Cutting the Green Tape and CEQA Statutory Exemption for Restoration Projects

CALIFORNIA— On Nov. 18, the California Department of Fish and Wildlife (CDFW) held a public meeting to provide updates on the CDFW’s new Cutting the Green Tape Program. The meeting specifically discussed the overview of CDFW’s role in the new California Environmental Quality Act (CEQA) Statutory Exemption for Fish and Wildlife Restoration Projects. CDFW discussed its role in this new process, which will be administered through its Cutting the Green Tape program, a program that falls under the larger Cutting the Green Tape initiative.

 

The meeting discussed an outline of CDFW’s plans and an initial overview of the process for addressing concurrent projects. The CDFW requests specific projects to be “exempt restoration projects” from CEQA as they are time-sensitive; the departments’ role in CEQA’s exemption process was passed under bill SB 155 on Sept. 23, a public resource trailer bill.

 

The meeting discussed projects that meet the exemption requirements for not having to go through CEQA. “This project fits the parameter of being exempt,” said Matt Wells of CDFW. “The department is asking that this current initiative which came about from this trailer bill that was passed recently weighs out this opportunity for exempting certain restoration projects from CEQA if they fit certain criteria…We also have our cutting the Green Tape Program, which is part of a larger Cutting the Green Tape initiative that unfolded over the past couple of years through this administration [CDFW] and the [California] Natural Resource Agency. So we have a new program in place, starting this year to support going forward with resources to help us improve our efforts to better support restoration by increasing the pace and scale of restoration projects.”

 

CEQA is in place to protect resources, but according to the CDFW, the pace and scales of restoration are not keeping up with all the threats. As a result, CDFW is looking to expedite progress through these restoration projects that are inherently good for the ecosystem and believe it would be beneficial to fast-track them.

 

“They still are projects that would cover everything that CEQA lays out but we’re creating sort of an express lane for those types of projects,” said Wells.

 

Other goals and topics addressed in the meeting included:

 

–      Continuing development of the new program and hiring new staff.

 

–      The current conduction of Proposition 1 grant, the solicitation focused on North Coast watersheds and piloting new Cutting Green Tape efficiencies.

 

–      Stakeholder engagement initiatives continue, focusing on grant administration, and permitting, and engineering support.

 

–      Streamlined and programmatic permitting initiatives.

 

–      Continuing rollout of Restoration Management Permit (RMP) template.

 

–     Administering CEQA Statutory Exemption for Restoration Projects

 

–     Reporting outcomes and successes to the Legislature each year.

 

The full meetings presentation can be found at file:///Users/katherine/Downloads/SERP_Wrkshp_111821.pdf.

 

The California Natural Resources Agency has identified Cutting Green Tape as a signature initiative to increase the pace and scale of ecological restoration and stewardship.

 

On Nov. 30, 2020, the California Landscape Stewardship Network released Cutting the Green Tape: Regulator Efficiencies for a Resilient Environment, a list of steps that pave the way for “Cutting the Green Tape.” The document provides 14 important recommendations for improving regulatory processes for projects that benefit the environment.

 

“The pace and scale of environmental restoration has not kept up with the threats to California’s biodiversity from wildfire, drought, floods, human-wildlife conflict, and effects of climate change,” said Lauren Barva, CDFW Policy and Outreach Manager. “Following this initiative, CDFW has, starting this current budget year, secured ongoing funding and new positions to permanently support Cutting the Green Tape as a program…CDFW’s Cutting the Green Tape program is a statewide effort, representing the department’s environmental permitting and grant funding programs with added support from its general counsel and executive leadership. This program will lead efforts to develop and implement improvements to the way the department issues permit and administers its grant programs, to accelerate the pace and scale of restoration throughout the state.”

 

The first recommendation is to clarify the eligibility of projects that qualify for CEQA Class 33 Categorical exemption. The proposed solution is that the Secretary for Natural Resources issues an advisory clarifying that the CEQA Class 33 exemption applies to projects in endangered species habitat and to projects that use mechanized equipment.

 

The second recommendation is to Change the CEQA Class 33 categorical exemption eligibility to include larger terrestrial and upland restoration projects. The proposed solution is to modify a specific CEQA to increase the acreage eligibility cap for terrestrial upland restoration activities.

