How to Ensure a PEIR Covers Your Project.
The California Department of Fish and Wildlife (CDFW) is working on a Programmatic Environmental Impact Report* (PEIR or Program EIR) for Marine Aquaculture also known as Mariculture. The PEIR is currently expected to cover culturing of shellfish and algae and finfish aquaculture on state water bottom leases issued by the California Fish and Game Commission.**
THIS PEIR SHOULD BE OF INTEREST TO THOSE LOOKING TO GET INTO THE MARICULTURE INDUSTRY IN CALIFORNIA BECAUSE IF THE PEIR HAS AN ADEQUATE LEVEL OF DETAIL AND MITIGATION MEASURES, BUSINESSES MAY BE ABLE TO “TIER” OFF IT. BEING ABLE TO TIER OFF A PEIR CAN DISPENSE WITH FURTHER ENVIRONMENTAL REVIEW OF ACTIVITIES THAT ARE ADEQUATELY COVERED BY THE PROGRAM EIR.***
In other words, right now, most Mariculture or Marine Aquaculture projects being proposed in California are subject to review under CEQA. While some of these projects may find an applicable exemption from CEQA, most will have to prepare an Environmental Impact Report (EIR), Mitigated Negative Declaration (MND), or Negative Declaration (ND). All of these options carry a risk of litigation and can be extremely time consuming and costly. In short, the process isn’t worth the investment. However, if the PEIR provides adequate detail, analysis, and mitigation measures, the aquaculture industry may be able to rely on the Aquaculture PEIR, allowing them to move forward with their project without being delayed by duplicative environmental review. This would significantly decrease the risk to Mariculture business in time and cost spent on CEQA review moving forward and set the stage for an actual return on investment (ROI).
TO RELY ON A PEIR, THERE MUST BE A SUFFICIENT LEVEL OF DETAIL IN THE PEIR. THEREFORE, AS THE STATE MOVES FORWARD WITH THE AQUACULTURE PEIR, IT IS IMPORTANT FOR THOSE INTERESTED IN THE CALIFORNIA MARICULTURE OR MARINE AQUACULTURE INDUSTRY TO WORK WITH THE STATE TO PROVIDE COMMENTS AND INPUT THAT WILL ALLOW THE STATE TO ANALYZE AND MITIGATE FOR IMPACTS AT A LEVEL OF DETAIL THAT WILL ALLOW TIERING OFF THE PEIR AT A LATER DATE.
By Stephanie Smith, Esq.
Grid Legal | CEQA and Land Use Attorney
*A PEIR is a document prepared pursuant to CEQA that covers a broader project along with, among other things, related smaller projects with generally similar environmental effects that can be mitigated in similar ways. CEQA Guidelines, § 15168(a)(4)). The level of usefulness of a PEIR depends on the level of detail that is included in the PEIR when it is first prepared. “If a sufficiently comprehensive and specific program EIR is prepared, the agency may dispense with further environmental review of activities within the program that are adequately covered by the program EIR.” Center for Biological Diversity v. Department of Fish & Wildlife(2015) 234 Cal.App.4th 214, 233; CEQA Guidelines § 15168(c). If the PEIR does not contain a sufficient level of detail, then additional environmental review will be required at a project level detail down the road, potentially requiring an MND or supplement EIR for future Mariculture projects.
**According to CDFW, “[t]he purpose of the PEIR is to develop and evaluate a Management Framework for the State Coastal Marine Aquaculture Program (Program) for current and future culturing of shellfish and algae and future finfish aquaculture on state water bottom leases issued by the California Fish and Game Commission (Commission), and to inform decision makers and the general public about the potential environmental impacts of existing and future marine aquaculture projects which would be considered under the Program.” California Department of Fish and Wildlife. CDFW anticipates releasing the PEIR for public comment later this year.
***Center for Biological Diversity v. Department of Fish & Wildlife(2015) 234 Cal.App.4th 214, 233; CEQA Guidelines § 15168(c).
