Title 14. California Code of Regulations

Chapter 3. Guidelines for Implementation of the
California Environmental Quality Act

 

Article 13. Review and Evaluation of EIRs and Negative Declarations

 

Sections 15200 to 15209

15200. Purposes of Review

 

The purposes of review of EIRs and Negative Declarations include:

 

(a) Sharing expertise,

 

(b) Disclosing agency analyses,

 

(c) Checking for accuracy,

 

(d) Detecting omissions,

 

(e) Discovering public concerns, and

 

(f) Soliciting counter proposals.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21000, 21108, and 21152, Public Resources Code; Environmental Defense Fund v. Coastside County Water District, (1972) 27 Cal. App. 3d 695; County of Inyo v. City of Los Angeles, (1977) 71 Cal. App. 3d 185.

 

Discussion: This interpretation of the purposes of review is added to show the different purposes which review serves.

 

15201. Public Participation

 

Public participation is an essential part of the CEQA process. Each public agency should include provisions in its CEQA procedures for wide public involvement, formal and informal, consistent with its existing activities and procedures, in order to receive and evaluate public reactions to environmental issues related to the agency's activities. Such procedures should include, whenever possible, making environmental information available in electronic format on the Internet, on a web site maintained or utilized by the public agency.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21000, 21082, 21108, and 21152, Public Resources Code; Environmental Defense Fund v. Coastside County Water District, (1972) 27 Cal. App. 3d 695; People v. County of Kern, (1974) 39 Cal. App. 3d 830; County of Inyo v. City of Los Angeles, (1977) 71 Cal. App. 3d 185.

 

Discussion: This section declares the importance of public participation as an element of the CEQA process. This section encourages agencies to provide notice on the internet when possible. Internet posting offers the public yet another means of being informed about a project.

 

In Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural, Assoc. (1986) 42 Cal. 3d 929, the court emphasized that the public holds a "privileged position" in the CEQA process "based on a belief that citizens can make important contributions to environmental protection and on notions of democratic decision making."

 

15202. Public Hearings

 

(a) CEQA does not require formal hearings at any stage of the environmental review process. Public comments may be restricted to written communication.

 

(b) If an agency provides a public hearing on its decision to carry out or approve a project, the agency should include environmental review as one of the subjects for the hearing.

 

(c) A public hearing on the environmental impact of a project should usually be held when the Lead Agency determines it would facilitate the purposes and goals of CEQA to do so. The hearing may be held in conjunction with and as a part of normal planning activities.

 

(d) A draft EIR or Negative Declaration should be used as a basis for discussion at a public hearing. The hearing may be held at a place where public hearings are regularly conducted by the Lead Agency or at another location expected to be convenient to the public.

 

(e) Notice of all public hearings shall be given in a timely manner. This notice may be given in the same form and time as notice for other regularly conducted public hearings of the public agency. To the extent that the public agency maintains an Internet web site, notice of all public hearings should be made available in electronic format on that site.

 

(f) A public agency may include, in its implementing procedures, procedures for the conducting of public hearings pursuant to this section. The procedures may adopt existing notice and hearing requirements of the public agency for regularly conducted legislative, planning, and other activities.

 

(g) There is no requirement for a public agency to conduct a public hearing in connection with its review of an EIR prepared by another public agency.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21000, 21082, 21108, and 21152, Public Resources Code; Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors, (1974) 38 Cal. App. 3d 272.

 

Discussion: The section encourages agencies to include environmental issues in the agenda when the agency provides a public hearing on the project itself. The section also provides that the draft EIR or Negative Declaration should be used as a basis for discussion of environmental issues at a hearing if one is held. In an effort to simplify procedures, the section allows agencies to conduct hearings on environmental issues according to the same rules that the agency applies to its other hearings. This section also acknowledges that there is no requirement for a public agency to conduct a public hearing concerning its review of an EIR.

 

Subsection (e) encourage agencies to provide public hearing notice on the internet when possible. Internet posting offers the public another means of being informed about a project.

 

15203. Adequate Time for Review and Comment

 

The Lead Agency shall provide adequate time for other public agencies and members of the public to review and comment on a draft EIR or Negative Declaration that it has prepared.

