Chapter 2.6: General

§ 21080. Division application to discretionary projects;

nonapplication; negative declarations; environmental

impact report preparation

(a) Except as otherwise provided in this division, this

division shall apply to discretionary projects proposed to be carried

out or approved by public agencies, including, but not limited to,

the enactment and amendment of zoning ordinances, the issuance of

zoning variances, the issuance of conditional use permits, and the

approval of tentative subdivision maps unless the project is exempt

from this division.

(b) This division does not apply to any of the following

activities:

(1) Ministerial projects proposed to be carried out or approved by

public agencies.

(2) Emergency repairs to public service facilities necessary to

maintain service.

(3) Projects undertaken, carried out, or approved by a public

agency to maintain, repair, restore, demolish, or replace property or

facilities damaged or destroyed as a result of a disaster in a

disaster-stricken area in which a state of emergency has been

proclaimed by the Governor pursuant to Chapter 7 (commencing with

Section 8550) of Division 1 of Title 2 of the Government Code.

(4) Specific actions necessary to prevent or mitigate an

emergency.

(5) Projects which a public agency rejects or disapproves.

(6) Actions undertaken by a public agency relating to any thermal

powerplant site or facility, including the expenditure, obligation,

or encumbrance of funds by a public agency for planning, engineering,

or design purposes, or for the conditional sale or purchase of

equipment, fuel, water (except groundwater), steam, or power for a

thermal powerplant, if the powerplant site and related facility will

be the subject of an environmental impact report, negative

declaration, or other document, prepared pursuant to a regulatory

program certified pursuant to Section 21080.5, which will be prepared

by the State Energy Resources Conservation and Development

Commission, by the Public Utilities Commission, or by the city or

county in which the powerplant and related facility would be located

if the environmental impact report, negative declaration, or document

includes the environmental impact, if any, of the action described

in this paragraph.

(7) Activities or approvals necessary to the bidding for, hosting

or staging of, and funding or carrying out of, an Olympic games under

the authority of the International Olympic Committee, except for the

construction of facilities necessary for the Olympic games.

(8) The establishment, modification, structuring, restructuring,

or approval of rates, tolls, fares, or other charges by public

agencies which the public agency finds are for the purpose of (A)

meeting operating expenses, including employee wage rates and fringe

benefits, (B) purchasing or leasing supplies, equipment, or

materials, (C) meeting financial reserve needs and requirements, (D)

obtaining funds for capital projects necessary to maintain service

within existing service areas, or (E) obtaining funds necessary to

maintain those intracity transfers as are authorized by city charter.

The public agency shall incorporate written findings in the record

of any proceeding in which an exemption under this paragraph is

claimed setting forth with specificity the basis for the claim of

exemption.

(9) All classes of projects designated pursuant to Section 21084.

(10) A project for the institution or increase of passenger or

commuter services on rail or highway rights-of-way already in use,

including modernization of existing stations and parking facilities.

(11) A project for the institution or increase of passenger or

commuter service on high-occupancy vehicle lanes already in use,

including the modernization of existing stations and parking

facilities.

(12) Facility extensions not to exceed four miles in length which

are required for the transfer of passengers from or to exclusive

public mass transit guideway or busway public transit services.

(13) A project for the development of a regional transportation

improvement program, the state transportation improvement program, or

a congestion management program prepared pursuant to Section 65089

of the Government Code.

(14) Any project or portion thereof located in another state which

will be subject to environmental impact review pursuant to the

National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et

seq.) or similar state laws of that state. Any emissions or

discharges that would have a significant effect on the environment in

this state are subject to this division.

(15) Projects undertaken by a local agency to implement a rule or

regulation imposed by a state agency, board, or commission under a

certified regulatory program pursuant to Section 21080.5. Any

site-specific effect of the project which was not analyzed as a

significant effect on the environment in the plan or other written

documentation required by Section 21080.5 is subject to this

division.

otherwise exempt from this division, would not have a significant

effect on the environment, the lead agency shall adopt a negative

declaration to that effect. The negative declaration shall be

prepared for the proposed project in either of the following

circumstances:

(1) There is no substantial evidence, in light of the whole record

before the lead agency, that the project may have a significant

effect on the environment.

