Applying an Existing EIS to Later Local Projects


An EIS can be used as an EIR to the extent that the EIS complies with the provisions of the CEQA Guidelines (Section 21083.5, Guidelines Section 15221). All too often, however, development opportunities arise which were not contemplated in the local reuse plan or EIS. When evaluating later proposals necessary to base reuse such as local base reuse plans, general plan amendments, specific plans, rezoning, or redevelopment plans, the local agency faces two key questions: Can the EIS suffice to address these later projects? If not, how may the information contained in the EIS be productively reused?

The local agency's first step should be to critically evaluate the adequacy of the EIS relative to the later proposal. This evaluation should pursue two broad lines of inquiry:

(1) Content: To what extent does the EIS comply with CEQA and, further, is the later project fully examined in the EIS? As discussed previously, the requirements of NEPA and CEQA largely overlap. Recognizing that an EIS will not necessarily look like an EIR and that CEQA Guidelines Section 15120 provides that there is no mandatory format for EIRs, disregard superficial differences and focus on the overall contents of the EIS.

Guidelines Section 15221 states that a separate discussion of mitigation measures and growth-inducing impacts will need to be "added, supplemented, or identified before the EIS can be used as an EIR." However, since the NEPA guidelines requires that an EIS contain these points of analysis, addition may not actually be necessary (40 CFR 1508.20). If the analysis must be supplemented, OPR recommends that the local agency prepare a supplemental EIR as provided under Section 15163 of the CEQA Guidelines. If the analysis is present, but needs to be identified in order to show that it is present, the lead agency may follow the procedure for addenda provided under Section 15163 of the Guidelines.

(2) Notice: Was public notice and the opportunity for review and comment provided in accordance with CEQA procedures? If yes, then Section 15225 of the CEQA Guidelines enables the local agency to use the EIS as the equivalent of an EIR without additional circulation. If no, then the local agency should follow the procedure described under Guidelines Section 15153 for use of an EIR from an earlier project. This will include preparing an initial study and circulating the EIS for public review as a draft EIR.

Applying an Adequate EIS to Later Projects

Where the EIS complies with CEQA and adequately discusses the later project, such as a local reuse plan purposely written to match the preferred alternative set out in the EIS, Section 15221(b) of the CEQA Guidelines provides that the local agency need not prepare an EIR. The local agency must provide advance public notice pursuant to Guidelines Section 15087 that it intends to use the EIS as an EIR and that the EIS meets the requirements of CEQA. OPR recommends providing notice pursuant to Public Resource Code Section 21092. This notice does not open a new comment period.

From that point, the local agency proceeds as though using an EIR. The EIS must be certified (Guidelines Section 15090). Unlike NEPA, which requires federal agencies to consider, but not necessarily impose, mitigation measures and alternatives, the local agency must impose the applicable mitigation measures or alternatives identified in the EIS(EIR) if it approves the later project. It must adopt findings under Guidelines Section 15091 for each of the significant environmental effects identified in the EIS(EIR) and, if there are any unavoidable significant effects, a statement of overriding consideration pursuant to Guidelines Section 15093. A Notice of Determination must be filed with the County Clerk and, if the project will involve State agency approvals, with OPR. The EIS(EIR) must be filed with other agencies as required under Guidelines Section 15095.

Using an EIS as the Basis for Additional Environmental Analysis

What if the later project was not fully addressed in the EIS? This may be the case when there was no local reuse plan available to the DoD agency during preparation of the EIS or, more commonly, when specific projects such as a specific plan or rezoning are proposed after completion of the NEPA process.

Later projects must undergo a new environmental review, beginning with an initial study to determine whether the project may have a significant adverse effect on the environment. If there is substantial evidence that such an effect may occur, the Lead Agency must prepare an EIR. If there is no substantial evidence for such an effect a negative declaration (including a mitigated negative declaration) is adopted instead (Section 21080). A mitigated negative declaration is used "when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration is released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment" (Section 21064.5).

Where possible, the initial study should use and cite information in the EIS which is indicative of the presence or absence of a significant effect. Further, the later EIR or negative declaration may reference pertinent sections of the EIS rather than generating the same information a second time (Guidelines Section 15150).

Where the later activity was generally described in the EIS, but was not a focus of that document, the later review may be "tiered" upon the EIS. Pursuant to Sections 21093 and 21094, the review of the later project may avoid repetitive discussion of issues and focus on those issues which are "ripe for decision" and specific to the later project. One example of a project suitable for tiering might be adoption of specific zoning for a use described in the closure and reuse plan.

As a rule, tiering is used for "separate but related projects" (Guidelines Section 15152). A tiered EIR is limited to discussion of those significant effects which were not examined in the prior EIS or are susceptible to substantial reduction or avoidance by specific revisions or conditions imposed on the project. If a project's environmental review is to be tiered upon the previous EIS, the lead agency must find that the project is consistent with both of the following:
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