Title 14

Title 14. California Code of Regulations

Chapter 3. Guidelines for Implementation of the

California Environmental Quality Act

Article 7. EIR Process

Sections 15080 to 15097

15080. General

To the extent possible, the EIR process should be combined with the existing planning, review, and project approval process used by each public agency.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21003, 21061, 21100, and 21151, Public Resources Code.

Discussion: The section declares the general principle that the EIR process should be combined with any other project approval process used by the agency. Private applicants have experienced hardships with the CEQA process when Lead Agencies have separated the EIR process from the permit process. That approach required completion of the EIR process before starting review of the permit application and doubles the time necessary to obtain a permit. This section is necessary to discourage that practice.

15081. Decision to Prepare an EIR

The EIR process starts with the decision to prepare an EIR. This decision will be made either during preliminary review under Section 15060 or at the conclusion of an Initial Study after applying the standards described in Section 15064.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Section 21100, Public Resources Code; No Oil, Inc. v. City of Los Angeles, (1974) 13 Cal. 3d 68; Friends of B Street v. City of Hayward, (1980) 106 Cal. App. 3d 988.

Discussion: This section ties together a number of other provisions in the Guidelines. The section is necessary to show that the EIR process can start at either of two points in the early evaluation of the project. If the Lead Agency can see during preliminary review that an EIR will be required, the EIR process can begin right then rather than requiring the project to go through an Initial Study. Alternatively, the Lead Agency can conduct the Initial Study and use the information developed in the Initial Study to determine whether to prepare an EIR or a Negative Declaration. This section merely refers to the standards described in Section 15064 for determining whether a project may have a significant effect on the environment. If the Lead Agency can determine that the project may have a significant effect on the environment, then it is required to prepare an EIR for the project.

15081.5 EIRs Required by Statute

(a) A lead agency shall prepare or have prepared an EIR for the following types of projects. An initial study may be prepared to help identify the significant effects of the project.

(1) The burning of municipal wastes, hazardous wastes, or refuse-derived fuel, including but not limited to tires, if the project is either:

(A) The construction of a new facility; or

(B) The expansion of an existing facility that burns hazardous waste that would increase its permitted capacity by more than 10 percent. This does not apply to any project exclusively burning hazardous waste for which a determination to prepare a negative declaration, or mitigated negative declaration or environmental impact report was made prior to July 14, 1989. The amount of expansion of an existing facility is calculated pursuant to subdivision (b) of Section 21151.1 of the Public Resources Code.

1. Projects for which the State Energy Resources Conservation and Development Commission has assumed jurisdiction pursuant to Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code.

2. Any of the types of burn or thermal processing projects listed in subdivision (d) of Section 21151.1 of the Public Resources Code.

(2) The initial issuance of a hazardous waste facilities permit to a land disposal facility, as defined in subdivision (d) of Section 25199.1 of the Health and Safety Code. Preparation of an EIR is not mandatory if the facility only manages hazardous waste which is identified or listed pursuant to Section 25140 or Section 25141 of the Health and Safety Code on or after January 1, 1992; or only conducts activities which are regulated pursuant to Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code on or after January 1, 1992. "Initial issuance" does not include the issuance of a closure or postclosure permit pursuant to Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code.

(3) The initial issuance of a hazardous waste facility permit pursuant to Section 25200 of the Health and Safety Code to an off-site large treatment facility, as defined pursuant to subdivision (d) of Section 25205.1 of that code. Preparation of an EIR is not mandatory if the facility only manages hazardous waste which is identified or listed pursuant to Section 25140 or Section 25141 of the Health and Safety Code on or after January 1, 1992; or only conducts activities which are regulated pursuant to Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code on or after January 1, 1992. "Initial issuance" does not include the issuance of a closure or postclosure permit pursuant to Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code.

(4) Any open pit mining operation which is subject to the permit requirements of the Surface Mining and Reclamation Act (beginning at Section 2710 of the Public Resources Code) and which utilizes a cyanide heap-leaching process for the purpose of extracting gold or other precious metals.

(5) An initial base reuse plan as defined in Section 15229.

(b) A lead agency shall prepare or have prepared an EIR for the selection of a California Community College, California State University, University of California, or California Maritime Academy campus location and approval of a long range development plan for that campus.

(1) The EIR for a long range development plan for a campus shall include an analysis of, among other significant impacts, those environmental effects relating to changes in enrollment levels.

(2) Subsequent projects within the campus may be addressed in environmental analyses tiered on the EIR prepared for the long range development plan.

Note: Authority cited: Section 21083, Public Resources Code; References: Sections 21080.09, 21083.8.1, 21151.1, and 21151.7, Public Resources Code.

Discussion: This section describes the types of projects for which CEQA mandates preparation of an EIR. No negative declaration or mitigated negative declaration can be prepared for a project which falls under any of these categories.

