State of California
Pete Wilson, Governor
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-322-2318
Lee Grissom, Director, Office of Planning and Research
Antero Rivasplata, Chief, State Clearinghouse
December 1995
The CEQA Technical Advice Series is intended to offer CEQA
practitioners, particularly at the local level, concise information about
some aspect of the California Environmental Quality Act. This series of
occasional papers is part of OPR's public education and training program
for planners, developers, and others. This advice is intended to supplement,
but not to amend or revise the California Environmental Quality Act Guidelines.
A print version of this document can be ordered for $3.00 from the above
address. Please make your check or money order payable to the Governor's
Office of Planning and Research.
Contents
Circulation and Notice Under CEQA
Summary List
Bibliography
CEQA Flowchart for Local Agencies
Introduction
The California Environmental Quality Act (CEQA) is, in many ways, a procedural
statute. One of the challenges facing the CEQA practitioner is to keep track
of all the required and suggested notice, consultation, and review periods
promulgated by CEQA and the CEQA Guidelines. The purpose of this
brief paper is to provide an overview of those requirements.
The reader is assumed to have a working knowledge of CEQA. This advisory
focuses on notice, consultation, and review without delving into the other
substantive requirements of the Act. For a more complete discussion of this
complex law, please refer to the books listed in the bibliography.
The terms "must," "requires," and "may" are
used carefully in the following advisory. "Must," or "requires"
denotes a mandatory action required by CEQA or the CEQA Guidelines.
"May" denotes a suggested, but not mandatory action.
In a few instances, there are conflicts between the CEQA statute and the
CEQA Guidelines. These are noted where applicable. Keep in mind that
the Act prevails over the Guidelines where clear conflict exists.
Circulation and Notice Under CEQA
"Public participation is an essential part of the CEQA process."
Guidelines Section 15201
CEQA's Guiding Policy
Two of the basic purposes of CEQA are to inform governmental decisionmakers
and the public about the potential significant effects, if any, of proposed
activities and to provide opportunities for other agencies and the public
to review and comment on draft environmental documents. The latter is crucial
to the effectiveness of the former. Along these lines, CEQA and the CEQA
Guidelines establish a number of specific points during the review and
consideration of a project when the lead agency must inform other agencies
and the public of the project and its potential environmental ramifications.
Julius Caesar wrote that "All of Gaul is divided in three parts."
Coincidentally, the same can be said of the CEQA process. Depending upon
the characteristics of a project and its potential for significant environmental
effects, CEQA review may pursue either of three basic directions: (1) an
exemption (statutory or categorical); (2) a negative declaration (including
a mitigated negative declaration); or (3) an environmental impact report
(EIR). Requirements for review, comment, and notice vary according to the
complexity of the environmental review. A project that is exempt from CEQA
has fewer requirements than a project subject to an EIR. In the following
sections, we will examine in detail the relative requirements for each level
of environmental review.
Exempt Projects
CEQA exempts a number of specific kinds of projects from its provisions.
For example, emergency repairs to public service facilities and specific
actions necessary to prevent or mitigate an emergency are statutorily exempt
from CEQA pursuant to Public Resources Code (PRC) Section 21080(b). In addition,
the CEQA Guidelines establish 29 classes of project which may be
considered exempt from the Act under all but unusual circumstances. These
the operation, repair, or minor alteration of existing facilities, replacement
or reconstruction of existing structures, and construction or replacement
of accessory structures (Guidelines Section 15301, 15302, and 15311,
respectively).
- Notice of Exemption p; PRC Sections 21108 and 21152, and
Guidelines Section 15062 provide that after approving a project for
which an exemption was employed, the lead agency (or the applicant) may
file a Notice of Exemption with the county clerk. If a state agency files
this notice, it must be filed with the Office of Planning and Research (OPR).
Appendix E of the CEQA Guidelines contains a suggested format for
the Notice of Exemption. Filing a Notice of Exemption triggers a 35-day
statute of limitations for litigation (PRC Section 21167).
There are no other notice requirements for CEQA exemptions.
Initial Study
The decision whether to prepare a negative declaration or an EIR is based
on findings supported by the lead agency's initial study. CEQA and the Guidelines
contain a number of consultation suggestions and requirements which are
applicable at this stage of the environmental process. Comments received
during the initial study consultation allow the lead agency to determine
whether there is substantial evidence for the existence of one or more significant
environmental effects, as well as identify responsible, trustee, and other
agencies and their specific concerns.
- Preconsultation p; PRC Section 21080.3 provides that the
lead agency may consult informally with responsible and trustee agencies
before preparing the initial study.
- Agency Consultation p; PRC Section 21080.3 requires the
lead agency to consult with responsible and trustee agencies regarding the
project during preparation of the initial study. Note that this supersedes
the requirement of Guidelines Section 15063 for "informal"
consultation.
