PROPOSED REGULATORY ACTION
The California Resources Agency proposes to adopt new regulations, and
to amend and to delete existing regulations under the authority of Sections
21083 and 21087 of the Public Resources Code. The proposed action will
bring the Office of Planning and Research and the Agency into compliance
with AB 314, Chapter 1294, Stats. 1994, Section 5 to reflect the statutory
changes to the California Environmental Quality Act enacted during the 1993-94
Regular Session of the Legislature.
The proposed action will clarify and streamline the Agency's Guidelines
for Implementation of the California Environmental Quality Act (California
Code of Regulations Title 14, Sections 15000 through 15387.) These guidelines
explain and implement the requirements of the California Environmental Quality
Act (CEQA) dealing with the review by public agencies of the environmental
impacts of proposed projects and the preparation and review of environmental
impact reports (EIRs) and negative declarations (Public Resources Code Sections
21000 through 21178.1.) The proposed rulemaking action amends Sections
15062, 15064, 15065, 15070, 15072, 15073, 15074, 15075, 15087, 15090, 15091,
15093, 15094, 15105, 15127, 15130, 15274, 15301, 15303, 15328, 15376, 15378,
15380, 15382, 15384 and Appendix G; repeals Sections 15106 and 15126 subdivision
(e); and adds Sections 15060.5, 15074.1, 15082.5, 15083.5, 15154, 15175,
15176, 15177, 15178, 15179, 15179.5, 15187, 15188, 15189, 15190, 15229,
15278, 15279, 15280, 15281, 15282 and Appendix L to the California Code
of Regulations Title 14.
PUBLIC HEARING
The Secretary for Resources will hold a public hearing on the proposed
new and amended guidelines. The place and time will be as follows:
At the hearing, any interested person may present statements, arguments,
or comments orally, in writing, or both, that are relevant to the proposed
new and amended guidelines. Persons wishing to testify are requested to
notify the Agency, in advance if possible, by calling (916) 653-5656. The
Secretary for Resources may schedule speakers and limit time for individual
speakers in order to permit an opportunity for all comments and to conduct
an orderly hearing.
* The Auditorium is accessible to mobility-impaired persons and is reached
through the Ninth Street entrance. The nearest off-street parking is in
the garage at 10th and "O" Streets. Additional off-street parking
can be found at 10th and "L" Streets.
WRITTEN COMMENT PERIOD
Interested persons may submit written comments concerning the proposed
new and amended guidelines to the Resources Agency. Written comments must
be received by the Resources Agency no later than May 28, 1996. Please
send or deliver written comments to:
STATUTORY AUTHORITY AND REFERENCE
Pursuant to Sections 21083 and 21087 of the California Public Resources
Code, the Guidelines for the Implementation of the California Environmental
Quality Act are adopted and amended through rulemaking action by the Secretary
for Resources in consultation with the Governor's Office of Planning and
Research.
Reference: Public Resources Code Sections 5097.98, 21003, 21064.5, 21065,
21080, 21080.01, 21080.02, 21080.03, 21080.05, 21080.07, 21080.08, 21080.09,
21080.1, 21080.2, 21080.3, 21080.7, 21080.8, 21080.10, 21080.11, 21080.13,
21080.14, 21080.17, 21080.18, 21080.19, 21080.21, 21080.22, 21080.24, 21080.26,
21081.6, 21082.1, 21082.2, 21083.8, 21083.8.1, 21084.2, 21089, 21091, 21092,
21092.2, 21092.3, 21092.4, 21092.5, 21092.6, 21096, 21100, 21100.1, 21151,
21151.1, 21151.7, 21152, 21156, 21157, 21157.1, 21157.5, 21157.6, 21158,
21158.5, 21159, 21159.1, 21159.2, 21159.3, 21159.4, 25985, 33911, 41735,
and 44203(g); Government Code Sections 65584, 65759 and 91543; Water Code
Sections 1729, 10652, 10910, 10911, 10913, and 10915; Health and Safety
Code Sections 1597.45 and 1597.46; Chapter 1131, Stats. 1993.
INFORMATIVE DIGEST
The proposed rules amend the following sections of the CEQA Guidelines:
Section 15060.5. Preapplication Consultation
Public Resources Code section 21080.1 was amended in 1993 to add a provision
for a preapplication consultation upon the request of the potential applicant.
Section 15060.5 is being proposed for addition to the CEQA Guidelines to
reflect this statutory change.
