INTRODUCTION
Since the last update to the California Environmental Quality Act (CEQA)
Guidelines in 1994, and the last comprehensive update in 1983, new legislation
and case law have altered CEQA's requirements for practitioners. The updated
Guidelines will provide greater certainty to public agencies and project
applicants in complying with CEQA's requirements.
No technical, theoretical and/or empirical studies, reports, or documents
were relied on in the preparation of this proposal. The Resources Agency
must determine that no alternatives considered would be more effective in
carrying out the purpose of the proposed amendments to the Guidelines or
would be as effective and less burdensome to affected private parties than
the proposed changes and amendments to the Guidelines.
The following amendments are proposed:
SECTION 15060.5. Preapplication Consultation [New Section]
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation is Intended to Address.
Section 15060.5 adds to the Guidelines the Preapplication Consultation option
for project applicants. This consultation provision was added to the Public
Resources Code in 1993. In order for the Guidelines to be complete, it
needs to reflect all procedural elements within CEQA. This new option for
project applicants within the CEQA structure must be added to the Guidelines
for the Guidelines to accurately reflect the statutory structure.
Specific Purpose of the Regulation
The proposed addition is intended to update the procedural elements and
options available to project applicants within the CEQA Guidelines.
Necessity and Explanation
Upon the request of a project applicant, lead agencies shall provide for
a preapplication consultation to discuss the potential significant effects,
potential alternatives and possible mitigation measures for the proposed
project. This consultation shall include responsible agencies, trustee
agencies and other public agencies that may have an interest in the project.
Only public agencies are included in the preapplication consultation with
the project applicant. The public is specifically excluded at this point
in the process since at this time there has been no application filed with
the lead agency for a lease, permit, license, certificate or other entitlement.
If the potential applicant then decides to pursue the proposed project
and applies for the appropriate entitlement, then the public will be given
ample opportunity to comment on the proposed project.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The preapplication consultation is optional for project applicants. It
is intended to assist businesses in determining early on what significant
effects the proposed project may cause and what some of the governmental
agency concerns may be with the proposed project.
SECTION 15062. Notice of Exemption
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21152 was amended in 1993 to require the posting
of Notices of Exemption with 24 hours of receipt in the office of the County
Clerk. It also requires 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 of nine months. CEQA Guidelines section 15062 does not currently
reflect this statutory requirement.
Specific Purpose of the Regulation.
The proposed revisions to section 15062 will bring the statute into conformity
with the statutory requirement.
Necessity and Explanation.
Without the revision to section 15062, Counties relying on the Guidelines
may improperly post notices of exemptions. Instead of posting the notice
within 24 hours, the current version only requires posting once a week.
Also, Lead Agencies will not be aware of the requirement to retain the
notice for nine months and may discard the notice in violation of current
law.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revision provides clarification of an existing statutory requirement
and imposes no new burdens on business.
SECTION 15064. Determining Significant Effect.
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21083 requires that the CEQA Guidelines specifically
include criteria for public agencies to follow in determining if a proposed
project will have a significant effect on the environment. This section
needs to be updated to reflect current law with regards to determining significant
effects.
Specific Purpose of the Regulation.
The proposed revisions are intended to update the criteria Lead Agencies
should use in determining significant effects and provide further clarification
where necessary.
Necessity and Explanation.
Subdivision (c) is being amended to clarify that a lead agency only needs
to consider views that have been expressed in the record before the lead
agency. The CEQA statutes have been amended to ensure that a lead agency's
determination is based upon substantial evidence in the record. The statutes
have also been amended to clarify that unsubstantiated opinion is not substantial
evidence. As a result, the proposed revisions to this subdivision reflect
the Legislature's intent that a lead agency needs only to consider information
in the record and may disregard unsubstantiated opinions.
The current language of subdivision (d), "primary or direct and secondary
or indirect consequences" is ambiguous and provides little guidance
to lead agencies in determining if the project causes a significant effect.
The proposed revisions to this subdivision will clarify that a project's
effect is determined by examining whether the project causes a direct physical
change or a reasonably foreseeable indirect physical change in the environment.
This revision also provides consistency between this subdivision and the
amended statutory definition of "project" in Public Resources
Code section 21065.
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.
Subdivision (e) is relettered as subdivision (f) to reflect the addition
of the newly proposed subdivision (e).
Revisions to subdivision (g), relettered from subdivision (f), clarify 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. The current subdivision may be interpreted
to state that economic or social effects are the basis for determining a
physical change significant. The revisions conform more closely to amended
Public Resources Code sections 21080 and 21082.2 which provide that economic
or social effects which do not contribute to or are not caused by physical
effects are not significant.
Revisions to subdivision (h), relettered from subdivision (g), recognizes
that the concept of a Mitigated Negative Declaration was codified into statute
in 1993. In order to be complete, the Guidelines must include when a lead
agency may determine to prepare a Mitigated Negative Declaration.
The proposed amendment to former subdivision (h), proposed for relettering
as subdivision (i), recognizes that even in marginal cases, lead agencies
shall consider only information based upon substantial evidence in the record
and not unsubstantiated opinion. Statutory changes to Public Resources
Code section 21082.2 regarding the significance of public controversy make
it essential that this subdivision be updated to accurately reflect the
current state of the law.
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 impose no new burdens on business.
SECTION 15065. Mandatory Findings of Significance
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
The definition of rare and endangered species in Guidelines section 15380
is being updated to reflect changes to the California Fish and Game Code.
As a result, the reference to rare or endangered plant or animal species
in this section needs to be revised to be consistent with the proposed revisions
to section 15380.
Specific Purpose of the Regulation.
This regulation establishes mandatory findings of significance and that
includes rare or endangered plant or animals. With regards to rare or
endangered plants or animals, California has adopted the terms threatened
or endangered species. The proposed revision will bring the Guideline section
into conformity with the current terms used in California.
Necessity and Explanation.
Under the California Endangered Species Act, the California Fish and Game
Commission lists threatened and endangered species. These are the terms
specifically defined within the Fish and Game Code. It is necessary to
revise the Guidelines to reflect this change to state law so lead agencies
can properly determine what the Guidelines are referring to with regards
to mandatory findings of significance.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revision provides clarification and consistency between the
Guidelines and the California Fish and Game Code. It imposes no new burdens
on business.
SECTION 15070. Decision to Prepare a Negative Declaration
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
In deciding whether or not to prepare a Negative Declaration, the Guidelines
do not currently advise lead agencies that their decision should be based
upon the initial study in light of the whole record as required by statute.
The current section also fails to recognize that a negative declaration
prepared according to the provisions in subdivision (b) has been codified
as a Mitigated Negative Declaration.
Specific Purpose of the Regulation.
The purpose behind the revisions is to add the statutory changes to the
Guidelines so it is a complete document and consistent with statute.
Necessity and Explanation.
Without the revisions, lead agencies may not view the necessary information
in light of the whole record. This could lead to an erroneous decision
as to whether it is proper to prepare a Negative Declaration for a proposed
project.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions are to clarify statutory requirements, not impose
any new burdens on business.
SECTION 15072. Public Notice
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Section 15072 prescribes the notice requirements for a Negative Declaration.
Public Resources Code section 21092, governing notice requirements prior
to final adoption, 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, 21092.6 and the notice specifications of section 21092,
subdivision (b)(1). The proposed revisions are designed to make the Guideline
Public Notice requirements for Negative Declarations complete.
Specific Purpose of the Regulation.
Lead agencies utilize the Guidelines to determine the proper procedure required
under CEQA. As a result, the Guidelines need to accurately and completely
reflect the statutory requirements. The proposed revisions are devised
to completely reflect all of a lead agencies public notice requirements
when proposing to adopt a Negative Declaration.
Necessity and Explanation.
The current version of section 15072 could be a legal trap that leads otherwise
complying lead agencies into violation of CEQA requirements. The revision
is necessary in order to avoid this circumstance and make the guideline
congruent with the statute.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revision provides clarification of an existing statutory requirement
and imposes no new burdens on business.
SECTION 15073. Public Review of a Negative Declaration
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21091 was amended in 1993 and established
that the public review period of a Negative Declaration could not be less
than 20 days, and if submitted to the State Clearinghouse, it could not
be less then 30 days unless approved by the State Clearinghouse. The current
provisions of section 15073 do not specifically establish the minimally
required public review period or provide for a shortened review if granted
by the State Clearinghouse.
Specific Purpose of the Regulation.
The proposed revisions are devised to bring section 15073 into conformity
with current statutory requirements governing the public review period of
Negative Declarations.
Necessity and Explanation.
The revisions to subdivision (a) reflect the statutory changes made to Public
Resources Code section 21091 and bring the Guidelines into compliance with
the statute. Without the revision, lead agencies relying on the Guidelines
will not know that the public review period for Negative Declarations cannot
be less than 20 days and not less then 30 days if submitted to the State
Clearinghouse for State agency review.
Subdivision (b) outlines the possibility and standards for a shortened Clearinghouse
review. This information is not currently included in the Guidelines.
In order to be complete, the Guidelines should include the availability
of a shortened Clearinghouse review. Otherwise lead agencies may not be
aware of the potential use of this procedure.
Added to subdivision (d) is that a copy of the initial study shall be sent
with the Negative Declaration to every Responsible Agency and Trustee Agency
concerned with the project. This conforms the Guideline to Public Resources
Code section 21080(c), as amended.
The proposed revision to subdivision (e) is based on Public Resources Code
section 21083(c) and conforms to Guideline section 15206. It is necessary
to avoid an unintentional failure to comply with section 15206.
Subdivision (f) is added to comply with Public Resources Code section 21092.5
and is congruent with that section.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions clarify existing statutory requirements and impose
no new impact on business.
SECTION 15074. Consideration and approval of Negative Declaration
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Section 15074 does not currently reflect all of the necessary elements a
lead agency must consider prior to approving or denying a Negative Declaration.
Current case law and changes in statute have clarified a lead agency's
decisionmaking responsibilities regarding the approval of Negative Declarations.
Specific Purpose of the Regulation.
The proposed revisions to section 15074 will clarify a lead agency's responsibility
before approving a Negative Declaration and will update the Guideline to
reflect current statutory changes.
Necessity and Explanation.
Subdivision (b) provides that a lead agency shall consider the proposed
Negative Declaration and any comments received on the Negative Declaration
during the public review process. The proposed revision to subdivision
(b) adds that the Negative Declaration shall reflect the lead agency's independent
judgment and analysis. Public Resources Code section 21082.1(c)(3) provides
that as part of the adoption of a Negative Declaration, the lead agency
must find that the declaration reflects the independent judgment of the
lead agency. Thus, it is necessary to include this element into the Guidelines
so they are complete.
