Coast Action Group
126 Steiner Court
Santa Rosa, CA 95404

April 18, 2023

Affiliate of Redwood Coast Watersheds Alliance 

Little Hoover Commission
925 L Street, Suite 805
Sacramento, CA 95814
(916) 445-2125 
Delivered by E – mail to   LittleHoover@lhc.ca.gov

Subject: Review of effectiveness and benefits of CEQA

CEQA is the ONLY   planning and environmental review process the allows for the public and responsible agencies to participate in a informed decision making process. 

Since 1970 the California Environmental Quality Act (CEQA and CEQA Guidelines) has served as the foundation of environmental review for projects in California.  Over the years there have been legislative changes and court decisions that have framed CEQA and how it is applied.  

The underlying basis of CEQA is to apply an informed decision making process that includes participation by the general public and responsible agencies in review of projects that are being considered.  The underpinnings of informed decision making is the goal of providing the best project possible (i.e. least damaging to the environment - considering impacts to air quality, water quality, infrastructure, traffic, species protection, visual and aesthetic quality, and historic and archeological resources) by assessing issues and potential impacts, arriving at conclusions based on evidence, and applying mitigations to arrive at the “best” possible project.  CEQA serves as the tool that manages and considers all of these issues - as the fundamental basis of good planning. 

Aspects of CEQA that support informed decision making are:  Full disclosure and description of the extent of the project, appropriate noticing of project,  reasonable availability of project file for review by the public and responsible review agencies, reasonable period for review of documents, analysis based on professional and educated evidence (substantial evidence  and reasonable logic), linkage of analysis to decision making, intent to limit impacts where feasible, consistency with State Code, and consideration of alternatives in the decision making process. 

We are aware that there are those who have issues with CEQA and are currently applying pressure for changes that would modify some, or all, of the CEQA aspects (noted above).  There is the claim that CEQA is unfairly applied or misused – adding to project costs and timelines. This claim ignores that fact that in the overwhelming majority of CEQA based projects are approved in a reasonable period of time. Projects may be approved as modified to address issues that would affect all citizens and the environmental resources of this State.  

We claim quite the opposite.  CEQA is not a job or project killer.  Good planning and resource protection actually protects jobs and encourages economic growth over the long run.  Historically, less than 3 % of projects in California actually require and Environmental Impact Report. It is very rare that CEQA analysis has completely stopped a project. 

It clearly evident that California’s resources are under pressure. All of California’s north coast rivers are listed as impaired by various pollutants.  We have issues with air quality and water quality and water supply over the entire state. Global warming and Green House Gas issues are serious and pervasive.  In consideration of the state of our resources and current issues, please think about where we would be without CEQA.

Below – is (included) discussion and history (my history with Coast Action Group, projects, and the application of CEQA) in project review that may help your understanding of CEQA as applied in a myriad of different scenarios. These mini case studies will illustrate issues and complexities related to the application of CEQA.

First: I think a clarification needs to be made.  The discussion that I have viewed thus far focuses on CEQA as related to housing projects. Yes! Housing is a problem in this state.  However, CEQA is applied to all kinds of projects that have nothing to do with housing – including but not limited to:

Forest Practices, Gravel Mining, Water Rights,  Water Board Rule Writing,  Water Board and Regional Board permitting and policy development, Certified Regulatory Programs, General Plans, Zoning and other Ordinance,  Coastal Development Permits, California Fish and Wildlife permits, planned developments, energy projects, etc., etc..  The point being: to allow the public and responsible agencies assess and ability to provide comments and recommendations (project review) in a process that allows for assessment of environment effects and to find remedy for adverse consequences (to the extent feasible) to the public and the environment. Thus, the entire range of projects to which CEQA is applied with related effects and outcomes must be considered and understood. 

I, as Director of Coast Action Group, have had personal experience with project review under CEQA on many hundreds of projects.  This gives me some perspective on the application and effectiveness of CEQA. The following discussion (as examples) is provided for your review to illustrate some of the benefits, problems, complexities, and outcomes associated with the application of CEQA and any analysis related to the application of CEQA. 

Certified Regulatory Programs ( are CEQA equivalent programs approved the Resources Agency)

These CEQA equivalent programs are put in place to limit and set timelines in the review process – while allowing public and responsible agency review and comment (including recommendations  made by participating responsible agencies). 

