Common Questions Regarding Section 21081.6
A number of issues commonly arise in complying with Section 21081.6. In
many instances, there may be a variety of ways to resolve a particular concern;
the following discussion is intended to stimulate thinking rather than to
represent the only solutions. Here are some responses to commonly asked
questions .
Question:
What does Section 21081.6 require when an EIR for an earlier
project is recertified (or certified with an addendum) and applied to a
subsequent project, avoiding the need to prepare a new EIR? What is the
requirement when a program EIR is used as the basis for a subsequent EIR,
or a later project EIR is tiered on the earlier EIR for a plan, program,
or ordinance?
Answer:
The monitoring or reporting requirements of Section 21081.6 apply whenever
the lead agency makes findings under Section 21081 (a) relative to the mitigation
measures or alternatives being required of the project. An AB 3180 program
must be adopted which addresses each mitigation measure or project change
for which a finding is made. Similarly, if a project is analyzed pursuant
to a program EIR or involves tiering, an AB 3180 program would be required
for each mitigation measure or project change subject to findings under
Section 21081 (a) or required under a mitigated Negative Declaration.
Question:
What happens when an agency has a lack of trained personnel to monitor required
mitigation measures?
Answer:
This does not reduce the agency's responsibility to adopt and carry out
an AB 3180 program. Outside consultants may be retained to provide assistance.
The cost of the consultant may be borne by the agency or charged to the
project proponent.
Question:
What is the project planner's role in monitoring/reporting?
Answer:
This is left to the discretion of the involved agency. However, the relative
roles of personnel should be spelled out in either an individual or jurisdiction-wide
program.
Question:
What happens when the developer and the agency personnel assigned to monitor
a project have differences of opinion over mitigation or monitoring requirements?
Answer:
Monitoring personnel must be given sufficient authority to ensure that the
mandated mitigation is being implemented. A jurisdictional framework can
establish methods of resolving disputes such as administrative appeal.
Question:
Have courts added any specific requirements for reporting or monitoring
programs beyond those established by statute?
Answer:
No. In the two cases to date (Christward Ministry v. County of San Diego
(1993) 13 Cal.App.4th 31 and Rio Vista Farm Bureau v. County of Solano
(1992) 5 Cal.App.4th 351), the courts have not expanded the requirements
beyond those explicit in statute.
Question:
Must a mitigation monitoring or reporting program address conditions of
approval that are neither mitigation measures for significant effects nor
revisions to the project required pursuant to the environmental document?
Answer:
No. An AB 3180 program must address mitigation measures and project revisions
required pursuant to the CEQA document. A program is not required to address
those conditions of approval that are not related to mitigation. The agency
may monitor these other conditions at its own discretion.
Question:
Must a draft AB 3180 program be circulated with the draft mitigated negative
declaration or draft EIR?
Answer:
Nothing in CEQA requires the mitigation monitoring program to be circulated
with or included in the EIR (Christward Ministry v. County of San Diego
(1993) 13 Cal.App.4th 31, 49). Some agencies do circulate drafts in
conjunction with a draft EIR. The comments received on the program can be
used to fine tune the program prior to adoption. Whether an agency must
respond to such comments in the final EIR is unknown. Certainly a case might
be made that no response is necessary where the draft program is not an
integral part of, but is merely circulated with, the draft EIR. Where the
program has been incorporated into the draft EIR, there may be a need to
respond to comments on the draft program.
Question:
How does AB 3180 apply to actions such as adoption of a general plan or
rezoning where there are no conditions of approval, and mitigation is provided
by policies or regulations that are incorporated into the general plan or
zoning?
Answer:
In the case of a general plan, mitigation measures should be integrated
directly into the plan's policies (Section 21081.6(b)). The AB 3180 program
can build upon the annual general plan status report required of each planning
agency under Government Code Section 65400. It may not be necessary to monitor
or report on site-specific mitigation measures, except to the extent of
being included in the policies and standards of the plan and considered
in future land use decisions (Rio Vista Farm Bureau v. County of Solano
(1992) 5 Cal.App.4th 351, 380).
If some of the mitigation measures for the plan are based on the subsequent
adoption of new ordinances or regulations rather than being implemented
by general plan policies, progress in enacting those regulations can be
monitored or reported on by establishing a timetable for regular status
reports to the city council or board of supervisors.
A program of regularly scheduled status reports might also be suitable for
monitoring or reporting on the mitigation measures applied to a specific
plan or rezoning. Recognize that where the specific plan or rezoning is
associated with other actions such as a planned unit development or subdivision,
i.e., actions with a finer level of detail than a plan or rezone, status
reports may be only one portion of the overall AB 3180 program.
The lead agency is not allowed to delay adoption of a program until a subsequent
discretionary permit is required. Section 21081.6 clearly mandates adoption
of the monitoring or reporting program when the lead agency approves a project.
Adoption of a program cannot be put off, nor may the program ignore qualifying
mitigation measures or required project revisions.
Question:
Should the monitoring or reporting program be adopted as a condition of
project approval?
Answer:
This depends upon the type of project and the existing regulatory scheme.
In some cases, such as where the program is based on a framework ordinance,
adopting the program as a condition of approval may be redundant. In other
instances, such as where a project specific program is being imposed, it
may make sense to require compliance with the program as a condition of
project approval.
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Next: Examples of AB 3180 Comprehensive Programs
STATE OF CALIFORNIA
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-322-2318