Initial Statement of Reasons

CERES Environmental Law, Regulation, and Policy
CEQA

California Environmental Quality Act

line

INITIAL STATEMENT OF REASONS

October 1997

SECTION 15003 POLICIES

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Section 15003 is intended to give additional definition to the policies declared by the Legislature concerning environmental protection and the administration of CEQA by citing to key interpretive holdings by courts that have addressed this issue. The most recent holding/interpretation cited, however, is over 22 years old; more than 300 decisions regarding CEQA have been published since then. An updating of this section is necessary to reflect more recent court opinions in this area.

Specific Purpose of the Regulation

This proposed change is specifically intended to place key holdings of courts in recent CEQA decisions into the California Code of Regulations (CCR), thereby making them more accessible to those researching and applying CEQA law.

Necessity and Explanation

The courts of this state frequently interpret and clarify the application of CEQA statutory and regulatory provisions. As published, they establish binding authority on subsequent CEQA application, but in many cases may be overlooked by those seeking to interpret CEQA law. This is especially true where citation to regulations are made, since an annotated CCR is unavailable. Further, as noted above, this section has not been updated with new caselaw in over two decades.

The proposed additions to section 15003, therefore, place some key holdings of court decisions over the past 22 years into the CCR, ensuring that the reasoning of those courts will be more likely followed, thereby bringing an added measure of consistency and predictability to the CEQA review process

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

The Agency finds that no alternatives it has considered would be more effective in carrying out the purpose of the proposed amendments or would be as effective and less burdensome to affected private persons than the proposed regulations.

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The changes proposed are declaratory in nature and will result in no directly associated adverse economic impact on businesses in California.

SECTION 15004 TIME OF PREPARATION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Section 15004 is intended to incorporate the intent of the Legislature with regard to environmental document preparation. The language of the section, however, does not reflect legislative intent that procedures of that nature run concurrently, not consecutively. There is also a need to provide more guidance to lead agencies to avoid acts that would prevent real consideration of alternatives and mitigation measures.

Specific Purpose of the Regulation

The proposed amendment will language taken almost verbatim from Public Resources Code section 21003, which states legislative intent with regard to planning and environmental review procedures. The changes will also give guidance to lead agencies to avoid acts that would prevent real consideration of significant impacts.

Necessity and Explanation

The proposed amendment is necessary to make it clear to local agencies that the CEQA review process should not be separate and distinct from other planning and project approval procedures, but rather that CEQA mandates be fulfilled concurrent with other local agency responsibilities. This policy has been made clear by the Legislature in the Public Resources Code and the proposed amendments are necessary to reflect that legislative intent.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

This amendment is intended to reflect legislative intent that CEQA requirements not add excessively to the overall time required to complete environmental document and planning review conducted by local agencies. Directing local agencies to run through these assorted procedures concurrently, and not consecutively, will itself act to lessen any adverse economic impact on businesses, by expediting the review process.

SECTION 15041 AUTHORITY TO MITIGATE

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Activities by lead agencies under CEQA are not only subject to the requirements and restrictions of that statute, they must also be cognizant of other applicable legal authority. One of the most important areas of law that must be borne in mind when undertaking CEQA activities is that of takings, as decided by the U.S. Supreme Court. This consideration is not currently referenced, however, in the Guidelines.

Specific Purpose of the Regulation

The purpose of this proposed amendment is to make specific reference to key takings law principles and general reference to constitutional principles in order to highlight these areas for consideration by lead agencies.

Necessity and Explanation

As noted, lead agencies are subject not only to the requirements in the CEQA statute and Guidelines, they must abide by applicable land use decisions by the U.S. Supreme Court. It is necessary, therefore, that at least some reference be made to these principles in order to highlight them for consideration as lead agencies undertake their CEQA responsibilities.

This amendment specifically notes that lead agency decisions with regard to mitigation measures must, in addition to complying with CEQA, be consistent with constitutional requirements in the area of land use. Specific reference is made to two key requirements from recent U.S. Supreme Court decisions on that topic.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The changes proposed merely highlight additional considerations that lead agencies are bound by the law to consider. They will result in no directly associated adverse economic impact on businesses in California.

SECTION 15045 FEES

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Though the Guidelines are intended to provide thorough reference to lead agencies as to their duties under CEQA, recent amendments to statute have not been incorporated into the Guideline text. Once such provision is the directive of the Legislature that litigation expenses, costs, and fees are not recoverable under the statutory authority for lead agencies to charge and collect reasonable fees from project proponents.

Specific Purpose of the Regulation

The proposed amendment is intended to highlight the statutory restriction on their fee-collecting authority.

Necessity and Explanation

In its current form, section 15045 outlines a lead agency's authority to collect fees. It does not contain, however, the ability to recover for preparation of environmental documents nor the restriction contained in §21089 of the Public Resources Code that litigation expenses, costs, and fees are not recoverable. In order to clearly guide lead agencies as to their fee-collecting authority, it is necessary to reflect this statutory provision.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments to this section represent incorporation of existing statutory provisions into the Guidelines. They will result in no adverse economic impact on businesses in the state.

SECTION 15060 PRELIMINARY REVIEW

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, a lead agency must conduct a preliminary review of a proposed actions to determine of the activity is a "project" for purposes of CEQA and, hence, subject to the CEQA environmental review requirements. Section 15060 (along with Sections 15061 and 15378), as currently drafted, confuses terminology in failing to differentiate between non-projects and exempt projects.

Specific Purpose of the Regulation

The amendments are intended to give better explanation of definitional issues for lead agencies reviewing a proposed activity for whether it is subject CEQA, as well as other preliminary review considerations.

Necessity and Explanation

The proposed changes to section 15060 are to ensure that it correctly and consistently refers to non-projects, as distinguished from exempt projects, which are dealt with in section 15061. The changes will also make distinction between definitional issues in determining whether an activity is subject to CEQA. These changes, in conjunction with changes to section 15061 and section 15378 (definition of "non-project") will better guide the lead agency in conducting preliminary review and in understanding the requirements with respect to notices and postings.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments to this section provide clarification of existing law. They will result in no adverse economic impact on businesses in the state.

SECTION 15061 REVIEW FOR EXEMPTION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, after a lead agency has conducted a preliminary review of a proposed actions to determine of the activity is a "project" for purposes of CEQA, it must determine of the project is nevertheless exempted from CEQA review by statute or guideline. Section 15061, (along with Sections 15060 and 15378), as currently drafted, confuses terminology in failing to differentiate between non-projects and exempt projects.

Specific Purpose of the Regulation

The proposed amendments, in conjunction with amendments to section 15060, are intended to provide clarity and consistency to the terminology and definitions used in CEQA.

Necessity and Explanation

The intent behind sections 15060 and 15061 is to provide guidance for public agencies in conducting preliminary review of a proposed activity. This preliminary review is critical in that it leads to a determination as to whether the activity is a "project" under CEQA and, if so, whether the project has nevertheless been exempted from further review by statute or by a categorical exemption in the Guidelines. The proposed changes to section 15061 are necessary to provide lead agencies with even better direction as to how to proceed once the agency determines that the activity is a project.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments to this section provide clarification of existing law. They will result in no adverse economic impact on businesses in the state.

SECTION 15062 NOTICE OF EXEMPTION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Assorted provisions of the Guidelines deal with public agencies' responsibility to foster public input into the CEQA process in general and, in some cases, their activities specifically. The requirements of disseminating such information that appear in the Guidelines do not, however, reflect the recent significant expansion of the use of the Internet as a tool for broadening the accessibility of information.

Specific Purpose of the Regulation

The intent of the proposed amendment is to broaden the opportunities for public access to CEQA information on the Internet and to provide a corresponding growth in public input into the CEQA process.

Necessity and Explanation

The expansion of use of the Internet and accessibility of information through such electronic means clearly demonstrates that encouragement of the use of this medium is critical to the adaptation of CEQA to the realities of the 21st century. In light of this necessity, but recognizing that Internet use is not universal among public agencies in the state, the proposed change encourages the electronic postings required under section 15062 to be made on an Internet website. This represents an initial step toward full assimilation of CEQA into the future of information technology.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments encourage Internet usage and thus do not mandate the purchase of computers to access the information. Since such postings will continue to be offered in the traditional manner, the change will result in no adverse economic impact on businesses in the state.

SECTION 15063 INITIAL STUDY

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Existing law requires the preparation of an initial study where appropriate to assisting a lead agency in determining whether a project will have a significant environmental impact. There has been confusion in the past, however, regarding the scope of the initial study, especially with regard to foreseeable consequences of the project or its future expansion.

