Lead Agency Prepares Draft EIR
  1. Who can prepare a draft EIR?
  2. When accepting a draft prepared by an outside party, what must the Lead Agency do before it can approve the draft?
  3. Does the Lead Agency need to issue out notices when preparing a draft EIR?
  4. How long is the review period for a draft EIR?
  5. How should public agencies distribute draft EIRs?
  6. How does a Lead Agency make copies of draft EIRs available to the public?
  7. What does the Lead Agency do after it receives responses regarding the draft EIR?
  8. What does a written response to a draft EIR need to include?
  9. What form should a response be written?
  10. What does a Lead Agency need to do when significant new information is added to an EIR after public notice is given of the draft EIR?
  11. What must be included when submitting a draft EIR?
  12. What style should I write the EIR and many pages should an EIR be?
  13. Can I use one disciplinary approach to writing an EIR or should I incorporate many different approaches?
  14. What should the EIR focus on?
  15. What happens if an effect is dismissed in an Initial Study as clearly insignificant?
  16. What must a Lead Agency do when forecasting the environmental effects in an EIR?
  17. What happens if the Lead Agency finds that a particular impact is too speculative?
  18. Do I need to include technical data, maps, plot plans, etc… in an EIR?
  19. Should I put highly technical and specialized analysis in the EIR?
  20. Should engineering project reports be included in an EIR?
  21. Can an EIR incorporate parts of another document that is a matter of public record or is generally available to the public?
  22. Should agencies tier EIRs when they prepare for separate but related projects?
  23. When tiering EIRs, are there any guidelines that I should follow?
  24. Can a Lead Agency use a single EIR to describe more than one project?
  25. Is there any other information that may be required in an EIR?
  26. If the Draft EIR is prepared under a contract to a state agency, when must the draft EIR be executed?
  27. What is the public review period for a draft EIR?
  28. Case Law

 

1. Who can prepare a draft EIR?

The Lead Agency may choose one of the following arrangements or a combination of them for preparing a draft EIR.

  • Preparing the draft EIR directly with its own staff.
  • Contracting with another entity, public or private, to prepare the draft EIR.
  • Accepting a draft prepared by the applicant, a consultant retained by the applicant, or any other person.
  • Executing a third party contract or Memorandum of Understanding with the applicant to govern the preparation of a draft EIR by an independent contractor.
  • Using a previously prepared EIR.

Guidelines §15084

 

2. When accepting a draft prepared by an outside party, what must the Lead Agency do before it can approve the draft?

Before using a draft prepared by another person, the Lead Agency must subject the draft to the agency's own review and analysis. The draft EIR which is sent out for public review must reflect the independent judgment of the Lead Agency. The Lead Agency is responsible for the adequacy and objectivity of the draft EIR.

Guidelines §15084

 

3. Does the Lead Agency need to issue out notices when preparing a draft EIR?

Yes. The Lead Agency must provide public notice of the availability of a draft EIR at the same time as it sends a Notice of Completion to Office of Planning and Research. Notice must also be given to all organizations and individuals who have previously requested such notice. Notice must be filed for posting with the County Clerk of the county in which the project is to be located. (Public Resources Code §21092.3) Notice will also be given by at least one of the following procedures:

  • Publication at least one time by the public agency in a newspaper of general circulation in the area affected by the proposed project.
  • Posting of notices by the public agency on and off the site in the area where the project is to be located.
  • Direct mailing to the owners and occupants of property contiguous to the parcel or parcels on which the project is located. Owners of such property shall be identified as shown on the latest equalized assessment roll.

Guidelines §15087

 

4. How long is the review period for a draft EIR?

Review periods for draft EIRs should not be less than 30 days nor longer than 60 days from the date of the notice except in unusual situations. The review period for draft EIRs for which a state agency is the Lead Agency or a Responsible Agency is at least 45 days unless the State Clearinghouse approves a shorter period.

Guidelines §15105

 

5. How should public agencies distribute draft EIRs?

Public agencies should use the State Clearinghouse to distribute draft EIRs to state agencies for review and should use area-wide clearinghouses to distribute the documents to regional and local agencies.

Guidelines §15087

 

6. How does a Lead Agency make copies of draft EIRs available to the public?

To make copies of EIRs available to the public, Lead Agencies should furnish copies of draft EIRs to public library systems serving the area involved. Copies should also be available in offices of the Lead Agency.

