Chapter 3. Guidelines for Implementation of the
Sections 15080 to 15097
To the extent possible, the
Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21003, 21061, 21100, and 21151, Public Resources Code.
section declares the general principle that the
15081. Decision to Prepare an
cited: Section 21083, Public Resources Code; Reference: Section 21100, Public
Resources Code; No Oil, Inc. v. City of
Los Angeles, (1974) 13
section ties together a number of other provisions in the Guidelines. The
section is necessary to show that the
15081.5 EIRs Required by Statute
(a) A lead agency shall
prepare or have prepared an
(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
(C) Subdivision (1) of this subdivision does not apply to:
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
(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
(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
(2) Subsequent projects
within the campus may be addressed in environmental analyses tiered on the
Note: Authority cited: Section 21083, Public Resources Code; References: Sections 21080.09, 21083.8.1, 21151.1, and 21151.7, Public Resources Code.
This section describes the types of projects for which CEQA mandates
preparation of an
15082. Notice of Preparation and Determination of
(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
(C) Probable environmental effects of the project.
(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
(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
(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
(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
(C) any public agency that has jurisdiction by law with respect to the project;
(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
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
(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
(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.
(c) Where scoping is used, it should be combined to the extent possible with consultation under Section 15082.
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.
purpose of this section is to authorize and encourage, but not require early
consultation with the public. Although public consultation prior to completing
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
(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
Note: Authority cited: Section 21083, Public Resources Code; References: Section 21151.9, Public Resources Code.
15084. Preparing the Draft
(a) The draft
(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
(c) Any person, including the
applicant, may submit information or comments to the Lead Agency to assist in
the preparation of the draft
(d) The Lead Agency may
choose one of the following arrangements or a combination of them for preparing
(1) Preparing the draft
(2) Contracting with another
entity, public or private, to prepare the draft
(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
(5) Using a previously
(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
Note: Authority cited: Section 21083, Public Resources Code; Reference: Section 21082.1, Public Resources Code.
section brings together in one place the requirements that apply to preparing
In Sundstrom v. Mendocino (1988) 202
15085. Notice of Completion
(a) As soon as the draft
(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).
address where copies of the draft
(4) The review period
during which comments will be received on the draft
(c) A sample form for the notice of completion is included in Appendix L.
(d) Where the
(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
(a) The Lead Agency shall
consult with and request comments on the draft
(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
(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.
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
15087. Public Review of Draft
(a) The lead agency shall
provide public notice of the availability of a draft
(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.
(c) The notice shall disclose the following:
(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
(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
(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
(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
(1) Revise the text in the
body of the
(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.
15088.5. Recirculation of an
(a) A lead agency is required
to recirculate an
(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
(b) Recirculation is not required
where the new information added to the
(c) If the revision is
limited to a few chapters or portions of the
(d) Recirculation of an
(e) A decision not to recirculate an
(f) The lead agency shall evaluate and respond to
comments as provided in Section 15088. Recirculating
(1) When an
(2) When the
(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
(g) When recirculating
Authority cited: Section
21083, Public Resources Code. Reference: Section 21092.1, Public Resources
15089. Preparation of Final
(a) The Lead Agency shall
prepare a final
(b) Lead Agencies may provide
an opportunity for review of the final
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
Discussion: This section makes clear the requirement for the Lead
Agency to prepare a final
Public Resources Code Section
21092.5 requires the lead agency to provide a written proposal response to each
public agency which commented on the
15090. Certification of the Final
(a) Prior to approving a project the lead agency shall certify that:
(1) The final
(2) The final
(3) The final
(b) When an
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.
section describes the way for a Lead Agency to implement the requirement for
the decision-making body to consider the
Public Resources Code section
21151, subdivision (c), provides that where an
(a) No public agency shall
approve or carry out a project for which an
(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
(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
(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.
section brings together statutory, regulatory, and case law requirements
dealing with findings which an agency must make before approving a project for
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
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
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
(a) After considering the
(b) A public agency shall not
decide to approve or carry out a project for which an
(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
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
(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.
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
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
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:
(1) An identification of the
project including the project title as
identified on the draft
(2) A brief description of the project.
(3) The lead agency’s name and the date on which the agency approved the project. If a responsible agency files the notice of determination pursuant to Section 15096(i), the responsible agency’s name and date of approval shall also be identified.