To ensure that the public is aware of the location of the documents that
constitute the record, subdivision (c) is proposed for addition to the Guidelines.
It will require lead agencies to specify the location and custodian of
documents or other material which constitutes the record. Since the statute
of limitations for a challenge to a lead agency's decision under CEQA is
short, this information should be provided to the public up front so it
may be reviewed in an expedited manner. This requirement has also been
codified for Mitigated Negative Declarations in Public Resources Code section
21081.6. It is appropriate to extend this requirement to Negative Declarations
so the procedure is consistent between the two declarations.
Public Resources Code section 21081.6 requires that when a Mitigated Negative
Declaration is adopted, the lead agency is also required to adopt a mitigation
monitoring program. Subdivision (d) is proposed for addition to this section
of the Guidelines to reflect this statutory requirement. If not included
within the Guidelines, lead agencies may not be aware if this requirement
when adopting a Mitigated Negative Declaration.
Subdivision (e) is proposed for addition to the Guidelines to reflect the
statutory requirement that a Negative Declaration cannot be adopted for
a project within the boundaries of a comprehensive airport land use plan
without first considering safety and noise issues. Its addition to this
section will advise lead agencies of when it may not be proper to adopt
a Negative Declaration. This conforms to Public Resources Code section
21096 which was added to CEQA in 1994.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions provide further statutory clarification. Although
the requirement for a mitigation monitoring plan may increase the CEQA compliance
cost for business, it is a statutory requirement - not an additional requirement
imposed through regulation.
SECTION 15074.1. REVISIONS TO MITIGATION MEASURES
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21080 was amended in 1994 and authorizes lead
agencies, which are considering adoption of a Mitigated Negative Declaration,
to delete any mitigation measure which they find infeasible or otherwise
undesirable, and allows them to substitute an equal or more effective measure.
The CEQA Guidelines do not reflect this statutory provision. The proposed
new section implements section 21080 and interprets the statutory term "equal
or more effective."
Specific Purpose of the Regulation.
The addition of section 15074.1 will bring the guideline into conformity
with the statutory requirement.
Necessity and Explanation.
The current guideline does not contain a procedure for deleting certain
mitigation measures and substituting equal or more effective measures. This
new section is necessary to make the guideline congruent with existing statute.
Subsection (a).
Subsection (a) describes the situation under which a lead agency may delete
and substitute mitigation measures contained in a proposed negative declaration.
This language closely follows that contained in section 21080.
Subsection (b).
Section 21080 provides that where a mitigation measure is to be deleted
and substituted for, the lead agency must hold a public hearing and find
that the substitute measure is equal or more effective in mitigating significant
effects on the environment than the deleted measure and will not cause any
potentially significant effect on the environment.
The proposed new guideline reflects these two requirements. Subsection
(b)(1) of the proposed guideline states that the public hearing required
by statute may be the public hearing at which the project is to be considered.
This clarifies that no separate hearing is required for the sole purpose
of considering substitute mitigation measures. If no public hearing would
otherwise be held on the project, proposed subsection (b)(1) would require
the agency to hold such a hearing.
Subsection (b)(2) of the proposed guideline reflects the requirement under
section 21080 that the lead agency find the new measure equal to or more
effective than the former measure and that it will not cause a significant
effect on the environment. Subsection (b)(2) would require this finding
to be in writing. This requirement comports with existing guidelines requiring
written findings of no significant effect when adopting a Negative Declaration
and when filing a notice of determination after adoption of a Negative Declaration
(Guidelines sections 15071, 15074, and 15075).
Subsection (c)
Statute provides that if new mitigation measures "are made conditions
of project approval or are otherwise made part of the project approval,"
deletion of the former measures and substitution of the new measures does
not require recirculation of the negative declaration prior to adoption.
Subsection (c) states this requirement in simplified language.
Subsection (d)
Statute does not define the phrase "equal or more effective."
Subsection (d) would define this to mean that the new measure will avoid
or reduce to a level of insignificance the same potential effect addressed
by the original measure and will create no more adverse effect of its own
than would have the original measure. Avoidance or reduction to insignificance
is the standard used in existing Guidelines section 15070. Linking new
and former mitigation measures to the same potential effect is necessary
to ensure that the new measure is a substitute and will not result in some
aspect of the potential effect being left unmitigated. In addition, proposed
subsection (d) would require that the new measure's effects be no more adverse
than those of the former measure. Because this section relates to Mitigated
Negative Declarations, by definition no measure could have a significant
environmental effect. However, a substitute measure might have a more adverse,
while still not "significant," effect if proposed subsection (d)
did not establish a limit.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of an existing statutory
requirement and imposes no new burdens on business.
SECTION 15075. Notice of Determination
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21152 regarding the filing of Notices of Determination
was amended in 1994. As a result of the statutory revisions, the current
CEQA Guidelines section regarding Notices of Determination is inaccurate.
Section 15075 needs to be updated to accurately reflect the statutory changes.
Specific Purpose of the Regulation.
The proposed revisions reflect the new statutory requirements related to
the filing of notices of determinations for approval of a project for which
a Negative Declaration was prepared.
Necessity and Explanation.
Subdivision (d) needs to be revised to reflect that Lead Agencies must file
the Notice of Determination within five working days after the Negative
Declaration is approved.
Subdivision (e) needs to be revised to reflect that all notices must be
available for public inspection, posted with the county clerk within 24
hours of receipt from a lead agency and remain posted for at least 30 days.
The local lead agency must then retain the notice for not less than 9 months.
Both revisions are necessary so that the Guidelines accurately reflect a
lead agency's statutory requirements under CEQA.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions provide clarification of existing statutory requirements
within the Guidelines and impose no new burdens on business.
SECTION 15082.5. STATUTORILY REQUIRED EIRs
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code sections 21080.09, 21151.1, and 21151.7 require the
preparation of an environmental impact report (EIR) for any of the following:
the selection of a public college or university campus and approval of
a long range development plan; waste burning projects; hazardous waste facilities;
an initial military base reuse plan; and open-pit mining projects involving
cyanide leaching. The CEQA Guidelines do not reflect these statutory provisions.
Specific Purpose of the Regulation.
The proposed new section is intended to specify those projects for which
an EIR must always be prepared. The proposed guideline places these requirements
in a single section for ease of reference by lead agencies.
Necessity and Explanation.
The Guidelines currently do not reflect statute in requiring that an EIR
always be prepared for certain types of project. Without congruence with
statute, the Guidelines could be a legal trap that leads otherwise complying
lead agencies into violation of CEQA statutes. The revision is necessary
to avoid this circumstance.
Subsection (a).
This subsection lists most of the projects for which EIRs are statutorily
required. The subsection advises lead agencies that they may prepare an
initial study to help identify significant effects. This is consistent
with Guidelines section 15060 which provides that the lead agency may skip
the initial study where it knows that an EIR will be required. Subsection
(a) suggests using an initial study in order that the lead agency may better
identify the various significant effects which may result from the types
of complex projects which the proposed section addresses. This is consistent
with the directory tone of section 15060.
Subsection (a)(1) describes the types of facilities for the burning of municipal
wastes, hazardous wastes, or refuse-derived fuel to which the proposed section
applies. This is congruent with Public Resources Code section 21151.1(a)(1).
The statute establishes a number of facility exemptions from this requirement.
Those exemptions are incorporated by reference in subsection (a)(1).
Subsection (a)(2) describes the circumstances under which an EIR is mandatory
when the project is the initial issuance of a hazardous waste facility permit
to a land disposal facility. This is congruent with Public Resources Code
section 21151.1(a)(2). "Initial issuance" is defined in this
subsection in the same manner provided in Public Resources Code section
21151.1(c).
Subsection (a)(3) describes the circumstances under which an EIR is mandatory
when the project is the initial issuance of a hazardous waste facility permit
to an off-site large treatment facility. This is congruent with Public
Resources Code section 21151.1(a)(3). "Initial issuance" is defined
in this subsection in the same manner provided in Public Resources Code
section 21151.1(c).
Subsection (a)(4) requires preparation of an EIR for any open pit mining
operation which is subject to the Surface Mining and Reclamation Act and
which utilizes a cyanide heap-leaching process. This is congruent with
Public Resources Code section 21151.7.
Subsection (a)(5) requires preparation of an EIR for the initial reuse plan
for a closed federal military base. This is consistent with Public Resources
Code section 21151.1(a)(4).
Subsection (b).
Public Resources Code section 21080.09 requires preparation of an EIR for
the selection of a "public higher education" campus and approval
of a long range development plan for that campus. Proposed subsection (b)
reflects that requirement. Proposed subsection (b) also clarifies for local
agencies that, pursuant to Public Resources Code section 21080.09 and Section
66010 of the Education Code, this requirement applies to the California
Community College system, California State University system, University
of California system, and the California Maritime Academy. Subsection (b)
states that subsequent projects within a campus subject to the EIR requirement
may be addressed in environmental analyses which are based on the EIR prepared
for the long range development plan. This complies with Public Resources
Code section 21080.09(d).
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of existing statutory requirements
and imposes no new burdens on business.
SECTION 15083.5. WATER AGENCY CONSULTATION
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Amendments made to CEQA and the Water Code by Chapter 881 of the Statutes
of 1995 establish a requirement that a city or county when acting as lead
agency for certain general plan amendments and similar projects which involve
preparation of an EIR must send a notice of preparation to all affected
water agencies serving 3,000 or more connections. This requirement is not
reflected in the Guidelines.
Specific Purpose of the Regulation.
The proposed new section is to assist lead agencies in meeting statutory
requirements for consultation with water agencies during the EIR process.
This will conform the Guidelines to current law.
Necessity and Explanation.
CEQA currently requires that whenever a city or county determines that an
EIR is required for certain development projects, as described in sections
10910 and 10913 of the Water Code, that the agency notify affected water
agencies in accordance with the provisions of Part 2.10 (commencing with
Section 10910) of Division 6 of the Water Code. The proposed new section
places these provisions of the Water Code into the Guidelines for the first
time in an orderly progression from notice, to comment, to response. Without
this new section, the Guidelines would not accurately reflect statutory
requirements.
Overview of Subsection (a)
Water Code section 10910(d) currently requires that a city or county, at
the time it releases a notice of determination for review, request each
public water system with 3,000 or more service connections to assess whether
the projected water demand associated with the project was included in the
most recently adopted urban water management plan. Proposed subsection
(a) would place that consultation requirement into the Guidelines.
