1. ESP 179- Winter 2012
IS, ND, MNDs
January 15, 2012
Instructor: Trevor Macenski
2. EIR Review Assignment
The purpose of this exercise is for you to
go through an actual Environmental
Impact Report (EIR) and experience first-
hand the challenges of gleaning useful
information from its pages and analyze the
impact assessment methodologies and
mitigation strategies presented in the EIR.
Due Feb. 12th 3:10
4. Initial Study
Purpose
Complete a project description
Determine the appropriate CEQA document:
Negative Declaration, Mitigated Negative
Declaration, or EIR
Refine issues to be addressed in an EIR
Checklist
Appendix G
Initial Study is not required if it is known an
EIR will be prepared
5. Contents of Initial Studies
CCR §15063(d)
Project description - location, project objectives and
characteristics
Environmental setting
Discussion of environmental effects using Appendix
G checklist or another method
Mitigation measures
Consistency with zoning, plans, and land use
controls
List of preparers
6. Project Description
Be sure it includes all actions
Construction and project implementation
Temporary and permanent activities
All discretionary permits and entitlements
Reasonably foreseeable future phases
Be sure it includes all improvements
On and off site traffic and infrastructure
improvements
7. Court Case: Citizens Association for Sensible
Development of Bishop Area v. County of
Inyo
…although an initial study can identify
environmental effects by use of a
checklist, it must also disclose the data or
evidence upon which the person(s)
conducting the study relied. Mere
conclusions simply provide no vehicle for
judicial review.
(No naked checklists!)
8. Initial Studies
An Initial Study is NOT just an
exercise in word processing
• Critical thinking is necessary
• Document the thought process
• Just because your IS has a hat on it,
doesn’t mean it’s not naked!
9. Initial Studies
Each question requires an answer regardless
of the conclusion (“no impact” vs. “potentially
significant”). Must be supported by
substantial evidence:
Facts (including technical studies)
Reasonable assumptions based on facts
Expert opinion supported by facts
10. Initial Studies
Must substantiate every conclusion
Can’t just put off thought process until EIR
IS must have explanations based on
substantial evidence why the project might
have an impact
11. Initial Studies
Consider with each question:
Facts? What facts do I have to support my conclusion?
Technical study? Do I have a study to support my
conclusion?
Substantive evidence? What evidence do I have?
Thought process? Have I shown a logical thought process
to the conclusion?
Just rephrasing the question? Don’t do it!
13. Initial Studies- Hydro Sample 1
Potentially significant: The proposed project could potentially
substantially degrade water quality. The Draft EIR will provide
an analysis of the proposed project’s potential to substantially
degrade water quality.
Facts? There are no facts given
Technical study? The technical study has not
been prepared
Substantive evidence? None given
Thought process? None identifiable
Just rephrasing the question? Yes
14. Initial Studies- Hydro Sample 2
Potentially significant: The proposed project could potentially
substantially degrade water quality as a result of construction
activities that could increase the amount of sediments and
pollutants in the surface runoff. The on-going operation of the
commercial facility could also substantially degrade water quality
by increasing the amount of pollutants in the surface runoff due
to irrigation and the use of pesticides for landscaping, petroleum
products from vehicles, litter, and other waste.
Facts? Construction, irrigation, future pesticide use
Technical study? The technical study has not been
prepared
Substantive evidence? None given
Thought process? Yes
16. Negative Declaration 15063
Project Description
Project Location
Identification of project proponent
Proposed Findings of no significant effect
Attached copy of the Initial Study
justifying the finding
For Mitigated Negative Declaration
mitigation measures to reduce impacts
17. MND Definition
An ND “for a project when the IS has identified
potentially significant effects on the environment,
but (1) revisions in the project plans or
proposals made by, or agreed to by, the
applicant before the proposed ND and IS are
released for public review would avoid the effects
or mitigate the effects to a point where clearly no
significant effect on the environment would occur,
and (2) there is no substantial evidence in
light of the whole record before the public agency
that the project, as revised, may have a
significant effect on the environment.”
(§21064.5)
18. Mitigated Negative Declaration
Was used in practice frequently
Not approved until the 1993 CEQA
Amendments
Must mitigate impacts to a less than
significant level
No overriding considerations
No alternatives analysis
No cumulative analysis– Well….Kind Of
19. Uses of ND/MND
When there is no substantial evidence that a
significant effect may occur (CCR §15070[a])
When revisions in a project, made by or agreed
to by the applicant, mitigate to a point where
“clearly” no significant effect would occur (PRC
§21064.5)
As one choice for a subsequent document after a
Master EIR (PRC §21157.5)
When tiering from a previously certified EIR
(under certain circumstances) (CCR §15152)
20. ND/MND Process Highlights
Notice of Intent to Adopt
Send to responsible and trustee agencies
15 copies to the State Clearinghouse, if state
agencies
Proposed ND for 20- or 30-day public review
No public hearing necessary for CEQA
Public comments must be considered. No
response necessary, but it is good practice
File Notice of Determination (NOD)
21. Required Contents of an
ND/MND
Brief description of the project, location,
and proponent’s name
Proposed finding that the project will have
no significant effect
Initial study documenting reasons
supporting the finding
Mitigation measures to avoid potentially
significant effects (MND only)
Mitigation Monitoring & Reporting Plan
(MND only)
22. Contents Not in an ND
Detailed environmental setting and
impacts discussion (unless necessary
to support reasoning)
Alternatives analysis
Growth-inducing impacts, per se, but be
sure to consider indirect effects of growth
Unavoidable significant or irreversible
effects (Inherently these effects should not
exist!)