15082. Notice of Preparation and Determination of Scope of EIR

(a) Notice of Preparation. Immediately after deciding that an environmental impact report is required for a project, the lead agency shall send to the Office of Planning and Research and each responsible and trustee agency a notice of preparation stating that an environmental impact report will be prepared. This notice shall also be sent to every federal agency involved in approving or funding the project.

(1) The notice of preparation shall provide the responsible and trustee agencies and the Office of Planning and Research with sufficient information describing the project and the potential environmental effects to enable the responsible agencies to make a meaningful response. At a minimum, the information shall include:

(A) Description of the project,

(B) Location of the project (either by street address and cross street, for a project in an urbanized area, or by attaching a specific map, preferably a copy of a U.S.G.S. 15' or 7-1/2' topographical map identified by quadrangle name), and

(2) A sample notice of preparation is shown in Appendix I. Public agencies are free to devise their own formats for this notice. A copy of the initial study may be sent with the notice to supply the necessary information.

(3) To send copies of the notice of preparation, the lead agency shall use either certified mail or any other method of transmittal that provides it with a record that the notice was received.

(4) The lead agency may begin work on the draft EIR immediately without awaiting responses to the notice of preparation. The draft EIR in preparation may need to be revised or expanded to conform to responses to the notice of preparation. A lead agency shall not circulate a draft EIR for public review before the time period for responses to the notice of preparation has expired.

(b) Response to Notice of Preparation. Within 30 days after receiving the notice of preparation under subdivision (a), each responsible and trustee agency and the Office of Planning and Research shall provide the lead agency with specific detail about the scope and content of the environmental information related to the responsible or trustee agency's area of statutory responsibility that must be included in the draft EIR.

(1) The response at a minimum shall identify:

(A) The significant environmental issues and reasonable alternatives and mitigation measures that the responsible or trustee agency, or the Office of Planning and Research will need to have explored in the draft EIR; and

(B) Whether the agency will be a responsible agency or trustee agency for the project.

(2) If a responsible or trustee agency, or the Office of Planning and Research fails by the end of the 30-day period to provide the lead agency with either a response to the notice or a well-justified request for additional time, the lead agency may presume that none of those entities have a response to make.

(3) A generalized list of concerns not related to the specific project shall not meet the requirements of this section for a response.

(c) Meetings. In order to expedite the consultation, the lead agency, a responsible agency, a trustee agency, the Office of Planning and Research, or a project applicant may request one or more meetings between representatives of the agencies involved to assist the lead agency in determining the scope and content of the environmental information that the responsible or trustee agency may require. Such meetings shall be convened by the lead agency as soon as possible, but no later than 30 days after the meetings were requested. On request, the Office of Planning and Research will assist in convening meetings that involve state agencies.

(1) For projects of statewide, regional or areawide significance pursuant to Section 15206, the lead agency shall conduct at least one scoping meeting. The lead agency shall provide notice of the scoping meeting to all of the following:

(A) any county or city that borders on a county or city within which the project is located, unless otherwise designated annually by agreement between the lead agency and the county or city;

(B) any responsible agency

(D) any organization or individual who has filed a written request for the notice.

(2) A lead agency shall call at least one scoping meeting for a proposed project that may affect highways or other facilities under the jurisdiction of the Department of Transportation if the meeting is requested by the department. The lead agency shall call the scoping meeting as soon as possible but not later than 30 days after receiving the request from the Department of Transportation.

(d) Office of Planning and Research. The Office of Planning and Research will ensure that the state responsible and trustee agencies reply to the lead agency within 30 days of receipt of the notice of preparation by the state responsible and trustee agencies.

(e) Identification Number. When the notice of preparation is submitted to the State Clearinghouse, the state identification number issued by the Clearinghouse shall be the identification number for all subsequent environmental documents on the project. The identification number should be referenced on all subsequent correspondence regarding the project, specifically on the title page of the draft and final EIR and on the notice of determination.

Authority cited: Section 21083, Public Resources Code. Reference: Sections 21083.9 and 21080.4, Public Resources Code.

15083. Early Public Consultation

Prior to completing the draft EIR, the Lead Agency may also consult directly with any person or organization it believes will be concerned with the environmental effects of the project. Many public agencies have found that early consultation solves many potential problems that would arise in more serious forms later in the review process. This early consultation may be called scoping. Scoping will be necessary when preparing an EIR/EIS jointly with a federal agency.

(a) Scoping has been helpful to agencies in identifying the range of actions, alternatives, mitigation measures, and significant effects to be analyzed in depth in an EIR and in eliminating from detailed study issues found not to be important.

(b) Scoping has been found to be an effective way to bring together and resolve the concerns of affected federal, state, and local agencies, the proponent of the action, and other interested persons including those who might not be in accord with the action on environmental grounds.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Section 21082.1, Public Resources Code; Section 4, Chapter 480 of the Statutes of 1981; 40 Code of Federal Regulations, Part 1501.7.