(4) The determination of the agency whether the project in its approved form will have a significant effect on the environment.
(5) A statement that an
(6) Whether mitigation measures were made a condition of the approval of the project, and whether a mitigation monitoring plan/program was adopted.
(7) Whether findings were made pursuant to Section 15091.
(8) Whether a statement of overriding considerations was adopted for the project.
(9) The address where a copy
of the final
(c) If the lead agency is a state agency, the lead agency shall file the notice of determination with the Office of Planning and Research within five working days after approval of the project by the lead agency.
(d) If the lead agency is a local agency, the local lead agency shall file the notice of determination with the county clerk of the county or counties in which the project will be located, within five working days after approval of the project by the lead agency. If the project requires discretionary approval from any state agency, the local lead agency shall also, within five working days of this approval, file a copy of the notice of determination with the Office of Planning and Research.
(e) A notice of determination filed with the county clerk shall be available for public inspection and shall be posted within 24 hours of receipt for a period of at least 30 days. Thereafter, the clerk shall return the notice to the local lead agency with a notation of the period during which it was posted. The local lead agency shall retain the notice for not less than 12 months.
(f) A notice of determination filed with the Office of Planning and Research shall be available for public inspection and shall be posted for a period of at least 30 days. The Office of Planning and Research shall retain each notice for not less than 12 months.
(g) The filing of the notice of determination pursuant to subdivision (c) above for state agencies and the filing and posting of the notice of determination pursuant to subdivisions (d) and (e) above for local agencies, start a 30-day statute of limitations on court challenges to the approval under CEQA.
(h) A sample notice of determination is provided in Appendix D. Each public agency may devise its own form, but any such form shall include, at a minimum, the information required by subdivision (b). Public agencies are encouraged to make copies of all notices filed pursuant to this section available in electronic format on the Internet. Such electronic notices are in addition to the posting requirements of the Guidelines and the Public Resources Code.
Authority cited: Section 21083, Public Resources Code.
Reference: Sections 21108, 21152 and 21167, Public Resources Code; Citizens
15095. Disposition of a Final
lead agency shall:
15096. Process for a Responsible Agency
General. A Responsible Agency complies with CEQA by considering the
(b) Response to Consultation. A Responsible Agency shall respond to consultation by the Lead Agency in order to assist the Lead Agency in preparing adequate environmental documents for the project. By this means, the Responsible Agency will ensure that the documents it will use will comply with CEQA.
(1) In response to
consultation, a Responsible Agency shall explain its reasons for recommending
whether the Lead Agency should prepare an
(2) As soon as possible, but
not longer than 30 days after receiving a Notice of Preparation from the Lead
Agency, the Responsible Agency shall send a written reply by certified mail or
any other method which provides the agency with a record showing that the
notice was received. The reply shall specify the scope and content of the
environmental information which would be germane to the Responsible Agency's
statutory responsibilities in connection with the proposed project. The Lead
Agency shall include this information in the
(c) Meetings. The Responsible
Agency shall designate employees or representatives to attend meetings
requested by the Lead Agency to discuss the scope and content of the
(d) Comments on Draft EIRs and Negative Declarations. A Responsible Agency should
review and comment on draft EIRs and Negative
Declarations for projects which the Responsible Agency would later be asked to
approve. Comments should focus on any shortcomings in the
(e) Decision on Adequacy of
(1) Take the issue to court within 30 days after the Lead Agency files a Notice of Determination;
(2) Be deemed to have waived
any objection to the adequacy of the
(3) Prepare a subsequent
(4) Assume the Lead Agency role as provided in Section 15052(a)(3).
(f) Consider the
(g) Adoption of Alternatives or Mitigation Measures.
(1) When considering alternatives and mitigation measures, a Responsible Agency is more limited than a Lead Agency. A Responsible Agency has responsibility for mitigating or avoiding only the direct or indirect environmental effects of those parts of the project which it decides to carry out, finance, or approve.
(2) When an
(h) Findings. The Responsible Agency shall make the findings required by Section 15091 for each significant effect of the project and shall make the findings in Section 15093 if necessary.
(i) Notice of Determination. The Responsible Agency
should file a Notice of Determination in the same manner as a Lead Agency under
Section 15075 or 15094 except that the Responsible Agency does not need to
state that the
Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21165, 21080.1, 21080.3, 21080.4, 21082.1, and 21002.1(b) and (d), Public Resources Code.