(2) An initial study identifies potentially significant effects on

the environment, but (A) revisions in the project plans or proposals

made by, or agreed to by, the applicant before the proposed negative

declaration and initial study are released for public review would

avoid the effects or mitigate the effects to a point where clearly no

significant effect on the environment would occur, and (B) there is

no substantial evidence, in light of the whole record before the lead

agency, that the project, as revised, may have a significant effect

on the environment.

(d) If there is substantial evidence, in light of the whole record

before the lead agency, that the project may have a significant

effect on the environment, an environmental impact report shall be

prepared.

(e) (1) For the purposes of this section and this division,

substantial evidence includes fact, a reasonable assumption

predicated upon fact, or expert opinion supported by fact.

(2) Substantial evidence is not argument, speculation,

unsubstantiated opinion or narrative, evidence that is clearly

inaccurate or erroneous, or evidence of social or economic impacts

that do not contribute to, or are not caused by, physical impacts on

the environment.

(f) As a result of the public review process for a mitigated

negative declaration, including administrative decisions and public

hearings, the lead agency may conclude that certain mitigation

measures identified pursuant to paragraph (2) of subdivision (c) are

infeasible or otherwise undesirable. In those circumstances, the

lead agency, prior to approving the project, may delete those

mitigation measures and substitute for them other mitigation measures

that the lead agency finds, after holding a public hearing on the

matter, are equivalent or more effective in mitigating significant

effects on the environment to a less than significant level and that

do not cause any potentially significant effect on the environment.

If those new mitigation measures are made conditions of project

approval or are otherwise made part of the project approval, the

deletion of the former measures and the substitution of the new

mitigation measures shall not constitute an action or circumstance

requiring recirculation of the mitigated negative declaration.

(g) Nothing in this section shall preclude a project applicant or

any other person from challenging, in an administrative or judicial

proceeding, the legality of a condition of project approval imposed

by the lead agency. If, however, any condition of project approval

set aside by either an administrative body or court was necessary to

avoid or lessen the likelihood of the occurrence of a significant

effect on the environment, the lead agency's approval of the negative

declaration and project shall be invalid and a new environmental

review process shall be conducted before the project can be

reapproved, unless the lead agency substitutes a new condition that

the lead agency finds, after holding a public hearing on the matter,

is equivalent to, or more effective in, lessening or avoiding

significant effects on the environment and that does not cause any

potentially significant effect on the environment.

§ 21080.01. California Men's Colony West Facility in

San Luis Obispo County; inapplicability of division

to reopening and operation

This division shall not apply to any activity or approval

necessary for the reopening and operation of the California Men's

Colony West Facility in San Luis Obispo County.

§ 21080.02. Kings County; vicinity of Corcoran; new

prison facilities; application of division

This division shall not apply to any activity or approval

necessary for or incidental to planning, design, site acquisition,

construction, operation, or maintenance of the new prison facility at

or in the vicinity of Corcoran in Kings County as authorized by the

act that enacted this section.

§ 21080.03. Kings and Amador (Ione) Counties;

prisons; application of division

This division shall not apply to any activity or approval

necessary for or incidental to the location, development,

construction, operation, or maintenance of the prison in the County

of Kings, authorized by Section 9 of Chapter 958 of the Statutes of

1983, as amended, and of the prison in the County of Amador (Ione),

authorized by Chapter 957 of the Statutes of 1983, as amended.

§ 21080.04. Rocktram-Krug passenger rail service

project; application of division; lead agency;

legislative intent

(a) Notwithstanding paragraph (10) of subdivision (b) of

Section 21080, this division applies to a project for the institution

of passenger rail service on a line paralleling State Highway 29 and

running from Rocktram to Krug in the Napa Valley. With respect to

that project, and for the purposes of this division, the Public

Utilities Commission is the lead agency.

(b) It is the intent of the Legislature in enacting this section

to abrogate the decision of the California Supreme Court "that

Section 21080, subdivision (b)(11), exempts Wine Train's institution

of passenger service on the Rocktram-Krug line from the requirements

of CEQA" in Napa Valley Wine Train, Inc. v. Public Utilities Com., 50

Cal. 3d 370.

to confer jurisdiction upon the Public Utilities Commission with

respect to, any other project involving rail service.