Discussion: The purpose of this section is to authorize and encourage, but not require early consultation with the public. Although public consultation prior to completing the draft EIR is permissive under CEQA, this step is recommended as a way of avoiding controversy or resolving controversy early in the process. The section is also necessary for making the point that where a state or local agency is preparing an EIR/EIS with a federal agency, scoping will be required in order to meet the requirements under NEPA for the federal agency.

15083.5. City or County Consultation with Water Agencies.

This guideline addresses consultation between a city or county and affected water agencies at the notice of preparation stage of environmental review.

(a) This guideline shall apply only to projects which meet all of the following criteria:

(1) The project consists of any of the following activities for which an application has been submitted to a city or county:

(A) A residential development of more than 500 dwelling units.

(B) A shopping center or business establishment that will employ more than 1,000 persons or have more than 500,000 square feet of floor space.

(C) A commercial office building that will employ more than 1,000 persons or have more than 250,000 square feet of floor space.

(D) A hotel, motel or both with more than 500 rooms.

(E) An industrial, manufacturing, or processing plant, or industrial park intended to house more than 1,000 persons, occupying more than 40 acres of land, or having more than 650,000 square feet of floor area.

(F) Any mixed-use project that would demand an amount of water equal to, or greater than, the amount of water needed to serve a 500-dwelling unit project.

(2) As part of approval of the project, any of the following are required:

(A) An amendment to, or revision of, the land use element of a general plan or a specific plan, which would result in a net increase in the stated population density or building intensity to provide for additional development.

(B) The adoption of a specific plan, unless the city or county has previously complied with this section for the project.

Notwithstanding the foregoing provisions of this subdivision (a)(2), when a project is identified in connection with the revision of any part of a general plan, that project is subject to the requirements of this section only if the project results in a net increase in the stated population density or building intensity, and if the city or county has not previously complied with the requirements of this section for the project in question.

(3) A city or county has determined that an environmental impact report is required in connection with the project.

(b) For projects subject to this guideline, a city or county shall identify any water system that is, or may become, a public water system, as defined in Section 10912 of the Water Code, that may supply water for the project. When a city or county releases a notice of preparation for review, it shall send a copy of the notice to each public water system which serves or would serve the proposed project and request that the system both indicate whether the projected water demand associated with the proposed project was included in its last urban water management plan and assess whether its total projected water supplies available during normal, single-dry, and multiple-dry water years as included in the 20-year projection contained in its urban water management plan will meet the projected water demand associated with the proposed project, in addition to the system's existing and planned future uses.

(c) The governing body of a public water system shall approve and submit its water supply assessment to the city or county not later than 30 days after the date on which the request and notice of preparation were received. If the public water system fails to submit its assessment within the allotted time, the lead agency may assume, unless there has been a request for a specific extension of time from the public water system, that the public water system has no information to submit. If a public water system concludes there would be insufficient water to serve the proposed project, it shall provide the city or county with its plans for acquiring additional water supplies.

(d) The lead agency shall include within the EIR the public water system's assessment and any other information provided by the water agency, up to a maximum of ten typewritten pages. The assessment and information may only exceed that length with the approval of the lead agency. The lead agency may independently evaluate the water system's information and shall determine, based on the entire record, whether projected water supplies will be sufficient to satisfy the demands of the proposed project, in addition to existing and planned future uses. If the lead agency determines that water supplies will not be sufficient, the lead agency must include that determination in its findings for the project pursuant to Sections 15091 and 15093.

(e) For purposes of this section, "public water system" means a system as defined in Section 10912 of the Water Code with 3,000 or more service connections.

(f) This section does not apply to the County of San Diego and the cities in the county as provided in Section 10915 of the Water Code.

Note: Authority cited: Section 21083, Public Resources Code; References: Section 21151.9, Public Resources Code.

15084. Preparing the Draft EIR

(a) The draft EIR shall be prepared directly by or under contract to the Lead Agency. The required contents of a draft EIR are discussed in Article 9 beginning with Section 15120.

(b) The Lead Agency may require the project applicant to supply data and information both to determine whether the project may have a significant effect on the environment and to assist the Lead Agency in preparing the draft EIR. The requested information should include an identification of other public agencies which will have jurisdiction by law over the project.

(c) Any person, including the applicant, may submit information or comments to the Lead Agency to assist in the preparation of the draft EIR. The submittal may be presented in any format, including the form of a draft EIR. The Lead Agency must consider all information and comments received. The information or comments may be included in the draft EIR in whole or in part.

(d) The Lead Agency may choose one of the following arrangements or a combination of them for preparing a draft EIR.

(1) Preparing the draft EIR directly with its own staff.

(2) Contracting with another entity, public or private, to prepare the draft EIR.

(3) Accepting a draft prepared by the applicant, a consultant retained by the applicant, or any other person.

