Programs Required by Section 21081.6
Section 21081.6 establishes two distinct requirements for agencies involved
in the CEQA process. Subdivisions (a) and (b) of the section relate to mitigation
monitoring and reporting, and the obligation to mitigate significant effects
where possible. Subdivision (c), which was amended into the code by AB 375
of 1992, is almost a non-sequitur. Its subject is the responsibility of
responsible and trustee agencies during consultation on a negative declaration
or EIR.
Pursuant to subdivision (a), whenever a public agency either: (1) adopts
a mitigated negative declaration, or (2) completes an EIR and makes a finding
pursuant to Section 21081(a) of the Public Resources Code taking responsibility
for mitigation identified in the EIR, the agency must adopt a program of
monitoring or reporting which will ensure that mitigation measures are complied
with during implementation of the project. When changes have been incorporated
into the project at the request of an agency having jurisdiction by law
over natural resources affected by the project, that agency, if so requested
by the lead or responsible agency, must prepare and submit a proposed reporting
or monitoring program for the changes.
A project which is exempt from CEQA, or for which a simple (i.e., not mitigated)
negative declaration has been prepared requires no AB 3180 program. In addition,
no program is required for projects which are disapproved by the agency.
Nor is a program required to address those mitigation measures which the
agency has found to be either the responsibility of another agency or infeasible,
pursuant to subdivisions (b) and (c) of Section 21081.
Besides ensuring implementation of mitigation measures, as required by statute,
a monitoring or reporting program may provide feedback to staff and decisionmakers
regarding the effectiveness of mitigating actions. Such experiential information
can be used by staff and decisionmakers to shape future mitigation measures.
Subdivision (b) of Section 21081.6 requires that mitigation measures be
"fully enforceable through permit conditions, agreements, or other
measures." Incorporating the mitigation measures into the conditions
of approval applied to the project meets this requirement. Where the project
consists of a general plan (or other type of policy plan), a regulation,
or a public project, the mitigation measures can be incorporated into the
policies of the plan, the regulations themselves, or the design of the project
to meet the enforceability requirement.
Subdivision (c) creates a requirement for responsible and trustee agencies
which have identified a significant impact during consultation on a negative
declaration or EIR. This requirement is not directly related to mitigation
monitoring or reporting programs, nor is it limited to those situations
which require mitigation monitoring or reporting. We will discuss it only
briefly before moving on.
Pursuant to subdivision (c), when a responsible or trustee agency suggests
mitigation measures to address a significant impact which that agency has
identified during consultation, it must either provide the lead agency with
"complete and detailed performance objectives" (i.e., standards
by which to meet specific objectives of the responsible or trustee agency)
for those measures or refer the lead agency to readily available guidelines
which would be the functional equivalent of such objectives. The mitigation
measures suggested by a responsible or trustee agency are limited to those
within the statutory authority of that agency (Section 21080.4). In effect,
a responsible or trustee agency is required to limit its requests for mitigation
measures to those subjects over which it has regulatory powers and to provide
the lead agency with sufficient information to allow the lead agency to
effectively fashion such measures.
The requirements of subdivision (c) impact the lead agency's mitigation
monitoring or reporting program to the extent that the lead agency imposes
such measures on the project. It does not alter the lead agency's responsibility
for determining, on the basis of the evidence before it, whether a significant
effect exists and how it may be mitigated. When the lead agency does not
adopt those measures, it need not address them in a monitoring or reporting
program.
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Programs
STATE OF CALIFORNIA
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-322-2318