§ 21080.05. San Francisco Peninsula commute service

project between San Francisco and San Jose;

application of division

This division does not apply to a project by a public

agency to lease or purchase the rail right-of-way used for the San

Francisco Peninsula commute service between San Francisco and San

Jose, together with all branch and spur lines, including the

Dumbarton and Vasona lines.

§ 21080.07. Riverside and Del Norte Counties; planning

and construction of new prison facilities; application of

division

This division shall not apply to any activity or approval

necessary for or incidental to planning, design, site acquisition,

construction, operation, or maintenance of the new prison facilities

located in any of the following places:

(a) The County of Riverside.

(b) The County of Del Norte.

§ 21080.08. Funding by Rural Economic Development

Infrastructure Panel; application of division

This division shall not apply to any activity or approval

necessary for or incidental to project funding, or the authorization

for the expenditure of funds for the project, by the Rural Economic

Development Infrastructure Panel pursuant to Article 5 (commencing

with Section 15373.6) of Chapter 2.5 of Part 6.7 of Division 3 of

Title 2 of the Government Code.

§ 21080.09. Public higher education; campus location; long

range development plans

(a) For purposes of this section, the following

definitions apply:

(1) "Public higher education" has the same meaning as specified in

Section 66010 of the Education Code.

(2) "Long range development plan" means a physical development and

land use plan to meet the academic and institutional objectives for

a particular campus or medical center of public higher education.

(b) The selection of a location for a particular campus and the

approval of a long range development plan are subject to this

division and require the preparation of an environmental impact

report. Environmental effects relating to changes in enrollment

levels shall be considered for each campus or medical center of

public higher education in the environmental impact report prepared

for the long range development plan for the campus or medical center.

center of public higher education is subject to this division and may

be addressed, subject to the other provisions of this division, in a

tiered environmental analysis based upon a long range development

plan environmental impact report.

(d) Compliance with this section satisfies the obligations of

public higher education pursuant to this division to consider the

environmental impact of academic and enrollment plans as they affect

campuses or medical centers, provided that any such plans shall

become effective for a campus or medical center only after the

environmental effects of those plans have been analyzed as required

by this division in a long range development plan environmental

impact report or tiered analysis based upon that environmental impact

report for that campus or medical center, and addressed as required

by this division.

§ 21080.1. Environmental impact report or negative declaration;

determination by lead agency; finality; consultation

(a) The lead agency shall be responsible for determining

whether an environmental impact report, a negative declaration, or a

mitigated negative declaration shall be required for any project

which is subject to this division. That determination shall be final

and conclusive on all persons, including responsible agencies,

unless challenged as provided in Section 21167.

(b) In the case of a project described in subdivision (c) of

Section 21065, the lead agency shall, upon the request of a potential

applicant, provide for consultation prior to the filing of the

application regarding the range of actions, potential alternatives,

mitigation measures, and any potential and significant effects on the

environment of the project.

§ 21080.2. Issuance of lease, permit, license, certificate or other

entitlement; determination by lead agency; time

In the case of a project described in subdivision (c) of

Section 21065, the determination required by Section 21080.1 shall be

made within 30 days from the date on which an application for a

project has been received and accepted as complete by the lead

agency. This period may be extended 15 days upon the consent of the

lead agency and the project applicant.

§ 21080.3. Consultation with responsible and trustee agencies;

assistance by Office of Planning and Research

(a) Prior to determining whether a negative declaration

or environmental impact report is required for a project, the lead

agency shall consult with all responsible agencies and trustee

agencies. Prior to that required consultation, the lead agency may

informally contact any of those agencies.

(b) In order to expedite the requirements of subdivision (a), the

Office of Planning and Research, upon request of a lead agency, shall

assist the lead agency in determining the various responsible

agencies and trustee agencies, for a proposed project. In the case

of a project described in subdivision (c) of Section 21065, the

request may also be made by the project applicant.

§ 21080.4. Environmental impact report; requirement

determined by lead agency; duties of responsible agencies

and certain public agencies; consultation; assistance by