Specific Purpose of the Regulation

The proposed amendments to this section will provide clarification regarding the scope of the lead agency's responsibility related to preparation of the initial study. Specifically, the amendments will provide further definition as to what actions related to the project must be considered in the initial study and that initial studies may rely on expert opinion or studies to document its findings.

Necessity and Explanation

As noted above, these clarifying amendments are necessary to avoid uncertainties among lead agencies, and in some cases legal challenges of the adequacy of initial studies, that relate back to the scope of the initial study. The amendments will clarify which actions and effects related to the project must be considered, but will also provide a line of demarcation by directing that the initial study need not speculate as to effects unspecified or uncertain.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory requirements and court interpretation. They will result in no adverse economic impact on businesses in the state.

SECTION 15064 DETERMINING SIGNIFICANT EFFECT

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, where there is the possibility that a project will have a significant effect on the environment, lead agencies are required to conduct an initial study to supply information to determine whether that significant effect may result. Though section 15064 is designed to assist agencies in determining significant effect, it has not provided clarity, and substantial confusion exists, as to how to assess the significance of project impacts where the project being analyzed is essentially the same as a project for which and EIR or negative declaration was previously certified or adopted. Even greater uncertainty and inconsistency exists with respect to how the cumulative effects of the project should be assessed.

Specific Purpose of the Regulation

The amendments to section 15064 are intended to provide greater clarity and guidance to lead agencies and the public regarding both the analysis of a project which is essentially the same as that previously analyzed in an approved EIR or negative declaration, and the assessment of the significance of a project's cumulative impacts.

Necessity and Explanation

The lack of guidance in the assessment of the significance of such projects' impacts has led to uncertainty, inconsistency and, sometimes, litigation, at great cost to private individuals and public agencies alike. The proposed amendments draw from the reasoning of the courts in the most recent cases addressing these issues and are necessary as an attempt to eliminate the uncertainty on these particular topics.

The revision to Section 15064(g)(7) is necessary to explain the distinction between a revised EIR for a similar project that would be subject to tiering and the fair argument standard as compared to an outgrowth of the same project or later phase which would be subject to the provisions of Sections 15162, 15163, or 15164, and which are subject to the more traditional substantial evidence test.

The revision to Section 15064(j) is necessary to provide guidance to lead agencies in assessing the significance of a project's cumulative effects generally, and in situations where those effects are minimal or have been addressed in previous plans designed to deal with those cumulative effects.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory requirements and court interpretation. They will result in no adverse economic impact on businesses in the state.

SECTION 15064.5 DETERMINING THE SIGNIFICANCE OF IMPACTS ON HISTORICAL AND UNIQUE ARCHAEOLOGICAL RESOURCES [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

The existing Guidelines give treatment to the issue of historical and archaeological resources by way of Appendix K. Revisions are required to render the Guidelines consistent with 1992 amendments to §21084.1 of the Public Resources Code.

Specific Purpose of the Regulation

This overall proposal envisions the deletion of the existing Appendix K, regarding historical and archaeological resources, and transfer of those provisions into the text of the Guidelines. The proposed new section places guidance for lead agencies as to determining the significance of impacts on historical and archaeological resources in a proper sequential location, among other sections relating to determination of whether particular impacts are significant.

Necessity and Explanation

As noted, it is necessary that guidance as to historical and archaeological resources be placed in a logical position among the sections. This will ensure proper use, and proper evaluation of these considerations, when public agencies take action under CEQA. The proposed location, section 15064.5, places guidance for lead agencies as to determining the significance of impacts on historical and archeological resources in a proper sequential location, among other sections relating to determination of whether particular impacts are significant.

Substantively, the provisions of proposed section 15064.5 are very similar to the existing text of Appendix K. Significant changes to the text include addition of the newly enacted statutory definition of historical resources in order to provide better consistency and context for lead agencies evaluating such sites. In addition, the new section guides lead agencies in circumstances where a particular resource meets the definition of both a "historical resource" and a "unique archeological resource."

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed new section results from a reorganization and relocation of the previously existing Appendix K It will result in no adverse economic impact on businesses in the state.

SECTION 15064.7 THRESHOLDS OF SIGNIFICANCE [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

§21082 of the Public Resources Code directs all public agencies to develop objectives and criteria for the evaluation of projects under CEQA. Many public agencies have failed to heed this directive, the result of which has been uncertain, inconsistent, and unpredictable determinations of significance across and within jurisdictions.

Specific Purpose of the Regulation

Proposed section 15064.7 is proposed to encourage lead agencies to adopt criteria for determining whether a project's impact will be a significant effect on the environment.

Necessity and Explanation

Proposed section 15064.7 provides public agencies with a method of putting in place a degree of predictability in their significance determination process. This predictability comes by way of adopted thresholds of significance, non-compliance with which an effect will be considered significant by the agency and compliance with which an effect will not be considered significant. Taking advantage of this provision will benefit both agencies and the project applicants in the development stages of their particular proposed project.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory requirements and court interpretation. They will result in no adverse economic impact on businesses in the state.

SECTION 15065 MANDATORY FINDINGS OF SIGNIFICANCE

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under CEQA, certain types of environmental effects require an EIR to be prepared for the project which causes that effect. Once such category of effects is where the project has effects which are cumulatively considerable.

Specific Purpose of the Regulation

The proposed amendment to section 15065 is intended to better define what is meant by "cumulatively considerable."

Necessity and Explanation

The proposed change is actually a minor technical change to add a reference to the definition of "cumulatively considerable" as contained in section 15130, which is being revised to provide definition to what are "reasonably anticipated future projects."

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory requirements and court interpretation. They will result in no adverse economic impact on businesses in the state.

SECTION 15073.5 RECIRCULATION OF A NEGATIVE DECLARATION PRIOR TO ADOPTION [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Lead agencies may revise a proposed negative declaration, before its final adoption. These revisions, however, often take place after the proposed negative declaration has been circulated for public review. Where the revisions made by the lead agency are substantial, but further public review has not been held, the validity of the negative declaration is jeopardized and becomes subject to challenge in court.

Specific Purpose of the Regulation

This proposed section provides clarity and direction to lead agencies in the determination of when a revised negative declaration should be recirculated for public review prior to its final adoption. Specifically, it identifies what revisions to a negative declaration trigger recirculation and what changes do not merit recirculation.

Necessity and Explanation

The issue of recirculation of a negative declaration where revisions were made after public review, but prior to final adoption, has been central to at least three reported cases. (See, Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359; Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337; and Long Beach Savings and Loan Association v. Long Beach Redevelopment Agency (1986).) These courts have made it clear that where revisions are made that are substantial, further public review is necessary prior to final adoption of the mitigated negative declaration.

Proposed section 15073.5 will bring the regulations in alignment with this court precedent. It will require lead agencies to recirculate a negative declaration when the document is substantially revised after public review; it will define the changes considered to be "substantial revisions;" and it will identify changes that do not require recirculation.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

The Agency finds that no alternatives it has considered would be more effective in carrying out the purpose of the proposed section or would be as effective and less burdensome to affected private persons than the proposed regulations.

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed section provides clarification of existing provisions and policies of CEQA, as interpreted by the courts, regarding public review of negative declarations. They will result in no adverse economic impact on businesses in the state.

SECTION 15075 NOTICE OF DETERMINATION ON A PROJECT FOR WHICH A PROPOSED NEGATIVE OR MITIGATED NEGATIVE DECLARATION HAS BEEN APPROVED

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Specific Purpose of the Regulation

The intent of the proposed amendment is to broaden the opportunities for public access to CEQA information on the Internet and to provide a corresponding growth in public input into the CEQA process.

Necessity and Explanation

The proposed change encourages public agencies to make copies of all CEQA notices regarding notices of determination available in electronic format on the Internet. Since it is only an encouragement, those agencies which do not have access to a website would not have to be concerned.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15085 NOTICE OF COMPLETION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Specific Purpose of the Regulation

The intent of the proposed amendment is to broaden the opportunities for public access to CEQA information on the Internet and to provide a corresponding growth in public input into the CEQA process.

Necessity and Explanation

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15086 CONSULTATION ON DRAFT EIR

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Current provisions of CEQA require a lead agency to consult with, and accept comments from, assorted other entities and individuals regarding a draft EIR. These provisions, however, have been scattered in a half dozen sections in Division 13 of the Public Resources Code. This increases the likelihood that compliance with one or more provisions may be overlooked in error.

Specific Purpose of the Regulation

The proposed amendments to section 15086 are intended to bring statutory requirements regarding consultation on a draft EIR into one section for ease of reference.