(4) Executing a third party contract or Memorandum of Understanding with the applicant to govern the preparation of a draft EIR by an independent contractor.

(5) Using a previously prepared EIR.

(e) Before using a draft prepared by another person, the Lead Agency shall subject the draft to the agency's own review and analysis. The draft EIR which is sent out for public review must reflect the independent judgment of the Lead Agency. The Lead Agency is responsible for the adequacy and objectivity of the draft EIR.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Section 21082.1, Public Resources Code.

Discussion: This section brings together in one place the requirements that apply to preparing the draft EIR. This section identifies permissible options as well as the minimum requirements.

In Sundstrom v. Mendocino (1988) 202 Cal. App. 3d 296, the court reemphasized that an EIR or Negative Declaration must show the lead agency's independent judgment in regard to the environmental impacts of the project. Further, the court, citing Kleist v. Glendale (1976) 56 Cal. App. 3d, 770, held that the Board of Supervisors cannot delegate the responsibility of considering the final EIR to the staff of the Planning Commission.

15085. Notice of Completion

(a) As soon as the draft EIR is completed, a notice of completion must be filed with the Office of Planning and Research in a printed hard copy or in electronic form on a diskette or by electronic mail transmission.

(b) The notice of completion shall include:

(1) A brief description of the project,

(2) The proposed location of the project (either by street address and cross street, for a project in an urbanized area, or by attaching a specific map, preferably a copy of a U.S.G.S. 15' or 7-1/2' topographical map identified by quadrangle name).

(3) An address where copies of the draft EIR are available, and

(4) The review period during which comments will be received on the draft EIR.

(d) Where the EIR will be reviewed through the state review process handled by the State Clearinghouse, the notice of completion cover form required by the State Clearinghouse will serve as the notice of completion (see Appendix C).

(e) Public agencies are encouraged to make copies of notices of completion filed pursuant to this section available in electronic format on the Internet.

Authority cited: Section 21083, Public Resources Code. Reference: Section 21161, Public Resources Code.

15086. Consultation Concerning Draft EIR

(a) The Lead Agency shall consult with and request comments on the draft EIR from:

(1) Responsible Agencies,

(2) Trustee agencies with resources affected by the project, and

(3) Any other state, federal, and local agencies which have jurisdiction by law with respect to the project or which exercise authority over resources which may be affected by the project, including water agencies consulted pursuant to section 15083.5.

(4) Any city or county which borders on a city or county within which the project is located.

(5) For a project of statewide, regional, or areawide significance, the transportation planning agencies and public agencies which have transportation facilities within their jurisdictions which could be affected by the project. "Transportation facilities" includes: major local arterials and public transit within five miles of the project site, and freeways, highways and rail transit service within 10 miles of the project site.

(6) For a state lead agency when the EIR is being prepared for a highway or freeway project, the State Air Resources Board as to the air pollution impact of the potential vehicular use of the highway or freeway and if a non-attainment area, the local air quality management district for a determination of conformity with the air quality management plan.

(7) For a subdivision project located within one mile of a facility of the State Water Resources Development System, the California Department of Water Resources.

(b) The lead agency may consult directly with:

(1) Any person who has special expertise with respect to any environmental impact involved,

(2) Any member of the public who has filed a written request for notice with the lead agency or the clerk of the governing body.

(3) Any person identified by the applicant whom the applicant believes will be concerned with the environmental effects of the project.

(c) A responsible agency or other public agency shall only make substantive comments regarding those activities involved in the project that are within an area of expertise of the agency or which are required to be carried out or approved by the responsible agency. Those comments shall be supported by specific documentation.

(d) Prior to the close of the public review period, a responsible agency or trustee agency which has identified what that agency considers to be significant environmental effects shall advise the lead agency of those effects. As to those effects relevant to its decision, if any, on the project, the responsible or trustee agency shall either submit to the lead agency complete and detailed performance objectives for mitigation measures addressing those effects or refer the lead agency to appropriate, readily available guidelines or reference documents concerning mitigation measures. If the responsible or trustee agency is not aware of mitigation measures that address identified effects, the responsible or trustee agency shall so state.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21081.6, 21092.4, 21092.5, 21104 and 21153, Public Resources Code.

Discussion: This section implements the statutory requirements for consultation with other public agencies and the authority to consult with people who have special expertise concerning the environmental effects of the project. The section is necessary in order to interpret the scope of the term "jurisdiction by law" as it relates to agencies which must be consulted. The section limits the required consultation with Trustee Agencies to only those agencies holding in trust resources affected by the project. The courts have held that an agency which has a certified regulatory program exemption under Guidelines Section 15251 must also consult trustee agencies in the process of preparing an EIR substitute. (See: Environmental Protection Information Center v. Johnson, (1985) 170 Cal. App. 3d 604.) The 1998 amendment substantially expanded this section to include agencies which, by statute, are to be consulted on a project. Subsection (d) clarifies the responsibility of responsible and trustee agencies to submit comments on any significant effects to the lead agency before the review period closes, and to submit recommendations relative to mitigation measures.

