Applying an Existing EIS to Later Local Projects
An EIS can be used as an EIR to the extent that the EIS complies with the
provisions of the CEQA Guidelines (Section 21083.5, Guidelines
Section 15221). All too often, however, development opportunities arise
which were not contemplated in the local reuse plan or EIS. When evaluating
later proposals necessary to base reuse such as local base reuse plans,
general plan amendments, specific plans, rezoning, or redevelopment plans,
the local agency faces two key questions: Can the EIS suffice to address
these later projects? If not, how may the information contained in the EIS
be productively reused?
The local agency's first step should be to critically evaluate the adequacy
of the EIS relative to the later proposal. This evaluation should pursue
two broad lines of inquiry:
(1) Content: To what extent does the EIS comply with CEQA
and, further, is the later project fully examined in the EIS? As discussed
previously, the requirements of NEPA and CEQA largely overlap. Recognizing
that an EIS will not necessarily look like an EIR and that CEQA Guidelines
Section 15120 provides that there is no mandatory format for EIRs, disregard
superficial differences and focus on the overall contents of the EIS.
Guidelines Section 15221 states that a separate discussion of mitigation
measures and growth-inducing impacts will need to be "added, supplemented,
or identified before the EIS can be used as an EIR." However, since
the NEPA guidelines requires that an EIS contain these points of analysis,
addition may not actually be necessary (40 CFR 1508.20). If the analysis
must be supplemented, OPR recommends that the local agency prepare a supplemental
EIR as provided under Section 15163 of the CEQA Guidelines. If the
analysis is present, but needs to be identified in order to show that it
is present, the lead agency may follow the procedure for addenda provided
under Section 15163 of the Guidelines.
(2) Notice: Was public notice and the opportunity for
review and comment provided in accordance with CEQA procedures? If yes,
then Section 15225 of the CEQA Guidelines enables the local agency
to use the EIS as the equivalent of an EIR without additional circulation.
If no, then the local agency should follow the procedure described under
Guidelines Section 15153 for use of an EIR from an earlier project.
This will include preparing an initial study and circulating the EIS for
public review as a draft EIR.
Applying an Adequate EIS to Later Projects
Where the EIS complies with CEQA and adequately discusses the later project,
such as a local reuse plan purposely written to match the preferred alternative
set out in the EIS, Section 15221(b) of the CEQA Guidelines provides
that the local agency need not prepare an EIR. The local agency must provide
advance public notice pursuant to Guidelines Section 15087 that it
intends to use the EIS as an EIR and that the EIS meets the requirements
of CEQA. OPR recommends providing notice pursuant to Public Resource Code
Section 21092. This notice does not open a new comment period.
From that point, the local agency proceeds as though using an EIR. The EIS
must be certified (Guidelines Section 15090). Unlike NEPA, which
requires federal agencies to consider, but not necessarily impose, mitigation
measures and alternatives, the local agency must impose the applicable mitigation
measures or alternatives identified in the EIS(EIR) if it approves the later
project. It must adopt findings under Guidelines Section 15091 for
each of the significant environmental effects identified in the EIS(EIR)
and, if there are any unavoidable significant effects, a statement of overriding
consideration pursuant to Guidelines Section 15093. A Notice of Determination
must be filed with the County Clerk and, if the project will involve State
agency approvals, with OPR. The EIS(EIR) must be filed with other agencies
as required under Guidelines Section 15095.
Using an EIS as the Basis for Additional Environmental Analysis
What if the later project was not fully addressed in the EIS? This may be
the case when there was no local reuse plan available to the DoD agency
during preparation of the EIS or, more commonly, when specific projects
such as a specific plan or rezoning are proposed after completion of the
Later projects must undergo a new environmental review, beginning with an
initial study to determine whether the project may have a significant adverse
effect on the environment. If there is substantial evidence that such an
effect may occur, the Lead Agency must prepare an EIR. If there is no substantial
evidence for such an effect a negative declaration (including a mitigated
negative declaration) is adopted instead (Section 21080). A mitigated negative
declaration is used "when the initial study has identified potentially
significant effects on the environment, but (1) revisions in the project
plans or proposals made by, or agreed to by, the applicant before the proposed
negative declaration is released for public review would avoid the effects
or mitigate the effects to a point where clearly no significant effect on
the environment would occur, and (2) there is no substantial evidence in
light of the whole record before the public agency that the project, as
revised, may have a significant effect on the environment" (Section
Where possible, the initial study should use and cite information in the
EIS which is indicative of the presence or absence of a significant effect.
Further, the later EIR or negative declaration may reference pertinent sections
of the EIS rather than generating the same information a second time (Guidelines
Where the later activity was generally described in the EIS, but was not
a focus of that document, the later review may be "tiered" upon
the EIS. Pursuant to Sections 21093 and 21094, the review of the later project
may avoid repetitive discussion of issues and focus on those issues which
are "ripe for decision" and specific to the later project. One
example of a project suitable for tiering might be adoption of specific
zoning for a use described in the closure and reuse plan.
As a rule, tiering is used for "separate but related projects"
(Guidelines Section 15152). A tiered EIR is limited to discussion
of those significant effects which were not examined in the prior EIS or
are susceptible to substantial reduction or avoidance by specific revisions
or conditions imposed on the project. If a project's environmental review
is to be tiered upon the previous EIS, the lead agency must find that the
project is consistent with both of the following:
- The program, plan, policy, or ordinance for which the previous EIR
(or in this case the EIS) was certified.
- The general plan and zoning of the city or county in which the project
would be located (Section 21094(b)).
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Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814