Necessity and Explanation

As noted above, the necessity for this section lies in the dispersal of statutory provisions and the need to clarify these requirements for those agencies directly affected. Many of the statutory sections are not readily identified as imposing consultation requirements: the proposed amendments will alert agencies, by reference to a single source, as to their duties regarding draft EIR's.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory requirements. They will result in no adverse economic impact on businesses in the state.

SECTION 15088.5 RECIRCULATION OF AN EIR PRIOR TO CERTIFICATION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Frequently, a public agency will recirculate a draft EIR, prior to certification, when revisions to the draft EIR have been made. In some cases the recirculation is conducted even though the revisions to the EIR were not significant, or were not extensive in comparison to the EIR as a whole. In these instances, public commentors can re-submit comments made during a prior review regarding components of the EIR untouched by the revision, imposing the burden on the lead agency to, in effect, re-respond to those comments or respond to comments no longer pertinent due to changes in the EIR.

Specific Purpose of the Regulation

The proposed amendments are intended to give a more clear direction to a lead agency in this situation and to avoid duplicative efforts in the fulfillment of its obligation to accept and respond to public comments.

Necessity and Explanation

This proposed amendment is necessary to clarify the duty of a lead agency during recirculation of a revised draft EIR, and correspondingly reduce the potential for duplicative responses to identical public comments on portions of the EIR unchanged by the revision.

The addition of the new subdivision to section 15088.5 will clarify the methods by which a lead agency may specify the scope of public comments and administer the recirculation following receipt of those comments. Two potential scenarios are provided; where the EIR is substantially revised and the entire EIR is recirculated and, conversely, where only part of the EIR is revised and recirculated. In each case, the amendments give guidance to the agency as to how to direct and focus public comments.

Under the proposed new subdivision, the lead agency's responsibility to respond to all comments received during the first circulation period would remain unchanged. However, during the recirculation period the agency would be permitted to limit its responses to those in response to comments on the revised portions. The lead agency would not be required to respond to comments essentially the same as those received during the first circulation period.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory requirements. They will result in no adverse economic impact on businesses in the state.

SECTION 15091 FINDINGS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, a lead agency must make findings regarding any identified significant environmental effects that are identified in a final EIR for a project. Then, if there are unavoidable adverse environmental effects but the agency wishes to approve the project anyway, the agency may conduct the required balancing of benefits and risks and adopt a statement of overriding considerations (section 15093). The statement of overriding considerations must include specific reasons supporting its action to permit significant effects without substantial mitigation.

At times, the line between the findings related to significant effects and the supporting reasons for the statement of overriding considerations has been blurred as agencies have sought to use the same set of findings/reasons to support both actions. This has resulted in confusion.

Specific Purpose of the Regulation

The amendments to section 15091 (and corresponding amendments to section 15093, below), are intended to clearly delineate the usage of findings accompanying a final EIR. The amendments will also provide further clarity as to the nature of findings for each of the three possible finding categories outlined in 15091(a).

Necessity and Explanation

The necessity for this change lies in the attempts by some agencies to, as described above, use findings under section 15091 in support of a statement of overriding considerations under section 15093. In one specific case, the attempt to justify such an action was made, and rejected, as follows: "City asserts its statements in the certification and statement of overriding concerns constitute an implicit finding adopting the mitigation measures. We disagree. These passing references to the mitigation measures are insufficient to constitute a finding...." Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 441-442.

The proposed amendments will clarify that statements made pursuant to section 15093 may not substitute for the findings required by this section. Further, the amendments will provide greater direction as to the nature of each of the three possible categories of findings ((1) mitigation measures will avoid or substantially lessen the effects described in the EIR; (2) changes are within the jurisdiction other than the agency making the finding; and (3) mitigation measures identified in the EIR are infeasible).

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing law, as applied by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15093 STATEMENT OF OVERRIDING CONSIDERATIONS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, if there are unavoidable adverse environmental effects but the agency wishes to approve the project anyway, the agency may conduct the required balancing of benefits and risks and adopt a statement of overriding considerations (section 15093). The statement of overriding considerations must include specific reasons supporting its action to permit significant effects without substantial mitigation. In a related activity, a lead agency must make findings regarding any identified significant environmental effects that are identified in a final EIR for a project.

At times, the line between the findings related to significant effects and the supporting reasons for the statement of overriding considerations has been blurred as agencies have sought to use the same set of reasons/findings to support both actions. This has resulted in litigation and confusion for both agencies and private parties.

In a related problem, uncertainty exists as to the basis for an agency's defense of findings supporting a statement of overriding concerns and whether it must be supported by substantial evidence in the record or supported by virtue of its being a policy decision by the agency that is a quasi-legislative choice.

Specific Purpose of the Regulation

The proposed amendments to section 15093, in conjunction with those proposed for section 15091, are intended to clearly delineate the difference between the findings required by section 15091 and the reasons adopted in support of a statement of overriding concerns.

The amendments will also provide general notice as the standard for review of a statement of overriding considerations, and that such a finding must be supported by substantial evidence in the record.

Necessity and Explanation

The necessity for the delineation between findings under section 15091 and reasons in support of a statement of overriding considerations under section 15093, lies in the attempts by some agencies to, as described above, cross over between the two by using one to justify the other. In one specific case, the attempt to justify such an action was made, and rejected, as follows: "City asserts its statements in the certification and statement of overriding concerns constitute an implicit finding adopting the mitigation measures. We disagree. These passing references to the mitigation measures are insufficient to constitute a finding...." Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 441-442. The proposed amendments will make it clear that any reasons given to support the statement of overriding considerations shall not substitute for, and shall be in addition to, the findings required under section 15091.

The need for clarity and uniformity of standard of review underlies the addition of the standard of review for reasons supporting a statement of overriding considerations. The clear holding in Sierra Club v. Contra Costa County was that the statement of overriding considerations be supported by substantial evidence in the record (10 Cal.App.4th 1212, 1223) and provides the basis for this amendment.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing law, as applied by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15097 MITIGATION MONITORING OR REPORTING [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Added in 1988, and recently amended, Public Resources Code Section 21081.6 imposes a mandate on all public agencies to adopt a monitoring program for any mitigation measures associated with a project, and to ensure that those mitigation measures are fully enforceable. This statutory requirement and guidance as to what is appropriate in the monitoring of mitigation measures has yet to be fully incorporated into the Guidelines.

Specific Purpose of the Regulation

Proposed section 15097 is intended to implement the statutory mandate of PRC Section 21081.6, that mitigation measures be monitored during project implementation.

Necessity and Explanation

Contained within the overall mandate as to project monitoring in PRC Section 21081.6 are related requirements of reporting and the interaction of the lead agency and responsible agencies. In order for the overall goal of implementation of mitigation measures to be achieved, it is necessary for section 15097 to be added to make clear to public agencies how the monitoring program mandated by the Legislature is to be carried out.

Specifically, section 15097 will define and clarify such terms as "reporting" and "monitoring." It will provide guidance as to which of these two paths to mitigation enforcement are most appropriate under the circumstances by providing specific guiding considerations. The section outlines the ability of the agency to adopt standardized policies and guidelines for mitigation monitoring programs and provides potential components of such a policy. Finally, the section clarifies the interrelation of lead, trustee, and responsible agencies on such matters and includes reference to the inclusion of transportation planning agencies in certain circumstances.

Inclusion of this section will provide clarity for both public agency and permit applicant alike, and will contribute to uniform compliance with the goal of full implementation of mitigation measures associated with any individual project.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed new section provides interpretation for full implementation of existing statutory provisions of CEQA. It will result in no adverse economic impact on businesses in the state.

SECTION 15107 COMPLETION OF NEGATIVE DECLARATION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Public Resources Code sections 21100.2 and 21151.5 were amended in 1996 to lengthen the time limit for completion of a negative declaration. Where the time limit had previously been 105 days, agencies are now required to complete and approve a negative declaration within 180 days of accepting the application as complete

Specific Purpose of the Regulation

The proposed amendment is intended to update the regulations in response to legislative changes to CEQA.

Necessity and Explanation

The proposed change is necessary to conform the statute and the regulations, thereby avoiding the possibility of misleading agencies and the public as to an agency's responsibilities regarding completion and adoption of a negative declaration. The propose amendments specify that only projects defined in §21065(c) are subject to the 180-day limitation in §21100.2.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions conform this section to recently amended statutory requirements. They will result in no adverse economic impact on businesses in the state.

SECTION 15111 PROJECTS WITH SHORT TIME LIMITS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Section 15111(b)(1) contains an obsolete reference to a provision in the Subdivision Map Act that is no longer necessary to reference in the CEQA guidelines.