15087. Public Review of Draft EIR

(a) The lead agency shall provide public notice of the availability of a draft EIR at the same time it sends a notice of completion to the Office of Planning and Research. This public notice shall be given as provided under Section 15105 (a sample form is provided in Appendix L). Notice shall be mailed to the last known name and address of all organizations and individuals who have previously requested such notice in writing, and shall also be given by at least one of the following procedures:

(1) Publication at least one time by the public agency in a newspaper of general circulation in the area affected by the proposed project. If more than one area is affected, the notice shall be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas.

(2) Posting of notice by the public agency on and off the site in the area where the project is to be located.

(3) Direct mailing to the owners and occupants of property contiguous to the parcel or parcels on which the project is located. Owners of such property shall be identified as shown on the latest equalized assessment roll.

(b) The alternatives for providing notice specified in subdivision (a) shall not preclude a public agency from providing additional notice by other means if such agency so desires, nor shall the requirements of this section preclude a public agency from providing the public notice required by this section at the same time and in the same manner as public notice otherwise required by law for the project.

(1) A brief description of the proposed project and its location.

(2) The starting and ending dates for the review period during which the lead agency will receive comments. If the review period is shortened, the notice shall disclose that fact.

(3) The date, time, and place of any scheduled public meetings or hearings to be held by the lead agency on the proposed project when known to the lead agency at the time of notice.

(4) A list of the significant environmental effects anticipated as a result of the project, to the extent which such effects are known to the lead agency at the time of the notice.

(5) The address where copies of the EIR and all documents referenced in the EIR will be available for public review. This location shall be readily accessible to the public during the lead agency's normal working hours.

(6) The presence of the site on any of the lists of sites enumerated under Section 65962.5 of the Government Code including, but not limited to, lists of hazardous waste facilities, land designated as hazardous waste property, hazardous waste disposal sites and others, and the information in the Hazardous Waste and Substances Statement required under subdivision (f) of that Section.

(d) The notice required under this section shall be posted in the office of the county clerk of each county in which the project will be located for a period of at least 30 days. The county clerk shall post such notices within 24 hours of receipt.

(e) In order to provide sufficient time for public review, the review period for a draft EIR shall be as provided in Section 15105. The review period shall be combined with the consultation required under Section 15086. When a draft EIR has been submitted to the State Clearinghouse, the public review period shall be at least as long as the review period established by the Clearinghouse.

(f) Public agencies shall use the State Clearinghouse to distribute draft EIRs to state agencies for review and should use areawide clearinghouses to distribute the documents to regional and local agencies.

(g) To make copies of EIRs available to the public, Lead Agencies should furnish copies of draft EIRs to public library systems serving the area involved. Copies should also be available in offices of the Lead Agency.

(h) Public agencies should compile listings of other agencies, particularly local agencies, which have jurisdiction by law and/or special expertise with respect to various projects and project locations. Such listings should be a guide in determining which agencies should be consulted with regard to a particular project.

(i) Public hearings may be conducted on the environmental documents, either in separate proceedings or in conjunction with other proceedings of the public agency. Public hearings are encouraged, but not required as an element of the CEQA process.

Authority cited: Section 21083, Public Resources Code. Reference: Sections 21091, 21092, 21092.2, 21092.3, 21092.6, 21104, 21152, 21153 and 21161, Public Resources Code.

15088. Evaluation of and Response to Comments

(a) The lead agency shall evaluate comments on environmental issues received from persons who reviewed the draft EIR and shall prepare a written response. The Lead Agency shall respond to comments received during the noticed comment period and any extensions and may respond to late comments.

(b) The lead agency shall provide a written proposed response to a public agency on comments made by that public agency at least 10 days prior to certifying an environmental impact report.

(c) The written response shall describe the disposition of significant environmental issues raised (e.g., revisions to the proposed project to mitigate anticipated impacts or objections). In particular, the major environmental issues raised when the Lead Agency's position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice.

(d) The response to comments may take the form of a revision to the draft EIR or may be a separate section in the final EIR. Where the response to comments makes important changes in the information contained in the text of the draft EIR, the Lead Agency should either:

(1) Revise the text in the body of the EIR, or

(2) Include marginal notes showing that the information is revised in the response to comments.

Authority cited: Section 21083, Public Resources Code. Reference: Sections 21092.5, 21104, and 21153, Public Resources Code; People v. County of Kern (1974) 39 Cal. App. 3d 830; Cleary v. County of Stanislaus (1981) 118 Cal. App. 3d 348.