Discussion: Most of the statutory requirements for the CEQA process are focused on the Lead Agency, but the statute clearly requires Responsible Agencies to take a number of actions also. Responsible Agencies are generally freed from the need to prepare EIRs or Negative Declarations because they must use the document prepared by the Lead Agency subject to a few exceptions. This section spells out the process to be used by a Responsible Agency. The section organizes the requirements according to the probable sequence of actions as a Responsible Agency administers the process. Public Resources Code Sections 21104 and 21153 as amended by Chapter 1514, Statutes of 1985 now limit comments by responsible and other public agencies to activities which fall in an area of expertise of the agency or which are required to be carried out or approved by the agency. Further, such comments must be supported by specific documentations. Corresponding Guideline section 15044 and this section have been amended to conform to the revised provisions of the Public Resources Code.
15097. Mitigation Monitoring or Reporting.
(a) This section applies when
a public agency has made the findings required under paragraph (1) of
subdivision (a) of Section 15091 relative to an
(b) Where the project at issue is the adoption of a general plan, specific plan, community plan or other plan-level document (zoning, ordinance, regulation, policy), the monitoring plan shall apply to policies and any other portion of the plan that is a mitigation measure or adopted alternative. The monitoring plan may consist of policies included in plan-level documents. The annual report on general plan status required pursuant to the Government Code is one example of a reporting program for adoption of a city or county general plan.
(c) The public agency may choose whether its program will monitor mitigation, report on mitigation, or both. "Reporting" generally consists of a written compliance review that is presented to the decision making body or authorized staff person. A report may be required at various stages during project implementation or upon completion of the mitigation measure. "Monitoring" is generally an ongoing or periodic process of project oversight. There is often no clear distinction between monitoring and reporting and the program best suited to ensuring compliance in any given instance will usually involve elements of both. The choice of program may be guided by the following:
(1) Reporting is suited to projects which have readily measurable or quantitative mitigation measures or which already involve regular review. For example, a report may be required upon issuance of final occupancy to a project whose mitigation measures were confirmed by building inspection.
(2) Monitoring is suited to projects with complex mitigation measures, such as wetlands restoration or archeological protection, which may exceed the expertise of the local agency to oversee, are expected to be implemented over a period of time, or require careful implementation to assure compliance.
(3) Reporting and monitoring are suited to all but the most simple projects. Monitoring ensures that project compliance is checked on a regular basis during and, if necessary after, implementation. Reporting ensures that the approving agency is informed of compliance with mitigation requirements.
(d) Lead and responsible agencies should coordinate their mitigation monitoring or reporting programs where possible. Generally, lead and responsible agencies for a given project will adopt separate and different monitoring or reporting programs. This occurs because of any of the following reasons: the agencies have adopted and are responsible for reporting on or monitoring different mitigation measures; the agencies are deciding on the project at different times; each agency has the discretion to choose its own approach to monitoring or reporting; and each agency has its own special expertise.
(e) At its discretion, an agency may adopt standardized policies and requirements to guide individually adopted monitoring or reporting programs. Standardized policies and requirements may describe, but are not limited to:
(1) The relative responsibilities of various departments within the agency for various aspects of monitoring or reporting, including lead responsibility for administering typical programs and support responsibilities.
(2) The responsibilities of the project proponent.
(3) Agency guidelines for preparing monitoring or reporting programs.
(4) General standards for determining project compliance with the mitigation measures or revisions and related conditions of approval.
(5) Enforcement procedures for noncompliance, including provisions for administrative appeal.
(6) Process for informing staff and decision makers of the relative success of mitigation measures and using those results to improve future mitigation measures.
(f) Where a trustee agency,
in timely commenting upon a draft
(g) When a project is of statewide, regional, or areawide importance, any transportation information generated by a required monitoring or reporting program shall be submitted to the transportation planning agency in the region where the project is located and to the California Department of Transportation. Each transportation planning agency and the California Department of Transportation shall adopt guidelines for the submittal of such information.
Authority: Section 21083, Public Resources Code. References: Sections 21081.6 and 21081.7, Public Resources Code.
This file last modified on: Wednesday, October 26, 2005.
Document URL: http://ceres.ca.gov/ceqa/guidelines/art7.html
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