Overview of Subsection (b)
Subsections (e) and (f) of section 10910 of the Water Code require the governing
body of a water agency to respond to a notice of preparation within 30 days
of receipt or be presumed not to have any response. Water Code section
10911 requires that if the water agency concludes that there would be insufficient
water to serve the project, the agency provide the city or county its plans
for acquiring additional supplies. Proposed subsection (b) brings together
these provisions in order to describe the responsibilities of water agencies
relative to consultation. Subsection (b) reflects the requirements of the
Water Code.
Overview of Subsection (c)
Subsections (b) and (c) of section 10911 of the Water Code require that
the county or city include the water system's assessment and other information,
up to a maximum of 10 written pages, in the EIR for the project. Further,
the city or county lead agency may independently evaluate the information
submitted by the water agency and shall determine on the basis of the record
whether projected water supplies are sufficient. If the city or county
concludes that water supplies will not be sufficient, it must include that
determination in its environmental findings for the project. Proposed subsection
(c) brings together these provisions in order to describe the manner in
which a city or county must respond to the information provided by the water
agency. Subsection (c) reflects the requirements of the Water Code and
assists compliance by city or county lead agencies.
Overview of Subsections (d) and (e)
Water Code sections 10910 (a) and (b), 10913, and 10915 specify that the
notification requirements are limited to certain types of large projects,
such as a residential development of more than 500 dwellings, which also
involve an amendment to the land use element of a general plan or specific
plan resulting in a net increase in planned population density or building
intensity or adoption of a specific plan with the same result, and exclude
San Diego County and its cities from the notification requirements all together.
Proposed subsection (d) combines the provisions of sections 10910 and 10915
to describe the basic limitations on the notification requirement. Proposed
subsection (e) describes the specific types of large projects to which the
notification requirements are limited, congruent with statutory section
10913. These subsections are necessary in order that cities and counties
can readily identify those types of projects to which the statutory notification
requirements apply. Both subsections reflect the requirements of the Water
Code.
Overview of Subsection (f)
Water Code section 10912 defines "public water system" for purposes
of requiring notice of preparation of an EIR. Subsection (f) references
that definition in order to inform cities and counties that it is more detailed
than simply water agencies with 3000 or more service connections. This
is necessary so that cities and counties will comply with statutory Part
2.10 in its entirety and will not inadvertently leave out enumerated agencies.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of an existing statutory
requirement and imposes no new burdens on business.
SECTION 15087. PUBLIC REVIEW OF DRAFT EIR
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code sections 21092 and 21092.3 relating to the contents
and posting of public notice of draft EIRs were amended in 1993. Public
Resources Code section 21092.6 regarding informing the public of the presence
of hazardous wastes as part of the public notice was added in 1991. The
CEQA Guidelines do not currently reflect any of these requirements.
Specific Purpose of the Regulation.
The revision to section 15087 will bring the guideline into conformity with
statutory requirements relating to public notice of a draft EIR.
Necessity and Explanation.
The current version of section 15087 could be a legal trap that leads otherwise
complying lead agencies into violation of CEQA requirements. The revision
is necessary in order to avoid this circumstance and make the guideline
congruent with the statutes.
Overview of Subsection (a)
Public Resources Code section 21092 requires that public notice of a draft
EIR be provided within a reasonable time period to allow other agencies
and the public to review and comment on the draft. It also specifies the
manner in which notice is to be given. Proposed subsection (a) conforms
the guideline to these statutory requirements.
Overview of Subsections (c) and (d)
Subsection (c) is proposed to be amended to consolidate the requirement
for the length of review periods with Guidelines section 15105. Section
15105 discusses the length of time necessary to allow the review of draft
EIRs and negative declarations. A reference to section 15105 is being added
into subsection (c) and a separate discussion of EIR review periods contained
therein is proposed for repeal. Public Resources Code section 21091, added
in 1991, authorizes the State Clearinghouse to approve shortened review
periods under specified circumstances. Subsection (d) would be added for
the purpose of stating the shortened review period and process for draft
EIRs. It also contains a cross-reference to proposed Appendix L, the State
Clearinghouse criteria for approving shortened reviews.
Overview of Subsection (h)
Public Resources Code section 21092 was revised in 1993 to specify the contents
of the public notice issued for a draft EIR; section 21092.6 relating to
informing the public of the presence of hazardous wastes was added in 1991.
The proposed addition of subsection (h) consolidates these requirements
and conforms the guideline to the statutory requirements for the content
of notices.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed revision provides clarification of existing statutory requirements
and imposes no new burdens on business.
SECTION 15090. Certification of the Final EIR
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
The proposed revisions to section 15090 are intended to reflect recent statutory
revisions. Public Resources Code section 21082.1(c)(3) requires lead agencies
to find that an environmental impact report reflects the independent judgement
of the lead agency as part of the EIR's certification. Also, Public Resources
Code section 21151 has been amended to allow an appeal to an elected decision
making body if a lead agency's certification of an EIR is determined by
a non-elected decision making body.
Specific Purpose of the Regulation.
The purpose of the proposed Guideline revisisions is to bring the Guidelines
into conformity with the governing statutes.
Necessity and Explanation.
The Guidelines need to be updated so lead agencies that utilize the Guidelines
to determine their responsibilities regarding certification of a Final EIR
are adequately and accurately informed. Otherwise a lead agency will not
be aware of its affirmative duty to find that the Final EIR reflects its
independent judgment and analysis or know that an appeal of the certification
decision is allowed if the decision making body is not elected and an elected
decision making body is available.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
Requiring that the Final EIR reflects the agency's independent judgment
and analysis does not impose an adverse economic impact on business. This
addition to the Guidelines is a statutory clarification. The appeal procedure
that is added to the Guidelines is also a statutory clarification and does
not impose any adverse economic impact on business.
SECTION 15091. Findings.
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Section 15091 of the Guidelines identifies the findings that a lead agency
must make in order to approve a project that has at least one significant
effect on the environment. The statutory provisions governing findings,
Public Resources Code section 21081, has been amended in recent years.
The current version of the Guidelines does not reflect the statutory changes.
Also, subdivision (a) of section 15091 currently refers to "completed"
EIRs. However, an agency cannot approve or carry out a project until it
has certified the adequacy of the EIR, not just completed the EIR.
Specific Purpose of the Regulation.
The proposed revision to subdivision (a), the replacement of the word "completed"
with the word "certified," is to clarify that an agency makes
findings based upon a certified EIR.
The proposed revisions to subdivision (b)(3) are to reflect amendments to
Public Resources Code section 21081.
Necessity and Explanation.
A lead agency could easily be misled if it is not clarified that a public
agency makes it findings based upon a certified EIR - not a completed EIR.
A completed EIR does not necessarily mean it has been adopted by the lead
agency and found to reflect the independent judgment and analysis of the
lead agency.
It is also essential for lead agencies to know that possible findings include
legal and technological considerations and the provision of employment opportunities
for highly trained workers. These current considerations are not included
in the Guidelines. It is necessary to update this section of the Guidelines
to reflect recent statutory changes.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions provide statutory clarification and impose no new
burdens on business.
SECTION 15093. Statement of Overriding Considerations.
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21081 was amended in 1994. It codified the
statement of overriding considerations requirement in a new subdivision
(b). The current version of the Guidelines does not reflect the 1994 statutory
changes.
Specific Purpose of the Regulation.
The purpose of the proposed revisions to Guidelines section 15093 is to
reflect and clarify the statutory changes.
Necessity and Explanation.
The proposed revisions to subdivision (a) of section 15093 reflect the elements
that a lead agency should consider when balancing the benefits of a proposed
project against its unavoidable significant effects on the environment.
The statute specifically lists economic, legal, social and technological
benefits for consideration when determining if the benefits outweigh the
significant effects. In order for the Guidelines to accurately inform lead
agencies of the areas to consider when determining if a statement of overriding
considerations is appropriate, the Guidelines must be amended to reflect
the statutory provisions.
In addition to the subdivision (a) revisions, subdivision (b) needs to be
revised to better clarify the statutory intent. This section of the Guidelines
is intended to clarify that lead agencies must make statements of overriding
consideration in writing. However, the current section contains inaccurate
language with regards to the unavoidable significant effects that necessitate
the statement of overriding consideration. The proposed revision clarifies
that a statement of overriding consideration must be made for any significant
effect that is not avoided or substantially lessened. The current language,
"at least substantially mitigated," is vague and inconsistent
with other terms used in the Guidelines. In Guidelines section 15091 regarding
findings, the term "avoid or substantially lessen" is used. This
revision will make the language consistent between section 15091 regarding
findings and section 15093 regarding the findings relating to statements
of overriding consideration.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions clarify current statutory requirements and intent
and impose no new burdens on business.
SECTION 15094. Notice of Determination
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21152 regarding the filing of Notices of Determination
was amended in 1994. As a result of the statutory revisions, the current
CEQA Guidelines section regarding Notices of Determination for environmental
impact reports is inaccurate. Section 15094 needs to be updated to accurately
reflect the statutory changes.
Specific Purpose of the Regulation.
The proposed revisions reflect the new statutory requirements related to
the filing of Notices of Determination for approval of a project for which
an environmental impact report has been prepared.
Necessity and Explanation.
Subdivision (a) needs to be revised so lead agencies are aware that a Notice
of Determination must be filed within five working days of project approval
when an EIR has been prepared and certified for that project.
The proposed subdivision (d) provides the essential information that all
notices must be available for public inspection, posted with the county
clerk within 24 hours of receipt from the lead agency and remain posted
for at least 30 days. The local lead agency must also retain the notice
for not less then 9 months.
Both revisions are necessary so that the Guidelines accurately reflect a
lead agencies statutory requirements under CEQA.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions provide clarification of existing statutory requirements
within the Guidelines and impose no new burdens on business.
SECTION 15105. PUBLIC REVIEW
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21091, last amended in 1993, establishes the
minimum periods for public review of draft EIRs and negative declarations.
The
CEQA Guidelines do not reflect all of these requirements.
Specific Purpose of the Regulation.
The revision to section 15105 will bring the guideline into conformity with
statutory requirements relating to public notice periods for draft EIRs
and negative declarations.
Necessity and Explanation.
Public Resources Code section 21091 provides that the review periods for
a negative declaration shall not be less than 20 days (30 days when the
document is submitted to the State Clearinghouse) and for a draft EIR shall
not be less than 30 days (45 days when the document is submitted to the
State Clearinghouse). Section 21091 authorizes the State Clearinghouse
to allow a shorter review period for submitted negative declarations and
EIRs of 20 and 30 days, respectively, under specified circumstances. Current
Guidelines section 15105 suggests, but does not mandate, minimum review
periods and does not provide at all for shortened review by the State Clearinghouse.
The current version of section 15105 could be a legal trap that leads otherwise
complying lead agencies into violation of CEQA requirements. The revision
is necessary in order to avoid this circumstance and make the guideline
congruent with the statutes.
