Use With Other Documents

  In a number of situations where an environmental document has already been prepared, a mitigated Negative Declaration may be sufficient to address subsequent projects which have been largely examined in the previous document and which will have no unavoidable significant impacts. The most common of these and suggested findings for adopting a mitigated Negative Declaration are summarized below. In no case where a mitigated Negative Declaration is being adopted is it necessary to also adopt EIR findings pursuant to Section 21081.

 Master EIR

The "Master EIR" is a 1994 statutory innovation intended to provide a detailed environmental review of plans and programs upon which the analysis of subsequent related development proposals can be based. Pursuant to AB 1888 of 1993, its enabling legislation, a Master EIR must, to the greatest extent feasible, evaluate the cumulative impacts, growth inducing impacts, and irreversible significant effects on the environment of specific, subsequent projects. The review of later projects which were described in the Master EIR can be limited to the extent that the Master EIR has already reviewed project impacts and set forth mitigation measures (Section 21156).

AB 1888 provides that a mitigated Negative Declaration shall be prepared for a later project identified in a Master EIR when there is no substantial evidence before the Lead Agency that the project may have a significant effect on the environment and both the following occur:

  1. An initial study has identified potentially new or additional significant effects on the environment that were not analyzed in the Master EIR.
  2. Feasible mitigation measures or alternatives will be incorporated to revise the proposed later project, before the mitigated Negative Declaration is released for public review, such that the new potential significant effects are eliminated or reduced to a level of insignificance. (Section 21157.5)

The subsequent project must incorporate all applicable mitigation measures or project alternatives from the Master EIR, as well as the measures adopted pursuant to the mitigated Negative Declaration.

Findings -- Upon adopting a mitigated Negative Declaration under these circumstances, OPR recommends that the Lead Agency make the following findings pursuant to Sections 21064.5, 21080(c), and 21157.5.

  1. The subsequent project is identified in the Master EIR.
  2. The project incorporates all applicable mitigation measures or project alternatives from the Master EIR.
  3. 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.
  4. Feasible mitigation measures or alternatives will be incorporated to revise the proposed later project, before the mitigated Negative Declaration is released for public review, such that the potential significant effects are eliminated or reduced to a level of insignificance.

Tiering

CEQA Guidelines Section 15152 (Section 21083.3) allows a Negative Declaration to be adopted when an EIR has previously been prepared for a program, policy, plan or ordinance, and a later project consistent with that program or other action will not result in any significant effects which were not examined in that previous EIR. In order to tier upon an EIR, the later project must be consistent with the general plan and zoning of the applicable city or county. The Negative Declaration must clearly state that it is being tiered upon a previous EIR, reference that EIR, and state where a copy of the EIR can be examined.

This section of the Guidelines applies equally to a mitigated Negative Declaration. Of course, any potential significant effects that were not examined in the previous EIR must be avoided or completely mitigated if a mitigated Negative Declaration is to be adopted. This includes unavoidable significant cumulative effects. A mitigated Negative Declaration is not recommended when the document on which it is being tiered has identified unavoidable significant cumulative effects.

Findings -- In addition to the findings required of a mitigated Negative Declaration pursuant to Sections 21080 and 21064.5, OPR recommends that the Lead Agency find that:

  1. The project is consistent with the program, policy, plan or ordinance for which the previous EIR was prepared;
  2. The project is consistent with the general plan and zoning of the applicable city or county; and
  3. The project, as revised or mitigated, will not result in any significant effects which were not examined in the previous EIR.

Program EIR

Section 15168 of the CEQA Guidelines defines a "program EIR" as an EIR which may be prepared on a series of related actions which can be characterized as one large project. A program EIR can be used to support the determination made in an initial study to prepare either a Negative Declaration or an EIR for a later project under the program.

Pursuant to subdivision (c) of Section 15168, a mitigated Negative Declaration prepared for a later project under the program would focus on new effects which had not previously been considered in the program EIR, and which can be reduced to insignificance by mitigation measures or revisions incorporated into the project. In addition to these measures or revisions, the project must incorporate all applicable mitigation measures and alternatives identified in the program EIR (Section 15168(c)). As mentioned under tiering, a mitigated Negative Declaration is not recommended when the program EIR identified unavoidable significant cumulative effects.

Findings -- OPR recommends that, in addition to the findings required under Sections 21080(c) and 21064.5, the Lead Agency find:

  1. The project is consistent with the program for which the program EIR was prepared;
  2. New effects which had not previously been considered in the program EIR will be be reduced to insignificance by mitigation measures or revisions incorporated into the project; and
  3. The project incorporates all applicable mitigation measures and alternatives identified in the program EIR.

Subsequent Negative Declaration

Section 15162 of the CEQA Guidelines provides that where an EIR or Negative Declaration has been certified or adopted for a project, no additional EIR need be prepared for the same project unless there is substantial evidence before the agency that any of the following have occurred:

  1. Subsequent changes are proposed in the project which will require important revisions of the previous EIR or Negative Declaration due to new significant effects not considered in the previous EIR or Negative Declaration.
  2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require important revisions in the previous EIR or Negative Declaration due to the involvement of new significant effects not considered in the previous EIR or Negative Declaration.
  3. New information relating to the significant effects of the project and means of reducing or avoiding those effects, which was not known and could not have been known at the time the previous EIR or Negative Declaration was certified or adopted, becomes available. "New information" is further defined in Guidelines Section 15162(a)(3).

Because the project has already been the subject of either an EIR or Negative Declaration and the time for challenging the adequacy of the previous document is passed, the "fair argument" test does not apply (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065). Unlike under the fair argument test, the Lead Agency is judged by the "traditional substantial evidence" test. In other words, it need not prepare an EIR when substantial evidence exists for the occurrence of a significant effect, as long as the Lead Agency has substantial evidence showing none of the three situations described above exist.

In the initial review of a project, the Lead Agency's decision to prepare an EIR is governed by the "fair argument" text: the Lead Agency must prepare an EIR if there is substantial evidence that a significant impact will result. However, after the project has already been the subject of either an EIR or Negative Declaration and the time for challenging the previous environmental document is passed, the fair argument test does not apply. Instead, the Lead Agency's decision regarding the preparation of a subsequent or supplemental EIR is governed by the "substantial evidence" test. That is, the courts will respect the Lead Agency's decision not to prepare a subsequent or supplemental EIR if there is substantial evidence in the record supporting the Lead Agency's finding that none of the three conditions exist that would warrant preparation of subsequent or supplemental EIR under Section 15162 of the Guidelines.

Findings -- The findings required under Sections 21064.5 and 21080 should be sufficient.

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STATE OF CALIFORNIA
Governor's Office of Planning and Research
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