Section 15111(c) currently references a single, one year time limit. Under the Permit Streamlining Act, however, a variety of time limits exist, each dependent upon the specific facts of the project and many far shorter than one year.

Specific Purpose of the Regulation

The proposed amendments are intended to eliminate an obsolete reference in subdivision (b)(1), and to bring this section into closer alignment to the Permit Streamlining Act to which subdivision (c) makes reference.

Necessity and Explanation

Subdivision (b)(1) had previously been necessary to reconcile the competing demands of CEQA and the Subdivision Map Act regarding time limits for completion of an EIR and action on a tentative subdivision map, respectively. Subdivision (b)(1) permitted an agency to suspend the running of the shorter time limit in the Subdivision Map Act until the CEQA review process was completed, thereby relieving the agency of having to choose which of the Acts to comply with and which to ignore. Subsequent provisions in Government Code sections 66452.1 and 66452.2, however, have clarified that the 50-day time period for processing a tentative map does not commence until an EIR is certified, thereby eliminating the need for subdivision (b)(1).

Subdivision (c) currently refers to a single, one year time limit. Sections 65950 through 65957.5 contain a variety of time limits, depending on the type of CEQA document required, that have been altered by the legislature over the years, and many of which are less that one year. (See, for example, section 65950 (six months if EIR required; three months if a negative declaration prepared or if project is exempt); section 65952 (180 days if project requires permit from public agency).) The proposed amendments eliminate the single reference to specific time period and make the more generally appropriate reference to "the period established under the Permit Streamlining Act..." This change will also provide the benefit of not having to make future changes if the time limits in the Permit Streamlining Act receive future legislative amendment.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification and updating of the regulations with regard to corresponding statutory requirements. They will result in no adverse economic impact on businesses in the state.

SECTION 15120 GENERAL

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Though EIRs prepared under CEQA are public documents, there are certain categories of information that public agencies are exempted from disclosing pursuant to assorted statutory provisions including the California Public Records Act (Government Code §6250, et seq.).

Specific Purpose of the Regulation

This proposed amendment is intended to add a general alert for lead agencies to call to their attention the fact that certain information must not be included in EIRs, which are publicly circulated.

Necessity and Explanation

Current statutory provisions exempt the public disclosure by government agencies of certain types of information from the general policy in favor of public disclosure of government documents. Two of those categories of special concern in the CEQA context are "trade secrets" and information about the location of archaeological sites and sacred lands. The proposed amendment advises those involved in the CEQA process that such neither trade secrets (as prohibited from disclosure under §21160 of the Public Resources Code) nor information as to the location of archaeological sites or sacred land (as exempted under the Public Records Act) should be included in any public CEQA document.

The proposed section also makes a general reference to the applicable section of the Public Records Act which contains a comprehensive list of categories of documents not subject to the public access requirements of that act.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory requirements. They will result in no adverse economic impact on businesses in the state.

SECTION 15124 PROJECT DESCRIPTION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

The existing CEQA statute and Guidelines outline what an EIR must contain. Clarification of those provisions will provide greater guidance to the participants in the CEQA process.

Specific Purpose of the Regulation

The proposed amendment is intended to add additional clarification to section 15124 which guides lead agencies as to how a project must be described in an EIR.

Necessity and Explanation

The existing language of section 15124 contains the brief statement that an EIR must include in the project description, a "statement of objectives sought by the proposed project." The proposed amendments will clarify why that statement of objectives is important and how it will aid the agency in completion of other aspects of the EIR.

The other proposed change directs lead agencies to include a list of related environmental review and consultation requirements under federal, state, or local law, and that lead agencies should integrate CEQA review with those related review and consultation requirements. Once again, this will serve to make the CEQA process more efficient as extra steps are consolidated or eliminated.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory requirements. They will result in no adverse economic impact on businesses in the state.

SECTION 15125 ENVIRONMENTAL SETTING

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Existing law, including the Guidelines, guides lead agencies as to the contents of an EIR description of the environmental setting for a project. Existing section 15125 describes how the environmental setting of the project must be included in the EIR but it is vague as to exactly what point in time the setting's description should focus on.

Specific Purpose of the Regulation

The amendments to this section are intended to clarify the chronological starting point for descriptions of a project's environmental setting, to better guide lead agencies in that regard.

Necessity and Explanation

Section 15125 currently requires the inclusion of the environmental setting of a project in an EIR as that setting "exists before the commencement of the project." Given the lengthy start-up times on some projects, the time before the commencement of a project could be years. Similar to this issue is the fact that exactly what constitutes the "commencement" of a project may not be clear.

The proposed amendments are necessary to address this vagueness in the existing language of this section. The amendments will make it clear that the setting is to be considered as it exists at the time the application for the project is submitted, or, where no application is required, at the time environmental analysis is commenced. Another provision of the amendments will specify how agencies should deal with projects that involve the amendment, extension, or renewal of government authority for an existing facility, activity, or plan.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments to this section provide clarification of existing law. They will result in no adverse economic impact on businesses in the state.

SECTION 15126 ENVIRONMENTAL IMPACT

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Existing section 15126 contains a lengthy overview of what an EIR must contain with regard to analysis of the environmental impacts of a project. As it is, however, this section has grown to cumbersome proportions and its lengthy nature detracts from its utility for those who seek to use it to ensure compliance with CEQA.

Specific Purpose of the Regulation

The proposed amendments to section 15126 involve a division of this section and the creation of four separate sections, each dealing with more focused areas within the overall category of "consideration and discussion of environmental impacts." The changes are intended to further clarify what the contents of an EIR should include.

Necessity and Explanation

Above all, the proposed division of section 15126 is necessary to reduce the amount of text in a single section. The provisions contained in this section are crucial to the successful preparation of an EIR and should be readily approachable by those engaged in EIR production.

The proposed text for what would now be section 15126 is intended to serve as a general, but itemized "roadmap" of what must be included in an EIR. Reference will be made to the provisions of the newly created sections 15126.2, 15126.4, and 15126.6, and a list of topic headings which must be included in an EIR are also included.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing law, as applied by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15126.2 CONSIDERATION AND DISCUSSION OF SIGNIFICANT ENVIRONMENTAL IMPACTS [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Specific Purpose of the Regulation

This proposed new section is part of the package of dividing existing section 15126 into four separate sections, each dealing with more focused areas within the overall category of "consideration and discussion of environmental impacts." The changes are intended to further clarify what the contents of an EIR should include.

Necessity and Explanation

Proposed section 15126.2 takes subdivisions (a), (b), (e), and (f) from previously existing section 15126 and makes a few minor changes, including the clarification of the "baseline" for review and the inclusion of historical resources in the area of significant environmental effects.

These subdivisions all deal with the consideration and discussion of particular categories of significant environmental effects and will provide ease of reference for those seeking to ensure an EIR's compliance with CEQA.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide further clarification of existing California environmental law. They will result in no adverse economic impact on businesses in the state.

SECTION 15126.4 CONSIDERATION AND DISCUSSION OF MITIGATION MEASURES PROPOSED TO MINIMIZE SIGNIFICANT EFFECTS [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Specific Purpose of the Regulation

Necessity and Explanation

Proposed section 15126.4 incorporates subdivision (c) of the previous section 15126, regarding mitigation measures. This new section also includes large portions of the previous Appendix K (Historical/Archaeological Resources) which dealt with mitigation measures related to impacts on historical resources.

The prior subdivision (c) is imported as it existed, with the addition of the requirement that mitigation measures be fully enforceable through some legally binding means, and comply with applicable constitutional principles. These changes are made to reflect the directives in statute and caselaw of the same nature.

The provisions related to historical resources are imported from the existing Appendix K, with only minor changes in organization and to encourage the use of the Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings. This movement of the provisions of Appendix K was necessary in recognition of their substantive nature and the fact that they will be better highlighted in a numbered section than in the Appendix.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing California environmental law. They will result in no adverse economic impact on businesses in the state.

SECTION 15126.6 CONSIDERATION AND DISCUSSION OF ALTERNATIVES TO THE PROPOSED PROJECT [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Specific Purpose of the Regulation

Necessity and Explanation

The proposed section 15126.6 incorporates the previously existing subdivision (d) of section 15126, regarding consideration and discussion of alternatives to the proposed project. Added to these prior provisions are three main features: 1) a reminder that, consistent with caselaw, an EIR is not required to consider alternatives which are infeasible; 2) an itemization of factors that can be used to eliminate alternatives from consideration; and 3) an augmented description of how the "no project" alternative is to be carried out.