 

(a) Public agencies may establish time periods for review in their implementing procedures and shall notify the public and reviewing agencies of the time for receipt of comments on EIRs. These time periods shall be consistent with applicable statutes, the State CEQA Guidelines, and applicable Clearinghouse review periods.

 

(b) A review period for an EIR does not require a halt in other planning or evaluation activities related to a project. Planning should continue in conjunction with environmental evaluation.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21082, 21108 and 21152, Public Resources Code.

 

Discussion: This section establishes the requirement that the Lead Agency provide adequate time for other agencies and the public to review draft EIRs and Negative Declarations. The section allows public agencies to establish time periods for review in their implementing procedures but requires that the time periods be consistent with requirements from other sources. The section requires, however, that notices to the public and reviewing agencies shall identify time limits and deadlines for receipt of comments. The section also provides that the review period for an EIR does not require a halt in other planning or evaluation activities related to the project.

 

15204. Focus of Review

 

(a) In reviewing draft EIRs, persons and public agencies should focus on the sufficiency of the document in identifying and analyzing the possible impacts on the environment and ways in which the significant effects of the project might be avoided or mitigated. Comments are most helpful when they suggest additional specific alternatives or mitigation measures that would provide better ways to avoid or mitigate the significant environmental effects. At the same time, reviewers should be aware that the adequacy of an EIR is determined in terms of what is reasonably feasible, in light of factors such as the magnitude of the project at issue, the severity of its likely environmental impacts, and the geographic scope of the project. CEQA does not require a lead agency to conduct every test or perform all research, study, and experimentation recommended or demanded by commentors. When responding to comments, lead agencies need only respond to significant environmental issues and do not need to provide all information requested by reviewers, as long as a good faith effort at full disclosure is made in the EIR.

 

(b) In reviewing negative declarations, persons and public agencies should focus on the proposed finding that the project will not have a significant effect on the environment. If persons and public agencies believe that the project may have a significant effect, they should:

 

(1) Identify the specific effect,

 

(2) Explain why they believe the effect would occur, and

 

(3) Explain why they believe the effect would be significant.

 

(c) Reviewers should explain the basis for their comments, and should submit data or references offering facts, reasonable assumptions based on facts, or expert opinion supported by facts in support of the comments. Pursuant to Section 15064, an effect shall not be considered significant in the absence of substantial evidence.

 

(d) Reviewing agencies or organizations should include with their comments the name of a contact person who would be available for later consultation if necessary. Each responsible agency and trustee agency shall focus its comments on environmental information germane to that agency's statutory responsibility.

 

(e) This section shall not be used to restrict the ability of reviewers to comment on the general adequacy of a document or of the lead agency to reject comments not focused as recommended by this section.

 

(f) Prior to the close of the public review period for an EIR or mitigated negative declaration, a responsible or trustee agency which has identified significant effects on the environment may submit to the lead agency proposed mitigation measures which would address those significant effects. Any such measures shall be limited to impacts affecting those resources which are subject to the statutory authority of that agency. If mitigation measures are submitted, the responsible or trustee agency shall either submit to the lead agency complete and detailed performance objectives for the mitigation measures, or shall refer the lead agency to appropriate, readily available guidelines or reference documents which meet the same purpose.

 

Note: Authority cited: Section 21083, Public Resources Code. Reference: Sections 21080, 21081.6, and 21080.4, 21104 and 21153, Public Resources Code, Formerly Section 15161; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608; and Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337.

 

Discussion: This section helps the public and public agencies to focus their review of environmental documents and their comments to lead agencies. Case law has held that the lead agency is not obligated to undertake every suggestion given them, provided that the agency responds to significant environmental issues and makes a good faith effort at disclosure. Subsection (a) clarifies this for reviewers. The guideline encourages reviewers to examine the sufficiency of the environmental document, particularly in regard to significant effects, and to suggest specific mitigation measures and project alternatives. Given that an effect is not considered significant in the absence of substantial evidence, subsection (c) advises reviewers that comments should be accompanied by factual support. Subsection (d) reminds responsible and trustee agencies that, under statute, they should focus their comments on environmental information germane to their statutory responsibilities. Subsection (f) advises responsible and trustee agencies that their comments may include proposed mitigation measures.