- Applicant Consultation p; Guidelines Section 15063
provides that the lead agency may consult with the applicant to determine
whether the applicant would be willing to revise the project to mitigate
or avoid potential significant effects and thereby qualify for a mitigated
negative declaration.
Negative Declaration
A negative declaration can be adopted when there is no substantial evidence
that the project may result in a significant adverse environmental effect.
This includes projects for which a potential effect was identified, but
which revisions or mitigation measures imposed on the project will avoid
or reduce to a level of insignificance.
The following summarizes consultation and notice requirements which apply
after the lead agency has completed an initial study and made the decision
to prepare a negative declaration (including a subsequent negative declaration
as provided under Guidelines Section 15162). Please refer to the cited sections
of CEQA and the CEQA Guidelines for details. The initial study must be included
in the draft negative declaration circulated for review and consultation.
- Public Notice of Draft Negative Declaration p; PRC Section
21092 and Guidelines Section 15072 require the lead
agency to provide public notice of its intent to adopt a negative declaration.
Section 21092 establishes the means by which notice is to be given, as well
as the contents of that notice.
- Posting of Notice p; In addition, PRC Section 21092.3 requires
notice to be posted for 20 days in the office of the county clerk of each
county in which the project will be located (30 days if the negative declaration
has been sent to the State Clearinghouse).
- Notice to Individuals p; PRC Section 21092.2 also requires
notice of the availability of a draft negative declaration to be mailed
to any person who has filed a written request for notification with the
lead agency.
- Agency Consultation on Draft Negative Declaration p; PRC
Section 21091 and Guidelines Section 15073 require
that a draft negative declaration be sent to every responsible agency and
trustee agency involved with the project for review and comment.
- Additional Agency Consultation p; PRC Section 21092.4 further
requires the lead agency for a project which would have statewide,
regional, or areawide significance to consult with the regional transportation
planning agency and public agencies that have transportation facilities
which would be affected.
- Review and Consultation Period p; The preceding notice
and consultation opportunities are intended to occur simultaneously. Pursuant
to PRC Section 21091 and Guidelines Section 15073, agencies and the
public must be afforded at least 20 days to review and comment
on the negative declaration. When one or more of the responsible or trustee
agencies is a state agency, or when a project is of statewide, regional,
or areawide significance, as defined in Guidelines Section 15206,
a copy of the negative declaration must be sent to the State
Clearinghouse, and should be sent to the appropriate metropolitan
area council of governments. In these situations, the review and consultation
period is lengthened to 30 days.
- Comments p; When considering whether to approve a project,
the lead agency must consider the comments received during
its consultation and review periods along with the negative declaration
(Guidelines Section 15074). However, unlike with an EIR, these comments
are not required to be attached to the negative declaration,
nor must the lead agency make specific written responses.
- Changing Mitigation Measures p; PRC Section 211080(f) requires
the lead agency to hold a public hearing before that agency may delete a
mitigation measure and adopt an equivalent measure for a mitigated negative
declaration that has already been circulated for review. If a public hearing
is already being held to consider the project approval, no separate hearing
is required to delete and replace a mitigation measure.
- Notice of Determination p; A local agency which approves
or determines to carry out a project for which a negative declaration was
adopted must file a Notice of Determination with the county
clerk within 5 days of its action (PRC Section 21152 and Guidelines
Section 15075). The notice must be posted by the clerk within
24 hours of receipt, remain posted for 30 days, and, when the posting period
is over, returned to the local agency with certification of its posting.
If the project also requires discretionary approval from a state agency,
the notice must also be filed with the Office of Planning
and Research (Guidelines Section 15075).
- State Agency Notice of Determination p; A state agency
which approves or determines to carry out a project for which a negative
declaration was adopted must file a Notice of Determination
with the Office of Planning and Research (PRC Section 21108 and Guidelines
Section 15075). A list of these notices shall be posted weekly by OPR and
each list shall remain posted for at least 30 days.
Environmental Impact Report (EIR)
An EIR is prepared when substantial evidence exists that a project may result
in an adverse environmental effect.
The following summarizes the consultation and notice requirements for EIRs
in chronological order. Please refer to the cited sections of CEQA and the
CEQA Guidelines for details about the requirements. This list begins
after completion of the initial study and the decision to prepare an EIR.
- Notice of Preparation p; PRC Section 21080.4 and Guidelines
Section 15082 require that the lead agency immediately send
notice of its determination to prepare an EIR to all affected responsible
agencies, trustee agencies, and federal agencies. These agencies have 30
days in which to inform the lead agency of issues within their purview which
must be included in the EIR. PRC Section 21080.4 further provides that the
lead agency must convene a scoping meeting to discuss these
issues upon the request of any affected responsible or trustee agency. Upon
request of a lead agency or project applicant, OPR must assist
the scoping effort by identifying the various responsible, trustee, and
federal agencies.