Guidelines §15087

 

7. What does the Lead Agency do after it receives responses regarding the draft EIR?

The Lead Agency must evaluate comments on environmental issues received from persons who reviewed the draft EIR. The Lead Agency must also prepare a written response and respond to comments received during the noticed comment period.

Guidelines §15088

 

8. What does a written response to a draft EIR need to include?

The written response must describe the disposition of significant environmental issues raised. In particular, the major environmental issues must be addressed in detail giving reasons why specific comments and suggestions were not accepted if a public agency disagrees with the draft EIR. There must be good faith, reasoned analysis in response and conclusory statements unsupported by factual information is not sufficient.

Guidelines §15088

 

9. What form should a response be written?

The response to comments may take the form of a revision to the draft EIR or may be a separate section in the final EIR. Where the response to comments makes important changes in the information contained in the text of the draft EIR, the Lead Agency should either revise the text in the body of the EIR, or include marginal notes showing that the information is revised in the response to comments.

Guidelines §15088

 

10. What does a Lead Agency need to do when significant new information is added to an EIR after public notice is given of the draft EIR?

A lead agency is required to recirculate an EIR when significant new information is added to the EIR after public notice is given of the availability of the draft EIR for public review but before certification. The term "information" can include changes in the project or environmental setting as well as additional data or other information. New information added to an EIR is not "significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.

Guidelines §15088.5

 

11. What must be included when submitting a draft EIR?

The CEQA Guidelines set forth a long list of items that must be included when preparing an EIR.

  1. An EIR must contain at least a table of contents or an index to assist readers in finding the analysis of different subjects and issues.
  2. An EIR must contain a brief summary of the proposed actions and its consequences. The language of the summary should be a clear and simple as reasonably practical. The summary should not exceed 15 pages and must identify:
    1. Each significant effect with proposed mitigation measures and alternatives that would reduce or avoid that effect;
    2. Areas of controversy known to the Lead Agency including issues raised by agencies and the public; and
    3. Issues to be resolved including the choice among alternatives and whether or how to mitigate the significant effects.
  3. The description of the project should contain the following information but should not supply extensive detail.
    1. The precise location and boundaries of the proposed project should be shown on a detailed map, preferably topographic. The location of the project should also appear on a regional map.
    2. A statement of the objectives sought by the proposed project.
    3. A general description of the project's technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.
    4. A statement briefly describing the intended uses of the EIR which should include:
        1. A list of the agencies that are expected to use the EIR in their decision-making, and
        2. A list of the approvals for which the EIR will be used.
  4. If a public agency must make more than one decision on a project, all its decisions subject to CEQA should be listed, preferably in the order in which they will occur. On request, the Office of Planning and Research will provide assistance in identifying state permits for a project.
  5. An EIR must include a description of the environment in the vicinity of the project, as it exists before the commencement of the project, from both a local and regional perspective. The description should be no longer than is necessary to understand the significant effects of the proposed project and its alternatives.
    1. Knowledge of the regional setting is critical to the assessment of environmental impacts. Special emphasis should be placed on environmental resources that are rare or unique to that region and would be affected by the project.
  6. The EIR should discuss any inconsistencies between the proposed project and applicable general plans and regional plans.
  7. Where a proposed project is compared with an adopted plan, the analysis should examine the existing physical conditions as well as the potential future conditions discussed in the plan.
  8. The EIR should identify all federal, state, or local agencies, other organizations, and private individuals consulted in preparing the draft EIR, and the persons, firm, or agency preparing the draft EIR, by contract or other authorization.
  9. Cumulative impacts shall be discussed when they are significant.
  10. Economic or social information may be included in an EIR or may be presented in whatever form the agency desires.
  11. All significant effects on the environment of the proposed project.
  12. Any significant effect on the environment that cannot be avoided if the project is implemented.
  13. Mitigation measures proposed to minimize significant effects on the environment, including, but not limited to, measures to reduce the wasteful, inefficient, and unnecessary consumption of energy.
  14. Alternatives to the proposed project.
  15. The growth-inducing impact of the proposed project.
  16. A statement briefly indicating the reasons for determining that various effects on the environment of a project are not significant and consequently have not been discussed in detail in the environmental impact report.
  17. Any significant effect on the environment limited to substantial, or potentially substantial, adverse changes in physical conditions which exist within the area.
  18. Previously approved land use documents, including but not limited to, general plans, specific plans, and local coastal plans.
  19. An index or a table of contents and a summary.

