and decision making processes

National Environmental Policy Act of 1969

Applicability• Federal projects or projects

involving Federal agencies • Actions that have the

potential to significantly impact the environment

California Environmental Quality Act

History• Enacted in 1970• California the first of 15 states to enact a

law modeled after NEPA

Objectives• Disclose environmental impacts • Avoid or reduce environmental damage

when feasible• Explain why environmental damage

allowed to occur• Foster interagency coordination• Enhance public participation

California Environmental Quality Act

Applicability• Applies to State and local

agencies• CEQA applies to all projects

subject to public agency discretionary action

• CEQA is continuously modified by Legislature and interpreted by the courts

Review for Exemptions

Initial Study

Negative Declaration or

Mitigated Negative Declaration

EIRNotice of Preparation

Scoping

Draft EIR

Public and Agency Review

State Clearinghouse Review

Final EIR

Review of Responses by Commenting Agencies

Agency Decision

Findings: Statement of Overriding Consideration;

Mitigation Monitoring Program

Exempt

NEPA CEQAReview for Exclusions

Environmental Assessment

Finding of No Significant

Impacts

EISNotice of Intent

Scoping

Draft EIS

Public and Agency Review

EPA Filing; Federal Register

Final EIS

Public & Agency Review; EPA filing; Federal Register Notice

Agency Decision

Record of Decision

Excluded

NEPA vs. CEQA - Major Differences

EIS must treat alternatives with relatively similar level of detail

Need only explain why the decision was made

No specific statute of limitation

Must prepare only if there is substantial evidence that project may have significant impact

Only need to consider impacts of each alternative

NEPA

EIR must compare alternatives, but may evaluate them in less detail than the proposed project

Must explain whether each impact was mitigated and if not, why

Short statue of limitation for legal challenges

Must prepare if “fair argument” can be made that the project may have a significant impact

Must mitigate impacts if feasible

CEQA

Integration with other Environmental Laws

• Joint NEPA/CEQA documentsEx: EIR/EIS, Negative Declaration/FONSIState/Local agencies can “adopt” a NEPA document for CEQA compliance, but generally not the other way around

• CEQA-PlusState Revolving Fund (SRF) FundingPartially funded by US EPA, thus is subject to Federal regulationIn addition to CEQA, must comply with:

• Endangered Species Act (ESA)• National Historic Preservation Act (NHPA)• Federal General Conformity Rule for the Clean Air Act (CAA)

• Permitting actions

Activities Subject to CEQA

• Applies to discretionary, not ministerial, actionsDiscretionary: Exercise of judgment or deliberationMinisterial: Compliance with fixed statutes, regulations, standards

• Action is a “Project” as defined by CEQA• Project has the potential to result in a direct or

reasonably foreseeable indirect significant environmental impact

What is a Project?

• Initiated by a Public Agency, including: Public works construction activitiesClearing or grading of landImprovements to existing public structures

• Funded, in whole or in part, by a public agency • Approved by a public agency (permits, leases,

plan changes) • In determining if an activity is a “project” you

must look at all of the parts, components, and phases of the activity

What is a “Significant Effect on the Environment”?

• Substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. A social or economic change by itself shall not be considered a significant effect on the environment (CCR §15382)

Key Players in the CEQA Process

Concerned Citizens and

Organizations

Courts

Trustee Agencies

Project Applicants

Environmental Consultants

Responsible Agencies

Agencies with

Jurisdiction by Law

Lead Agency

(CEQA Deskbook, 1999)

CEQA Lead Agency

• State or local agencyCity or CountyWater or wastewater districtRegulatory agency

• Usually agency proposing project or with primary approval for private project

• Primary responsibility to fulfill CEQA requirements

Screening Criteria for CEQA ProcessIs it an activity with no possibility of a

significant impact?

Is the activity outside the definition of a project?

Is the project described in a Statutory Exemption?

Is the project described in a Categorical Exemption?

Is the project fully covered by a previous EIR, Program EIR, or Master EIR?

Does the Initial Study show that the project will have no significant impact?

Activities outside of CEQA

Notice of Exemption (optional)

Finding of no new impact or mitigated

Negative Declaration

Negative Declaration

EIR

YES

YES

YES

YES

YES

YES

NO

NO

NO

NO

NO

NO

(CEQA Deskbook, 1999)

Exemptions to CEQA

• Statutory Exemptions Legislature established exemptions for many types of projects

• Ministerial actions• Emergency actions• Feasibility or Planning Studies for Possible Future Actions

New or replacement pipelines are exempt if < 1 mile long and in public right-of-way.