The proposed revised subsections (a), relating to draft EIRs, and (b), relating
to negative declarations, specify that the mandatory minimum review periods
for EIRs and negative declarations are 30 or 45 days and 20 or 30 days,
respectively, depending upon whether the document is submitted to the State
Clearinghouse. The subsections also specify that the Clearinghouse may
approve a shorter period for documents submitted to it under certain circumstances.
Subdivision (a) currently provides that the review period for a draft EIR
should not be more than 90 days. The proposed revision would reduce the
suggested maximum period to 60 days. This change is intended to encourage
speedier completion of EIRs. It is consistent with the statutory requirement
that draft EIRs be made available for review for at least 30-45 days.
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 impose no new burdens on business.
SECTION 15106. REVIEW BY STATE AGENCIES [Repeal]
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Current section 15106 provides the minimum review periods for EIRs and negative
declarations submitted to the State Clearinghouse. Proposed revisions to
section 15105 make section 15106 redundant.
Specific Purpose of the Regulation.
Section 15106 is proposed for repeal to eliminate redundancy with the proposed
revisions to section 15105.
Necessity and Explanation.
Current section 15106 provides the minimum review periods for EIRs and negative
declarations submitted to the State Clearinghouse. Proposed revisions to
section 15105 would place these provisions in that section. Repeal of 15106
is necessary in order to avoid redundancy in the Guidelines.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
Repeal of this section would have no adverse economic impact on business.
Its provisions are contained in other sections of the guidelines.
SECTION 15126. ENVIRONMENTAL IMPACT
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Amendments to Public Resources Code section 21100 enacted in 1994 repealed
the requirement that an EIR contain a detailed analysis of the relationship
between local short-term uses of the human environment and the maintenance
and enhancement of long-term productivity. The current CEQA Guidelines
contain the repealed requirement.
Specific Purpose of the Regulation.
The revisions to section 15126 will bring the guideline into conformity
with the statute.
Necessity and Explanation.
Public Resources Code section 21100, as amended, no longer requires consideration
of the relationship between short-term uses and long-term productivity in
EIRs. There is no compelling reason to retain this requirement in the Guidelines
absent such a requirement in CEQA. Repeal of existing subsection (e) and
the relettering of the subsequent subsections will conform this section
to statute.
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 impose no new burdens on business.
SECTION 15127. LIMITATIONS ON DISCUSSION OF ENVIRONMENTAL IMPACT
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Amendments to Public Resources Code section 21100 enacted in 1994 repealed
the requirement that an EIR contain a detailed analysis of the relationship
between local short-term uses of the human environment and the maintenance
and enhancement of long-term productivity. The current CEQA Guidelines
contain the repealed requirement.
Specific Purpose of the Regulation.
The revisions to section 15127 will bring the guideline into conformity
with the statute.
Necessity and Explanation.
Public Resources Code section 21100, as amended, no longer requires consideration
of the relationship between short-term uses and long-term productivity in
EIRs. Guidelines section 15127 currently provides that specified types
of project EIRs need include this consideration. There is no compelling
reason to retain this requirement in the Guidelines absent a similar requirement
in CEQA. The proposed revision will conform this section to statute.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed revision provides clarification of existing statutory requirements
and impose no new burdens on business.
SECTION 15130. CUMULATIVE IMPACTS
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21100 was amended in 1993 and 1994 to provide
that previously approved land use documents may be used in the analysis
of cumulative impacts. The CEQA Guidelines do not reflect this statutory
provision.
Specific Purpose of the Regulation.
The revision to section 15130 will bring the guideline into conformity with
the statute.
Necessity and Explanation.
Public Resources Code section 21100 establishes the basic content requirements
for EIRs. Amendments made to that section in 1993 and 1994 provide that
previously approved land use documents such as general plans, specific plans,
and local coastal plans may be used in the analysis of cumulative impacts.
Currently, Guidelines section 15130 contains no such provision. The revision
to section 15130 is proposed to reflect the current statute.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed revision provides clarification of existing statutory requirements
and imposes no new burdens on business.
SECTION 15154. PROJECTS NEAR AIRPORTS [New Section]
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21096 was added to CEQA in 1994 to require
that when an EIR is prepared for a project in proximity to an airport or
within the boundaries of a comprehensive airport land use plan, the lead
agency for the project must utilize the Caltrans "Airport Land Use
Planning Handbook" to assist in its analysis of airport-related safety
hazards and noise problems. The Guidelines do not currently reflect this
statutory requirement.
Specific Purpose of the Regulation.
The addition of section 15154 will bring the Guidelines into conformity
with an existing statutory requirement.
Necessity and Explanation.
Public Resources Code section 21096 requires that when an EIR is prepared
for a project in proximity to an airport or within the boundaries of a comprehensive
airport land use plan, the lead agency for the project must utilize the
Caltrans "Airport Land Use Planning Handbook" to assist in its
analysis of airport-related safety hazards and noise problems. The current
CEQA Guidelines do not reflect this statutory requirement and could be a
legal trap that leads otherwise complying lead agencies into violation of
CEQA requirements. The addition of section 15154 is necessary to avoid
this circumstance and make the Guidelines congruent with statutory requirements.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of an existing statutory
requirement and imposes no new burdens on business.
SECTION 15175. Master EIR
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
In 1993, the Master EIR alternative was added to CEQA. It was the Legislature's
intent that a Master EIR evaluate the cumulative impacts, growth inducing
impacts and irreversible significant effects of subsequent projects to the
greatest extent feasible. The Legislature also intended that the environmental
review of subsequent projects be substantially reduced to the extent that
the project impacts have been reviewed and mitigated within the certified
Master EIR. The Guidelines do not currently contain provisions identifying
the Master EIR as an alternative to the preparation of a project EIR, staged
EIR or program EIR.
Specific Purpose of the Regulation.
Section 15175 is intended to clarify that the Master EIR is an alternative
to preparing a project EIR, staged EIR, or program EIR for certain projects.
This section also lists the classes of projects where a Master EIR is appropriate,
when it may be utilized, and the potential limitation of its use if certified
more then five years prior to the proposed subsequent project.
Necessity and Explanation.
It is essential that the Guidelines include the Master EIR as an alternative
to the existing types of EIRs available to lead agencies. This section
specifies when the alternative is available for use by lead agencies and
establishes the parameters for use of the Master EIR if it was certified
more then five years prior to the application for a subsequent project.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The purpose behind the Master EIR is to actually lessen the economic impact
on business with regards to compliance with the California Environmental
Quality Act. By preparing a Master EIR, the cost of approval for subsequent
projects should decrease. If a subsequent project is within the scope of
the Master EIR, the environmental review required is limited and streamlined.
As a result, business will incur fewer costs over time.
SECTION 15176. Contents of a Master EIR.
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
In order to be effective, the Master EIR must contain certain information.
Public Resources Code section 21157 establishes specific content requirements.
Specific Purpose of the Regulation.
Section 15176 is designed to specify the content requirements for a Master
EIR and to clarify the statutory intent related to a Master EIR's content.
Necessity and Explanation.
Subdivision (a) provides a cross reference to section 15126 of the Guidelines
which establishes the basic elements required in all EIRs. Although a Master
EIR is an alternative, it must still contain primary environmental evaluations
in order to inform a lead agency about the potential significant effects
on the environment - which is one of the primary purposes behind CEQA.
Subdivision (b) provides the content requirements for the anticipated subsequent
projects and goes to the heart of the Master EIR. The fundamental purpose
behind the Master EIR is to provide limited review for subsequent projects.
Consequently, the Master EIR must adequately discuss the anticipated subsequent
projects to be of further use. Subdivision (b)(3) is intended to clarify
that the anticipated and alternative location analysis within the Master
EIR for subsequent development projects does not require any more analysis
then is required by the rule of reason as set forth in section 15126(d)(5)
of the Guidelines.
The statute requires that the Master EIR contain a description of the capital
outlay or capital improvement program or other scheduling or implementing
devise to govern the submission and approval of subsequent projects. The
Guideline section referencing this requirement is intended to clarify that
this requirement should be complied with to the extent that it is possible
within the confines of practical planning considerations. This clarification
is consistent with the Legislature's intent for the Master EIR to contain
information relating to subsequent projects to the greatest extent feasible.
Subdivision (c) mirrors the statutory language of Public Resources Code
section 21157, but is necessary for inclusion within the Guidelines so the
Guidelines are complete and accurate. Many lead agencies rely upon and
use the Guidelines as a primary reference material to comply with the provisions
of CEQA. Consequently, subdivision (c) must be included so lead agencies
are aware of this content requirement.
To clarify whether zoning actions or project approvals consistent with a
General Plan or Specific Plan are subsequent projects within the Master
EIR, subdivision (d) is proposed for addition. It states that when a Master
EIR is prepared for a general plan or specific plan, later planning approvals
that are consistent with the general plan or specific plan may be considered
subsequent projects. This is a logical extension of a Master EIR prepared
for a general or specific plan. If later related planning approvals cannot
be considered subsequent projects, then the purpose of the Master EIR has
been defeated.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed additions and clarifications of the Master EIR language are
designed to provide lead agencies with flexibility in meeting the requirements
established by CEQA. As a result, the proposed language does not cause
an adverse economic impact on business but helps to alleviate some of the
costs associated with CEQA compliance.
SECTION 15177. Subsequent Projects Within the Scope of the MEIR
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
The primary purpose behind the creation of the Master EIR alternative is
to provide for limited review of subsequent projects following the preparation
of the Master EIR. However, within this context, the statute requires that
the subsequent project be within the scope of the Master EIR to qualify
for limited environmental review.
Specific Purpose of the Regulation.
Section 15177 is designed to provide lead agencies with the information
necessary to determine if a subsequent project is within the scope of the
Master EIR and therefore eligible for limited environmental review.
Necessity and Explanation.
Subdivision (a) explains that subsequent projects found to be within the
scope of a certified Master EIR are subject to limited environmental review.
Subdivision (b) outlines what is meant by limited environmental review
for a subsequent project and contains the initial study information required
to determine if a subsequent project is within the scope of the Master EIR.
Proposed subdivision (c) is intended to clarify the standard of review applied
to a lead agencies determination that a subsequent project is within the
scope of the Master EIR. This determination is a question of fact for the
lead agency and it is based upon the initial study prepared for the subsequent
project. It is not subject to the fair argument standard which applies
when a lead agency determines whether to prepare an EIR based upon the initial
study. The initial study prepared pursuant to Guidelines section 15177
is distinguishable from one prepared in a normal project EIR type situation.