These assorted changes clarify these areas of EIR preparation and are necessary to both reflect recent caselaw on this subject and to better implement the statutory and caselaw requirements applicable to EIR preparation.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing law, as applied by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15130 CUMULATIVE IMPACTS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, public agencies must consider cumulative impacts. Though that term is defined in the Guidelines (section 15355), some public agencies have expressed dissatisfaction with the lack of guidance as to the extent of review necessary to produce a sound EIR.

Specific Purpose of the Regulation

The proposed amendments are designed to further clarify what should be the focus and contents of a cumulative impacts analysis in an EIR. The intent is to provide more effective guidance to the public agency preparing or supervising the preparation of an EIR.

Necessity and Explanation

Section 15130 gives guidance to public agencies on the discussion of cumulative impacts in an EIR. Considerable confusion and uncertainty continues to exist as to the extent of review required to yield a satisfactory discussion of cumulative impacts. It is necessary, therefore, that revisions to this section be made to provide greater clarity as to how cumulative impact analysis should be conducted.

Generally, the revisions to subdivision (a) provide further guidance on what is an appropriate discussion of cumulative effects. Specifically, the added language will permit an agency to incorporate by reference previous discussions of cumulative impacts in previously adopted EIR's. This added tool for public agencies will decrease the need for duplicative analyses of cumulative effects without sacrificing the underlying goals of CEQA regarding informed decisionmaking by local agencies based on substantive analysis of environmental effects of a project.

Subdivision (b) clarifies other aspects of cumulative impact analysis. Most notably, it provides a definition of "reasonably anticipated future projects" thereby giving additional guidance to lead agencies in that aspect of cumulative impacts. Additionally, the amendments to subdivision (b) requires an explanation of the geographic scope of cumulative impact analysis.

Finally, amendments to subdivisions (d) and (e) outline some instances where additional cumulative impacts analysis is not necessary due to the ability to tier environmental analysis or in certain circumstances where a cumulative impact was previously discussed in a community or general plan or a zoning action.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15152 TIERING

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Existing law calls for agencies to tier EIR preparation whenever possible (Public Resources Code Section 21093). Though this process is defined in the Guidelines, there has been confusion as to its application in the context of specific facts.

Specific Purpose of the Regulation

The proposed amendments are intended to provide further clarity to lead agencies with regard to tiering EIR's. Specifically, the changes better define "tiering" and provide additional illustrative examples in the use of tiering.

Necessity and Explanation

There continues to be uncertainty regarding tiering the scope of environmental review at a particular tier. In some cases, agencies have foregone analysis of reasonably foreseeable significant environmental effects claiming that such analysis could be completed in a later tier of the overall environmental review. The proposed changes to this section start with an improved definition of tiering which states that tiering is the use of analysis of general matters from a broader EIR (such as that prepared for a general plan) in a later, more focused EIR for a narrower project. The changes continue by pointing out that tiering does not excuse the agency from analyzing reasonably foreseeable significant environmental effects or permit the agency to defer such analysis to a later tier. These proposed changes are intended to provide greater guidance to lead agencies regarding the use of tiering while assisting them in avoiding the potential pitfall of inadequate review at the level of the first tier.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing law, as applied by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15162 SUBSEQUENT EIRs AND NEGATIVE DECLARATIONS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

CEQA calls for lead agencies to carry out assorted requirements to ensure that their discretionary decisions which have a potential significant environmental impact are informed decisions. Once the discretionary approval has been made, however, the lead agency's ability to require further environmental review ends.

Specific Purpose of the Regulation

The proposed amendment is intended to make clear for those in the CEQA process the fact that, even if subsequent information surfaces with regard to a particular project, a lead agency's ability to require further review ends once the discretionary approval for the project has been granted.

Necessity and Explanation

This amendment is necessary to clarify the role of lead agencies in the CEQA process and to identify what will, in most cases, be the endpoint of a lead agency's involvement in that process. The amendment incorporates existing caselaw and includes qualifying language noting that a lead agency's authority does continue where some further discretionary approval on a particular project is required.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing law, as applied by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15164 ADDENDUM TO AN EIR OR NEGATIVE DECLARATION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Existing provisions of section 15164 permit the preparation of an addendum to an adopted EIR or negative declaration under certain circumstances. There is a lack of uniformity, however, in the restrictions listed for addenda to EIRs and for negative declarations.

Specific Purpose of the Regulation

The proposed amendments are intended to bring uniformity to the itemized restrictions on use of an addendum to an EIR or to a negative declaration.

Necessity and Explanation

In its current form, section 15164 limits use of an addendum to a previously certified EIR to instances where some changes or additions are necessary but the conditions described in section 15162 (which outlines when a separate, subsequent EIR is required) have not occurred.

The proposed amendments are necessary to add the same restriction, regarding the existence of the conditions described in 15162, to the preparation of an addendum to an adopted negative declaration. This change is necessary to ensure uniformity and clarity in these provisions.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing law. They will result in no adverse economic impact on businesses in the state.

SECTION 15183 PROJECTS CONSISTENT WITH A COMMUNITY PLAN, GENERAL PLAN, OR ZONING

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Public Resources Code Section 21083.3, prior to 1992, authorized a limited EIR for residential projects which were consistent with a community plan or zoning, or a general plan for which an EIR had been prepared. In 1992, however, this section was amended to expand its provisions to cover all qualifying development projects. Section 15183 of the Guidelines has not been altered since 1992 to reflect this change.

Specific Purpose of the Regulation

The proposed amendments are intended to update to section 15183 to conform to the recent statutory changes.

Necessity and Explanation

The amendments to the CEQA statutory provisions regarding limitations on EIR usage greatly expanded the applicable range of projects to which it might apply. This expansion, from only residential projects to all types of development necessitates an update of the corresponding Guidelines section to ensure clarity and to prevent conflicting dictates.

The proposed amendments merely revise section 15183 to align its scope with the corresponding statute in the following ways:

Subdivision (a) adds a restatement of the general purpose of the statutory provisions.

Subdivision (b) makes minor conforming clarifications to the text.

Subdivision (f) amendments provide for mitigation hearings in certain circumstances where previously adopted development policies or standards had not included a finding as to whether the policies or standards would mitigate the effects of future projects.

Subdivision (g) adds four new examples of "uniformly applied development policies or standards."

Subdivision (i) defines "community plan" and "consistent" for purposes of this section.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing statutory law, as amended by the Legislature. They will result in no adverse economic impact on businesses in the state.

SECTION 15186 SCHOOL FACILITIES [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Chapter 1183 of the Statutes of 1991 added sections 21151.4 and 21151.8 to the Public Resources Code. These sections regulate projects which involve hazardous substances and which are on or near schoolsites. To date, however, no implementing and guiding provisions have been placed in the Guidelines.

Specific Purpose of the Regulation

The addition of section 15186 is intended to provide a single point of reference in the Guidelines by incorporating the provisions of both of the Public Resources Sections governing schoolsites and hazardous substances.

Necessity and Explanation

Section 15186 is necessary to clarify the duties of a lead agency when the project before it is on or near a schoolsite and involves some type of hazardous substance. The addition of this section will provide clarity for the Lead Agencies reviewing such a project by providing a single point of reference.

This new section will spell out the steps necessary to be taken depending on whether the project involving hazardous substances is the purchase or construction of a schoolsite or is a project within a quarter mile of an existing schoolsite. The section will guide the agency through the steps for compliance and will provide reference points for definitions of terms used in the section.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed section provides clarification of existing law, as enacted by the Legislature. It will result in no adverse economic impact on businesses in the state.

SECTION 15201 PUBLIC PARTICIPATION

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Specific Purpose of the Regulation

The intent of the proposed amendment is to broaden the opportunities for public access to CEQA information on the Internet and to provide a corresponding growth in public input into the CEQA process.

Necessity and Explanation

The proposed amendment adds to existing section 15201, which deals in general with public participation in CEQA, a specific requirement that agencies, whenever possible, should make environmental information available on an Internet web site maintained or utilized by the agency. This change is necessary to alert agencies to the use of this constantly developing tool for dissemination of information to members of the general public.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15202 PUBLIC HEARINGS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Specific Purpose of the Regulation

The intent of the proposed amendment is to broaden the opportunities for public access to CEQA information on the Internet and to provide a corresponding growth in public input into the CEQA process.