Section 15062. Notice of Exemption
Public Resources Code section 21152 was amended in 1993 to require the
posting of Notices of Exemption within 24 hours of receipt in the office
of the County Clerk and to require the clerk to return the notice after
it was posted for thirty days to the local agency. The local agency must
then retain the notice for 9 months. CEQA Guidelines section 15062 has
not been updated to reflect the statutory changes. The proposed revisions
will bring the guideline into conformity with the statute.
Section 15064. Determining Significant Effect
This section provides guidance to lead agencies in determining whether a
proposed project may have a significant effect on the environment as required
by Public Resources Code section 21083.
Proposed revisions to subdivision (c) of CEQA Guidelines section 15064 will:
(1) clarify that lead agencies only need to consider views held by members
of the public that are expressed in the record before the lead agency; and
(2) reflect that lead agencies are not required to consider an effect
to be adverse based on opinion not supported by facts.
Subdivision (d) proposed changes are to provide further clarification that
lead agencies shall consider direct physical changes and reasonably foreseeable
indirect physical changes in the environment - not primary or direct and
secondary or indirect consequences.
The newly proposed subdivision (e) requires lead agencies to use previously
reviewed regulatory standards as a threshold for determining significant
effect on the environment. These standards already reflect a well-considered
determination of what is appropriate to require for resource protection.
This change is needed to relieve lead agencies from redundant analysis.
The proposed revision to subdivision (g), relettered from subdivision (f),
clarifies that if physical changes in the environment cause adverse economic
or social effects on people then these effects can be used as a factor in
determining if the physical change is significant.
Legislation in 1993 (Chapter 1130, Stats. 1993) codified the concept of
a Mitigated Negative Declaration. Subdivision (h), relettered from subdivision
(g), has not been updated to reflect this statutory change. The proposed
revision will include the Mitigated Negative Declaration and its relationship
to an agency's determination of a project's significant effects.
Former subdivision (h), now relettered to subdivision (i), of this section
provides guiding principles (not factors) for lead agencies to consider
in marginal cases when it is not clear if there is substantial evidence
that a project may have a significant effect. The proposed revisions reflect
statutory changes made to Public Resources Code section 21082.2 (Chapter
1131, Stats. 1993).
Section 15065. Mandatory Findings of Significance
The definition of "rare and endangered Species" is being updated
to reflect changes to the Fish and Game Code and to recognize the codification
of "threatened" species. CEQA Guidelines section 15065 is being
updated to reflect proposed changes to section 15380 of the CEQA Guidelines.
Section 15070. Decision to Prepare a Negative Declaration
CEQA Guidelines section 15070 establishes when lead agencies shall prepare
a Negative Declaration. Revisions are proposed for this section to reflect
the statutory changes of Chapter 1130, Stats. 1993. This legislation codified
the concept of a Mitigated Negative Declaration and added that the existence
of substantial evidence is viewed in light of the whole record. The proposed
revisions will bring the guideline into conformity with the statutes.
Section 15072. Public Notice
CEQA Guidelines section 15072 prescribes the notice requirements for a Negative
Declaration. Public Resources Code section 21092 was amended in 1993.
CEQA Guidelines section 15072 has not been updated to reflect these changes.
Section 15072 has also never been updated to reflect the requirements of
Public Resources Code sections 21092.3, 21092.4, and 21092.6 and the notice
specifications in Public Resources Code section 21092 subdivision (b)(1).
Revisions are being proposed to reflect the statutory notice requirements.
Section 15073. Public Review of a Negative Declaration
Public Resources Code section 21091 governing the public review of Draft
Environmental Impact Reports and Negative Declarations was amended in 1993.
CEQA Guidelines section 15073 has not been updated to reflect these changes.
Subdivision (f) has been added to the Guidelines to reflect the statutory
requirement imposed by Public Resources Code section 21092.5, subdivision
(b). The proposed revisions will bring the guideline into conformity with
the statute.
Section 15074. Consideration and approval of Negative Declaration
Subdivision (b) of CEQA Guidelines section 15074 is being revised to clarify
that a Negative Declaration should reflect a lead agency's independent judgment
and analyses. To assist lead agencies and the public, subdivision (c) is
being proposed for inclusion into CEQA Guidelines section 15074 to ensure
that the public knows where the record upon which the lead agency based
its decision is located.
With the codification of a Mitigated Negative Declaration in Public Resources
Code section 21064.5, subdivision (d) of CEQA Guidelines section 15074 is
being proposed for addition to the guidelines. This section will clarify
that a Mitigated Negative Declaration requires a mitigation or monitoring
program when being approved by the public agency, as required by Public
Resources Code section 21081.6.