In this case it is used to determine if the subsequent project is within
the scope of the Master EIR by looking to see if there are "additional"
significant effects or "additional" mitigation measures or alternatives
required for the subsequent project that are not included in the Master
EIR. The traditional initial study in which the fair argument standard
applies determines whether an initial project will cause a significant effect
on the environment.
Proposed subdivision (e) notifies lead agencies that if a subsequent project
is approved, a Notice of Determination is required.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
Proposed section 15177 clarifies the actions a lead agency should make to
determine if a subsequent project is within the scope of the Master EIR.
This is an existing statutory requirement and imposes no new burdens on
business.
SECTION 15178. Subsequent Projects Not Within the Scope of the MEIR
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
If a lead agency cannot make a finding that a subsequent project is within
the scope of the Master EIR pursuant to section 15177, then a lead agency
must determine whether to prepare a Mitigated Negative Declaration, Focused
EIR or regular project EIR. Public Resources Code sections 21157 and 21157.5
are fairly ambiguous on how a lead agency should make this determination.
Specific Purpose of the Regulation.
Section 15178 is intended to clarify the statutory provisions and provide
lead agencies with the necessary guidance to determine what is the appropriate
level of environmental review for the subsequent project.
Necessity and Explanation.
Subsection (a) clarifies that a lead agency may prepare a Mitigated Negative
Declaration or focused EIR for the out-of-scope subsequent project if the
lead agency determines that the cumulative impacts, growth inducing impacts
and irreversible significant effects analyses within the Master EIR are
adequate for the subsequent project. It is necessary to clarify that this
decision is a question of fact for the lead agency and not a decision subject
to the fair argument standard. At this juncture, the lead agency is not
deciding if the project may have a significant effect on the environment,
but rather if the analyses contained within the Master EIR for the three
areas mentioned above are adequate for the subsequent project. If the lead
agency makes this determination in the affirmative, then they can decide
which is the appropriate documentation - a Mitigated Negative Declaration
or a focused EIR.
Subsection (b) outlines when a Mitigated Negative Declaration can be prepared
for a subsequent project. In this situation, the initial study in section
15177 shall have identified additional significant environmental effects
not analyzed in the Master EIR and feasible mitigation measures or alternatives
will revise the subsequent project to avoid or mitigated those effects before
the Negative Declaration is released for public review. This subsection
clarifies the requirements of Public Resources Code section 21157.5.
Subsection (c) provides guidance as to when a focused EIR should be prepared
for the subsequent project found not to be within the scope of the Master
EIR. It incorporates the statutory requirements of Public Resources Code
section 21158 and clarifies what the focused EIR needs to include in order
to satisfy the statutory requirements. First, this subsection clearly states
that the focused EIR shall be prepared if the subsequent project may have
a significant effect on the environment and a Mitigated Negative Declaration
pursuant to subsection (b) of this section cannot be prepared. This decision
by the lead agency is subject to the fair argument standard as is indicated
by the language "may have a significant effect on the environment."
This language is identical to the language in Public Resources Code section
21080 subsection (d), which is the source of the body of law creating the
fair argument standard. The fair argument standard is the standard upon
which lead agency decisions regarding whether to prepare an EIR will be
reviewed by a court. Its basic premise is that if it can be fairly argued
based upon substantial evidence in the record that the project may have
a significant effect on the environment, then an EIR must be prepared.
Subdivisions (1), (2), (3) and (4) of subsection (c), outline and simplify
the statutory focused EIR provisions of Public Resources Code section 21158.
In order for lead agencies to effectively utilize the Guidelines, these
provisions must be included within the Guidelines and provide clear guidance
to Lead Agencies and project applicants. The proposed language is intended
to achieve that result.
Subsection (d) is intended to notify lead agencies that the filing of a
notice of determination is required when a decision is made regarding a
subsequent project for which either a Mitigated Negative Declaration or
focused EIR is prepared.
The primary purpose behind subsection (e) is to put lead agencies on notice
that a subsequent project is not eligible for limited environmental review
if the lead agency determines that the cumulative impacts, growth inducing
impacts and irreversible significant effects analyses in the Master EIR
are inadequate. However, it also clarifies that the Master EIR is still
a viable environmental document for tiering purposes pursuant to section
15152 of the Guidelines. The legislative intent behind the Master EIR is
to create a streamlined environmental process for subsequent projects and
avoid duplicative review procedures. It would defeat the Legislature's
intent to limit duplicative environmental review if a lead agency was not
allowed to utilize a Master EIR for tiering purposes.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed regulation provides clarification of existing statutory requirements
and imposes no new burdens on business.
SECTION 15179. Limitations on the Use of the Master EIR
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21157.6 places limitations on the use of Master
EIRs. These limitations are not currently reflected in the Guidelines.
Specific Purpose of the Regulation.
The proposed addition of section 15179 incorporates the limitations placed
on Master EIRs pursuant to Public Resources Code section 21157.6.
Necessity and Explanation.
If a lead agency utilizes the Guidelines to prepare a Master EIR, they must
also be aware of the limitations placed upon the Master EIR. It is imperative
that this information be available within the parameters of the Guidelines
so a lead agency does not inadvertently utilize an invalidated Master EIR.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed new section incorporates existing statutory requirements into
the Guidelines and imposes no new burden on business.
SECTION 15179.5. Focused EIRs and Small Projects
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
In addition to being used for subsequent projects within the Master EIR
context, Public Resources Code section 21158.5 allows the focused EIR to
be used for small projects that fit into certain parameters. The CEQA Guidelines
do not reflect this statutory provision. The proposed new section adds
and clarifies Public Resources Code section 21158.5 into the Guidelines.
Specific Purpose of the Regulation.
This new section is intended to inform lead agencies and project applicants
that a focused EIR shall be prepared for a small project when the project
meets certain conditions and this section specifies the certain conditions.
Necessity and Explanation.
Subdivision (a) recites what constitutes a small project, clarifies that
the use of a focused EIR in this instance is not dependent on the project
being identified in the Master EIR, and outlines the necessary conditions
for when to prepare a focused EIR. Those conditions are: (1) the project
is consistent with a general plan, specific plan, community plan or zoning
ordinance for which an EIR has been prepared within five years of certification
of the focused EIR for the small project; and (2) the parcel being developed
is either surrounded by contiguous development, previously developed or
within one-half mile of an existing rail transit station.
A focused EIR prepared pursuant to this section needs only to contain certain
information as indicated by Public Resources Code section 21158.5 subdivision
(b). The proposed subdivision (b) of Guidelines section 15179.5 contains
the content information required by statute. It is necessary to include
this information within the Guidelines to inform Lead Agencies of what a
focused EIR prepared pursuant to this section must contain.
Subdivision (c) of proposed Guidelines section 15179.5 is to notify lead
agencies when it is not appropriate to prepare a focused EIR for small projects.
Within Public Resources Code section 21158.5, this is identified as a condition
to preparation; however, the Guidelines treat this section separately from
the conditions in order to simplify the statutory language. Subdivision
(c) provides, as is required by Public Resources Code section 21158.5, that
a focused EIR cannot be prepared for small projects meeting described parameters
if the project can be found to be within the scope of the Master EIR pursuant
to Guidelines section 15177, if a Mitigated Negative Declaration or focused
EIR can be prepared pursuant to section 15178 or if the EIR referenced in
subdivision (a)(1) needs to be updated through the preparation of a subsequent
or supplemental EIR.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed regulations clarify statutory requirements and impose no new
burdens on business.
SECTION 15187. Environmental Review of New Rules and Regulations
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21159, regarding the use of an EIR to meet
environmental review requirements for rules and regulations adopted for
the installation of pollution control equipment, was added to CEQA by Chapter
1131, Statutes of 1993. The Guidelines have not been updated to reflect
this statutory provision.
Specific Purpose of the Regulation.
Proposed Guidelines section 15187 is intended to reflect Public Resources
Code section 21159 and clarify the statutory provisions.
Necessity and Explanation.
Subdivision (a) identifies that when specified governmental agencies adopt
a rule or regulation requiring the installation of pollution control equipment,
establish a performance standard or establish a treatment requirement an
environmental analysis of reasonably foreseeable methods by which compliance
with the rule or regulation will be achieved.
Subdivision (b) clarifies that an EIR is not required to be prepared for
this environmental analysis but that if one is, it will satisfy the requirements
of this section. In addition, the proposed Guidelines section recognizes
certified regulatory programs and allows their use for these purposes as
long as the document prepared pursuant to the certified regulatory program
includes the information required in subdivision (c) of the proposed Guideline
section 15187.
Subdivision (c) states what is required in the environmental analysis of
the proposed adoption of the rule or regulation. Subdivision (d) includes
specific information that the analysis should take into account.
Subdivision (e) clarifies that this section is not intended to delay the
adoption of any rule or regulation subject to this section.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed section to the Guidelines clarifies existing statutory requirements
and does not impose any new impacts on business.
SECTION 15188. Focused EIR for Pollution Control Equipment
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21159.1 allows a focused EIR to be prepared
for projects consisting solely of pollution control equipment and other
components necessary to the installation of that equipment which are undertaken
to comply with a rule or regulation described in Guidelines section 15187.
The Guidelines have not been updated to reflect this statutory provision.
Specific Purpose of the Regulation.
The proposed new section 15188 is intended to reflect the statutory provisions
of Public Resources Code section 21159.1.
Necessity and Explanation.
The Guideline language mirrors the statutory language. However, it is necessary
to include this provision within the Guidelines so that lead agencies that
depend upon the Guidelines are aware of the availability of using a focused
EIR in this context.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
This section incorporates new statutory provisions into the Guidelines and
does not cause any new burdens on business.
SECTION 15189. Compliance with Performance Standard or Treatment
Requirement Rule or Regulation
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21159.2 was added to CEQA in 1993. The CEQA
Guidelines have not been updated to reflect this new statutory provision.
Specific Purpose of the Regulation.
Section 15189 is being added to the Guidelines to reflect the statutory
provision.
Necessity and Explanation.
Public Resources Code section 21159.2 allows an agency to utilize the environmental
analysis prepared pursuant to CEQA Guidelines section 15187 to prepare a
Negative Declaration, Mitigated Negative Declaration or EIR for a project
that consists solely of a performance standard or treatement requirement.
Proposed section 15189 adds this provision into the Guidelines.
Alternatives to the Proposed Regulatory Action that Would Lessen any Adverse
Economic Impact on Business.
The proposed section clarifies existing statutory requirements and imposes
no new burdens on business.
SECTION 15190. Deadlines for Compliance with Sections 15188 & 15189
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code section 21129.3 established deadlines for the preparation
of environmental impact reports prepared for the specific projects identified
in sections 15188 and 15189 of the Guidelines. The CEQA Guidelines have
not been updated to reflect this statutory requirement.
Specific Purpose of the Regulation.