Necessity and Explanation

Existing section 15202 deals in general with a public agency's responsibilities with regard to any public hearings required under CEQA. The proposed amendment will add a specific encouragement to agencies to post notice of such hearings on an Internet web site, to the extent that such a site is maintained or used by the agency.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15204 FOCUS OF REVIEW

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, draft EIR's prepared by a lead agency are required to be circulated to both the public and to other public agencies for review and comment. Section 15204 sets parameters to assist those wishing to comment on a draft EIR in crafting their input in a manner that will be the most helpful to the lead agency. This section, however, is in need of an update based on recent statutory changes and judicial interpretations.

Specific Purpose of the Regulation

The purpose of the amendments is to provide further clarification on how those commenting on a draft EIR should fashion their comments. Additionally, the amendments are intended to give further guidance to responsible and trustee agencies that comment on draft EIR's.

Necessity and Explanation

The proposed amendments are necessary to help focus comments submitted on CEQA documents so that they may be more directly helpful in informing a lead agency as to potential significant impacts and give lead agencies some clarification in determining their responses to public comments. These amendments encourage commentors to include data, references, or expert opinion to provide substantial evidence to support their claim of significant effect on the environment.

Other provisions, subdivisions (d) and (f), of the amendments are necessary to clarify the relationship of a lead agency with a commenting responsible or trustee agency, specifically with regard to mitigation measures suggested by the responsible or trustee agency. The proposed amendments spell out how that relationship should proceed and how suggested mitigation measures should be handled.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments provide clarification of existing law, as enacted by the Legislature. They will result in no adverse economic impact on businesses in the state.

SECTION 15205 REVIEW BY STATE AGENCIES

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Existing provisions of the Guidelines impose assorted reporting requirements but do not give proper recognition to the recent explosive growth in the use of computer word processing and other information technology in the production of those documents.

Specific Purpose of the Regulation

The proposed amendment requires, in addition to the printed copies of draft EIRs and negative declarations, the submission of the document to the State Clearinghouse in electronic form on a diskette or by way of e-mail, if such an electronic form is available. This is intended as a first step toward an ultimate reduction in the amount of paperwork generated under CEQA and is in recognition of the increasingly widespread use of such information technology.

Necessity and Explanation

As noted above, this change is necessary to begin to alter the reporting requirements of the Guidelines in a direction which recognizes the growth of information technology and the future in general. This provision will, at this point, only be applicable where the public agency has access to such technology but will be an important first step toward reducing paperwork in this area.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments provide clarification in the implementation of CEQA. Since the use of electronic copies of such documents is only required where they are available, the amendments will result in no adverse economic impact on businesses in the state.

SECTION 15206 PROJECTS OF STATEWIDE, REGIONAL, OR AREAWIDE SIGNIFICANCE

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Specific Purpose of the Regulation

Necessity and Explanation

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15231 ADEQUACY OF EIR OR NEGATIVE DECLARATION FOR USE BY LEAD AND RESPONSIBLE AGENCIES

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Public Resources Code Section 21167.2 establishes a legal presumption that a certified EIR is valid, for purposes of use by certain other agencies, where no legal challenge is initiated within a specified time. Where legal challenge is initiated, however, there is currently a lack of guidance for responsible agencies which have issued permits based upon the challenged EIR as to how to those permits are affected by the litigation.

Specific Purpose of the Regulation

The proposed amendments are intended to update and clarify the Guidelines regarding the presumption of validity of a certified EIR, and the effect of legal challenge to and EIR on permits issued by responsible agencies in reliance upon the challenged EIR.

Necessity and Explanation

Much confusion currently exists as to how responsible agencies should proceed with regard to permits issued in reliance upon an EIR which is later challenged in court. In order that there be clarity on this topic and that permit approvals be uniformly assessed in light of a court judgment, the proposed amendments are necessary.

Subdivision (b) is proposed to added to provide guidance to responsible agencies regarding their permits where a court has finally adjudged an environmental document not to comply with CEQA but has failed to address the validity of the responsible agency's permits. Specifically, the amendments direct the responsible agency to determine whether the relief imposed by the court has a bearing upon its decision. If, as described, the relief has a bearing on the responsible agency's decision, the approval must be set aside, but if the relief has no bearing then the approval may stand.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed revisions provide clarification of existing law, as interpreted and applied by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15269 EMERGENCY PROJECTS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

The holdings in Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App.4th 1257, and Western Municipal Water District of Riverside County v. Superior Court (1987) 187 Cal.App.3d 1104, and the enactment of Public Resources Code Section 21080.33 in 1996 have both changed and clarified the law relating to exemptions from CEQA for emergency projects so as to render section 15269 less than accurate as a reference tool for agencies and the public.

Specific Purpose of the Regulation

The proposed amendments are intended to update section 15269 in light of the developments in the law, both from caselaw and statute, so as to provide a more complete reference point regarding emergency projects and CEQA.

Necessity and Explanation

Though section 15269 accurately describes some emergency projects that are exempt from CEQA, it is inadequate in two major aspects. First, the section does not provide a cautionary note to the reader as to the limitations placed upon such projects by the courts in Castaic Lake and Western Municipal Water District. These cases, which interpreted the emergency project exemption, held that projects categorized as emergencies must be necessary as a response to the emergency-producing event, and that the project must involve a clear and imminent danger, in need of immediate attention. Using a more tenuous connection to the emergency, such as "the project will at some point assist in mitigating the effects of a disaster," was held not to be sufficient.

One aspect of the proposed amendments is intended to incorporate the holdings in these cases as a cautionary note to those referring to this section. As a result, the section will clearly state that the emergency exemption is intended only to apply to situations where the project is immediately necessary to protect the health, safety and welfare of the community. Further, subdivision (c) notes that long-term projects intended to prevent or mitigate a disaster with a low probability of short-term occurrence are also not permitted under the emergency exemption.

The second inconsistency addressed by the proposed amendments is the addition of Public Resources Code Section 21080.33, relating to the exemption from CEQA of emergency highway projects. This section, added in 1996, exempts emergency projects undertaken to maintain, repair, or restore an existing highway damaged as a result of any of a number of enumerated disasters.

The proposed amendments also reflect new statutory exemptions for emergency highway repairs provided in §21080.33 of the Public Resources Code, and seismic retrofit projects described in §180.2 of the Streets and Highways Code.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments provide clarification of existing law, as enacted by the Legislature and as interpreted by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15276 ~~STATE AND REGIONAL~~ TRANSPORTATION IMPROVEMENT AND CONGESTION MANAGEMENT PROGRAMS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Existing section 15276 identifies and interprets the exemption from CEQA that applies to the development or adoption of state and regional transportation improvement programs. Section 15276 does not, however, reference the exemption for a congestion management program that was added to Public Resources Code Section 21080 in 1996.

Specific Purpose of the Regulation

The proposed amendment to section 15276 are intended to update the reference to exemptions both for transportation improvement programs and for county congestion management programs

Necessity and Explanation

The addition of a subdivision (b) to section 15276 is necessary to provide clarity of reference in Article 18 of the Guidelines, which covers statutory exemptions. The inclusion of county congestion management programs among the exemptions contained in PRC Section 21080 added to the range of statutory exemptions: the proposed amendment will incorporate that provision in the Guidelines.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments to this section provide clarification of existing law, as enacted by the Legislature. They will result in no adverse economic impact on businesses in the state.

SECTION 15283 HOUSING NEEDS ALLOCATION [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Government Code Section 65584 was amended by the Legislature to exempt regional housing needs determinations from the provisions of CEQA. This statutory exemption has not, however, been incorporated into the CEQA statutory provisions or the Guidelines.

Specific Purpose of the Regulation

The addition of section 15283 is intended to provide reference to the statutory exemption contained in Government Code.

Necessity and Explanation

Statutory exemptions from CEQA are typically codified in the Public Resources Code (see sections 21080 through 21080.33). The statutory exemption for housing needs determinations made by the Department of Housing and Community Development or a council of governments is only referenced in Government Code Section 65584.

In keeping with goal of the Guidelines being a thorough reference source for public agencies and the public regarding application of CEQA, the addition of section 15283 to the Guidelines will provide reference to this exemption that otherwise might be overlooked due to its relatively isolated location in the Government Code.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed new section provides clarification of existing law, as enacted by the Legislature. It will result in no adverse economic impact on businesses in the state.

SECTION 15284 PIPELINES [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Chapter 765 of the Statutes of 1996 added Public Resources Code Section 21080.23, relating to the exemption from CEQA of projects to maintain, repair, restore, etc., any existing pipeline. This statutory exemption currently has no interpretive corresponding provision in the Guidelines.

Specific Purpose of the Regulation

The addition of section 15284 is intended to provide regulatory reference to and interpretation of the provisions of PRC section 21080.23.