15088.5. Recirculation of an EIR Prior to Certification

(a) A lead agency is required to recirculate an EIR when significant new information is added to the EIR after public notice is given of the availability of the draft EIR for public review under Section 15087 but before certification. As used in this section, the term "information" can include changes in the project or environmental setting as well as additional data or other information. New information added to an EIR is not "significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project's proponents have declined to implement. "Significant new information" requiring recirculation include, for example, a disclosure showing that:

(1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented.

(2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance.

(3) A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the environmental impacts of the project, but the project's proponents decline to adopt it.

(4) The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. (Mountain Lion Coalition v. Fish and Game Com. (1989) 214 Cal.App.3d 1043)

(b) Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR.

(c) If the revision is limited to a few chapters or portions of the EIR, the lead agency need only recirculate the chapters or portions that have been modified.

(d) Recirculation of an EIR requires notice pursuant to Section 15087, and consultation pursuant to Section 15086.

(e) A decision not to recirculate an EIR must be supported by substantial evidence in the administrative record.

(f) The lead agency shall evaluate and respond to comments as provided in Section 15088. Recirculating an EIR can result in the lead agency receiving more than one set of comments from reviewers. The following are two ways in which the lead agency may identify the set of comments to which it will respond. This dual approach avoids confusion over whether the lead agency must respond to comments which are duplicates or which are no longer pertinent due to revisions to the EIR. In no case shall the lead agency fail to respond to pertinent comments on significant environmental issues.

(1) When an EIR is substantially revised and the entire document is recirculated, the lead agency may require reviewers to submit new comments and, in such cases, need not respond to those comments received during the earlier circulation period. The lead agency shall advise reviewers, either in the text of the revised EIR or by an attachment to the revised EIR, that although part of the administrative record, the previous comments do not require a written response in the final EIR, and that new comments must be submitted for the revised EIR. The lead agency need only respond to those comments submitted in response to the recirculated revised EIR.

(2) When the EIR is revised only in part and the lead agency is recirculating only the revised chapters or portions of the EIR, the lead agency may request that reviewers limit their comments to the revised chapters or portions of the recirculated EIR. The lead agency need only respond to (i) comments received during the initial circulation period that relate to chapters or portions of the document that were not revised and recirculated, and (ii) comments received during the recirculation period that relate to the chapters or portions of the earlier EIR that were revised and recirculated. The lead agency's request that reviewers limit the scope of their comments shall be included either within the text of the revised EIR or by an attachment to the revised EIR.

(3) As part of providing notice of recirculation as required by Public Resources Code Section 21092.1, the lead agency shall send a notice of recirculation to every agency, person, or organization that commented on the prior EIR. The notice shall indicate, at a minimum, whether new comments may be submitted only on the recirculated portions of the EIR or on the entire EIR in order to be considered by the agency.

(g) When recirculating a revised EIR, either in whole or in part, the lead agency shall, in the revised EIR or by an attachment to the revised EIR, summarize the revisions made to the previously circulated draft EIR.

Authority cited: Section 21083, Public Resources Code. Reference: Section 21092.1, Public Resources Code; Laurel Heights Improvement Association v. Regents of the University of California (1993) 6 Cal. 4th 1112.

15089. Preparation of Final EIR

(a) The Lead Agency shall prepare a final EIR before approving the project. The contents of a final EIR are specified in Section 15132 of these Guidelines.

(b) Lead Agencies may provide an opportunity for review of the final EIR by the public or by commenting agencies before approving the project. The review of a final EIR should focus on the responses to comments on the draft EIR.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21100, 21105, and 21151, Public Resources Code; City of Carmel-by-the-Sea v. Board of Supervisors, (1977) 71 Cal. App. 3d 84.

Discussion: This section makes clear the requirement for the Lead Agency to prepare a final EIR before approving the project. It also provides interpretations for several questions dealing with the final EIR. This section specifies that agencies need not provide a separate review period for the final EIR. In this regard, the CEQA process is deliberately made shorter than federal process under NEPA. Federal agencies must allow a 30-day review period on the contents of the final EIS to receive comments on how the final EIS deals with the problems raised with the draft EIS. In order to save time, the CEQA process requires public review only at the draft EIR stage. The final EIR can be submitted directly to the decision-making body of an agency for consideration.

Public Resources Code Section 21092.5 requires the lead agency to provide a written proposal response to each public agency which commented on the EIR. The proposed response must be provided to the pertinent public agency 10 days prior to the lead agency's certification of the final EIR.

15090. Certification of the Final EIR

(a) Prior to approving a project the lead agency shall certify that:

(1) The final EIR has been completed in compliance with CEQA;

(2) The final EIR was presented to the decision-making body of the lead agency, and that the decision-making body reviewed and considered the information contained in the final EIR prior to approving the project; and

(3) The final EIR reflects the lead agency's independent judgment and analysis.

