III. CEQA

The California Environmental Quality Act (CEQA) (Public Resources Code §21000, et seq.) includes many procedural requirements that the practitioner must keep track of, including those for notice and review. This section will cover the three basic steps of CEQA and the related requirements under exemptions, negative declarations, and environmental impact reports (EIR).

It is important to note that as intended by the Legislature, the legal requirements for providing public notice under CEQA will, under normal circumstances, be met when the agency "makes a good faith effort to follow the procedures prescribed by law" (Newberry Springs Water Association v. County of San Bernardino (1984) 150 Cal.App. 3d 740).

Exemptions:

CEQA exempts a number of specific types of projects from its provisions under two broad categories of exemptions, statutory and categorical. After approving a project for which an exemption was employed, the lead agency may file a Notice of Exemption with the county clerk and, when the lead agency is a state agency, OPR. Notices of Exemption must be available for inspection within 24 hours and remain posted for a minimum of 30 days. When filed with the county clerk, at the end of the 30 days the clerk must return the notice to the lead agency who must then retain it for not less than 9 months. The filing of this notice begins a 35 day statute of limitations on legal challenges to the agency's decision. If a notice is not filed, a 180 day statute of limitations applies from the date the project is approved, or commencement of the project where no formal approval is required.

Negative Declaration:

A negative declaration may be adopted when there is no substantial evidence in light of the whole record that the project may result in a significant adverse environmental effect. This would include projects for which a potential effect was identified, but revisions or mitigation measures imposed on the project will avoid the effect or reduce it to a level of insignificance (mitigated negative declaration).

A lead agency must provide notice of the intent to adopt a negative declaration or mitigated negative declaration to the public, responsible agencies, trustee agencies, and the county clerk of each county within which the proposed project is located (CEQA Guidelines §15072). The county clerk must post the notice within 24 hours of receipt. The notice of intent shall provide a review period of not less than 20 days. When submitted to the State Clearinghouse for review by state agencies, the review period must not be less than 30 days, unless a shorter review period, of not less than 20 days, is approved by the Clearinghouse (Public Resources Code §21091).

The lead agency must mail the notice of intent to the last known name and address of all organizations and individuals who have previously requested notice and shall also provide notice in at least one of the following ways to allow time for public review consistent with the previously stated time limits:

(a) Publication at least once in a newspaper of general circulation in the area affected by the proposed project. If more than one area is affected, the notice shall be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas;

(b) Posting of notice on and off-site in the area where the project is to be located; or

(c) Direct mailing to the owners and occupants of contiguous property shown on the latest equalized assessment roll.

Notice must be given to transportation planning agencies and public agencies with transportation facilities within their jurisdiction for projects which have statewide, regional, or areawide significance (Public Resources Code §21092.4).

A lead agency is not precluded from providing additional notice by other means, nor is it precluded from providing the notice at the same time and in the same manner as the public notice required by any other laws pertaining to the project so long as the appropriate CEQA noticing requirements are met.

The notice of intent must include all of the following (CEQA Guidelines §15072):

(a) Project description and location
(b) Review periods including the beginning and ending dates for which the lead agency will accept comments. If a shortened review period is approved, the notice must state that it will be a shortened review period.
(c) The date, time, and place of any scheduled public meetings or hearing to be held by the lead agency on the proposed project, when known to the agency at the time the notice is given.
(d) The address(es) where copies of the negative declaration may be obtained or reviewed during business hours, including any revisions or mitigations to the project and all project related documents.
(e) Statement of the sites presence on any of the lists compiled by the Department of Toxic Substances Control(Cal-EPA) under Government Code §65962.5 including, but not limited to hazardous waste facilities, hazardous waste property, hazardous waste disposal sites, and the information in the Hazardous Waste and Substances Statement required under subsection (f) of that section.
(f) Any other information specifically required by statute or regulation for a particular project or project type.

The lead agency must file a Notice of Determination within 5 working days (15075(d)) after it approves a project. If a local agency is the lead agency, the notice must be filed with the county clerk of the county or counties in which the project will be located. If the project requires discretionary approval from a state agency, or a state agency is the lead agency, the notice must also be filed with the State Clearinghouse. The Notice of Determination must be posted and available for public inspection for a period of at least 30 days (CEQA Guidelines §15094).

Filing a Notice of Determination within the 5 working days begins a 30 day statute of limitations on court challenges to approval. Otherwise, the statute of limitations is 180 days from the date the decision to carry out or approve the project is made, or commencement of the project where no formal approval is required (CEQA Guidelines §15112).

Environmental Impact Report (EIR):

Notice of Preparation:

When the lead agency determines that an EIR is required for a project, it must circulate a Notice of Preparation (NOP) to each Responsible and Trustee Agency advising them of its intention to prepare a Draft EIR (CEQA Guidelines §15082). In addition, if one or more state agencies is a responsible or trustee agency, the NOP should be sent to the State Clearinghouse along with a list of the agencies that should review the project.

A Responsible Agency includes any public agency, other than the lead agency, which has discretionary approval power over a project (CEQA Guidelines §15381). A Trustee Agency is a state agency having jurisdiction by law over natural resources affected by a project which are held in trust for the people of California (CEQA Guidelines §15386) including: California Department of Fish and Game, State Lands Commission, Department of Parks and Recreation, and the University of California for particular lands.

