What’s New with Environmental Review? Gregg Downing, Environmental Review Coordinator Minnesota Environmental Quality Board (EQB) Ciara Schlichting, AICP, Associate Bonestroo
Feb 24, 2016
What’s New with Environmental Review?
Gregg Downing, Environmental Review Coordinator Minnesota Environmental Quality Board (EQB)Ciara Schlichting, AICP, Associate Bonestroo
Presentation Overview Recent environmental
review changes Future directions Alternative Urban
Areawide Review (AUAR) updates
Considerations for integrating environmental review and comprehensive planning
Presentation Overview Recent environmental
review changes Future directions Alternative Urban
Areawide Review (AUAR) updates
Considerations for integrating environmental review and comprehensive planning
2009 Rule Amendments Amendments went into effect in
November 2009 Second round of amendments during
Pawlenty Administration (“phase 2”) Phase 1 went into effect in 2006 –
mostly minor revisions – changed thresholds for a few EAW categories
2009 topics addressed:
Mandatory EAW/EIS categories for projects in shorelands
Revised treatment of “cumulative potential effects” (following CARD decision)
Revisions to Alternative Urban Areawide Review process (AUAR process)
Miscellaneous other revisions
New Shoreland Categories
Apply to residential, resort, RV parks, campgrounds, commercial, & aggregate mining projects (if in shoreland)
New residential shoreland thresholds apply only outside the Twin Cities metro area
Some residential thresholds as low as 15 lots/units (currently 50 is lowest)
New EAW & EIS Categories Residential development in shorelands
outside the TC metro area Resorts, campgrounds & RV parks in
shorelands Land conversions in Shoreland
(including conversions due to nonmetallic mineral mining)
New EAW & EIS Categories
New category details found at:4410.4300, subparts: 12.C; 19a; 20a; 36a4410.4400, subparts: 9.C; 14a; 26; 274410.4600, subpart 12.B (exemption)
Same information summarized in 2010 Guide to MN Env. Review Rules, chapt. 7
New EAW & EIS Categories Thresholds vary according to density
of project and whether in a “sensitive area”
Density refers to % “common open space” and # lots compared to SL rule standards
Sensitive shoreland areas include: special protection districts designated by
local government lakes or bays of lakes classified as natural
environment designated by DNR trout lakes and streams designated by DNR wildlife lakes designated by DNR migratory waterfowl feeding and resting
lakes designated by DNR outstanding resource value waters
designated by MPCA
Cumulative Potential Effects
EQB’s response to 2006 CARD decision
Generally consistent with CARD but takes some concepts a step further
“Cumulative impacts” – same definition as now; used only for Generic EISs
‘Cumulative potential effects” – used for project-specific review; new definition based on CARD
Cumulative Potential Effects
CPE = combined effects of project plus those of other projects in environmentally-relevant area that may affect same environmental resources (note: changed from CARD’s “surrounding area”)
Include future projects if are actually planned or if basis of expectation has been laid (note: same as CARD)
Added definition of “basis of expectation”
Project is reasonably likely to occur and sufficiently detailed information is available re impacts to contribute to understanding CPE
In deciding likelihood of project consider:− If applications filed− If detailed plans and specs prepared− What comp plan or zoning indicates− What historic/forecasted trends indicate− Other relevant factors
Revised criterion for deciding if an EIS is required due to CPE
Consider:− If total CPE is significant− Significance of project’s contribution
viewed in connection with other contributions
− If there is a plan to deal with CPE and project complies (e.g., TMDL plan)
− Efforts of proposer to minimize contribution
Other Revisions re Cumulative Potential Effects
Explicit requirements to identify and analyze relevant CPEs in EAWs, EISs, and AUARs
Past projects can be treated as part of “existing conditions” or “background”
2 major AUAR process amendments• If AUAR includes a large specific
project, added a required “scoping process” at beginning
• Corrected Court of Appeals “mistake” in River’s Edge case: rules now declare that AUAR boundary is not the limit for analysis of impacts
Other amendments Clarify that adoption/amendment of
Comp Plans and zoning ordinances & rezoning (unless for benefit of specific project) are exempt governmental activities
Presentation Overview Recent environmental
review changes Future directions Alternative Urban
Areawide Review (AUAR) updates
Considerations for integrating environmental review and comprehensive planning
Future Rule Changes Amendment to “Air Pollution” mandatory
EAW threshold likely with respect to Greenhouse Gases
Other amendments?− Update Solid Waste mandatory categories to
account for recent technologies− Update Fuel Conversion mandatory categories
to account for recent technologies− Other?