- Expanded Notice of Preparation p; Under PRC Section 21080.6,
a lead agency may alternatively publish an expanded Notice
of Preparation containing additional specific information about the project.
- Early Public Consultation p; Prior to completing the draft
EIR, Guidelines Section 15083 provides that the lead agency may also
consult with other persons or organizations which may be concerned
with the environmental effects of the project. PRC Section 21153 provides
that, upon request of the applicant, the lead agency must
consult with affected agencies and may consult with persons
who the applicant believes will be concerned with environmental effects,
as well as members of the public making a written request.
- Notice of Completion p; PRC Section 21161 and Guidelines
Section 15085 require the lead agency to file a Notice of
Completion with OPR as soon as a draft EIR is completed. Pursuant to the
Guidelines, this notice can be combined with the cover form required
by the State Clearinghouse of EIRs submitted for state review.
- Public Notice of Draft EIR p; Guidelines Section
15087 requires that the lead agency give public notice of
the availability of a draft EIR by one of several methods at the same time
that it submits the Notice of Completion to OPR. Notice must
also be sent to affected responsible, trustee, and federal agencies. The
method and contents of this notice are prescribed by Section 15087 and PRC
Section 21092. PRC Section 21092 requires additional notice for waste burning
projects.
- Posting of Notice p; PRC Section 21092.3 requires the above
notice to be posted for 30 days in the office of the county clerk of each
county in which the project will be located.
- Notice to Individuals p; PRC Section 21092.2 requires
notice of the availability of a draft EIR to be mailed to any person who
has filed a written request for notification with the lead agency.
- Agency Consultation p; When a draft EIR is completed, Guidelines
Section 15086 requires the lead agency to consult with the
affected responsible, trustee, and federal agencies, as well as any person
which the lead agency believes has expertise in the area, and request comments
on the draft EIR. PRC Sections 21104 and 21153 require the
lead agency to also consult with any city or county which borders the city
or county within which the project is proposed.
- Additional Agency Consultation p; PRC Section 21092.4 further
requires the lead agency for a project which would have statewide,
regional, or areawide significance to consult with the regional transportation
planning agency and public agencies that have transportation facilities
which would be affected.
- Caltrans Scoping Meeting p; PRC Section 21083.9 specifies
that when so requested by Caltrans, a lead agency must call
at least one scoping meeting prior to completing an EIR to discuss any proposed
project which may affect highways or other Caltrans facilities.
- Department of Fish and Game p; PRC Section 21104.2 requires
state lead agencies to consult with the Department regarding the potential
impacts of a project on endangered or threatened species.
- Review and Consultation Period p; The preceding notice
and consultation opportunities, beginning with "Public Notice of Draft
EIR," are intended to occur simultaneously. Pursuant to PRC Section
21091, the period for public and agency review of and consultation on a
draft EIR shall not be less than 30 days. When a draft EIR is submitted
to the State Clearinghouse for review, the review period shall not be less
than 45 days, unless the Clearinghouse has authorized a shortened review.
Draft EIRs which must be submitted to the State clearinghouse
for review include: EIRs prepared by a state agency; those prepared by a
public agency where a state agency is a responsible or trustee agency; those
prepared for a project of statewide, regional, or areawide significance;
and draft EIRs prepared pursuant to NEPA. Projects of statewide, regional,
or areawide significance are defined in Guidelines Section 15206.
- Comments on Draft EIR p; PRC Section 21091 requires
the lead agency to include in the final EIR responses to comments which
describe the disposition of any significant effects brought up by commenters.
PRC Section 21092.5 further requires that written responses
to the comments submitted by public agencies must be provided to those agencies
at least 10 days prior to certification of the final EIR.
- Recirculation p; PRC Section 21092.1 and Guidelines
Section 15088.5 require an EIR to be recirculated to responsible
and trustee agencies for consultation and new public notice given whenever
significant new information has been added to the EIR after the draft has
been available for review, but prior to certification of the final EIR.
The review and consultation period is the same as for a draft EIR. "Significant
new information" is defined in Guidelines Section 15088.5.
- Notice of Determination p; A local agency which approves
or determines to carry out a project for which an EIR was certified must
file a Notice of Determination with the county clerk within 5 days of its
action (PRC Section 21152 and Guidelines Section 15094). The notice must
be posted by the clerk within 24 hours of receipt, remain posted for 30
days, and, when the posting period is over, returned to the local agency
with certification of its posting. If the project also requires discretionary
approval from a state agency, the notice must also be filed
with the Office of Planning and Research (Guidelines Section 15094).