Proposed section 15190 provides the statutory EIR deadline requirements
for documents prepared pursuant to sections 15188 and 15189 of the Guidelines.
Necessity and Explanation.
If a lead agency prepares an EIR pursuant to section 15188 or 15189 of the
Guidelines, the Guidelines shall also include any limitations applicable
to this process. Section 15190 is being added to the Guidelines to ensure
lead agencies are aware of all the statutory requirements associated with
documents prepared pursuant to those two provisions.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed new section reflects the statutory requirements of Public Resources
Code section 21159.3 and imposes no new burdens on business.
SECTION 15206. Projects of Statewide, Regional, or Areawide Significance
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Fish and Game Code section 903 was repealed in 1984. The Guidelines have
not been updated to reflect this change in the Fish and Game code.
Specific Purpose of the Regulation.
The proposed revision is to eliminate the outdated reference to the Fish
and Game Code and reflect the proposed revisions to guideline section 15380
which defines rare and endangered species for use within the Guidelines.
Necessity and Explanation.
The current reference to Fish and Game Code section 903 is outdated. Also,
the amended Fish and Game Code refers to threatened and endangered species.
Therefore, section 15380 is being revised to reflect the language used
in the Fish and Game Code. This section must be updated to appropriately
reflect the proposed changes to the terms used in the definition section
of the CEQA Guidelines.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed amendments update the Guideline references and reflect other
changes to the Guidelines. There are no new burdens imposed on business.
SECTION 15225. CIRCULATION OF DOCUMENTS
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21083.8 was added to the statutes in 1994
and amended in 1995. Section 21083.8 establishes an optional procedure for
using federal Environmental Impact Statements (EIS) prepared for military
base reuse plans to comply with CEQA's requirements for environmental analysis.
The CEQA Guidelines do not reflect these provisions.
Specific Purpose of the Regulation.
Guidelines section 15225 currently provides for the use of an Environmental
Impact Statement to satisfy CEQA requirements, but does not reflect the
additional option provided in Public Resources Code section 21083.8. The
revision to section 15225 will bring the guideline into conformity with
the statute.
Necessity and Explanation.
Public Resources Code section 21083.5 requires the CEQA Guidelines to provide
that all or any part of an EIS may be used in place of an EIR if that EIS
complies with the requirements of CEQA and the CEQA Guidelines. Accordingly,
Guidelines section 15225 provides that where a federal agency has circulated
an EIS for public review as broadly as state or local law may require under
CEQA and the EIS otherwise complies with CEQA as provided in section 15221,
no further circulation of the EIS is necessary before it is used as an EIR.
Public Resources Code section 21083.8 offers the following optional procedure
for use of an EIS prepared for the closure and reuse of a federal military
base as an EIR: the EIS, as well as a description of the reuse plan, must
be circulated with the EIR's notice of preparation; upon the close of the
standard comment period, the lead agency must prepare a draft EIR incorporating
all or part of the EIS and any additional information necessary; and the
draft EIR must be circulated for review and comment as otherwise provided
under CEQA. This optional procedure is generally more involved than the
existing requirements under both Public Resources Code section 21083.5 and
Guidelines section 15225.
The proposed revision to section 15225 is intended to reflect the optional
procedure established under Public Resources Code section 21083.8, while
clarifying the relationship between this option and the existing provisions
of both Public Resources Code section 21083.5 and Guidelines section 15225.
The first sentence of proposed subsection (b) establishes that the optional
procedure applies where the EIS does not meet the requirements of CEQA or
has not been circulated for public review as required by CEQA and the Guidelines.
This distinguishes use of this procedure from the situation described in
Public Resources Code section 21083.5 and Guidelines section 15225, where
no additional circulation is necessary. The remainder of subsection (b)
conforms to and will implement Public Resources Code section 21083.8.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed revision provides clarification of existing statutory requirements
and imposes no new burdens on business.
SECTION 15229. BASELINE FOR ANALYSIS
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21083.8.1 was added to CEQA in 1995 to provide
an optional procedure by which a lead agency contemplating adoption of an
initial reuse plan for a closed military base may establish one or more
of the levels of activity which existed at the base at the time of the federal
closure decision as a baseline for environmental review. The CEQA Guidelines
do not reflect this provision.
Specific Purpose of the Regulation.
Proposed section 15229 is being added to bring the Guidelines into conformity
with the statute.
Necessity and Explanation.
An EIR is required for adoption of an initial military base reuse plan
by a local agency (Public Resources Code section 21151.1). Public Resources
Code section 21083.8.1 establishes what are to be the minimum contents of
a base reuse plan and provides that when preparing and certifying the EIR
the determination of whether the plan may have a significant effect on the
environment may be made in the context of the physical conditions which
existed at the time the federal decision became final for the closure or
realignment of the base. In order to utilize this option, the lead agency
must hold a public hearing at which it will discuss the federal EIS and
environmental impacts, alternatives and mitigation measures contained therein,
discuss the proposed baseline conditions, and may identify particular physical
conditions which it will examine at greater detail than in the EIS. Prior
to the public hearing, the lead agency is required to consult with pertinent
responsible and trustee agencies and provide them 30 days to offer comments.
At the close of the hearing, the lead agency must state how it intends
to integrate the baseline for analysis with the reuse planning and environmental
review process and make a finding regarding the economic or social reasons
supporting adoption of the baseline. Section 21083.8.1 specifically prohibits
any limitation on the review of hazardous or toxic wastes or materials as
a result of adopting a baseline and specifies that all reuse activities
will continue to be subject to state all applicable federal, state, and
local laws, including water quality and waste remediation laws. Pursuant
to section 21083.8.1, subsequent projects undertaken to further an adopted
reuse plan are to be considered part of the reuse plan project and are subject
to limited subsequent environmental review.
None of these provisions are in the CEQA Guidelines. The proposed new section
15229 is intended to conform the Guidelines to this statute, as well as
provide limited clarification. The opening paragraph of proposed section
15229, clarifies that the purpose of this section is to provide an optional
means to establish a baseline environment against which the proposed base
reuse activities may be measured. Impacts exceeding the threshold level
established by the baseline would then be considered significant.
Overview of subsection (a)
Subsection (a) reflects the requirements of Public Resources Code section
21083.8.1(c) which must be completed prior to circulating a draft EIR utilizing
an adopted baseline. The requirements are arranged in chronological order
to assist lead agency compliance and include: identification and consultation
with responsible and trustee agencies, a public hearing at which to discuss
the federal EIS and proposed baseline, and written findings explaining and
supporting the baseline decision. Subsection (a) provides that a hearing
on the baseline may be continued from time to time. This is necessary to
clarify that a hearing need not take place in a single day.
Overview of subsection (b)
Subsection (b) clarifies where discussions of baseline effects should be
incorporated into an EIR prepared under section 15229. Subsection (b) recommends
that baseline conditions be identified in the EIR section discussing the
environmental setting, that baseline conditions be cited in the EIR section
on environmental effects, and that the no project alternative discuss the
conditions on the base at the time the EIR is prepared, pursuant to section
21083.8.1(b). Section 15125 provides that the environmental setting section
of an EIR must include a description of the environment in the vicinity
of the project at the time the project is commenced. Including the baseline
in this description is intended to provide full disclosure of the on-site
and off-site environmental conditions upon which the EIR is based. Citing
the baseline conditions in the section on effects, is also intended to offer
full disclosure of the threshold standard utilized in the EIR to determine
whether there may exist a significant environmental effect. These clarifications
conform to statute and are intended to assist lead agencies in organizing
the discussion of the baseline within the context of the EIR.
Overview of subsection (c)
Subsection (c) provides that all public and private activities undertaken
pursuant to or in furtherance of the reuse plan are considered part of the
same project for purposes of determining whether a subsequent or supplemental
EIR is to be required for those activities. This conforms to subsection
(b) of section 21083.8.1. Applicable cross references to Guidelines sections
15162 and 15163 (discussing subsequent and supplemental EIRs, respectively)
are included to assist lead agencies in making that determination.
Overview of subsection (d)
Subsection (d) presents the limitations on the applicability of the baseline
approach contained in subsections (d) and (e) of section 21083.8.1. It
specifies, pursuant to statute, that this section does not limit the scope
of review, significance, or regulation of hazardous waste and materials
which may be present on the closed base, that this section does not apply
to hazardous waste regulation and remediation projects, and that subsequent
development at the closed base will continue to be subject to all applicable
federal, state, and local laws. This subsection conforms strictly to statute.
Overview of subsection (e)
Subsection (e) consists of a definition of the term "reuse plan."
It conforms to the definition contained in subsection (a) of section 21083.8.1
and is presented here to ensure that lead agencies will have sufficient
information in the Guidelines to fully comply with statutory requirements.
Overview of subsection (f)
Public Resources Code section 21083.8.1(d) provides that the baseline provisions
will be available for use for a limited time. A notice of preparation must
be issued within one year of the date the federal record of decision to
close the base was rendered, or January 1, 1997, whichever is later. Subsection
(f) is intended to conform the Guidelines to this time limit.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of existing statutory requirements
and imposes no new burdens on business.
SECTION 15274. Family Day Care Homes
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
The basis for the current statutory exemption, Revenue Shortfalls, was amended
out of law by Chapter 1131, Statutes 1993. As a result, it must be repealed
from the Guidelines. However, Health and Safety Code section 1597.46 provides
for a new statutory exemption for Family Day Care Homes. The Guidelines
need to be updated to reflect the new statutory exemption.
Specific Purpose of the Regulation.
The amended regulation is intended to repeal the statutory exemption for
revenue shortfalls and add the new statutory exemption for Family Day Care
Homes.
Necessity and Explanation.
Both changes are necessary for the Guidelines to accurately reflect current
statutory changes. The statutory exemption for the establishment of a large
family day care home is provided by Health and Safety Code section 1597.46.
Subdivision (b) further clarifies that local agencies cannot require use
permits for the establishment or operation of small family day care homes.
Pursuant to Health and Safety Code section 1597.45, it is a ministerial
action and therefore not subject to CEQA. This clarification is being added
to the Guidelines so lead agencies do not interpret the Guidelines to mean
that large family day care homes are exempt, but small family homes are
not.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions provide statutory clarification and do not have any
adverse economic impact on business.
SECTION 15278. APPLICATION OF COATINGS
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Section 1 of Chapter 1131 of the Statutes of 1993 enacted nonstatutory language
creating 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. The CEQA Guidelines do not reflect this provision.
Specific Purpose of the Regulation.
Proposed section 15278 is being added to bring the Guidelines into conformity
with the provisions of statute. Because this provision is contained in
an uncodified statute and is therefore not obvious to a reviewer of CEQA,
including it in the Guidelines is critical to its implementation.