Forest Practices  - Timber Harvest Plans and Board of Forestry Rule Writing (Certified Regulatory Program)

I have reviewed and commented on hundreds of Timber Harvest Plans.  I submit my comments early in the process to alert agencies of areas where there are issues.  This process initiates a closer look at the project.  Most often is the case that additional mitigations are applied as a result of this review and comment by me and additional comments submitted by the Review Team (participating) agencies.  Most projects are not approved in the allotted timelines.  This is because there are issues in the project and on the ground that take time to resolve and/or the Review Team Agencies ask for additional information needed for assessment – and - where that information takes significant time for the requested information to arrive in the file for agency and public review.  There are times that the additional information alters the context of the project which triggers further review and alterations of the project as remedy. 

Coast Action Group (CAG) has litigated 3 Timber Harvest Plans over the course of 30 years (on issues related to pollutant control and fishery habitat values).  We prevailed on these cases.  The issues in Timber Harvest Plan were remedied and the project was later approved. 

We (CAG) participated in the Denial (by CalFire, and upheld by the Board of Forestry) of one Timber Harvest Plan (740 acres of old growth on the south fork of the Gualala River).  The issue was significant existing old growth, where the rules require description of, and accounting for the inventory of  old growth and methods of retention (under the Forest Practice Rules).  The applicant refused to disclose the old growth conditions.  With the advice of the Resources Agency counsel, the Denial was upheld. That ground has subsequently been purchased by Save the Redwoods League.  

CAG historically participated in rule promulgation by the Board of Forestry (a Certified Regulatory Program). Some improvements have been made in the rules (Forest Practice Rules) – with improvement in stream protections and road construction and management rules.  

CAG litigated one Rule Making project for defining of,  and regulation of,  a new class of 
timber management project – “Working Forest Management Plan” (WFMP). A  WFMP is a long term (once through CEQA = future harvest without CEQA review - forever) management plan for larger “conservation minded” landowners authorized by AB 904.  The once through CEQA provision was justified with certain road management, erosion control, and inventory building requirements.  None of those requirements were contained in the final language of the Board of Forestry rule writing. CAG litigated and prevailed (not on CEQA) on failure to follow the language of AB 904.  

In this case, one of the tactics that the AG’s office and the Board of Forestry used was requiring a $41,000 deposit for production of the Administrative Record.  The Record was 11,000 pages – mostly puffed up with duplicates of duplicates to inflate the file. This tactic was obviously
intended to scare us off  pursuing litigation.  We put the Record together and had it certified.  This is a new tactic is currently in use  in attempt to keep the public out of the process. 

DOGGR (Division of Oil, Gas, and Geothermal Resources) – (Certified Regulatory Program).

 I looked at this (supposed) CEQA equivalent process at a CEQA Workshop.  I was sitting with Darrell Steinberg and Kevin de Leon in review of this process.  I will not quote what I said of the process. It was a sham. There as no way for the public to participate. There was failure to  notice.  No complete project description was made available. Thus, there was no responsible agency for project review.  These were fracking projects that included the injection of polluted water into ground water.  This tragedy was finally exposed by an EPA hydrologist. 

State Water Resources Control Board and Regional Board(s) – Policy, Rule, and Permit promulgation. (Certified Regulatory Program).

The State Water Resources and Regional Boards are responsible for maintaining the integrity of the State’s surface and ground waters and to recover impaired waters.  To accomplish this task the State and Regional Boards write Policy, Rules, and Permitting Programs (Implementing Programs – under Cal Water Code).  Each of these actions is a project under CEQA requiring environmental documentation. CAG has participated in these processes at the State and regional levels.  There is great controversy in these areas.  CAG has not litigated (except under the Federal Clean Water Act to secure listing of impaired waters and clean up programs (Total Maximum Daily Loads).  However, industrial opponents of these Implementing Programs (the Farm Bureaus, Western States Petroleum Association,  and individual timber companies) have challenged (unsuccessfully to date) these programs and permits – using CEQA claims.  

CARB (California Air Resources Board ) – Carbon Credit Programs (Certified Regulatory Program).

I have reviewed and number of the Carbon Credit Programs (timber management carbon plans promulgated by CAR – Climate Action Reserve).   I am proud to be part of the State’s first large scale timber carbon plan – Conservation Fund – North Coast Conservation Initiative.  We are recovering 73,000 acres of over-logged forestland in the Gualala, Garcia, Big River, and Salmon Creek watersheds.  We have doubled our carbon on the ground since 2007.  We accomplish this by logging at a rate of harvest that is significantly less than the growth rate.  We also employ riparian protections far greater than required by the Forest Practice Rules. All of our activity (except carbon credit sales – inclusive of harvest plans and restoration activity) is accomplished under CEQA. 

Please note that many of the carbon credit plans I reviewed were bogus rip-offs of the system. And…these Carbon Credit Plans are NOT subject to CEQA review. 