Public Resources Code §21100, §21061

Guidelines §15122-15131

 

12. In what style should I write the EIR and how many pages should the EIR be?

EIRs should be written in plain language so that decision-makers and the public can easily understand the documents. The text of draft EIRs should normally be less than 150 pages and for proposals of unusual scope or complexity, the text should be less than 300 pages.

Guidelines §15140, §15141

 

13. Can I use one disciplinary approach to writing an EIR or should I incorporate many different approaches?

An EIR should be prepared using an interdisciplinary approach and no single discipline should be designated or required to undertake this evaluation. This way, different disciplines will be able to analyze different factors affecting the environment.

Guidelines §15142

 

14. What should the EIR focus on?

The EIR should focus on the significant effects on the environment. The significant effects should be discussed with emphasis in proportion to their severity and probability of occurrence. Enough information should be included to allow decision-makers to make an full determination of the impact.

Guidelines §15143, §15146, §15151

 

15. What happens if an effect is dismissed in an Initial Study as clearly insignificant?

Effects dismissed in an Initial Study as clearly insignificant and unlikely to occur need not be discussed further in the EIR unless the Lead Agency subsequently receives information inconsistent with the finding in the Initial Study. A copy of the Initial Study may be attached to the EIR to provide the basis for limiting the impacts discussed.

Guidelines §15143

 

16. What must a Lead Agency do when forecasting the environmental effects in an EIR?

An agency must use its best efforts to find out and disclose all the information that it reasonably can when forecasting.

Guidelines §15144

 

17. What happens if the Lead Agency finds that a particular impact is too speculative?

If a Lead Agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.

Guidelines §15145

 

18. Do I need to include technical data, maps, plot plans, etc… in an EIR?

Yes. The information contained in an EIR should include summarized technical data, maps, plot plans, diagrams, and similar information to allow a full assessment of significant environmental impacts to be performed by reviewing agencies and members of the public.

Guidelines §15147

 

19. Should I put highly technical and specialized analysis in the EIR?

No. Placement of highly technical and specialized analysis and data in the body of an EIR should be avoided. This information should be included as appendices to the main body of the EIR. Appendices to the EIR may be prepared in volumes separate from the basic EIR document. They should be readily available for public examination and should be submitted to all clearinghouses which assist in public review.

Guidelines §15147

 

20. Should engineering project reports be included in an EIR?

No. Engineering project reports and many scientific documents relating to environmental features should be cited but not included in the EIR. The EIR should cite all documents used in its preparation including the page and section number of any technical reports, which were used as the basis for any statements in the EIR.

Guidelines §15148

 

21. Can an EIR incorporate parts of another document that is a matter of public record or is generally available to the public?

Yes. An EIR or Negative Declaration may incorporate by reference all or portions of another document which is a matter of public record or is generally available to the public. Where all or part of another document is incorporated by reference, the incorporated language should be set forth in full as part of the text of the EIR or Negative Declaration. The incorporated part should also be briefly summarized and made available for public record.

Guidelines §15150

 

22. Should agencies tier EIRs when they prepare for separate but related projects?

Yes. Agencies are encouraged to tier EIRs which they prepare for separate but related projects including general plans, zoning changes, and development projects.

Guidelines §15152

 

23. When tiering EIRs, are there any guidelines that I should follow?

Yes. Here are some guidelines to follow:

  • Where an EIR has been prepared for a program, plan, policy, or ordinance, the Lead Agency should limit the EIR on the project to effects which either were not examined as significant effects on the environment in the prior EIR or are susceptible to substantial reduction or avoidance by the imposition of conditions or other means.
  • Tiering is limited to situations where the project is consistent with the general plan and zoning of the city or county in which the project would be located.
  • The Initial Study is used to decide whether and to what extent the prior EIR is still sufficient for the present project.
  • When tiering is used, the later EIRs or Negative Declarations should refer to the prior EIR and state where a copy of the prior EIR may be examined. The later EIR should state that the Lead Agency is using the tiering concept and that the EIR is being tiered with the earlier EIR.