Necessity and Explanation.
Current uncodified law provides that CEQA does not apply discretionary decisions
of an air quality management district relative to projects consisting of
the application of coatings within an existing automotive manufacturing
plant where: the project will not cause a net increase in emissions for
any pollutant subject to a federal or state ambient air quality standard;
the project will not cause a net increase in adverse impacts of toxic air
contaminants as determined by a health risk assessment; and the project
will not have any other adverse effect on the environment. Uncodified law
further requires the air district to provide 10-day public notice of its
intention to employ this exemption and establishes an appeal procedure for
permits issued under this exemption. Proposed section 15278 is congruent
with this uncodified section of Chapter 1131 of the Statutes of 1993.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of existing requirements
of law and imposes no new burdens on business.
SECTION 15279. HOUSING FOR AGRICULTURAL EMPLOYEES
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21080.10, as amended in 1994, establishes
a statutory exemption from CEQA for specified projects which construct,
convert, or use residential housing for agricultural employees. The CEQA
Guidelines do not reflect this provision.
Specific Purpose of the Regulation.
Proposed section 15279 is being added to bring the Guidelines into conformity
with the statute.
Necessity and Explanation.
Subsection (c) of Public Resources Code section 21080.10 provides that CEQA
does not apply to the development of housing for agricultural employees,
as defined, provided that the development is affordable to lower income
households, there is no public financial assistance to the project and the
developer commits to making the units available for at least 15 years.
The exemption also applies where the project is affordable to low- and moderate-income
households, there is public financial assistance to the project and the
developer commits to making the units available for at least 15 years.
In either situation, the statute limits use of this exemption to projects
which: are consistent with the applicable general plan and zoning, do not
exceed 45 units if in an urbanized area or 20 units in a nonurbanized area,
have adequate utility services, have no habitat value, are not on the State
list of hazardous waste sites, and will not adversely affect historic resources.
Section 21080.10 further limits this exemption to projects which do not
have a reasonable possibility of resulting in an environmental effect.
Proposed section 15279 conforms to subsection (c) of Public Resources Code
section 21080.10. Subsection (a) of the proposed guideline makes minor
modifications to the presentation of section 21080.10(c) to clarify that
the statute applies to certain types of low-income projects and to specified
low- and moderate-income projects. Subsection (b) groups the qualifying
criteria for projects for ease of recognition by lead agencies. Proposed
subsections (c), (d), and (e), defining "housing for agricultural employees,"
defining "urbanized area," and limiting the exemption to projects
without the possibility of environmental effect, respectively, conform to
subdivisions (2), (3), and (4) of subsection (c) of section 21080.10.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of existing requirements
of law and imposes no new burdens on business.
SECTION 15280. LOWER-INCOME HOUSING PROJECTS
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21080.14, added in 1994, establishes a limited
statutory exemption from CEQA for specified lower-income housing developments
in urbanized areas. The CEQA Guidelines do not reflect this provision.
Specific Purpose of the Regulation.
Proposed section 15280 is being added to bring the Guidelines into conformity
with the statute.
Necessity and Explanation.
Public Resources Code section 21080.14 provides that CEQA does not apply
to residential projects of 45 units or less located in an urbanized area
that will be affordable to lower income households, provided that the developer
commits to making the units available for at least 15 years. The exemption
also applies where the project is affordable to low- and moderate-income
households, there is public financial assistance to the project and the
developer commits to making the units continuously affordable. In either
situation, the statute limits use of this exemption to projects which: are
consistent with the applicable general plan and zoning; located on a site
previously urbanized or adjacent to an urbanized area, not more than 2 acres
in size, adequately served by utilities, has no value as wildlife habitat,
not on the State list of hazardous waste sites and given a clean bill of
health after an environmental audit; and not adversely affecting historic
resources. Section 21080.10 further limits this exemption to projects which
do not have a reasonable possibility of resulting in an environmental effect.
Proposed section 15280 conforms to subsection (c) of Public Resources Code
section 21080.10. Subsection (a) of the proposed guideline makes minor
modifications to the presentation of section 21080.10(a) to clarify that
the statute applies to certain types of low-income projects and to specified
low- and moderate-income projects. Subsection (b) groups together the qualifying
criteria for projects for ease of recognition by lead agencies. Proposed
subsections (c) and (e), defining "urbanized area" and limiting
the exemption to projects without the possibility of environmental effect,
respectively, conform to subdivisions (b) and (c ) of section 21080.14.
Proposed subsection (d), which discusses what actions are to be taken if
hazardous contaminants are discovered on the site during the environmental
audit, embodies the requirements of the second part of subsection (8) of
section 21080.14(a). This requirement is presented as a separate subsection
to highlight its importance.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of existing requirements
of law and imposes no new burdens on business.
SECTION 15281. AIR QUALITY PERMITS
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21080.24, added in 1994, statutorily exempts
from CEQA the issuance by an air pollution control or air quality management
district of any air quality permit pursuant to Title V, as defined, unless
the permit would authorize a physical or operational change in the source
or facility that is being permitted. The CEQA Guidelines do not reflect
this provision.
Specific Purpose of the Regulation.
Proposed section 15281 is being added to bring the Guidelines into conformity
with the statute.
Necessity and Explanation.
Section 21080.24 creates a new statutory exemption from CEQA's requirements
for certain air quality permits where no physical or operational change
to a source of facility is being authorized. Proposed section 15281 is
being added in order to make the guideline congruent with the statute.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
The proposed new section provides clarification of existing requirements
of law and imposes no new burdens on business.
SECTION 15282. Other Statutory Exemptions
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Over the years, various exemptions from CEQA have been passed by the Legislature
for certain types of projects. The Guidelines have not been updated in
many years to comprehensively include all of the available statutory exemptions.
Specific Purpose of the Regulation.
The proposed regulation is designed to provide a quick list of statutory
exemptions that are not currently included in the Guidelines. The quick
list references the applicable statutory section which creates the exemptions.
It is intended as a reference and is not to be used by Lead Agencies in
place of the actual statutory language that creates the exemption.
Necessity and Explanation.
In order for the Guidelines to be comprehensive, there needs to be at least
a short reference to the statutory exemptions that have been created by
the Legislature. However, it is unnecessary to fully recite the statutory
language if the Lead Agency is given the appropriate statutory cite so they
can further review the applicable statutory exemption.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed new section reflects existing requirements of law and imposes
no new burdens on business.
SECTION 15301. EXISTING FACILITIES
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Chapter 736 of the Statutes of 1994 requested that the Guidelines be amended
to exempt grading along existing road shoulders undertaken for safety purposes.
Public Resources Code section 21084.2, added in 1995, directs the Office
of Planning and Research to examine whether facilities for the treatment
of medical waste by steam sterilization should be exempt from CEQA and,
if so, to recommend the necessary amendments to the Guidelines. Adoption
of the Davis-Stirling Common Interest Development Act (Civil Code section
1350 et seq.) has amended the application of the term "condominium"
as used in this section of the Guidelines. Guidelines section 15301 currently
exempts certain types of residential and commercial development projects
from CEQA, however, the language of this section is confusing.
Specific Purpose of the Regulation.
The proposed amendments to section 15301 are intended to comply with the
legislative directives embodied in Chapter 736, Stats. 1994 and Public Resources
Code section 21084.2. Other amendments are undertaken to clarify the intent
of this exemption and to utilize nomenclature consistent with the Common
Interest Development Act.
Necessity and Explanation.
Overview of Subsection (c)
Subsection (c) of section 15301 exempts projects involving the operation,
repair, maintenance, and minor alteration of existing highways, streets,
sidewalks, gutters, bicycle, and pedestrian trails and similar facilities.
The proposed amendment would, consistent with the direction of Chapter
736, Stats. 1994, include road grading for the purpose of public safety
in this exemption. This clarifies that road grading is one aspect of operation,
repair, maintenance or minor alteration of existing roads.
Overview of Subsection (k)
Subsection (k) exempts the subdivision of multifamily rental units into
condominiums. The proposed amendment would clarify that the accepted technical
term for condominiums is now "common interest subdivisions."
The amendment would also combine this subsection with the contents of subsection
(o), placing the exemptions for both residential and commercial common-interest
subdivisions in a single subsection. Subsection (k) is currently limited
to multifamily rental units. The phrase "rental units" is being
deleted as unnecessary in that whether the units are rentals or not has
no bearing on the potential environmental effects of the activity. The
amendment would recognize that the conversion of existing single-family
residences to common interest ownership is no more environmentally significant
than the already exempt conversion of existing multiple units.
The phrase "where no physical changes occur" is added to subsection
(k) to clarify that the exemption is limited to the administrative subdivision
of existing residential, commercial, or industrial facilities to individual
ownership for purposes of sale, lease or financing and does not include
activities which would lead to physical changes in the facility. Pursuant
to Public Resources Code section 21065, as amended in 1994, "project"
under CEQA is limited to activities which result in a physical change to
the environment. Therefore, the amendments to subsection (k) would not
result in activities which may have a significant effect.
Overview of Subsection (l)
Subsection (l) exempts the demolition and removal of individual small structures.
As written, it is confusing. For example, the phrase "single-family
residences not in conjunction with the building demolition of two or more
such units" (emphasis added) may be interpreted to mean that more than
one residence may be demolished under the exemption (e.g., "residences").
The proposed amendments clarify that the exemption applies to one single-family
residence (three residences in urbanized areas), a duplex or similar multifamily
residence (up to six dwelling units in urbanized areas), or a commercial
structure (up to three structures in an urbanized area). This will assist
lead agencies in applying the exemption consistently.
Overview of Subsection (o)
Subsection (o) provides for the conversion of existing commercial structures
to condominium ownership. As noted above, its provisions are proposed for
combination with subsection (k). The proposed amendment would delete the
current language of this subsection and substitute an exemption for medical
waste steam sterilization units, pursuant to the direction of Public Resources
Code section 21084.2. To qualify for this exemption, the sterilization
unit would have to be installed at an existing facility which generates
medical waste, would be limited in use to the waste generated by that facility,
and would be required to be installed and operated in accordance with the
Medical Waste Management Act (Health and Safety Code section 25015, et seq.).
Under these conditions, a steam sterilization unit would not have a significant
effect on the environment.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
CEQA exemptions are enacted pursuant to Public Resources Code section 21084
for the purpose of exempting from review certain classes of projects which
the Resources Secretary has found do not have a significant effect on the
environment. Exemptions have a positive economic impact on business by
excepting classes of projects from the environmental process, thereby saving
time and money for the project proponent. The proposed amendments to section
15301 provide clarification of existing requirements of law, as well as
existing exemptions, and impose no new burdens on business.
