December 19, 2009

What is a Mitigated Negative Declaration?

Given the recently released Mitigated Negative Declaration (MND) for Tom Dean's proposed Tank Removal Project, I have been getting a fair amount of questions on the matter. These can loosely be grouped into two primary categories: 1) what is a MND and how does it differ from an Environmental Impact Report (EIR), and 2) is a MND the appropriate analysis document and what do I think of this project.

This post will attempt to answer the first question: what is a MND and how does it differ from an EIR.

In short, a MND is very different than an EIR – both with regard to content and process.

A MND is an environmental analysis document prepared when (generally): 1) there is no substantial evidence showing that the project may have a significant effect on the environment, or 2) the project may have a significant effect on the environment, but mitigation has been incorporated which avoids or reduces the potential effect to below a level of significance.

An EIR is an environmental analysis document prepared when any aspect of the proposed project may have a significant effect on the environment.

An EIR is intended to be a "comprehensive" analysis document, whereas the "analysis" conducted in a MND is decidedly less exhaustive. A MND does not need to consider alternatives to the project, nor does the lead agency prepare responses to comments, both key components of an EIR.

During the EIR process, there are several opportunities for public review and comment. This is not so with a MND. In a "typical" MND situation (assuming such a thing exists), there is a lone comment period and no requirement for public/community meetings.

The differences between an EIR and MND as described above are easily showcased by comparing the formerly proposed Home Depot Project (and its associated EIRs) with the currently proposed Tank Removal Project (and its associated MND). Though the two projects are different, I think this is a relatively reasonable comparison given that both projects have a common project area and also share project components (demolition of the tanks).

The formerly proposed Home Depot project spanned many years and spawned several thousand pages of analysis documents (2 draft EIRs and a Final EIR). Many public meetings and study sessions transpired throughout the process. That, at the end of the day, the Judge ordered all project approvals to be vacated and declared the EIRs fatally flawed with regards to analysis, brings us to where we are today: a newly proposed Tank Farm Project processed under a MND.

The currently proposed Tank Farm Project was announced December 1, 2009 and the comment period on the 64 page analysis document (the MND) expires on December 30, 2009. The City has scheduled a Planning Commission hearing for Project approval on January 7, 2010 (yes, I said approval). There are no scheduled public/community meetings prior to the hearing. This represents a start to finish process of 38 days (barring any appeal, which would extend the approval timeline).

So there ya go. Told ya they were different!

My comments on the MND will be the subject of subsequent posts.