 

The third recommendation is to amend the General Water Quality Certification Order for Small Habitat Restoration Projects (SHRP) to be consistent with Class 33 CEQA size limits and include “Waters of the State.” The proposed solution is for the State Water Resources Control Board (SWRCB) to remove the 500-foot linear limit and includes “Waters of the State” in its upcoming SHRP renewal (originally planned for 2020).

 

The fourth recommendation is to explicitly include incidental take of fully protected species during the HREA renewal in 2021 by renewing the Habitat Restoration Enhancement Act (HREA) and updating sections with language that explicitly allows for incidental take of species protected under Fish and Game Code sections.

 

The fifth recommendation is to allow voluntary restoration projects to be eligible for HREA and SHRP, regardless of funding source. The proposed solution is to amend HREA so that it revises certain clauses to apply to projects that are using mitigation and settlement funds. In addition, SWRCB will provide clarifying language regarding eligible project types in sections of the proposal from the General Water Quality Certification in its 2020 General Order update.

 

The sixth recommendation is to develop the General Order and Waste Discharge Requirement (General Order) for aquatic restoration projects and certify the associated Programmatic Environmental Impact Report (PEIR). This will be executed by having the Secretary of Natural Resources and CDFW Director continue their collaborative work with SWRCB on this effort and ensure its successful implementation.

 

The seventh recommendation is to create companion efficiencies in the Fish and Game Code to the General Order for aquatic restoration for larger-scale projects. This will be done by having the CDFW develop a streamlined permit mechanism for projects larger than those covered under HREA via the 2021 HREA legislative reauthorization process.

 

The eighth recommendation is to amend the CEQA to allow categorical exemptions for regulatory agencies utilizing construction activities to protect natural resources and the environment. The proposed solution is for the Secretary of Natural Resources to consider updates to sections of CEQA proposals, to allow construction activities for ecological restoration and enhancement work.

 

The ninth recommendation is to extend programmatic permits for the Fisheries Restoration Grant Program (FRGP) to fisheries restoration projects not funded by FRGP. The CDFW will includes non-FRGP funded projects that comply with CDFW design criteria in its annual list of projects submitted for FRGP programmatic permits and environmental review.

 

The tenth recommendation is to develop a CEQA-equivalent certified regulatory program for landscape-scale restoration. This can be executed by developing a CEQA-equivalent process that can be certified by the CNRA. A certified regulatory program like this for landscape-scale environmental enhancement would meet CEQA standards as a “functionally equivalent” document.

 

The eleventh recommendation is to exercise Coastal Commission authorities to advance restoration consistent with efficiencies authorized by SWRCB, CDFW, and CEQA. This would require the Coastal Commission to explore and utilize efficiencies within their authorities to advance small- and large-scale restoration that are consistent with and/or complementary to existing and planned efficiencies authorized by SWRCB, CDFW, and CEQA.

 

The twelfth recommendation is to identify and advance beneficial projects involving changes to water rights. The proposed solution is to have SWRCB and CDFW executive leaderships issue a joint directive to their respective staffs who work on water rights and instream flows to create clear guidance and an interagency framework for identifying and advancing beneficial projects. As part of the directive, specific direction is given regarding when to use existing mechanisms that expedite approvals.

 

The thirteenth recommendation is to develop a single permit application for projects that are eligible for both HREA and SHRP by having CDFW and SWRCB collaborate on the development of a single permit application that, if online, may be hosted by the state or by a third-party vendor

 

Finally, the fourteenth recommendation is to create a unified online permit application for state agencies that simplifies submittal and tracking for both agency staff and applicants and supports interagency coordination. This will be done by utilizing existing authorities within SWRCB, the California Environmental Protection Agency, and the CNRA to implement a viable solution, and to explore a Governor- or state-level solution to create a more standardized system.

 

According to the California Natural Resources Agency, implementing the reported recommendations will require diverse expertise, including key agency representatives with relevant decision-making authorities. It will depend upon those with on-the-ground knowledge of land stewardship and regulatory frameworks. The agency recommends that as agencies work to implement these recommendations, they commit to maintaining ongoing collaboration and regular dialogue with roundtable participants and other key stakeholders. The full report can be found at https://calandscapestewardshipnetwork.org/sites/default/files/2020-11/GCT_FINAL_hires.pdf.