Although new guidelines for implementing the California Environmental Quality Act went into effect in February — the first major overhaul in 13 years — no one is suggesting they have wrought a revolution. Nevertheless, the Davis Administration has vowed at least to review the changes made during the final months of Pete Wilson's second term. Several years of haggling among planners, attorneys, environmentalists, developers and state officials resulted in revisions to the CEQA guidelines issued by the Office of Administrative Law in October. The attorney who guided the Wilson administration through the revisions, Maureen Gorsen, recently expressed disappointment that the guidelines were diluted to the point of not making major improvements to the CEQA process. "We were so consensus driven, I don't think there was anything in the guidelines that really changed anything," said Gorsen, who is now with McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish in Los Angeles. "We put so much hedging language in it to satisfy all of the interests." The revisions mostly codified court decisions and standard CEQA practices, she contended. Still, some environmentalists and planners worried that the revisions tilted the process too far toward development interests. Hoping to find an ally in Gov. Davis, they have lobbied the new administration to rescind or modify the revisions, according to Patrick Wright, Davis's new deputy secretary for resources. The Resources Agency will give a serious look at the guideline changes, Wright promised, but he did not provide a timetable for the review. "We have no preconceived agenda, and we don't know if there is anything that needs to be fixed or not," Wright said. "It's definitely something on our agenda as something we want to look at." The revisions to about 60 sections of guidelines constituted the first overhaul since 1986, and agencies were supposed to comply with the new guidelines by late February. The guidelines do not carry the weight of law, but judges often refer to them when deciding CEQA cases. "The primary mandate that these revisions fulfill," Gorsen wrote at the time "is to provide objectives, criteria and guidelines for the orderly evaluation of projects and the preparation of EIRs and negative declarations consistent with CEQA. In short, these revisions seek to improve the roadmap for lead agencies to follow." In late December, the Wilson administration made one final change when it exempted five-acre infill projects from CEQA review — with some exceptions. The New Checklist Among the most notable changes for planners who do daily CEQA work is a new checklist, which is generally receiving a favorable response from practitioners. "Those who have used it report that it is vastly superior to the old checklist," said Al Herson, president of Jones & Stokes Associates. With more detailed questions that reflect updated environmental laws, the checklist helps planners better determine a project's potential significant impacts, he said. The checklist, which is Appendix G, also is better organized and integrates the former Appendix G, which listed "impacts considered significant," he said. Curtis Alling, vice president of EDAW, Inc. in Sacramento, agreed the new checklist is an improvement. However, he noted, the more detailed questions take time to answer. "For the very simple projects — the ones that are clearly a negative declaration, and not even a mitigated negative declaration — it's taking longer to process," said Alling, who is also chairman of the Association of Environmental Professionals legislative review committee. Setting Thresholds While many counties have established thresholds for determining the significance of a project's impacts, many cities have not. Developers complain that the lack of clearly identified standards creates uncertainties. The new guidelines (§ 15064.7) encourage cities and counties to establish thresholds of significance. Many thresholds can be adapted from state standards, but in some instances a local jurisdiction may want to set its own standards for impacts in areas such as noise and circulation. "There are probably more jurisdictions establishing local thresholds than there were before the revisions to the CEQA guidelines," Herson said. The guidelines further recommend an agency conduct a public process for adopting thresholds of significance. Some planners and environmentalists contend that established thresholds intrude on the "fair argument" test. Under this standard, an EIR must be prepared if someone can make a fair argument that a project may create significant environmental impacts. Some people worry it could be more difficult to make a fair argument if a project falls below established thresholds, especially if thresholds allow for considerable change in the environment. "I think it's going to require a court case to decide it," said Alling, who shares this concern and would like to see the guidelines better reflect case law. "There is a presumption that if an impact doesn't meet the standard, it's not significant." But planners should be careful when making that presumption, he warned. "My advice to clients is that fair argument is law, and these are only guidelines." The Baseline Is Now … Sometimes The revisions say the baseline physical conditions for environmental study are those that exist "at the time the notice of preparation is published, or, if no notice of preparation is published, at the time environmental analysis is commenced" (§ 15125). But confusion begins with the next sentence, which says, in part, "this environmental setting will normally constitute the baseline …" Alling said the AEP insisted on the word "normally" because sometimes the point of the notice of preparation is not useful. For instance, in reviewing projects that may impact rivers, the best baseline data about the river may come from a series of previous years, he said. The revision was intended to get local planners thinking about — and explaining — the baseline, said Herson, who testified on the guidelines for the California Chapter of the American Planning Association. Planners may legitimately use a different baseline than the time of the notice of preparation, but they must carefully document why, Herson said. For example, if planners know infrastructure that is acceptable now will be at capacity when project construction begins, they should use the future condition as a baseline, he said. Possibly a larger point of confusion concerns cumulative impacts, Herson said. Revisions were supposed to streamline the process for determining cumulative impacts. Instead, the guidelines created too many options for analyzing cumulative impacts, he said. Solving this confusion will require more experience, case studies and professional education, he suggested. Smart Growth Meets NIMBY? The watered-down language decried by Gorsen, the former Resources Agency attorney, affects a change backed by some "smart-growth" advocates. In late December, the Wilson Administration added a guideline (§ 15332) that exempts infill projects of five acres or less from CEQA review. However, the exemption applies only to projects that "would not result in any significant effects relating to traffic, noise, air quality or water quality." In other words, planners must complete a miniature environmental study to determine if a project qualifies for an exemption. The first iteration of the exemption was quite broad but received strong criticism from planning and environmental organizations, Gorsen recalled. "By the end, what we adopted was symbolic — we think infill is a good idea," she said. "To us, it was very disappointing." She added, "To do a real infill exemption, you would need to do a legislative change because you can't exempt something with significant environmental impacts." While the planning community waits for someone to test the new infill exemption, there are rumblings from environmental justice advocates. They say the measure does not afford urban residents who live next to infill sites the same level of protection as people who reside next to greenfields. No Revolution It remains too early to see all of the fallout from the guideline. While interest in learning about the changes is high among planners, most jurisdictions appear to be following the same pattern as before the state published the revisions. In Santa Barbara County, for example, environmental review is quite rigorous and will continue to be, said Dan Gira, a planner in the long-term planning division. "I don't think it has had a significant impact on how the county does business," he said. Contacts: Al Herson, president, Jones & Stokes Associates, (916) 737-3000. Curtis Alling, vice president EDAW, Inc., (916) 362-3606. Maureen Gorsen, McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, (213) 623-2322. Patrick Wright, deputy secretary, Resources Agency, (916) 653-5672. Guidelines online: http://ceres.ca.gov/ceqa