- State Agency Notice of Determination p; A state agency
which approves or determines to carry out a project for which an EIR was
certified must file a Notice of Determination with the Office
of Planning and Research (PRC Section 21108 and Guidelines Section
15094). A list of these notices must be posted weekly by OPR and each list
shall remain posted for at least 30 days. Filing this notice begins a statute
of limitations for legal challenges to the EIR, as set out in PRC Section
21167.
- Copy of Final EIR p; Guidelines Section 15095 requires
the lead agency to file a copy of the final EIR with the planning agency
of any city or county where significant environmental effects may occur.
In addition, the applicant must be required to provide a copy
of the certified final EIR to each responsible agency.
Return to contents
Summary List
Exempt Projects
- No consultation or public notice required by CEQA.
- Filing of a Notice of Exemption is optional.
Initial Study
- Preconsultation with responsible and trustee agencies is optional.
- Consultation with responsible and trustee agencies is required.
- Consult with the applicant over mitigation or avoidance of potentially
significant effects where pertinent.
Negative Declaration
Consultation requirements of the Initial Study apply, plus the following:
- Public notice of the availability of the draft negative declaration
is required.
p; Publish and mail notices.
p; Post notice with the County Clerk.
p; Provide notice to responsible, trustee, and other agencies.
p; Provide notice to individuals upon request.
- Consultation is begun with the notice of availability.
p; Consult with responsible and trustee agencies.
p; Consult with transportation agencies (for projects of statewide,
regional, or areawide significance).
- A public hearing must be held on any proposed changes to mitigation
measures.
- A Notice of Determination must be filed after approving a project
for which a negative declaration was adopted.
Environmental Impact Report
Consultation requirements of the Initial Study apply, plus the following:
- A Notice of Preparation must be sent to all affected responsible,
trustee, and federal agencies and a scoping meeting held upon request.
p; An expanded Notice of Preparation may be sent instead.
p; Early public consultation may be held with interested persons or
organizations and must be held, at the request of the applicant, with affected
agencies.
- A Notice of Completion must be filed with OPR when the draft EIR is
completed.
- Public notice must be given of the availability of the draft EIR for
review.
p; Publish and mail notices.
p; Post notice with the County Clerk.
p; Provide notice to all affected responsible, trustee, and federal
agencies
p; Send notice of the draft EIR's availability to individuals upon request.
- Consultation begins at this time.
p; Consult with affected responsible, trustee, and federal agencies,
cities and counties bordering the jurisdiction within which the project
is located, as well as individuals with pertinent expertise.
p; Submit the draft EIR for a project involving a state agency or which
is of statewide, regional, or areawide significance to the State Clearinghouse
for distribution.
p; Consult with transportation agencies (for projects of statewide,
regional, or areawide significance).
p; Hold a scoping meeting when requested by Caltrans.
p; State lead agencies must consult with the Department of Fish and
Game.
- The EIR must be recirculated if significant new information has been
added after the draft EIR was circulated for review and consultation, but
before the final EIR is certified.
- Written draft responses to public agency comments must be provided
to those agencies prior to certification of the EIR.
- A Notice of Determination must be filed after approving a project
for which an EIR was certified.
Return to contents
Bibliography
Guide to the California Environmental Quality Act, by Michael
Remy, Tina Thomas, et al., Solano Press Books, P.O. Box 773, Point Arena,
CA 95468, phone: (707) 884-4508.
The CEQA practitioner's "Bible" is a highly respected and comprehensive
discussion of the Act, including recent case law. It includes a copy of
the current statutes and the State CEQA Guidelines.
Practice Under the California Environmental Quality Act, by
Stephen L. Kostka and Michael H. Zischke, Continuing Education of the Bar,
2300 Shattuck Avenue, Berkeley, CA 94704, phone: (800) 924-3924.
Concise, authoritative, and comprehensive, this two volume set is intended
for use by both environmental planners and attorneys.
State Clearinghouse Handbook, Governor's Office of Planning
and Research, 1400 Tenth Street, Sacramento, CA 95814, phone: (916) 322-3170.
The requirements and procedures of the State Clearinghouse regarding the
review of environmental documents and federal grants are described in detail
in this handbook.
Successful CEQA Compliance: A Step-by-Step Approach, by Ronald
Bass and Albert Herson, Solano Press Books, P.O. Box 773, Point Arena, CA
95468, phone: (707) 884-4508.
This is a "how-to" manual offering practical advice on complying
with CEQA's procedures and legal requirements. It includes examples of local
forms and CEQA findings, as well as the current statutes and State CEQA
Guidelines.
Return to contents
CEQA Flowchart for Local Agencies