(b) When an EIR is certified by a non-elected decision-making body within a local lead agency, that certification may be appealed to the local lead agency's elected decision-making body, if one exists. For example, certification of an EIR for a tentative subdivision map by a city's planning commission may be appealed to the city council. Each local lead agency shall provide for such appeals.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21082.1, 21100,and 21151, Public Resources Code; City of Carmel-by-the-Sea v. Board of Supervisors (1977) 71 Cal.App.3d 84; Kleist v. City of Glendale (1976) 56 Cal.App.3d 770.

Discussion: This section describes the way for a Lead Agency to implement the requirement for the decision-making body to consider the EIR. As shown in Kleist v. City of Glendale, the decision-making body itself must consider the information in the EIR. The section omits any mention of delegating the certification functions. Instead, the responsibility for certification rests with the Lead Agency. This approach allows Lead Agencies to determine for themselves how they will assign responsibility for completing the certification. The section also highlights the two parts of certification. The Lead Agency must certify the adequacy of the final EIR and certify that the decision-making body reviewed and considered the final EIR in reaching its decision on the project. These two separate elements of certification have always been required in the Guidelines.

Public Resources Code section 21151, subdivision (c), provides that where an EIR has been certified by a non-elected decision making body, that certification may be appealed to the agency's elected decision making body, if any.

15091. Findings

(a) No public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings for each of those significant effects, accompanied by a brief explanation of the rationale for each finding. The possible findings are:

(1) Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the final EIR.

(2) Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency.

(3) Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR.

(b) The findings required by subdivision (a) shall be supported by substantial evidence in the record.

(c) The finding in subdivision (a)(2) shall not be made if the agency making the finding has concurrent jurisdiction with another agency to deal with identified feasible mitigation measures or alternatives. The finding in subsection (a)(3) shall describe the specific reasons for rejecting identified mitigation measures and project alternatives.

(d) When making the findings required in subdivision (a)(1), the agency shall also adopt a program for reporting on or monitoring the changes which it has either required in the project or made a condition of approval to avoid or substantially lessen significant environmental effects. These measures must be fully enforceable through permit conditions, agreements, or other measures.

(e) The public agency shall specify the location and custodian of the documents or other material which constitute the record of the proceedings upon which its decision is based.

(f) A statement made pursuant to Section 15093 does not substitute for the findings required by this section.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21002, 21002.1, 21081, and 21081.6, Public Resources Code; Laurel Hills Homeowners Association v. City Council (1978) 83 Cal.App.3d 515; Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348; Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212; Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433.

Discussion: This section brings together statutory, regulatory, and case law requirements dealing with findings which an agency must make before approving a project for which an EIR was prepared. The statute in Section 21081 provides that a separate finding must be made for each significant effect. This section avoids the problem of agencies deferring to each other, with the result that no agency deals with the problem. This result would be contrary to the strong policy declared in Sections 21002 and 21002.1 of the statute.

Substantial evidence to support the findings appears to be required to implement the legislative intent of this section. The Legislature wanted agencies to deal directly with the facts presented in the EIR. Although the courts have often drawn the distinction between quasi-adjudicatory findings which must be supported by substantial evidence and quasi-legislative findings which need not be supported by substantial evidence, the Legislature has blurred this distinction by requiring all agencies to make these findings in response to specific facts in an EIR without regard to whether the decision could be classified as legislative or adjudicatory. In requiring this finding, the Legislature appears to have removed the partition between the two pigeon holes and required agencies to grapple with the facts as presented in the EIR.

Where the courts have required agencies to make findings, they have required three elements. First, the agency must make the ultimate finding called for in the statute. Second, the finding must be supported by substantial evidence in the record. Third, the agency must present some explanation to supply the logical step between the ultimate finding and the facts in the record. Section 15091 requires that all three elements must be addressed. This section implements many court decisions interpreting the findings requirement. The decisions include City of Rancho Palos Verdes v. City Council of the City of Rolling Hills Estates, (1976) 59 Cal. App. 3d 869; Mountain Defense League v. Board of Supervisors, (1977) 65 Cal. App. 3d 723; Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, (1982) 134 Cal. App. 3d 1022.

The court in Citizens For Quality Growth v. Mount Shasta (1988) 198 Cal. App. 3d 433, found that passing reference to mitigation measures are insufficient to constitute a finding, as nothing in the lead agency's resolutions binds it to follow [those] measures. In this case, there was nothing in the lead agency findings which obligated the project proponent to implement the necessary measures to effectuate the mitigation.

In discussing the "Standard of Review," the Court in Santee v. San Diego (1989) 214 Cal. App. 3d 1438, held that a court's inquiry into the appropriateness of an agency's action under CEQA shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. Citing Inyo v. Los Angeles (1977) 71 Cal. App. 3d 185, the Court restated that "courts do not pass upon the correctness of an EIR's environmental conclusions, but only upon its sufficiency as an informative document."