Exemptions to CEQA

• Categorical ExemptionsClasses of projects that generally don’t have significant impactsOver 30 categories (classes) of projects covered, including:

• Minor alterations to existing pipelines• Replacement or reconstruction of existing pipeline involving

negligible or no expansion of capacity

• Notice of Exemption (optional)Shortens time for legal challenge

Initial Studies

When is an Initial Study prepared?• Significance of impacts is not clear• Negative Declaration/Mitigated Negative Declaration

expected to be prepared• Sometimes as part of EIR process

Purpose• Determine potential for significant impacts• Decide what level of analysis should be completed• Refine issues to be addressed in an EIR

Initial Studies

Contents of an Initial Study• Project Description• Environmental setting• Discussion of environmental effects

Standard “checklist” often used • Mitigation measures• Consistency with plans and policies• List of preparers

Thresholds of Significance

• No Impact• Less than Significant• Less than Significant with Mitigation• Significant and Unavoidable

Negative Declarations / Mitigated Negative Declarations

When is a Negative Declaration (ND) prepared?• No substantial evidence that a significant effect may occur• Rarely prepared, often challenged

When is a Mitigated Negative Declaration (MND) prepared?• Initial Study identifies a potentially significant effect• Project proponent makes or agrees to make project revisions that

mitigate effects to a point where “clearly” no significant effect would occur

Negative Declarations / Mitigated Negative Declarations

Contents of an ND/MND• Project Description• Project Location• Identification of project proponent• Proposed finding of no significant effect• Copy of Initial Study justifying the finding• Mitigation measures included in project description to avoid

significant effects

Negative Declarations / Mitigated Negative Declarations

Initial Study

Draft ND/MND

Notice of Intent to Adopt

Public Review (20 – 30 days)

Final ND/MND

Adopt Final ND/MND

File Notice of Determination

• No public hearing required• Public comment must be considered but responses are not required

(but a good idea)

Environmental Impact Reports

When is an Environmental Impact Report (EIR) prepared?• An activity is determined to be a project• Project is not exempt from CEQA• Project potentially causes significant and unavoidable effects on the

environment

Purposes of an EIR• Inform decision makers and the public about a project’s significant

environmental effects and ways to reduce them• Demonstrate that the environment is being protected• Ensure political accountability by disclosing to citizens the

environmental values held by their elected and appointed officials

Environmental Impact Reports

Primary Types of EIRs• Project EIR• Program EIR• Master EIR and Focused EIR• Subsequent EIR, Supplemental EIR, Addendum

to EIR

Environmental Impact Reports

Contents of a Draft EIR• Summary• Project Description• Environmental Setting• Significant environmental impacts

Direct, indirect, short-term, long-term, cumulative, unavoidable impacts• Areas of known controversy• Alternatives to the proposed project

No-Project AlternativeEnvironmentally superior alternative

• Mitigation measures for the significant environmental effects• Growth-inducing impacts

Environmental Impact Reports

• Aesthetics• Air Quality• Biological Resources• Cultural Resources• Geology and Soils• Hazards and Hazardous

Materials• Hydrology and Water Quality

• Land Use and Planning• Mineral Resources• Noise• Population and Housing• Public Services• Recreation• Transportation/Traffic• Utilities and Service Systems

Typical Resource Sections

Environmental Impact Reports

Contents of a Final EIR• Comments on Draft EIR• List of commenters• Responses to environmental points raised• Draft EIR

Environmental Impact ReportsInitial Study

(optional)

Notice of Preparation

Review of NOP (30 days)

Public Review (30 – 45 days)

Final EIR Certified

Lead Agency Decides on

Project

Findings Written and Adopted

Draft EIR Notice of completion

Public Hearing

(optional)

Response to Comments

Notice of Determination filed

(5 days from approval)

Mitigation Reporting and

Monitoring Program Adopted

Responsible Agency Decision (180 days from Lead Agency

Decision)

Scoping Meeting

(optional)

Document Comparison

30-day30-dayStatute of LimitationsFindings & NODNeg DecDecisions Document30-45 days min20-30 days minPublic Comment Period

RequiredRecommendedScoping$200 – 1M+$25 - 200KCost

100-1,000 pages15-150 pagesDocument Length12-36 months4-12 monthsTime to Complete

EIRIS/MND

Common Challenges & the Future of CEQA

• CEQA Concerns (from engineers)• Avoiding the Pitfalls• Other CEQA Concerns• Can CEQA Change?

