When the Twain Meet

by Drs. Tim Krantz and Shellie Zias-Roe

The National Environmental Policy Act (NEPA), signed into law by President Nixon on January 1, 1970, provides the framework for environmental decision making on federal lands to this day. The California Environmental Quality Act (CEQA), signed into law by then Governor Ronald Reagan on September 18 of the same year, requires the State and other local agencies to consider the environmental implications of their actions and policies. Together, their initial policy guidelines, with modifications and clarifications based on subsequent litigation, represent the rule book of how government agencies shall consider the potential environmental consequences of their actions and how the public can participate in the decision-making process.

NEPA and CEQA are similar in purpose and in their processes, establishing the guidelines for environmental assessment, public participation, and documentation, but there are also significant differences on several strategic points – differences on the CEQA side that can require more in-depth environmental impact assessments and greater opportunity for public engagement. Thus, as concerned citizens and public defenders of the California deserts, it is important to understand when a proposed development may invoke a joint NEPA-CEQA review process.

Generally, NEPA applies to actions proposed on federal lands, while CEQA applies to state and local government proposed projects. Both NEPA and CEQA establish comprehensive environmental “checklists” of review topics, ranging from potential impacts on aesthetics and air quality, to water, soils, biology, and cultural resources. Under NEPA, an environmental assessment (EA) is prepared to determine the scope of issues that may warrant further review; and the CEQA requires an Initial Study (IS) to be prepared by the decision-making body (the Lead Agency).

If the EA/IS determines that an environmental topic has the potential to result in significant adverse impacts on the environment, then a more detailed environmental impact study (an EIS under the NEPA) or environmental impact report (EIR under the CEQA) must be prepared, with more detailed focused assessments on those topics. This is where the CEQA establishes some additional procedural steps for public review and comments, as opposed to the NEPA.

If the Lead Agency determines that all environmental issues may be mitigated to non-significant levels, then a Finding of No Significant Impacts – a FONSI (not to be confused with Henry Winkler’s “the Fonz” in Happy Days) may be issued under the NEPA, or a Negative Declaration (Neg Dec) may be issued under the CEQA, and no further analysis in the form of an EIS/EIR is required. Issuance of a FONSI or Neg Dec greatly shortens the project review timeline and reduces the public opportunity for input on the project.

This is where the CEQA differs most substantially from the NEPA. Under the CEQA, at the Initial Study stage of the review process, the decision-making body must sign off on the Mandatory Findings of Significance at the bottom of the environmental checklist. The Mandatory Findings clause (§15065 of the CEQA Guidelines) poses the following question:

Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? [highlights added by the authors]

If the answer is “Yes”, the project has the potential to impact these biological or cultural resources, then preparation of a formal EIR is mandatory. The Mandatory Findings requirement is clear: “reduce the number…of a rare or endangered plant or animal” means “minus one”. If a project has the potential to harm one desert tortoise or Coachella Valley milk-vetch, then a full EIR must be prepared with all the additional public hearings and scrutiny that goes with it.

Under what circumstances might a project on federal lands trigger a joint NEPA-CEQA environmental review process? Certain types of projects are inherently both “federal” and “state” in that they cross interstate boundaries, such as the Interstate freeway system or transportation projects involving federal funding. In these cases, Caltrans has been given the authority to oversee joint NEPA-CEQA review processes. Also requiring joint NEPA-CEQA environmental review are major interstate infrastructure projects, such as along the Colorado River, in which case the federal Bureau of Reclamation (BOR) takes Lead Agency authority over projects along the river.

There are times when agencies agree to coordinate environmental review processes conducted by two lead agencies to maintain consistency between federal and state regulatory requirements. The Salton Sea Water Conservation and Transfer Project proposed to transfer 300Kaf (thousand acre-feet) of Colorado River water from the Sea to San Diego is an example, in which case the Imperial Irrigation District served as the state lead agency and the BOR as the federal lead. In that case, a Draft EIR/EIS was prepared to address the dual needs of federal and state Endangered Species Acts and water regulations imposed by the Quantification Settlement Agreement – a settlement between the Lower Colorado River States adjudicated by the U.S. Supreme Court. The result of that project established a Habitat Conservation Plan for wetland restoration projects around the Sea, but also set the stage for major water transfers that hastened the demise of the marine environments once supported by the now-dead Salton Sea.

In broad, landscape-scale actions, such as the Desert Renewable Energy Conservation Plan (DRECP), a joint NEPA-CEQA process was necessary to address the requirements of development of solar and wind energy projects in the 22.6 million-acre area that comprise the Mojave and Colorado Deserts of California – 10 million acres of which are federal lands managed by the Bureau of Land Management (BLM). To manage the sweeping landscapes and natural resources of the DRECP area more efficiently and effectively, a joint federal-state review process was undertaken, with the BLM and U.S. Fish and Wildlife Service representing the federal lead agencies and the California Energy Commission and California Department of Fish and Wildlife (CDFW) serving as the state lead agencies. The result was the DRECP, which established certain areas for energy development and established other areas for conservation as formal wilderness areas where no development would be permitted and other areas as Areas of Critical Environmental Concern (ACECs), where certain sensitive resources were recognized. It should be noted that individual energy project proposals must still be evaluated regarding their specific resources or requirements, such as road access or utility corridors that cross state or federal lands.

The actual implementation of the DRECP is still a work in progress. As recently as June, 2022, the JB Eastern Slope Mitigation Area was approved in an agreement between the BLM and the CDFW, establishing a 158,000 acre area on BLM lands to offset impacts of solar energy projects elsewhere within the DRECP to protect desert tortoise, Mojave ground squirrels, and other sensitive desert wildlife.

Other projects that involve both NEPA and CEQA review processes may include mining projects in which operations may be proposed on either federal or state/private lands, but certain aspects of the project – water resources, transportation, energy transmission – may be required to support the project, crossing federal-state land jurisdictions. Such projects, even if proposed solely on federal lands, may trigger CEQA involvement if such “off-site” project requirements are necessary for the project to go forward.

This is where the Mandatory Findings of Significance under the CEQA may come into play regarding the environmental review process. If those off-site project components have the potential to “reduce the number” of an endangered species or impact cultural resources, then an EIR is required, and the project cannot be approved simply with a FONSI or NEG DEC.

Conversely, if a development project is proposed on private land, but requires federal funding or permits to go forward, then a joint NEPA-CEQA review process may be warranted. The Red Hill Bay Restoration Project was initiated by the Sonny Bono Salton Sea National Wildlife Refuge Comprehensive Conservation Plan (CCP) as a NEPA document, resulting in a FONSI.  As the project was expanded to include 600 acres of private lands under then-dry Red Hill Bay, the Imperial Irrigation District took the CEQA Lead Agency role, ultimately issuing a Neg Dec and overseeing the restoration of the wetlands at the mouth of the Alamo River.

Summary

Ensuring compliance with NEPA and CEQA can be a daunting task, even for environmental professionals. The circumstances and regulatory requirements for each project are unique. Understanding the many exemptions, exceptions, and nuances that surround the interpretation and implementation of the laws requires the help of legal professionals, such as the Sierra Club Legal Defense Fund or the Center for Biological Diversity. That said, even those environmental law firms depend on the eyes and ears of the conservation community to attend the public meetings, write comments, and present oral testimony, and hold the decision makers to their legal responsibilities under the NEPA and/or the CEQA.