Guidelines §15152

 

24. Can a Lead Agency use a single EIR to describe more than one project?

Yes. The Lead Agency may employ a single EIR to describe more than one project, if such projects are essentially the same in terms of environmental impact. Further, the Lead Agency may use an earlier EIR prepared in connection with an earlier project to apply to a later project, if the circumstances of the projects are essentially the same.

Guidelines §15153

 

25. Is there any other information that may be required in an EIR?

Yes. Information on whether a significant effect on the environment would be irreversible if implemented is only required for environmental impact reports prepared in connection with the following:

  • The adoption, amendment, or enactment of a plan, policy, or ordinance of a public agency.
  • The adoption by a local agency formation commission of a resolution making determinations.
  • A project that will be subject to the requirement for preparing an environmental impact statement pursuant to the requirements of the National Environmental Policy Act of 1969.

Public Resources Code §21100.1

 

26. If the Draft EIR is prepared under a contract, when must the contract be executed?

If a draft EIR is prepared under a contract to a state agency, the contract shall be executed within 45 days from the date on which the state agency sends a notice of preparation.

Public Resources Code §21100.2, §21151.5

 

27. What is the public review period for a draft EIR?

The public review period for a draft EIR should be not be less than 30 days or no longer than 60 days except in unusual circumstances.

Guidelines §15105

 

28. Case Law

County of Inyo v. City of Los Angeles (1981) 124 Cal.App.3d 1

The Court noted that an accurate description of the project has been required by case law interpreting the National Environmental Policy Act. The state court of appeal declared that an accurate, stable, finite project description is an essential element of an informative and legally sufficient EIR under CEQA.

 

City of Antioch v. City Council of Pittsburg (1986) 187 Cal.App.3d 1325

The court held that mere conformity with a general plan (in and of itself) will not justify a finding that the project has no significant environmental effects. In this case, a developer sought a site development permit from the City of Pittsburg and the initiation of an assessment district for the construction of major infrastructure for three parcels of land. Although consistent with the general plan, the court found the project level environmental review to be inadequate and ordered an EIR prepared. The Court stated that while the lead agency need not predict the precise form, location and amount of commercial and residential development resulting from construction of the proposed roadway and utilities, it cannot pretend none will occur. The Lead Agency must assume the general form, location and amount of such development that now seems reasonable to anticipate and evaluate that development by means of the EIR. Further, the level of detail included in the analysis is dependent upon the type of project.

 

Environmental and Planning Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350

The Court held that in comparing an old general plan with a new county general plan that would allow less growth than the old plan, the EIR had to address the existing level of actual physical development in the county as the base line for the comparison. The two plans could not be compared with each other without showing how they would relate to the existing level of development.

 

Stevens v. City of Glendale (1981) 125 Cal.App.3d 986

The Court in this case required further public review of an EIR where a mitigation measure adopted by the city had significant effects which had not been analyzed in the draft EIR. The effects of the mitigation could be discussed in less detail than is provided in the analysis of the significant effects that would result from the project as proposed. Significant effects, which would be caused by the choice of an alternative, would need to be discussed to the extent that the effects are different from the project as proposed.

 

Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376

The Court required that the EIR briefly describe the rationale for selecting the alternatives to be discussed while also briefly explaining why other alternatives have been dismissed from further consideration.

 

Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247

The Court rule that there must be a physical change resulting from the project directly or indirectly before CEQA will apply. Direct physical changes are easy to identify. Indirect examples could include the increased traffic, fuel consumption, and air pollution as the potential results of a bus system fare increase in Shaw v. Golden Gate Bridge etc. District , (1976) 60 Cal.App.3d 699. Once a physical change or a potential physical change has been identified, the Lead Agency must determine whether substantial evidence exists indicating that the physical change will be significant and thereby require preparation of an EIR.

 

Citizens Association for Sensible Development of Bishop Area v. Inyo (1985) 172 Cal.App.3d 151

The court held that "economic or social change may be used to determine that a physical change shall be regarded as a significant effect of the environment. Where a physical change is caused by economic or social effects of a project, the physical change may be regarded as a significant effect in the same manner as any other physical change resulting from the project. Alternatively, economic and social effects of a physical change may be used to determine that the physical change is a significant effect on the environment."

In this case, the Court held that an EIR for a proposed shopping center located away from the downtown shopping area must discuss the potential economic and social consequences of the project, if the proposed center would take business away from the downtown and thereby cause business closures and eventual physical deterioration of the downtown.