Statement of Overriding Considerations
23. Practical Reasons for ND or MNDs
Environmental planning as part of project design is the
best approach
Minimize mitigation
Facilitate better design
Can “reward” good environmental planning with
streamlined process
Less issues that require mitigation quicker the process.
Lead agency can require applicant commitment to
mitigation before MND release
Time to complete can be quick (3 - 5 months)
24. Determining Significance
Significant Effect on the Environment:
“Substantial or potentially substantial adverse
change to any of the physical conditions within
the area affected by the project…”
Impacts=Effects
Thresholds and analysis determine significance.
“An economic or social change by itself shall not
be considered a significant effect on the
environment.” CCR §15382
25. Fair Argument Standard
Legal Standard - EIR is required if fair
argument exists that a project may have a
significant effect on the environment
Fair argument must be backed by
substantial evidence
Generally does not matter how much
evidence supports an MND, when a “fair
argument” exists
If competing evidence exists, lead agency
must prepare an EIR
26. Substantial Evidence Supporting the
ND or MND
ND or MND is the CEQA document
Initial Study is the main source of
evidence supporting environmental
analysis
Those documents, and everything else the
Lead Agency uses to support them, make
up the administrative record
Administrative record must support the ND
or MND conclusions
27. Practice Pointers for IS/MNDs
Use current Appendix G - address the topics in
checklist questions at least, but feel free to tailor,
add relevant questions
Include discussion to support all but the most
obvious “no impact” conclusions
Maintain a good in-house information base and
complete administrative record
Include CCR §15063 content requirements for
Initial Study, such as zoning and plan consistency
No need to overdo it. Skinny NDs/MNDs can work
when there is no controversy and a limited set of
potentially significant issues
29. Mitigation is the Key Ingredient
CCR §15370 definition:
Avoiding the impact altogether
Minimizing impacts by limiting the magnitude
Rectifying by repairing, rehabilitating, restoring
Reducing or eliminating over time
Compensating by replacing or providing substitute
resources
Mitigation to a point where clearly no significant impact
would occur from implementation of the project, as revised
30. Adequate Mitigation
Physically modifying the project, such as design
changes to avoid or substantially reduce an effect
Limiting project activities, such as operational
limits like seasonal or daily time restrictions
Constructing improvements intended for
mitigation, such as BMPs
Compensatory actions, such as replacement of
lost habitat through restoration or enhancement
31. Mitigation Measures
Mitigation measures
feasible measures required for significant effects
if impact below significant, no duty but not prohibited
proposed by project or recommended by environmental
document (but in MND must be included before public
review)
consider significant effects of mitigation measures
measures must be fully enforceable
must be essential nexus (Nollan v. CCC), and roughly
proportional to impacts (Dolan v. Tigard)
32. Feasible Mitigation
Capable of being accomplished in a
successful manner within a reasonable
period of time, taking into account
economic, environmental, legal, social,
and technological factors
(CCR §15364)
33. Mitigation Monitoring and
Reporting Program (MMRP)
Public agency shall adopt a “reporting or
monitoring program” at project approval to
ensure compliance during project
implementation (PRC § 21081.6)
MMRP must be enforceable through permit
conditions, agreements or other measures
MMRP required for EIR and MND
MMRP can be provided as part of Final EIR
(good practice)
34. Sample Mitigation Structure
MM 5-1: Oak Tree Replacement Plan (short title)
Objective: …to compensate for the significant loss of oak
trees on the project site…
Description: specific actions or types of actions, location,
how they reduce/compensate for impact
Performance Criteria: ... no net reduction in number of
trees after five years ...
Timing: …prior to grading permit…
Responsible Party: Project proponent
Significance After Mitigation: Less than significant (and
provide a statement supporting why)
35. Mitigation Practice Pointers
ONLY include mitigation for significant effects
Generally use “commitment” verbs (like, ‘will’ or
‘shall,’ not ‘may’ or ‘should’), but lead agency
may have standards or preferences
Measures linked to conditions of approval
Use a numbering or notation system to clearly
link impacts and mitigation
Provide evidence about how measures reduce or
avoid the impact in the description
