Streamlined CEQA Review for Infill Projects (SB 226)
On October 4, 2011, Governor Brown signed SB 226 (Simitian). That bill makes several changes to the California Environmental Quality Act (Public Resources Code Sections 21000 and following), also known as CEQA. Those changes include, among others:
- Rooftop photovoltaic solar projects, and their associated equipment, are statutorily exempt from environmental review (New Public Resources Code Section 21080.35)
- The Energy Commission will retain jurisdiction over certain solar projects that convert to photovoltaic solar projects (New Public Resources Code Section 25500.1)
- A project's greenhouse gas emissions will not preclude use of an otherwise applicable categorical exemption (Amended Public Resources Code Section 21084)
- Environmental review for certain infill projects will be eligible for streamlined environmental review once OPR develops, and the Natural Resources Agency, adopts performance standards for such projects in the CEQA Guidelines (New Public Resources Code Section 21094.5)
What does the infill streamlining provision in Section 21094.5 do?Section 21094.5 will streamline the environmental review process for certain infill projects. It does not create a complete exemption; however, once environmental analysis is completed in connection with broader planning decisions, such as general plan updates, that analysis will generally not need to be repeated on a project by project basis. Only effects that have not been analyzed in a prior environmental impact report, or effects that are specific to the project, would need to be addressed in project-specific review. Similarly, if an impact was not analyzed in a prior environmental impact report, but uniformly applied development policies substantially mitigate the new impact, no new environmental review would be required.
If new analysis is required for an infill project, it would be limited to just analyzing the new impact or impacts. The environmental impact report for infill projects under this provision would not have to analyze alternative locations, densities or building intensities, nor would it analyze growth inducing impacts.
Section 21094.5 is modeled on an existing streamlining provision in CEQA (Public Resources Code Section 21083.3) that allows a lead agency to avoid repeating analysis that was already done in an environmental impact prepared for a general plan. Section 21094.5 is an improvement on that existing streamlining provision because it creates an incentive for both local governments, to update their planning documents and policies to address infill development, and for project proponents, to design projects to include environmental benefits.
What types of infill projects may be eligible?Because Section 21094.5 promotes infill projects that provide environmental benefits, only projects that implement a set of statewide performance standards will be eligible for this streamlined process. Those performance standards will promote, among other statewide objectives, reduced regional automobile use, reductions in greenhouse gas emissions, increased energy and water efficiency, and public health.
The specific types of projects that might benefit from the streamlining provision in 21094.5 include residential, commercial, retail, transit stations, schools, and public office buildings. Such projects would need to be infill (i.e., located on previously developed sites, or sites that are surrounded by urban uses) and be consistent with an adopted Sustainable Communities Strategy or Alternative Planning Strategy. Projects located in areas where an APS or SCS has not been adopted may also be eligible under certain circumstances.
When will projects be eligible for this type of streamlined review?The streamlining provisions in Section 21094.5 will become operative once the statewide performance standards for infill projects developed by OPR and the Natural Resources Agency go into effect. Those standards must be adopted by January 1, 2013, and would likely go into effect in early 2013.
Until that time, local governments and project proponents are encouraged to consider whether infill projects qualify for existing CEQA exemptions. (See, for example, Public Resources Code Section 21159.24, and State CEQA Guidelines Section 15332. The CEQA statute and CEQA Guidelines are available online.)