Lead Agency decision to prepare
an EIR or a Negative Declaration
  1. What is an Environmental Impact Report (EIR)?
  2. What is a Negative Declaration (ND)?
  3. What is a "Mitigated" Negative Declaration (MND)?
  4. Can a public agency approve a project even though it would cause a significant effect on the environment?
  5. Which projects require a manadatory EIR?
  6. How much time do you have to decide if you want to prepare an EIR or Negative Declaration?
  7. What happens if the applicant causes an unreasonable delay meeting the requests of the Lead Agency?
  8. Aside from the Lead Agency, are there any other public agencies that need to be consulted prior to determining the need for an EIR or a Negative Declaration?
  9. Does the Lead agency need to consult with individuals on a project?
  10. Can plans or other written documentation be submitted in lieu of an EIR?
  11. Do persons or entities need to pay a fee to the Lead Agency for preparing an EIR or ND?
  12. Is there any form that I can look at to help me determine if my project requires an EIR or a Negative Declaration?

 

1. What is an Environmental Impact Report (EIR)?

An Environmental Impact Report (EIR) is an informational document which provides public agencies and the general public with detailed information about the effect that a proposed project is likely to have on the environment. The EIR also lists the ways in which these environmental effects might be minimized and whether there are any alternatives to such a project. (Public Resources Code §21061, 14 California Code of Regulations §15121)

2. What is a Negative Declaration (ND)?

A Negative Declaration (ND) is a written statement briefly describing the reasons why a proposed project will not have a significant environmental impact and that the project will not require the preparation of an EIR. (Public Resources Code §21064)

3. What is a "Mitigated" Negative Declaration (MND)?

A Mitigated Negative Declaration (MND) is a Negative Declaration prepared for a project when the initial study has identified potentially significant effects on the environment but the effects now pose no significant effect on the environment because the project was revised. The revisions to the project plans must mitigate the harmful effects to the environment and there must be no substantial evidence supporting that the revised project will have a negative effect on the environment. (Public Resources Code §21064.5.)

4. Can a public agency approve a project even though it would cause a significant effect on the environment?

A public agency may approve a project even though the project would cause a significant effect on the environment if the agency makes a fully informed and publicly disclosed decision that:

  • There is no feasible way to lessen or avoid the significant effect and;
  • Specifically identified benefits from the project outweigh the policy of reducing or avoiding significant environmental impacts of the project.

(14 California Code of Regulations §15043)

5. Which projects require a mandatory EIR?

An EIR needs to be prepared when the project involves the burning of municipal wastes, hazardous waste, or refuse-derived fuel, including but not limited to, tires, if the project is either of the following:

  • The construction of a new facility.
  • The expansion of an existing facility that burns hazardous waste that would increase its permitted capacity by more than 10 percent.

An EIR also needs to be prepared if the project involves open pit mining. (Public Resources Code §21151.1, Public Resources Code §21151.7)

6. How much time do you have to decide if you want to prepare an EIR or Negative Declaration?

The Lead Agency must determine within 30 days after accepting an application as complete whether it intends to prepare an EIR or a Negative Declaration or use a previously prepared EIR or Negative Declaration. The 30 day period may be extended 15 days upon the consent of the lead agency and the project applicant. (Public Resources Code §21080.2, 14 California Code of Regulations §15102)

7. What happens if the applicant causes an unreasonable delay meeting the requests of the Lead Agency?

An unreasonable delay by an applicant in meeting requests by the Lead Agency necessary for the preparation of a Negative Declaration or an EIR will suspend the running of the time periods described in Sections 15107 and 15108 for the period of the unreasonable delay. Alternatively, an agency may disapprove a project application where there is unreasonable delay in meeting requests.

The Lead Agency may allow a renewed application to start at the same point in the process where the application was when it was disapproved. (14 California Code of Regulations § 15109)

8. Aside from the Lead Agency, are there any other public agencies that need to be consulted prior to determining the need for an EIR or a Negative Declaration?