Legislative Developments “Streamlining” of environmental review
and permitting expected to be issue again Legislative Auditor’s Office to report on
“environmental permitting” for 2011 Legislative session
EQB also could be affected by executive branch reorganization and/or budget cuts
Other developments Completed: Updated guidance:
− 2010 revision of Guide to MN Environmental Review Rules
− 2010 Errata for EAW Guidelines In process: Revision of EAW form and EAW
Guidelines – including “customized” EAW forms for certain projects
Future: Updated AUAR form & guidance (including how to update an AUAR)
Presentation Overview Recent environmental
review changes Future directions Alternative Urban
Areawide Review (AUAR) updates
Considerations for integrating environmental review and comprehensive planning
When is an AUAR update required (see Subpart 7)? Every five years More development is proposed by
developer or allowed by Comp Plan amendment
Change in public facilities (type or timing) that may increase adverse impacts
New information demonstrates that AUAR assumptions were in error and impacts were substantially underestimated
RGU discretion – other substantial changes
What is the required process?
The AUAR and Mitigation Plan must be revised by preparing, distributing, and reviewing revised documents in accordance subpart 5, items D to H (i.e., the Final AUAR 10-day objection period)
Persons not entitled to object to the documents may submit comments to the RGU suggesting changes in the documents.
What is the required content?
No rules Limited guidance:
− An AUAR update need not start “from scratch,” but rather needs only to revise information in the original documents to the extent necessary to reflect changes that have occurred.
Considerations for AUAR update content Balance the “development” check book Report updated plans, rules, regulation Report mitigation plan implementation Query readily available databases for new
information− SHPO, DNR, MPCA
Review if there have been any substantial changes that significantly affect any assumptions or inputs in the original analysis that would require updates
Show your homework – include redlined AUAR document, staff report to RGU, etc.
Considerations for AUAR update process
Early notification to commenting agencies to solicit input
If the update is substantial, then:− consider adding a “draft” comment period
and/or− extend the required 10-day comment
period
Presentation Overview Recent environmental
review changes Future directions Alternative Urban
Areawide Review (AUAR) updates
Considerations for integrating environmental review and comprehensive planning
“AUAR Certified” Comprehensive Plan AUARs allow cities to study different
scenarios, instead of assessing a definitive project
Unlike an EIS which is simply information for decision makers, AUARs require the preparation of detailed “Mitigation Plans”
Mitigation Plans are officially adopted by cities and they have the same weight as a local ordinance
“AUAR Certified” Comprehensive Plan
Local Governments prepare and adopt comprehensive plans that evaluate alternative future challenges and opportunities (scenarios)
They are required by law to adopt “official controls” to implement their plans
“AUAR Certified” Comprehensive Plan
Current EQB rules require Responsible Governmental Units (RGUs) to prepare EAWs and EISs regardless how completely the subject area or project was studied in their comprehensive plans or how effectively their official controls would mitigate adverse environmental effects
The Proposition
Why not modify the comprehensive planning process a bit to ensure that they satisfy the evaluation of scenarios as required by the AUAR rules?
Why not organize and design the Implementation chapters in our comp plans to effectively incorporate mitigation plans?
Why Pursue this Approach?
Any future development in a community with a comprehensive plan that incorporated an AUAR and Mitigation Plan would be exempt from any future environmental review(Provided that future development was less than or equal to the intensity and characteristics of one of the scenarios it studied)
Benefits:
Avoids duplication and unproductive redundancy in the development approval process
Could save more than a year of time and thousands and in some cases millions of dollars
Can ensure that higher environmental performance is accomplished
Considerations:
There is nothing about this idea that violates any state law or rule
There have already been several very large AUARs that have been successfully prepared and implemented:− Maple Grove Gravel Mining Area, I-35E
Corridor in Lino Lakes, Southbridge Area Shakopee, Twin Lakes in Roseville, 50-year Growth Area in Hutchinson
Considerations
Idea was recommended in the Legislative Citizens Commission on Minnesota’s Resources (LCCMR) Study: A Statewide Conservation and Protection Plan
Also included in the report prepared by the MPCA on streamlining environmental review
Next Steps: Mn Urban Land Institute (ULI) Initiative
Identify two pilot communities and evaluate their comprehensive plans
Design a process to incorporate an AUAR and Mitigation Plan into the comprehensive plan
Seek funding to carry out pilot AUARs