Subdivision (e) is proposed for addition to section 15074 of the CEQA Guidelines
to reflect Public Resources Code section 21096 for projects adjacent to
airports. These modifications would bring the guidelines into conformity
with the statute.
Section 15074.1. Revisions to mitigation measures
Subdivision (f) of Public Resources Code section 21080 relating to a lead
agency's revision of mitigation measures was added to CEQA in 1994. CEQA
Guidelines section 15074.1 is proposed for addition to the Guidelines to
reflect this addition. The proposed revision will bring the guidelines
into conformance with statute and provide lead agencies with guidance on
what a lead agency should do when they revise mitigation measures after
a Mitigated Negative Declaration has already been circulated for public
review.
Section 15075. Notice of Determination
Public Resources Code section 21152 was amended in 1994. CEQA Guideline
section 15073 has not been updated to reflect this change. The proposed
modifications to this section clarify for lead agencies when the Notice
of Determination needs to be filed with the county clerk and how long the
notice shall be retained by the county clerk. These proposed revisions
will bring the guideline into conformity with the statute.
Section 15082.5. Statutorily Required EIRs
The proposed addition of this section would enumerate in the Guidelines
all of the projects that are statutorily required to have EIRs prepared.
This is to provide ease to lead agencies since the statutory provisions
requiring EIRs are found throughout the California Environmental Quality
Act.
Section 15083.5. Water Agency Consultation
This proposed new section is to assist lead agencies in incorporating the
requirements for water agency consultation with the CEQA process. This
reflects amendments to CEQA and the Water Code made by Chapter 881 of the
Statutes of 1995.
Section 15087 Public Review of Draft EIR
Public Resources Code section 21092 relating to public notification of draft
EIRs was amended in 1993. CEQA Guideline section 15087 has not previously
been updated to reflect those changes. Section 15087 has also never been
updated to reflect the requirements of Public Resources Code section 21092.3
regarding posting, section 21092.6 regarding listed hazardous waste sites
and the notice specifications in Public Resources Code section 21092 subdivision
(b)(1). The proposed revisions reflect these changes and will bring the
Guidelines into conformity with the statutes.
Section 15090. Certification of the Final EIR
Subdivision (c) is proposed for addition to this section. It reflects the
change to Public Resources Code section 21151 which allows an appeal of
a lead agency's certification of an EIR if the lead agency's decision making
body is not an elected body.
Section 15091. Findings
Revisions to this section will clarify that a lead agency is to consider
adoption of a project after the EIR has been certified, not completed.
It also adds changes made pursuant to Public Resources Code section 21081.
The proposed revision will bring the guideline into conformity with the
statute.
Section 15093. Statement of Overriding Considerations
CEQA Guideline section 15093 has not been updated to reflect the changes
to Public Resources Code section 21081. The proposed revisions will bring
the guideline into conformity with the statute. The proposed revision to
subdivision (b) is to provide consistency between the statute and the regulation
and greater clarification then the present language.
Section 15094. Notice of Determination
Public Resources Code section 21152, Notice of Determination requirements
for local agencies was amended in 1993 and 1994. CEQA Guidelines section
15094 has not been updated to reflect these changes. The proposed revisions
will bring the guideline into conformity with the statute and better distinguish
the differing Notice of Determination requirements between local agencies
and state agencies.
Section 15105. Public Review
The proposed modifications to section 15105 further clarify the public review
periods required by statute for EIRs and Negative Declarations, as amended
by 1993 legislation.
Section 15106. Review by State Agencies [Repeal]
The review periods for Negative Declarations and EIRs submitted to the State
Clearinghouse, as outlined in CEQA Guideline section 15106, is proposed
for consolidation with CEQA Guideline section 15105. Proposed repeal of
this section is in accordance with that consolidation.
Section 15126. Environmental Impact [Repeal subdivision (e)]
The requirement that an environmental impact report include a detailed statement
of the relationship between local short-term uses of the human environment
and the maintenance and enhancement of long-term productivity in Public
Resources Code section 21100 was repealed in 1994. The proposed repeal
of subdivision (e) and relettering of subdivisions (f) and (g) to (e) and
(f), respectively, brings the guideline into conformity with the statute.
Section 15127. Limitations on discussion of Environmental Impact
Public Resources Code section 21100 was amended in 1994. The amendment
repealed the requirement for a detailed statement of short-term uses versus
long term productivity in environmental impact reports. The proposed revision
to CEQA Guideline section 15127 brings the guideline into conformity with
the statute.