Boar of Forestry and Fire Protection – Fire Safe Regulation (SRAs – State Responsibility Area) (Certified Regulatory Program).

The Board of Forestry and Fire Protection is responsible for  rule making (timber harvest and fire protection rules authorized by the Forest Practice Act); including Fires Safe Rules in State Responsibility Areas (SRAs).These rules include road width and turnaround sizing and placement for public safety access and escape routes.  Interested parties that view the current requirements as an impediment to future development (in high fire areas) put pressure on the Board of Forestry and Fire Protection to do some rule roll backs – using the common sense exemption. (2022). We ( a group of concerned citizens - not CAG) indicated that the common sense exemption did not apply. Litigation was threatened if fire safe rules were rolled back and the common sense exemption was used).  The historic fire safe rules are still in place. This was not easy to accomplish and the process took almost two years to resolve. 

AT & T Fiber-optic Project

In the early nineties until 2000 AT & T built and huge fiber-optic network gridding (redundant cables and networks) across and up and down most of the continental USA. The terminus of trans-pacific copper cable is in Manchester (3 miles north of Pt. Arena).  The first trans-continental cable was to go from Manchester to Sacramento then to hookup to eastern seaboard cables and the trans-Atlantic cable (Florida to Azores to Europe).  The process of laying the cable was quite invasive: i.e. a 3’ deep trench, gravel at the bottom, pipe with 4 pipes inside, then back filled with cement and dirt on top (or if in roadway – cement or asphalt on top).  The project was also expensive.  By the year 2000 AT & T had close to $13 billion dollars invested.  The asset was under-utilized and the financial burden put AT & T in a position of insolvency.  In 2005 AT&T was purchased by SBC. 

In California, and the various counties that the project crossed, there was no EIR.  There was an environmental assessment (AT & T’s own  assessment). There was no local consideration, no noticing, environmental review, or responsible agency assessment, review or control.  In the Manchester/Pt. Arena area (and route to Sacramento) there were trenches filled with concrete, and pipes to be pulled through drilling (diagonal) under water courses.  In the case of the trenching and filling under roads, the concrete acts as an impervious barrier to subsurface water migration.  There are cases where the road impacts are continuing (due to hydrologic intervention) and the road surface is degraded or is degrading.  In cases of going under water courses there was horizontal drilling that failed and where hundreds of thousands of gallons of bentonite laden drilling lubricant  pumped into streams with serious consequences to drinking water supplies, fish, other aquatic species, and wildlife (TAKE of Endangered Species).  In one area along a mountainous road 18 miles of open trench was exposed during the rainy season trigging a Clean-up and Abatement Order from the Regional Water Quality Control Board.  All of this occurred because there was no (ZERO) environmental review. CEQA was not applied.  This project was stopped for over a year and AT & T learned an expensive lesson and cleaned up their act. Still damage was done – and – continues to this day. 

Sonoma County Well Ordinance

Sonoma County is currently in the approval process for a well Ordinance.  Sonoma County has been approving wells (domestic water supply, Ag/vineyard water supply for the most part) without an assessment process – forever.  There are ground water and water availability issues in the region (ground water basins of concern – subject to the Ground Water Management Act). 
In the Coastal Zone, a Coastal Development permit is needed for a well.  This could trigger environmental review in the Coastal Zone. 

A coalition of environmental groups litigated Sonoma County for not having an ordinance. Sonoma County is pursuing and ordinance that supports de minimis requirements.  Sonoma County intends to approve this de minimis ordinance using the common sense exemption (some improvement is better than nothing?).  Does the public need to go to court to protect itself?  

Exemptions

Exemptions are a matter of controversy.  It should be. Exemptions from CEQA are wrong. 

Why are Exemptions wrong?  Because they are abused. Many exemptions occurred because powerful, well connected, people wanted their stadium or other pet project.  Public and responsible agencies are left out – with no recourse.

Built into CEQA are a number of exemptions.  Exemptions for utilities.  Exemptions for emergency work.  

There is the common sense exemption – where the CEQA Guidelines say that no right minded person could claim that this project can have an adverse impact.  This exemption is often misused in by planning agencies when developing ordinance. (SEE – Sonoma County Well Ordinance and Fire Safe Regulation – above). 

One example of misuse of the common sense exemption (Where CAG/RiverKeeper litigated):  Mendocino County approved a very good Stormwater Control Plan.  Agriculture objected.  The Supervisors voted to  rescind the Ordinance.  CAG/RiverKeeper objected – claiming you need to do an EIR to weaken an ordinance.  Mendocino County did rescind the ordinance. CAG/RiverKeeper litigated.  This issue was settled out of court.  The improved ordinance is in place. The ordinance is not enforced (CEQA is weak on the enforcement side of the issue).