Public Resources Code §21080.4 further provides that the lead agency must convene a scoping meeting upon the request of any affected responsible or trustee agency. Additionally, CEQA Guidelines §15083.5 requires that a lead agency send a copy of the Notice of Preparation to each public water system which serves or would serve projects meeting specific criteria including amendments to general and specific plans, hotel and motels with more than 500 rooms, and others. The lead agency shall request that the system both indicate whether the water demand associated with the project was incorporated into its last urban water management plan and whether its total project supplies will meet the projected water demand associated with the proposed project in addition to the system's existing and planned future uses.

The minimum content requirements for an NOP include (CEQA Guidelines §15082(a)(1)):

When an agency receives an NOP, a 30 calendar day review period begins. Each agency must provide the lead agency with a response within the 30 days. The response must provide specific detail about the scope and content of the environmental information related to the responsible or trustee agency's area of responsibility over the project (CEQA Guidelines §15103).

Draft EIR:

At such time as the draft EIR is completed, a Notice of Completion must be filed with the State Clearinghouse. The notice must include a brief description of the project, the proposed location of the project, an address where copies of the draft EIR are available, and the period during which comments will be received on the draft EIR (CEQA Guidelines §15085).

When the lead agency sends the Notice of Completion to the State Clearinghouse, it must also provide public notice of the availability of the draft EIR. The notice and opportunity for public review must not be less than 30 days nor should it normally be longer than 60 days. When submitted to the State Clearinghouse for review by state agencies, the review period must not be less than 45 days, unless the Clearinghouse grants a shorter period of not less than 30 days (CEQA Guidelines §15105).

The notice of availability must be mailed to the last known name and address of organizations and individuals who have previously requested such notice in writing, and must also be given following one of the following procedures:

  1. Published at least one time in a newspaper of general circulation in the affected by the project. If more than one area is affected, the notice must be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas;
  2. Posting by the lead agency on and off-site in the area where the project is proposed to be located; or
  3. Direct mailing to owners and occupants of property contiguous to the parcel or parcels on which the project is located. Owners of such property shall be identified as shown on the latest equalized assessment roll.

Additional notice may also be given by any other means deemed appropriate by the agency and may be given at the same time and in the same manner as public notice otherwise required by law for the project.

The public notice must disclose all of the following (CEQA Guidelines §415087):

  1. Project description and location
  2. Review periods including the beginning and ending dates for which the lead agency will accept comments. If a shortened review period is approved, the notice must state that it will be a shortened review period.
  3. The date, time, and place of any scheduled public meetings or hearing to be held by the lead agency on the proposed project, when known to the agency at the time the notice is given.
  4. A list of the significant environmental effects anticipated as a result of the project, to the extent which the effects are known to the lead agency at the time of the notice.
  5. The address(es) where copies of the draft EIR and all documents referenced in the EIR will be available for review. This location shall be readily accessible to the public during normal working hours.
  6. Statement of the sites presence on any of the lists compiled by the Department of Toxic Substances Control(Cal-EPA) under Government Code §465962.5 including, but not limited to hazardous waste facilities, hazardous waste property, hazardous waste disposal sites, and the information in the Hazardous Waste and Substances Statement required under subsection (f) of that section.

The Notice of Availability must be posted in the office of the county clerk of each county in which the project will be located for a period of at least 30 days. The county clerk must post such notices within 24 hours of receipt.

CEQA Guidelines §15086 requires lead agencies to consult with and request comments on the draft EIR from responsible agencies, trustee agencies, other state, federal, and local agencies which exercise authority over resources which may be affected by the project, and may also consult with any person who has special expertise in any environmental effect involved.

Draft EIRs subject to state agency review or which are of statewide, regional, or areawide significance must be distributed through the State Clearinghouse (CEQA Guidelines §15087(d), §15206). Clearinghouse distribution provides assurance that all state permitting agencies will be notified of the review period and are given the opportunity to respond. When submitted to the State Clearinghouse, the public review period must be at least as long as the review period established by the Clearinghouse (CEQA Guidelines §15087(e)). Similarly, lead agencies are encouraged to use areawide clearinghouses for distributing documents to regional and local agencies.

In order to promote the public participation goals of CEQA, lead agencies are encouraged to use the public library system to make EIRs available to the public.

Recirculation:

CEQA Guidelines §15088.5 requires that an EIR which has been made available for public review, but not yet certified, be recirculated whenever significant new information has been added to the EIR. The entire document need not be circulated if revisions are limited to specific portions of the document. The recirculated portions or document must be sent to responsible and trustee agencies for consultation and fresh public notice must be given in the manner provided for a draft EIR.

Final EIR:

Lead agencies must provide a written response to comments made on the draft EIR by each public agency at least 10 days prior to the certification of the final EIR, pursuant to Public Resources Code §21092.5.

The lead agency may certify the EIR and approve the project simultaneously, or it may wait to approve the project at a later date subject to the time limitations of the Permit Streamlining Act.

The lead agency must file a Notice of Determination within 5 working days after approval of a project by the lead agency. If a local agency is the lead agency, the notice shall be filed with the county clerk of the county or counties in which the project will be located. If the project requires discretionary approval from a state agency, or a state agency is the lead agency, the notice shall also be filed with the State Clearinghouse. The Notice of Determination must be posted and available for public inspection for a period of at least 30 days (CEQA Guidelines §15094).

Filing a Notice of Determination within the 5 working days begins a 30 day statute of limitations to court challenges. Otherwise, the statute of limitations is 180 days from the date the decision to carry out or approve the project is made, or commencement of the project where no formal approval is required (CEQA Guidelines §15112).

CEQA by itself does not require a public hearing on any project. Its provisions require notice and afford opportunities to comment on a project. The specific public notice and hearing requirements for land use projects are discussed in the following section.


Next: Public Hearing Notices for Land Use Projects

Return to Table of Contents