Common Concerns (from engineers)

• CEQA process takes too long!3 years for an EIR considered standard by some agencies

• It costs too much!As much as 35% of total project planning/design cost

• Inconsistent requirements• Planners want too much information too soon• CEQA process forces project changes at

inconvenient times

Avoiding the Pitfalls• Insufficient budget• Poor communication

Good communication between planners, engineers, lead agency and regulatory agencies is essential

• Incomplete project descriptionsGive options/ranges if final decision has not yet been made

• Inadequate record keepingKeep good records/files (you could get sued!)

• Negative public reactionGood public outreach is essential

• Starting too late

Other Common Concerns

• Documents are cumbersomefocus more on pleasing the lawyers than on protecting the environment

• Gives too much power to the NIMBYs• Inhibits implementation of good projects• Poor integration with other environmental laws

and regulations

Can CEQA Change?• Practice

Larger agencies often lead the way• Legislative changes

Several streamlining reforms passed by the Legislature in mid-90’sBroad legislative reforms would be difficult to implement

• Case lawCEQA regulations are continually altered to reflect results of lawsuits

CEQA Case Law

• CEQA enforcement is left to citizen court challenge

• ~ 1 in 354 Initial Studies end up in a lawsuit• ~ 1 in 18 EIRs end up in a lawsuit• Statues of limitations exist• CEQA lawsuits are often won or lost based on

the evidence in the administrative record

CEQA and Global Warming• In water supply impact analysis, consider global

warming effects when:Describing reliability of proposed water suppliesDescribing reliability of alternativesEvaluating environmental effects of alternatives

• Other impact analyses to includeFlooding risks due to global warmingProject contributions to cumulative air quality impacts, and GHG mitigation measures

My CEQA document is done – now what do I do?

Major Environmental Permits

• 404 Permit – U.S. Army Corps of Engineers• Streambed alteration agreement – California

Department of Fish and Game• General NPDES permit for construction Notice

of Intent – Regional Water Quality Control Board

404 Permit – When is it needed?

• Any project placing fill in a wetland or “water of the U.S.”

• Waters of the U.S. are essentially all surface waters, so permits are required for:

Any pipeline crossing a stream using cut and cover constructionAny pipeline crossing an “adjacent” wetland

Corps Jurisdiction under Section 404

Types of 404 Permits

• Nationwide PermitA general permit authorizing categories of activitiesValid only if applicable conditions are metNationwide 12 authorizes Utility Line Activities

• Bottom contours not changed• ½ acre or less

Most projects require Pre-construction Notification• Individual Permit

Required for any project that exceeds limits established in Nationwide PermitRequires full public interest review of application

404 Permit Process

• Delineate wetlands and obtain Corps verification• Submit application showing amount of wetlands affected• Include mitigation to minimize impacts and compensate

for any unavoidable loss of wetlands• Must demonstrate that you are implementing the “Least

Environmentally Damaging Practicable Alternative”(LEDPA)

• May require purchase of mitigation credits at a mitigation bank for permanent impacts

• Corps must file public notice before issuing permit

404 Permit – Associated Requirements

• 401 Water Quality Certification – RWQCB• Consultation with USFWS and NMFS• Compliance with Section 106 (National Historic

Preservation Act) - SHPO

404 Permit Schedule Requirements

• Allow at least a year for Individual Permit1-6 months for delineation2-6 months for verification2-4 months for permit processingAdditional time if hearing or NEPA document is needed

• Nationwide permits can be done in 6 months or less

Streambed Alteration Agreement

• DFG has jurisdiction over bed, channel & bank of rivers streams and lakes

• Required for all stream crossings (even if you tunnel under the stream)

• Submit application with detailed crossing design to CDFG

• Include frac-out plan for tunneled crossings

Time frame for Streambed Alteration Agreement

• Takes about 90 daysDFG has 30 days to determine completeness60 days to provide draft agreement to applicantApplicant has 30 days to review and sign

General NPDES Construction Permit

• Required for any construction site over 1 acre• Submit NOI for coverage under general permit to

RWQCB• Requires preparation of Storm Water Pollution

Prevention Plan• NOI typically submitted by contractor

Questions?