Yes. The Lead Agency is in charge of the process but must consult with all Responsible Agencies and with any other public agency that has jurisdiction by law over natural resources affected by the project which are held in trust by the State. Prior to that required consultation, the lead agency may informally contact any such agency. (Public Resources Code §21080.3, Public Resources Code §21104, Public Resources Code §21151, Public Resources Code §21151.1, Public Resources Code §21153, 14 California Code of Reguations §15083, 14 California Code of Regulations §15096)

9. Does the Lead agency need to consult with individuals on a project?

Yes. Where there is an activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies, the lead agency must provide for consultation prior to the filing of the application, upon the request of the potential applicant. The consultation will concern topics regarding the range of actions, potential alternatives, mitigation measures, and any potential and significant effects on the environment of the project. (Public Resources Code §21065, Public Resources Code §21080.1)

10. Can plans or other written documentation be submitted in lieu of an EIR?

Yes. When the regulatory program of a state agency requires a general plan or other written documentation be submitted in support of an activity listed in subdivision (b) of §21080.5, the plan or other written documentation may be submitted in lieu of the EIR if it falls within a specific category. This includes:

  • The issuance to a person of a lease, permit, license, certificate, or other entitlement for use.
  • The adoption or approval of standards, rules, regulations, or plans for use in the regulatory program.

The Secretary of the Resources Agency must certified the regulatory program for this action to be in effect. (Public Resources Code §21080.5, 14 California Code of Regulations §15166)

11. Do persons or entities need to pay a fee to the Lead Agency for preparing an EIR or ND?

Yes. All Lead Agencies preparing EIRs and Negative Declarations may charge and collect a reasonable fee to recover the estimated costs incurred in preparing the EIR or ND. Public agencies may charge and collect a reasonable fee from members of the public for a copy of an environmental document. The cost of the environmental document cannot exceed the actual cost of reproducing a copy. (14 California Code of Regulations §15045)

STATUTORY REFERENCES

Environmental Impact Report Defined | Public Resources Code §21061
Negative Declaration Defined | Public Resources Code §21064
Mitigated Negative Declaration Defined | Public Resources Code §21064.5.
Project Defined | Public Resources Code §21065
Determining Environmental Impact | Public Resources Code §21080.1
30 Days | Public Resources Code §21080.2
Consultation with Other Agencies: General | Public Resources Code §21080.3
Certified Regulatory Programs | Public Resources Code §21080.5
Consultation with State Agencies, Boards, and Commissions | Public Resources Code §21104
Preparing Environmental Impact Reports | Public Resources Code §21151
Mandatory EIRs; Waste Burning Projects | Public Resources Code §21151.1
Open Pit Mining | Public Resources Code §21151.7
Consultation with Local Agencies | Public Resources Code §21153
GUIDELINE REFERENCES
Authority to Approve Projects Despite Significant Effects | 14 California Code of Regulations §15043
Fees | 14 California Code of Regulations §15045
Early Public Consultation | 14 California Code of Reguations §15083
Process for a Responsible Agency | 14 California Code of Regulations §15096
Initial Study | 14 California Code of Regulations §15102
Suspension of Time Periods | 14 California Code of Regulations §15109
EIR as an Informational Document | 14 California Code of Regulations §15121
EIR as part of a General Plan | 14 California Code of Regulations §15166
SELECTED CASES
County of Inyo v. Yorty (1973) 32 Cal. App. 3d 795
No Oil, Inc. v. City of Los Angeles (1974)13 Cal. 3d 68
People ex rel. Department of Public Works v. Bosio (1975) 47 Cal. App. 3d 495
People v. County of Kern (1974) 39 Cal. App. 3d 830
Friends of Mammoth v. Board of Supervisors (1972) 8 Cal. 3d 247
Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal. 3d 376
Bowman v. Petaluma (1986)185 Cal. App. 3d 1065