Necessity and Explanation

Article 18 of the Guidelines contains the regulatory references to the statutory exemptions enacted by the Legislature and located in Public Resources Code Sections 21080 through 21080.33. Proposed section 15284 is necessary to provide clarity of reference for agencies and the public with regard to the statutory exemptions.

The new section consists of the identification and interpretation of the statutory exemption for projects related to an existing pipeline. The section also identifies the restrictions on the statutory exemption.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed section provides clarification of existing law, as enacted by the Legislature. It will result in no adverse economic impact on businesses in the state.

SECTION 15285 TRANSIT AGENCY RESPONSES TO REVENUE SHORTFALLS [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

In 1996 the legislature enacted a new section of the Public Resources Code relating to an exemption for actions taken by a publicly owned transit agency in response to revenue shortfalls. This provision has yet to be incorporated into the CEQA Guidelines.

Specific Purpose of the Regulation

The proposed deletion of the previous text and addition of the new text is intended to remove an outdated section and to update the Guidelines in response to the recently added Public Resources Code Section 21080.32.

Necessity and Explanation

The new text for section 15285 is necessary to provide clarity and completeness in the Guidelines with regard to types of projects exempt from CEQA. Article 18 of the Guidelines, of which section 15285 is a part, references the regulatory implementation of the statutory exemptions in the Public Resources Code.

The inclusion of the new text will assist both agencies and the public in determining whether the actions of a public transit agency, alleged to be taken in response to a revenue shortfall, are indeed within the parameters set by the Legislature.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed new text for this section provides clarification of existing law, as enacted by the Legislature. They will result in no adverse economic impact on businesses in the state.

SECTION 15300.2 EXCEPTIONS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Article 19 of the Guidelines provides reference to agencies and the public regarding categorical exemptions from CEQA, those projects which have been found by the Secretary for Resources not to have a significant effect on the environment. In some cases, however, statute or caselaw has modified these categorical exemptions and carved out areas of projects which are subject to CEQA, notwithstanding their inclusion in a larger class of projects that fall within the categorical exemption. Section 15300.2 contains a list of such exceptions, but recent statutory modifications and judicial interpretations have rendered the list incomplete.

Specific Purpose of the Regulation

The proposed amendments to section 15300.2 are intended to update this section and to provide more complete guidance to both agencies and the public regarding certain types of projects which must be reviewed under CEQA, notwithstanding their apparent coverage by a categorical exemption.

Necessity and Explanation

Amendments to Public Resources Code Sections 21084 and 21084.1 qualified the ability of the Secretary for Resources to identify classes of projects which have been determined to have no significant effect on the environment. Among these qualifications were the categories of projects which might damage an official state scenic highway, a project located on a hazardous waste site, and a project which may cause substantial adverse effect to a historical resource.

To ensure that section 15300.2 is clear and complete as to exceptions from the categorical exemptions contained in Article 19 of the Guidelines, the proposed amendments itemize the three additional classes of exceptions, as contained in PRC Sections 21084 and 21084.1. Proposed subdivision (f) is also consistent with recent caselaw regarding CEQA and historical resources (see, e.g., League for the Protection of Oakland's Architectural and Historic Resources v. City of Oakland (1997) -- Cal.App.4th --).

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments to this section provide clarification of existing law, as enacted by the Legislature and as interpreted by the courts of California. They will result in no adverse economic impact on businesses in the state.

SECTION 15301 EXISTING FACILITIES

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, projects or existing facilities involving negligible or no expansion of use are exempt from CEQA because as a class they do not have a significant effect on the environment. This section, however, is in need of updating.

Specific Purpose of the Regulation

The proposed amendments to this section provide greater clarity as to the nature of projects that fall within this class of exempt projects and provide greater focus to lead agencies in determining whether a project fits the criteria of this class.

Necessity and Explanation

The proposed amendments clarify that "permitting, leasing, and licensing" of a project which will involve negligible or no expansion of use beyond that previously existing, are included in this exemption.

The proposed amendments clarify that the focus on the applicability of this exemption shall be the measure of "negligible or no expansion of use" of an existing facility. This change is necessary to identify for lead agencies exactly when the application of the categorical exemption should occur.

The proposed amendments add one additional example of a project that might fall within Class 1.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments to this section provide clarification of existing law, as implemented through findings by the Secretary of the Resources Agency. They will result in no adverse economic impact on businesses in the state.

SECTION 15303 NEW CONSTRUCTION OR CONVERSION OF SMALL STRUCTURES

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, new construction or conversion of small structures are exempt from CEQA because as a class of projects, they do not have a significant effect on the environment. The provisions of this section are in need of minor modifications.

Specific Purpose of the Regulation

The amendments will provide greater clarity as to the nature of projects that fall within this class.

Necessity and Explanation

The proposed revisions are necessary to give better definition to the types of projects meeting the criteria of the Class 3 exemption.

The proposed amendments will update references to various types of multi-family residential structures and street improvements, where such activities meet certain overall criteria for Class 3. The proposed amendments will also make other minor, clarifying changes.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15304 MINOR ALTERATIONS OF LAND

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, projects involving minor alterations of land are exempt from CEQA because as a class of projects, they do not have a significant effect on the environment. The provisions of this section are in need of minor modifications.

Specific Purpose of the Regulation

The amendments will provide greater clarity as to the nature of projects (minor alterations of land) that fall within this class.

Necessity and Explanation

Pursuant to the authority provided by law, the Secretary of the Resources Agency has found to be exempt from CEQA, as an addition to Class 4, certain activities related to alteration of ground and vegetation in connection with a project.

The proposed amendments will add reference to the replacement of existing landscaping with water efficient or fire resistant landscaping, and fuel management activities within 150 feet of structures, provided no endangered species are taken. It is necessary to add these provisions to the Guidelines for completeness of reference.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15307 ACTIONS BY REGULATORY AGENCIES

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, specified actions by regulatory agencies for the protection of natural resources are exempt from CEQA because as a class of projects, they do not have a significant effect on the environment. These provisions are in need of minor modification.

Specific Purpose of the Regulation

The amendments will provide greater clarity as to the nature of projects that fall within this class of actions by regulatory agencies which do not have a significant effect on the environment.

Necessity and Explanation

Pursuant to the authority provided by law, the Secretary of the Resources Agency has found to be exempt from CEQA certain actions taken by regulatory agencies for the protection of natural resources. The proposed revisions clarify that the adoption of a natural community conservation plan is included within this class. As a result of this finding, it is necessary to add these provisions to the Guidelines for completeness of reference.

The proposed amendments also clarify that activities to enhance production of geothermal, oil, natural gas, or mineral resources are not included in the overall Class 7 exemption.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15316 TRANSFER OF OWNERSHIP OF LAND IN ORDER TO CREATE PARKS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, acquisitions of land in order to establish a park are exempt from CEQA because as a class of projects, they do not have a significant effect on the environment. The section is in need of minor, clarifying revisions.

Specific Purpose of the Regulation

The proposed amendments make minor changes, primarily intended to clarify that acquisition or sale of land are not the only two ways to establish parks by way of this section.

Necessity and Explanation

As currently written, section 15316 describes Class 16 as "acquisition or sale of land in order to establish a park..." This seemingly limits the use of this section to those two types of property transfer and could result in other means, such as conservation easements, being overlooked. Adding "or other transfer" to the description of this class is necessary to ensure that other legal means of property transfer are acceptable to realize the goal of establishing parks.

The proposed amendments also make non-substantive, descriptive changes to references in the section to historical and archaeological resources.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15325 TRANSFERS OF OWNERSHIP IN LAND TO PRESERVE ~~OPEN SPACE~~ EXISTING NATURAL CONDITIONS

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, transfers of ownership in interests in land in order to preserve open space are exempt from CEQA because as a class of projects, they do not have a significant effect on the environment. This section, however, is in need of modifications to ensure that its provisions are not interpreted in an overly narrow manner.

Specific Purpose of the Regulation

The proposed amendments are intended to recognize methods of property transfer in addition to "acquisition," and to make specific reference to the importance of plant and animal habitats and historical resources.

Necessity and Explanation

Though the initial paragraph of this section is intended to describe a class as of projects involving "transfers of ownership in interests in land," the four examples given only reference "acquisition" of property. The proposed change will add "sale or other transfer" to each of the examples. It is necessary to give proper recognition of the fact that public agencies may not only acquire but transfer rights to another agency, non-profit entity, land trust, or individual for purposes of preservation or restoration. This section is also amended to make clear that the property being preserved need not solely be open space but may involve preservation of existing natural conditions including habitats and historical resources as well as open space.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15331 MINOR ACTIONS TO PREVENT, MINIMIZE, STABILIZE, MITIGATE OR ELIMINATE THE RELEASE OR THREAT OF RELEASE OF HAZARDOUS WASTE OR HAZARDOUS SUBSTANCES [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

This regulation would establish a categorical exemption from the application of the California Environmental Quality Act (CEQA) for minor actions to prevent, minimize, stabilize, mitigate or eliminate the release or threat of release of hazardous waste or hazardous substances. The regulation is being adopted under the authority of Section 21084 of the Public Resources Code.