SECTION 15303. NEW CONSTRUCTION OR CONVERSION OF SMALL STRUCTURES
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
Public Resources Code section 21084.2, added in 1995, directs the Office
of Planning and Research to examine whether facilities for the treatment
of medical waste by steam sterilization should be exempt from CEQA and,
if so, to recommend the necessary amendments to the Guidelines.
Specific Purpose of the Regulation.
The proposed amendment to section 15303 is intended to comply with the legislative
directive embodied in Public Resources Code section 21084.2.
Necessity and Explanation.
Guidelines section 15303 addresses the construction and location of new,
small facilities or structures, the installation of small, new equipment
and facilities in small structures, and the conversion of existing small
structures from one use to another where only small exterior modifications
are made. Proposed subsection (f) would allow medical waste steam sterilization
units, pursuant to the direction of Public Resources Code section 21084.2,
as an accessory to an existing medical waste generating facility. To qualify
for this exemption, the sterilization unit would be limited in use to the
waste generated by that facility, and would be required to be installed
and operated in accordance with the Medical Waste Management Act (Health
and Safety Code section 25015, et seq.). This differs from the exemption
proposed under subsection (o) of section 15301 by applying to new small
accessory facilities, rather than changes to an existing facility. Under
the specified conditions, a steam sterilization unit would not have a significant
effect on the environment.
Alternatives to the Proposed Regulatory Action that Would Lessen Any
Adverse Economic Impact on Business.
CEQA exemptions are enacted pursuant to Public Resources Code section 21084
for the purpose of exempting from review certain classes of projects which
the Resources Secretary has found do not have a significant effect on the
environment. Exemptions have a positive economic impact on business by
excepting classes of projects from the environmental process, thereby saving
time and money for the project proponent. The proposed amendments to section
15303 provide clarification of existing requirements of law, as well as
existing exemptions, and impose no new burdens on business.
SECTION 15328. Small Hydroelectric Projects at Existing Facilities
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
The California Endangered Species Act, as well as the Federal Endangered
Species Act, uses the terms "threatened" and "endangered"
species. Guidelines section 15380, the definition of rare and endangered
species within the Guidelines, is proposed for revision to incorporate the
use of these terms. As a result, all references to these terms within the
Guidelines must be amended to recognize the proposed addition of "threatened"
species to the Guidelines.
Specific Purpose of the Regulation.
The proposed revision is to provide consistency between the terms used in
the Guidelines definition of rare and endangered species and throughout
the Guidelines.
Necessity and Explanation.
Since the definition section for the applicable terms is proposed for revision,
other references to the same terms throughout the Guidelines must be revised
to reflect the proposed change. Subsection (i) of Guidelines section15328
refers to rare or endangered species. The term threatened needs to be added
to properly reflect the addition of threatened species to Guidelines section
15380.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revision updates the Guidelines to be consistent with current
statutory terms. The is no adverse economic impact on business.
SECTION 15376. Person
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
The California legislature recently codified the concept of the limited
liability company. The Guidelines have not been updated to reflect California's
legal recognition of limited liability companies although Public Resources
Code section 21066 has been amended to recognize limited liability companies
as a person for the purposes of CEQA.
Specific Purpose of the Regulation.
The proposed revision adds "limited liability company" to the
definition of person for which CEQA applies.
Necessity and Explanation.
As a newly recognized legal entity within the State of California, a limited
liability company must be added to the definition of person within the CEQA
Guidelines. The addition also reflects the addition of a limited liability
company within the CEQA statutory definition of "person" in Public
Resources Code section 21066.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revision brings the Guidelines into conformity with the statute
and does not cause an adverse economic impact on business.
SECTION 15378. Project
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
The statutory definition of "project," Public Resources Code section
21065, was amended by Chapter 1271 of the statutes of 1994. The Guidelines
definition of project has not been amended to reflect the statutory amendments.
Specific Purpose of the Regulation.
The proposed revision is intended to bring the Guideline definition of project
into compliance with the statutory definition of project.
Necessity and Explanation.
In order for the Guidelines to be accurate, the definition of a term used
within the Guidelines needs to be consistent with the statutory definition
of the same term. The term "project" is probably one of the most
widely used terms in CEQA. It is essential that the statute and Guidelines
are consistent when defining this term.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revision brings the Guidelines into conformity with the statutory
provisions. There is no adverse economic impact on business.
SECTION 15380. Threatened, Rare or Endangered Species
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Both the California Endangered Species Act and the federal Endangered Species
Act use the terms threatened and endangered when referring to listed species.
The Guidelines currently do not recognize species listed as "threatened."
Also, the current language of the Guidelines allow public entities other
then the California Fish and Game Commission and United States Fish and
Wildlife Service to determine if a species should be considered rare or
endangered for the purposes of CEQA.
Specific Purpose of the Regulation.
The proposed addition of "threatened" species will bring the Guidelines
into consistency with the California Endangered Species Act and the federal
Endangered Species Act.
The proposed amendments will also limit the determination of what qualifies
as a rare, threatened or endangered species to those species specifically
listed by the State or Federal Government.
Necessity and Explanation.
It is essential that the Guidelines be updated to reflect the statutory
term, "threatened" species. Consequently, it is proposed that
the definition of rare or endangered species be amended to include threatened
species as well. Although neither the California Endangered Species Act
nor the Federal Endangered Species use the term "rare" species,
the California Native Plant Protection Act, Public Resources Code section
1901 et seq., still uses the term "rare" and therefore should
remain for use related to native plant species.
The definition of what constitutes a rare, threatened or endangered species
needs to be limited to those species listed by the State or Federal Government.
As was found by the California Appeals court in Sierra Club v. Gilroy City
Council 222 Cal.App.3d 30, 47 (1990), "the duty to designate a plant
or animal species as rare or endangered has been delegated under the California
Endangered Species Act to the Fish and Game Commission (Fish and Game Code
section 2070) and under the federal Endangered Species Act jointly to the
Secretaries of Interior and Commerce (16 U.S.C. section 1533(c))."
Consequently, other public agencies should not have the discretion to determine
if a species is endangered or threatened.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions would most likely have a positive economic impact
on business. There would be a greater degree of certainty put into the
CEQA process regarding threatened or endangered species. Project applicants
would know that only species listed under the California Endangered Species
Act or the federal Endangered Species Act could be considered threatened
or endangered for the purposes of compliance with CEQA. As a result, a
lead agency could not determine that the project would have a significant
impact on a species if that species was not listed under the State or Federal
act.
SECTION 15382. Significant Effect on the Environment
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
State and regional agencies with specific jurisdiction over certain environmental
standards often establish legal minimum standards for compliance. The Guidelines
do not currently incorporate these established standards for purposes of
defining what may be considered a significant effect on the environment.
The proposed revisions address this concern.
Specific Purpose of the Regulation.
The proposed revision to the guideline definition of "significant effect
on the
environment" provides that a change in the environment that does not
exceed established state or regional agency standards is not a significant
effect on the environment.
Necessity and Explanation.
These standard have been adopted through a formal administrative
hearing process with input from all knowledgeable, interested persons and
reflect a well-considered determination of what is appropriate to require
for resource protection. To the degree that CEQA does not acknowledge such
determinations, it is a reinvention of the wheel.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revision does not impose any new burdens on business.
Instead, it narrows a lead agency's ability to determine what is considered
a significant effect. Businesses will be able to determine what are significant
effects with greater certainty and therefore be able to anticipate potential
costs associated with the project at an earlier stage in the process.
SECTION 15384. Substantial Evidence
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
Public Resources Code sections 21080 and 21082.2, relating to what constitutes
substantial evidence, have been amended by legislation in 1993 and 1994.
The Guideline definition of substantial evidence has not been updated to
reflect the statutory amendments.
Specific Purpose of the Regulation.
The proposed revisions are designed to reflect the statutory amendments
so that the definition of substantial evidence is consistent with the statutory
provisions.
Necessity and Explanation.
The proposed addition of the phrase "that the project ma¿±/»ÁÄcant
effect ¿Ähe environment" clarifies that the fair argument
is to be made on the determination of whether or not the project may have
a significant effect on the environment. In addition, the phrase "whole
record before the lead agency" needs to be added pursuant to statutory
amendments to Public Resources Code section 21080(d) which clarify that
the determination of substantial evidence is based upon the whole record
before the lead agency.
The remaining proposed amendments are based upon changes to Public Resources
Code section 21080(e) which specifically list types of information that
are not considered substantial evidence and provide examples of what substantial
evidence shall include.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revisions provide clarification of statutory provisions and
do not have an adverse economic impact on business.
APPENDIX G.
Public Problem, Administrative Requirement, or Other Condition or Circumstance
that the Regulation Is Intended to Address.
The California Endangered Species Act, as well as the federal Endangered
Species Act, uses the terms "threatened" and "endangered"
species. Guidelines section 15380, the definition of rare and endangered
species within the Guidelines, is proposed for revision to incorporate the
use of these terms. As a result, all references to these terms within the
Guidelines, including Appendix G, must be amended to recognize the proposed
addition of "threatened" species to the Guidelines.
Specific Purpose of the Regulation.
The proposed revision is to provide consistency between the terms used in
the Guidelines' definition of rare and endangered species.
Necessity and Explanation.
Since the definition section for the applicable terms is proposed for revision,
other references to the same terms throughout the Guidelines must be revised
to reflect the proposed change. Subsection (c) of Appendix G refers to
rare or endangered species. The term threatened needs to be added to properly
reflect the addition of threatened species to Guidelines section 15380.
Alternatives to the Proposed Regulatory Action that Would Lessen any
Adverse Economic Impact on Business.
The proposed revision updates the Guidelines to be consistent with current
statutory terms. The is no adverse economic impact on business.
APPENDIX L. CRITERIA FOR SHORTENED CLEARINGHOUSE REVIEW
Public Problem, Administrative Requirement or Other Condition or Circumstances
that the Regulation is Intended to Address.
CEQA and the CEQA Guidelines establish specific periods during which a draft
EIR or proposed negative declaration must be made available for public review.
For draft EIRs and negative declarations submitted to the State Clearinghouse,
these periods are 45 days and 30 days, respectively. Public Resources Code
section 21091, added in 1991, authorizes the State Clearinghouse to approve
shortened review periods under specified circumstances. The Guidelines
do not reflect these statutory provisions.
Specific Purpose of the Regulation.
Appendix L is proposed to specify the criteria to be used by the State Clearinghouse
in determining whether to grant a shortened review period.
Necessity and Explanation.
Subsection (e) of Public Resources Code section 21091 authorizes the Office
of Planning and Research (OPR) to set forth criteria for shortened review
periods. In addition, subsection (e) establishes the following limitations
on the g