 

15205. Review by State Agencies

 

(a) Draft EIRs and negative declarations to be reviewed by state agencies shall be submitted to the State Clearinghouse, 1400 Tenth Street, Sacramento, California 95814. For U.S. Mail, submit to P.O. Box 3044, Sacramento, California 95812-3044.  When submitting such documents to the State Clearinghouse, the public agency shall include, in addition to the printed copy, a copy of the document in electronic form on a diskette or by electronic mail transmission, if available.

 

(b) The following environmental documents shall be submitted to the State Clearinghouse for review by state agencies:

 

(1) Draft EIRs and Negative Declarations prepared by a state agency where such agency is a Lead Agency.

 

(2) Draft EIRs and Negative Declarations prepared by a public agency where a state agency is a Responsible Agency, Trustee Agency, or otherwise has jurisdiction by law with respect to the project.

 

(3) Draft EIRs and Negative Declarations on projects identified in Section 15206 as being of statewide, regional, or areawide significance.

 

(4) Draft EISs, environmental assessments, and findings of no significant impact prepared pursuant to NEPA, the Federal Guidelines (Title 40 CFR, Part 1500, commencing with Section 1500.1).

 

(c) Public agencies may send environmental documents to the State Clearinghouse for review where a state agency has special expertise with regard to the environmental impacts involved. The areas of statutory authorities of state agencies are identified in Appendix B. Any such environmental documents submitted to the State Clearinghouse shall include, in addition to the printed copy, a copy of the document in electronic format, on a diskette or by electronic mail transmission, if available.

 

(d) When an EIR or Negative Declaration is submitted to the State Clearinghouse for review, the review period set by the Lead Agency shall be at least as long as the period provided in the state review system operated by the State Clearinghouse. In the state review system, the normal review period is 45 days for EIRs and 30 days for Negative Declarations. In exceptional circumstances, the State Clearinghouse may set shorter review periods when requested by the Lead Agency.

 

(e)  A sufficient number of copies of an EIR, negative declaration, or mitigated negative declaration, shall be submitted to the State Clearinghouse for review and comment by state agencies.  The notice of completion form required by the State Clearinghouse must be submitted together with the copies of the EIR and may be submitted together with the copies of the negative declaration or mitigated negative declaration.  The notice of completion form required by the State Clearinghouse is included in Appendix C.  If the lead agency uses the on-line process for submittal of the notice of completion form to the State Clearinghouse, the form generated from the Internet shall satisfy this requirement (refer to www.ceqanet.ca.gov.).

 

(f) While the Lead Agency is encouraged to contact the regional and district offices of state Responsible Agencies, the Lead Agency must, in all cases, submit documents to the State Clearinghouse for distribution in order to comply with the review requirements of this section.

 

Authority cited: Section 21083, Public Resources Code. Reference: Section 21083, 21091, 21104, and 21153, Public Resources Code.

 

15206. Projects of Statewide, Regional, or Areawide Significance

 

(a) Projects meeting the criteria in this section shall be deemed to be of statewide, regional, or areawide significance.

 

(1) A draft EIR or negative declaration prepared by any public agency on a project described in this section shall be submitted to the State Clearinghouse and should be submitted also to the appropriate metropolitan area council of governments for review and comment. The notice of completion form required by the State Clearinghouse must be submitted together with the copies of the EIR and may be submitted together with the copies of the negative declaration.  The notice of completion form required by the State Clearinghouse is included in Appendix C.  If the lead agency uses the on-line process for submittal of the notice of completion form to the State Clearinghouse, the form generated from the Internet shall satisfy this requirement (refer to www.ceqanet.ca.gov). 

 

(2) When such documents are submitted to the State Clearinghouse, the public agency shall include, in addition to the printed copy, a copy of the document in electronic format on a diskette or by electronic mail transmission, if available.

 

(b) The Lead Agency shall determine that a proposed project is of statewide, regional, or areawide significance if the project meets any of the following criteria:

 

(1) A proposed local general plan, element, or amendment thereof for which an EIR was prepared. If a Negative Declaration was prepared for the plan, element, or amendment, the document need not be submitted for review.

 

(2) A project has the potential for causing significant effects on the environment extending beyond the city or county in which the project would be located. Examples of the effects include generating significant amounts of traffic or interfering with the attainment or maintenance of state or national air quality standards. Projects subject to this subdivision include:

 

(A) A proposed residential development of more than 500 dwelling units.