Section 21081.6 of the Public Resources Code now requires that, upon making a finding under subdivision (1) of subsection (a), the public agency shall adopt a reporting or monitoring program for the changes to the project which it has required or mitigation measures which were adopted. The program shall be designed to ensure compliance during project implementation.

Public Resources Code section 21081, subdivision (c), now provides that a finding under paragraph (3) of subsection (a) may cite legal, technological, and employment related reasons for determining that a mitigation measure or project alternative identified in the EIR is infeasible.

15092. Approval

(a) After considering the final EIR and in conjunction with making findings under Section 15091, the Lead Agency may decide whether or how to approve or carry out the project.

(b) A public agency shall not decide to approve or carry out a project for which an EIR was prepared unless either:

(1) The project as approved will not have a significant effect on the environment, or

(2) The agency has:

(A) Eliminated or substantially lessened all significant effects on the environment where feasible as shown in findings under Section 15091, and

(B) Determined that any remaining significant effects on the environment found to be unavoidable under Section 15091 are acceptable due to overriding concerns as described in Section 15093.

(c) With respect to a project which includes housing development, the public agency shall not reduce the proposed number of housing units as a mitigation measure if it determines that there is another feasible specific mitigation measure available that will provide a comparable level of mitigation.

Note: Authority cited: Section 21083, Public Resources Code. Reference: Sections 21002, 21002.1, 21081 and 21159.26, Public Resources Code; Friends of Mammoth v. Board of Supervisors, (1972) 8 Cal. App. 3d 247; San Francisco Ecology Center v. City and County of San Francisco, (1975) 48 Cal. App. 3d 584; City of Carmel-by-the-Sea v. Board of Supervisors, (1977) 71 Cal. App. 3d 84; Laurel Hills Homeowners Association v. City Council, (1978) 83 Cal. App. 3d 515.

Discussion: This section is designed to bring together in one place a short statement of the sequence of actions that occur near the time of approving the project and also to provide a simple statement of the substantive duty to reduce or avoid environmental damage where feasible. This duty is a constraint on the authority of an agency to approve a project.

The duty to reduce or avoid environmental damage was first stated in Footnote 8 in the Friends of Mammoth decision, 8 Cal. 3d at 263. The San Francisco Ecology Center case established the need for the statement of the ultimate balancing of the merits of the project if the project could result in environmental damage. After the Legislature established the findings requirement in Section 21081 of CEQA focusing on the individual environmental effects of the project, the courts still required a statement of the ultimate balancing of the benefits of the project against the unavoidable environmental damage. This section brings together the requirements from case law and the express requirements in the statute.

Subsection (c) identifies the limitation on the authority of an agency to mitigate the significant effects of a housing project by reducing the number of housing units if the agency determines that there is another mitigation measure available that would provide a comparable level of mitigation. Even though this limitation is contained in the statute, it is included here in order to make this section complete and to identify the limitation at the relevant step of the process. If agencies are not made aware of this provision through the Guidelines, many agencies will be likely to overlook the limitation. The result could be increased litigation over permits and a reduction in the number of housing units that may be constructed in the state.

15093. Statement of Overriding Considerations

(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered "acceptable."

(b) When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record.

(c) If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to Section 15091.

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21002 and 21081, Public Resources Code; San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584; City of Carmel-by-the-Sea v. Board of Supervisors (1977) 71 Cal.App.3d 84; Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212; Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433.

Discussion: This section is necessary to codify the requirement from case law that when an agency approves a project which will have an adverse environmental effect, the agency must make a statement of its views on the ultimate balancing of the merits of approving the project despite the environmental damage. This requirement was originally traced to case law interpreting NEPA. The San Francisco Ecology Center case clearly established this balancing statement as a requirement under CEQA. The City of Carmel-by-the-Sea decision showed that this balancing statement is required even though an agency makes findings as to the feasibility of mitigation measures under Section 21081 of the Statute.

Subsection (c) identifies the importance of preserving the statement in the record of project approval. Mentioning the statement in the Notice of Determination will help anyone concerned with the project to find the notice. The section also helps to show that the statement is not a part of the EIR. The statement is prepared, if at all, at the end of the process after the final EIR has been completed.

The court in Citizens For Quality Growth v. Mount Shasta (1988) 198 Cal. App. 3d 433, held that when an agency approves a project that will significantly affect the environment, CEQA places the burden on the approving agency to affirmatively show that it has considered the identified means (mitigation and/or alternatives) of lessening or avoiding the project's significant effects and to explain its decision allowing those adverse changes to occur. In other words, an agency may only get to overriding considerations after the agency has made the appropriate findings; then, and only then, may an agency go on to explain why a project may go forward notwithstanding its effects.

The requirement for a statement of overriding considerations was codified at Public Resources Code section 21081(b) by Chapter 1294 of the Statutes of 1994.

15094. Notice of Determination

(a) The lead agency shall file a notice of determination within five working days after deciding to carry out or approve the project.

(b) The notice of determination shall include:<