Specific Purpose of the Regulation

This regulation is necessary in order to provide, subject to certain conditions, relief from unnecessary paperwork in generating initial studies under CEQA for minor cleanup actions that, as a category, do not have a significant effect on the environment.

Necessity and Explanation

The proposed regulation would relieve public agencies from their obligations under CEQA for a new class of projects, minor cleanup actions, which have been determined not to have a significant effect on the environment. The regulation would specify that such exempted cleanup actions must fall into the category of small or medium removal actions, which, in the case of projects undertaken by the Department of Toxic Substances Control (DTSC), are estimated to cost less than $1 million for design and implementation. The exemption specifically excludes projects involving the use of hazardous waste incinerators or thermal treatment units. All projects making use of the exemption must be consistent with local and state environmental permitting requirements. The proposed regulation would relieve public agencies from the exercise and expense of drafting an Initial Study for such projects.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15332 HISTORICAL RESOURCE RESTORATION / REHABILITATION [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Existing law provides special protections for historical resources. Under CEQA, a project which may cause a substantial adverse change in the significance of a historical resource is a project which may have a significant effect on the environment. This provision does not, however, provide guidance as to efforts to restore or rehabilitate historical resources.

Specific Purpose of the Regulation

The proposed new section implements the finding by the Secretary for Resources that efforts to restore or rehabilitate a historical resource, if conducted in a manner consistent with the Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings, do not cause a significant effect on either historical resources or the environment.

Necessity and Explanation

As noted, though special protections are provided under CEQA to avoid substantial adverse effects to historical resources, it is necessary to give special consideration to efforts to restore or rehabilitate such resources for the benefit of future generations. This proposed new categorical exemption recognizes that the Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings provide special guidance to efforts to restore historical resources with preservation of the resource being of paramount importance. As a result, this section implements the finding that, subject to the limits in this section, adherence to the Secretary of the Interior's standards will, as a category of projects, not cause a significant effect on either historical resources or the environment.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15333 IN-FILL DEVELOPMENT PROJECTS [new section]

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Widely dispersed development, or "sprawl," though it contributed to the economic and population boom in California in the past 50 years, now stands as a force to degrade the quality of life for residents of the state. Reduction of sprawl and its costs is a policy that needs attention in CEQA.

Specific Purpose of the Regulation

Proposed Class 33 implements a finding by the Secretary for Resources that "in-fill development" which meets described conditions do not cause a significant effect on the environment.

Necessity and Explanation

As noted above, though sprawl is partly responsible for the rise of the California economy, it now poses a threat to our quality of life. The permanent loss of farmland, increased use of automobiles for commuting, and degradation of central city neighborhoods are just some of the costs associated with sprawl.

This categorical exemption will implement a finding that development which meets specific requirements and which is "in-fill" or development in areas already developed, does not pose a significant effect on the environment.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

SECTION 15378 PROJECT

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Amendment to the Regulation is Intended to Address

Under existing law, section 15378 contains the basic definition of what constitutes a "project" for purposes of CEQA. Currently, Sections 15060 and 15061, and 15378 incorrectly and inconsistently refer to projects, non-projects, and exempt projects.

Specific Purpose of the Regulation

The proposed amendments to this section are intended to, in conjunction with changes to sections 15060 and 15061, clarify that exemptions do not cause an activity to not be considered a project. It also clarifies that purely organizational or administrative activities of governments that do not cause physical changes in the environment are not projects.

Necessity and Explanation

Proposed changes to sections 15060 and 15061 clarify for lead agencies the preliminary review process. Specifically the changes will better lay out the fact that the first determination to be made is whether an activity is a project. Once it is determined that an activity is a project, the agency may proceed to determine whether the project has nevertheless been exempted from CEQA by statute or guideline. The proposed change to section 15378 is necessary to fully implement the clarifying changes to the preceding sections, to avoid confusion when referring to the definition of "project." Specifically, the change will remove a reference that an activity exempted from CEQA by state law is not a project.

The proposed revisions are also necessary to make clear that purely organizational or administrative activities of governments that do not cause physical changes in the environment are not projects.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed amendments to this section provide clarification of existing law, as contained in the Guidelines. They will result in no adverse economic impact on businesses in the state.

APPENDIX G and I CONSOLIDATION ENVIRONMENTAL CHECKLIST

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Existing Appendix G identifies examples of certain types of effects that may be deemed to have a substantial effect on the environment. Existing Appendix I provides an environmental checklist for use by lead agencies in determining when an impact is a potentially significant environmental effect. This has made Appendix G a redundant, less specific, and outdated tool.

Specific Purpose of the Regulation

The proposed change to combine and augment Appendix G and Appendix I will provide a more focused and comprehensive analysis of the effects of the proposed project than that currently provided in the separate Appendices..

Necessity and Explanation

Existing Appendix G identifies examples of certain types of effects that may be deemed to have a significant effect on the environment. The individual categories, however, are often very general ("substantially diminish habitat," "use fuel, water or energy in a wasteful manner," "displace a large number of people"). In contrast, the environmental checklist, as augmented, provides seventeen separate categories, each with an average of five more focused questions as to the project's impact. This checklist will provide a level of analysis far more focused and broad than that currently provided by Appendix G's more general approach.

This change is necessary to ensure that the proper level of environmental analysis is completed by lead agencies when evaluating a particular project. The augmented checklist, with additional focus on effects on agricultural resources, noise effects, and hazards such as flooding will provide those involved in the CEQA project with a useful template for evaluating the environmental effects of a proposed project. It proposes that lead agencies identify a significance criterion or threshold used to evaluate each question and that any mitigation measures be identified. The revisions also add questions regarding candidate, sensitive, and species of special concern.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed consolidation of Appendices provides clarification of existing law. It will result in no adverse economic impact on businesses in the state.

APPENDIX K: REPEAL AND TRANSFER OF PROVISIONS TO GUIDELINES TEXT

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Existing Appendix K provides guidance to those in the CEQA process with regard to archaeological impacts. Its provisions, however, contain limited discussion of historical resources and, more importantly, read much more like actual regulations than like an Appendix.

Specific Purpose of the Regulation

The proposal for this section is to repeal its provisions and to move them to numbered sections elsewhere in the Guidelines.

Necessity and Explanation

As noted above, of all the appendices, Appendix K is structured the most like an actual provision in the numbered regulations. Whereas other appendices contain tables or sample forms, Appendix K contains actual limitations and requirements in the CEQA process. Based on public suggestions, this proposal will take the provisions of Appendix K out of the Appendix area and transfer them to sections 15064.5 and 15126.4.

This change is necessary in order to clarify to participants in the CEQA process that historical and archaeological impacts are important considerations when assessing environmental effect or crafting mitigation measures. The inclusion of the provisions in the sections specifically dealing with significance of impacts and mitigation measures will underscore this importance and provide clarification to all involved.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed repeal of Appendix K and transfer of its provisions elsewhere in the Guidelines provides clarification of existing law. It will result in no adverse economic impact on businesses in the state.

APPENDIX J GUIDE TO TIERING

Public Problem, Administrative Requirement, or Other Condition or Circumstance that the Regulation is Intended to Address

Existing provisions of CEQA provide assorted types of EIRs which may be used to satisfy any required environmental review. The expansion of these types of available EIRs has resulted in confusion as to exactly which type may be used in any given instance.

Specific Purpose of the Regulation

The proposed new Appendix is intended to provide some clarity and a single initial reference point as to proper usage of the types of EIRs currently available.

Necessity and Explanation

As noted, the need for this Appendix is simple: once it is determined that an EIR is necessary for a particular project, the participants in the CEQA process need some type of a starting point for deciding which of the many types of EIRs will be the best to use in that situation. The proposed Appendix J provides an initial "at a glance" guide to the types of EIRs currently permitted by statute. Once a particular type is identified, further reference to the statute and Guidelines may proceed.

Alternatives to the Proposed Regulatory Action that Would be as Effective and Less Burdensome to Private Persons

Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse Economic Impact on Business

The proposed new text for this Appendix provides clarification of existing law regarding the use tiering in preparation of EIRs. It will result in no adverse economic impact on businesses in the state.

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