 

(B) A proposed shopping center or business establishment employing more than 1,000 persons or encompassing more than 500,000 square feet of floor space.

 

(C) A proposed commercial office building employing more than 1,000 persons or encompassing more than 250,000 square feet of floor space.

 

(D) A proposed hotel/motel development of more than 500 rooms.

 

(E) A proposed industrial, manufacturing, or processing plant, or industrial park planned to house more than 1,000 persons, occupying more than 40 acres of land, or encompassing more than 650,000 square feet of floor area.

 

(3) A project which would result in the cancellation of an open space contract made pursuant to the California Land Conservation Act of 1965 (Williamson Act) for any parcel of 100 or more acres.

 

(4) A project for which an EIR and not a Negative Declaration was prepared which would be located in and would substantially impact the following areas of critical environmental sensitivity:

 

(A) The Lake Tahoe Basin.

 

(B) The Santa Monica Mountains Zone as defined by Section 33105 of the Public Resources Code.

 

(C) The California Coastal Zone as defined in, and mapped pursuant to, Section 30103 of the Public Resources Code.

 

(D) An area within 1/4 mile of a wild and scenic river as defined by Section 5093.5 of the Public Resources Code.

 

(E) The Sacramento-San Joaquin Delta, as defined in Water Code Section 12220.

 

(F) The Suisun Marsh as defined in Public Resources Code Section 29101.

 

(G) The jurisdiction of the San Francisco Bay Conservation and Development Commission as defined in Government Code Section 66610.

 

(5) A project which would substantially affect sensitive wildlife habitats including but not limited to riparian lands, wetlands, bays, estuaries, marshes, and habitats for endangered, rare and threatened species as defined by Section 15380 of this Chapter.

 

(6) A project which would interfere with attainment of regional water quality standards as stated in the approved areawide waste treatment management plan.

 

(7) A project which would provide housing, jobs, or occupancy for 500 or more people within 10 miles of a nuclear power plant.

Authority cited: Section 21083, Public Resources Code. Reference: Section 21083, Public Resources Code.

15207. Failure to Comment

 

If any public agency or person who is consulted with regard to an EIR or Negative Declaration fails to comment within a reasonable time as specified by the Lead Agency, it shall be assumed, without a request for a specific extension of time, that such agency or person has no comment to make. Although the Lead Agency need not respond to late comments, the Lead Agency may choose to respond to them.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21104 and 21153, Public Resources Code; Cleary v. County of Stanislaus, (1981) 118 Cal. App. 3d 348.

 

Discussion: This section is added to provide certainty in the review process. At the expiration of the review period, the Lead Agency will know what comments it must respond to. It need not hold its process open to prepare formal responses to comments which come in later. The section provides flexibility by allowing agencies to request additional time to comment if they find that they will be unable to submit their comments by the deadline. This approach has been approved in the Cleary decision cited in the note.

 

15208. Retention and Availability of Comments

 

Comments received through the consultation process shall be retained for a reasonable period and available for public inspection at an address given in the final EIR. Comments which may be received on a draft EIR or Negative Declaration under preparation shall also be considered and kept on file.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21104, 21082.1 and 21153, Public Resources Code; Section 4, Chapter 480, Statutes of 1981; People v. County of Kern, (1974) 39 Cal. App. 3d 830. Formerly Section 15166.

 

Discussion: This section is added so that Lead Agencies will retain comments as public records pertaining to the EIR process.

 

15209. Comments on Initiative of Public Agencies

 

Every public agency may comment on environmental documents dealing with projects which affect resources with which the agency has special expertise regardless of whether its comments were solicited or whether the effects fall within the legal jurisdiction of the agency.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21002, 21104, and 21153, Public Resources Code.

 

Discussion: This section was added to make it clear that public agencies may comment on any project with which they are concerned, regardless of whether the Lead Agency requests their comments or whether the project effects may fall within the legal jurisdiction of the agency. Many agencies have expertise which reaches beyond the jurisdiction of the agency. This section provides that an agency may submit comments from its staff experts even if the agency is not directly involved with the environmental problems of a proposed project.

 

Public Resources Code Sections 21104 and 21153 have since been revised to provide that a responsible agency "shall only make substantive comments regarding those activities. . . which are within an area of expertise of the agency or which are required to be carried out or approved by the agency."