Housing Exemptions – one real, and very large, issue with housing exemptions is failure to consider availability of water – now and in the future.   We were short on water.  Now we have plenty.  Soon – we will be short on water – again.  

Forestry Exemptions

As noted in the discussion of Timber Harvest Plans (a Certified Regulatory Program) that  the approval process is subject to CEQA review. The Administrative Records are now larger.  They are larger, in part, due issues raised by the public and Review Team Agency (impaired waters pollution control, geologic and erosions issues, species issues).  The way to avoid public and responsible agency review is by logging with the employment (misuse ) of Exemptions.  There are Exemptions for construction (3 to 5 acres), fire ladder fuel control, and for salvage logging. There is no CEQA equivalency applied (no noticing or agency or public review) to the review of these exemptions.   In the Forest Practice Rules, with the use of these Exemptions, it is unclear if the Rules apply for stream protection and road construction controls (these are big problematic areas in timber harvest).  Upon recent inspection (where Calfire and the Regional Water Board were allowed to inspect) it was found that 40% of the Exemptions inspected were in violation of Cal Water Code (Porter-Cologne) or the Forest Practice Rules.  
. 
Another misuse of CEQA, or tactic, is to submit a project proposing way more housing, or offices, or hotel/motel units than what the project proponent deems acceptable – then, after project review, settling for less. In this case all the wrangling makes CEQA look bad (from many points of view). 

Litigation, Administrative Law, the File/Record and the Courts 

Based on community knowledge of my history and experience I am often called by a concerned party that has issues with a CEQA based project – with requests on how to approach an issue.  My advice to them, always, is that litigation is a pain, a bunch of work, and is expensive.  Do not count on recovering you expended funds  - even if you prevail.  My suggestion is to make a good file with succinct comments, attend meetings and try to get responsible agencies involved.  Additionally, comments and concerns need to be supported by professional opinion.  Taking these actions alerts the lead agency as to seriousness, issues, and exposure to litigation.  Thus, the lead agency is most inclined to do a better job listening to concerns and in review and mitigation of the project in question.   This is the way CEQA is supposed to work. 

Filing a law suit is an act of desperation.  It is an act of last resort. 

The File/ Administrative Record

Administrative records have become larger in size.  One reason is that if there is public controversy, the lead agency bolsters the records (including dealing with issues) – as armor to successful litigation exposure.

For the public to have successful standing and impact on a project outcome it is required that the case be made that the issue and evidence in the file is “substantial” and that the issue of concern can be feasibly mitigated.  This often requires professional opinion, studies, or additional data to support the decision making process.  If there are issues with a proposed project, or controversy, both the project proponent(s) as well as concerned party(s) may add professional opinion to the administrative record.  This makes the administrative record larger.  Decision making is supposed to be based on the best available evidence.   

A judge goes with “substantial” evidence and/or preponderance of evidence.  A judge does not go with what I, or the public, has to say – unless there is gross misrepresentation or inaccuracy that is obvious in the record.

Cost of Record:  It is expensive to put a record together and have it certified. A legal challenge that failed or was without merit would be responsible for the cost of the record.  And, in fact, I have seen a trend of lead agency pumping up record costs in an attempt to discourage litigation.  

No skin in the game: This is a  complaint often head from project proponents.  This complaint is inaccurate.  Not only is litigation and act of desperation and a last resort,  the litigant is financially exposed to be responsible the cost of the Administrative Record, attorney’s fees, court costs, and paying for exhibits and any professional opinion added to the record by the litigant.  That is a heavy load and an impediment pursing legal action – even if the case has merit.

Finally

Californians (the citizenry), Agriculture, Industry, etc.. all have problems with the environment – and – CEQA.   Almost all of the waterbodies in the State are listed as pollutant impaired.  There are water supply and availability problems, air quality problems, transportation and traffic problems, problems maintaining or recovering habitat that support fish and wildlife, problems with a changing climate. All of this is the basis of our existence.

Good planning is less expensive in the long term (recovering resources is very expensive).  Good planning provides more jobs and more economic opportunity in the long term. 

We deserve, and demand, a fair shake.  The earth deserves a fair shake.

We ask you to continue to protect the environment and the way of life we cherish in California  by maintaining CEQA as our strong base line for long term planning and competent project review. 

                                                   Sincerely, 

						Alan Levine for Coast Action Group