Section 15130. Cumulative Impacts
Public Resources Code section 21100 was amended in 1993 and 1994 to add
that previously approved land use documents may be used in cumulative impacts
analysis. CEQA Guidelines section 15130 is being updated to reflect this
change. The proposed revision will bring the guideline into conformity
with the statute.
Section 15154. Projects near Airports [New Section]
Public Resources Code section 21096 was added to CEQA in 1994. The CEQA
Guidelines have not previously been updated to reflect this addition. The
proposed new section will bring the guidelines into conformity with the
statute.
Article 11.5 Master Environmental Impact Review [New Article]
Chapter 4.5, Streamlined Environmental Review, was added to the Public
Resources Code in 1993 and amended in 1994 (Public Resources Code sections
21157 21157.6). Included in this new chapter are provisions for Master
Environmental Impact Reports. The proposed addition of this article to
the guidelines will bring the guidelines into conformity with the statutes
and provide lead agencies with some assistance in the use of Master Environmental
Impact Reports.
Section 15175. Master EIR [New Section]
The addition of section 15175 incorporates the statutory provisions of Public
Resources Code section 21157 into the Guidelines and clarifies when a Master
EIR should be used by lead agencies.
Section 15176. Contents of a Master EIR [New Section]
Proposed section 15176 enumerates what a Master EIR shall include, as required
by Public Resources Code section 21157, when it is prepared by a lead agency.
Section 15177. Subsequent Projects Within the Scope of the MEIR [New
Section]
Proposed section 15177 provides lead agencies with guidance for the approval
of subsequent projects that are considered to be within the scope of the
Master EIR. Subsequent projects within the scope are subject to only limited
environmental review and this section outlines what the limited environmental
review entails.
Section 15178. Subsequent Projects Not Within the Scope of the MEIR [New
Section]
If a project is not found within the scope of the Master EIR based on the
requirements applied in section 15177, then section 15178 provides lead
agencies with the information necessary to determine whether a Mitigated
Negative Declaration, Focused EIR or EIR may be prepared for the subsequent
project.
Section 15179. Limitations on the Use of the Master EIR [New Section]
Section 15179 incorporates into the Guidelines the provisions of Public
Resources Code section 21157.6 regarding the statutory limits placed upon
the Master EIR.
Section 15179.5. Focused EIRs and Small Projects [New Section]
Public Resources Code 21158.5 allows the preparation of a Focused EIR for
small projects fitting into certain parameters. Proposed section 15179.5
includes this provision in the Guidelines and clarifies the parameters when
a Focused EIR is available as an option.
Section 15187. Environmental Review of New Rules and Regulations
This section incorporates the provisions of Public Resources Code 21159
into the Guidelines. It allows an EIR to be used to meet the environmental
review requirement when certain public agencies adopt rules or regulations
requiring the installation of pollution control equipment, establishment
of performance standards or treatment requirements.
Section 15188. Focused EIR for Pollution Control Equipment
Public Resources Code section 21159.1 was added to CEQA in 1993. The addition
of this section into the Guidelines reflects the new statutory provision
allowing the preparation of a Focused EIR when pollution control equipment
is installed.
Section 15189. Compliance with Performance Standard or Treatment Requirement
Rule or Regulation
This proposed section reflects the addition of Public Resources Code
section 21159.2 to the statute for projects consisting solely of compliance
with a performance standard or treatment requirement that was analyzed according
to proposed section 15187 of the Guidelines.
Section 15190. Deadlines for Compliance with Section 15188 and 15189
Public Resources Code section 21159.3 specifically establishes deadlines
for EIRs prepared for the specific projects discussed in sections 15188
and 15189. This proposed addition to the Guidelines reflects this statutory
addition.
Section 15206. Projects of Statewide, Regional, or Areawide Significance
The existing Guideline provision refers to Fish and Game Code section 903
for a definition of rare and endangered species; however, section 903 was
repealed in 1984. The proposed revision to this section refers to the CEQA
Guideline provision that defines threatened and endangered species instead
of the repealed section of the Fish and Game Code.
Section 15225. Circulation of Documents
Public Resources Code section 21083.8 was added to the Statutes in 1994
and provided special provisions for the use of Environmental Impact Statements
for military base reuse plans. The proposed additions to section 15225
reflect these specific provisions related to military base reuse plans.
Section 15229. Baseline for Analysis
In 1995, Public Resources Code section 21083.8.1 was added to the statutes
to establish a possible baseline at the time of the federal decision to
close or realign a military base for an environmental analysis prepared
on a military base reuse plan. This section is being added to the Guidelines
to reflect this statutory addition.
Section 15274. Responses to Revenue Shortfalls Family Day Care Homes
The basis for the categorical exemption for a response to revenue shortfalls
was amended out of law by Chapter 1131, Statutes 1993 and therefore must
be repealed from the Guidelines. Health and Safety Code section 1597.46
provides the basis for the new categorical exemption for Family Day Care
Homes.
Section 15278. Application of Coatings [New Section]
Chapter 1131, Statutes 1993 provided non-statutory language for the an exemption
from CEQA for discretionary decisions by air quality management districts
for projects consisting of the application of coatings within an existing
automotive manufacturing plant, as long as certain provisions are met.
This proposed addition to the Guidelines reflects this non-statutory language
and establishes what provisions must be met for the CEQA exemption to apply.
Section 15279. Housing for Agricultural Employees [New Section]
This proposed section reflects the addition of this statutory exemption
to Public Resources Code section 21080.10.
Section 15280. Lower-income Housing Projects [New Section]
This proposed section reflects the addition of this statutory exemption
in Public Resources Code section 21080.14.
Section 15281. Air Quality Permits [New Section]
This proposed section reflects the addition of this statutory exemption
in Public Resources Code section 21080.24.
Section 15282. Other Statutory Exemptions [New Section]
Various statutory exemptions have been added to the Public Resources
Code, Water Code and Government Code over the past several years. This
section lists the various statutory exemptions and references the appropriate
statutory sections for further information.
Section 15301. Existing Facilities
Subdivision (c) is being amended to reflect the non-statutory language of
Chapter 736, Stats. 1994 which specifically requests that subdivision (c)
be amended to also apply to the grading of existing road shoulders for public
safety purposes.
Subdivision (k) is being amended to consolidate its provisions with subdivision
(o) and to reflect nomenclature codified in common-interest development
law (Civil Code section 1350 et seq.).
Subdivision (l) is being amended to clarify the types of projects to which
the exemption applies. The scope and application of the exemption remain
unchanged.
Pursuant to Public Resources Code section 21084.2, which was added to CEQA
in 1995, subdivision (o) is being added to the Guidelines as a categorical
exemption because the Governor's Office of Planning and Research has determined
that a categorical exemption for the installation of a steam sterilization
unit for the treatment of medical waste is consistent with the provisions
of CEQA.
Section 15303. New Construction or Conversion of Small Structures
Subdivision (f) is proposed for addition based upon the language of Public
Resources Code section 21084.2.
Section 15328. Small Hydroelectric Projects at Existing Facilities
Consistent with the proposed revision of section 15380 of the Guidelines,
this section must be amended to reflect the change from "rare"
to "threatened" species.
Section 15376. Person
The definition of "Person" must be amended to reflect California's
1994 codification of limited liability companies in Public Resources Code
section 21066.
Section 15378. Project [New Section]
The statutory definition of "project" (Public Resources Code
section 21065) was amended in 1994. Revisions are proposed for subdivision
(a) of this section to accurately reflect the amended statutory definition.
Section 15380. Threatened, Rare or Endangered Species
The definition of "rare or endangered" species is proposed for
revision in order to reflect that only species as listed by the California
Fish and Game Commission or the US Fish and Wildlife Service should be considered
as rare, threatened or endangered under CEQA. Also, the California Endangered
Species Act has adopted the term "threatened" instead of the term
"rare," although the term "rare" may still apply in
some instances for plant species designated pursuant to the California Native
Plants Act.
Section 15382. Significant Effect on the Environment
This section is being amended to reflect that a change in the environment
is not considered a significant effect if it does not exceed an existing
state or regional agency standard for that effect.
Section 15384. Substantial Evidence
The proposed revisions to the definition of "substantial evidence"
reflects recent statutory changes to Public Resources Code sections 21080
and 21082.2.
Appendix G. Significant Effects
In order to reflect the change in terminology from rare to threatened
species, subdivision (c) of this appendix is proposed for revision.
Appendix L. Criteria for Shortened Clearinghouse Review
The State Clearinghouse within the Governor's Office of Planning and
Research has the specific authority pursuant to CEQA to establish criteria
for shortening the time period for documents reviewed through the State
Clearinghouse. The addition of Appendix L will provide Lead Agencies with
that criteria within the Guidelines.