Title 14. California Code of Regulations

Chapter 3. Guidelines for Implementation of the

California Environmental Quality Act

Article 3. Authorities Granted to Public Agencies by CEQA

 

Sections 15040 to 15045

 

15040. Authority Provided by CEQA

 

(a) CEQA is intended to be used in conjunction with discretionary powers granted to public agencies by other laws.

 

(b) CEQA does not grant an agency new powers independent of the powers granted to the agency by other laws.

 

(c) Where another law grants an agency discretionary powers, CEQA supplements those discretionary powers by authorizing the agency to use the discretionary powers to mitigate or avoid significant effects on the environment when it is feasible to do so with respect to projects subject to the powers of the agency. Prior to January 1, 1983, CEQA provided implied authority for an agency to use its discretionary powers to mitigate or avoid significant effects on the environment. Effective January 1, 1983, CEQA provides express authority to do so.

 

(d) The exercise of the discretionary powers may take forms that had not been expected before the enactment of CEQA, but the exercise must be within the scope of the power.

 

(e) The exercise of discretionary powers for environmental protection shall be consistent with express or implied limitations provided by other laws.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21000, 21001, 21002, 21002.1, and 21004, Public Resources Code; Section 4, Chapter 1438, Statutes of 1982; Golden Gate Bridge, etc., District v. Muzzi, (1978) 83 Cal. App. 3d 707; E.D.F. v. Mathews, 410 F. Supp. 366, 339 (D.D.C., 1976); Friends of Mammoth v. Board of Supervisors, (1972) 8 Cal. 3d 247; Pinewood Investors v. City of Oxnard, (1982) 133 Cal. App. 3d 1030.

 

Discussion: This section conforms the Guidelines to Section 21004 as added by SB 2011 of 1982, Chapter 1438 of the Statutes of 1982, and adds clarifying interpretations of that bill. The sentences about express and implied authority show that SB 2011 is consistent with prior case law and does not require a change in an agency's manner of implementing CEQA if the agency had been careful before to base its actions on a discretionary power.

 

Subsection (d) shows that discretionary powers may be used to avoid or mitigate significant environmental effects even if that involves using the powers in new ways. As shown in the Golden Gate Bridge District case, the use of specific powers when supplemented by the implied authority in CEQA may result in the use of powers going beyond traditional ideas of the limits on those powers. The Golden Gate Bridge District was allowed to use its power of eminent domain to condemn property for mitigation outside the "take line" that was the normal limit to the use of condemnation. Subsection (e) makes the point that the exercise of discretionary powers as authorized by CEQA to avoid or mitigate environmental effects is subject to limitations provided in other laws. There have been many questions about the extent to which CEQA is or is not limited by other laws. This section shows that CEQA is just like any other law in that its general provisions may be subject to specific limitations provided in other laws. This provision is consistent with Section 21004 and with the court decision of Pinewood Investors v. City of Oxnard, (1982) 133 Cal. App. 3d 1030.

 

15041. Authority to Mitigate

 

Within the limitations described in Section 15040 :

 

(a) A lead agency for a project has authority to require feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment, consistent with applicable constitutional requirements such as the "nexus" and "rough proportionality" standards established by case law (Nollan v. California Coastal Commission (1987) 483 U.S. 825, Dolan v. City of Tigard, (1994) 512 U.S. 374, Ehrlich v. City of Culver City, (1996) 12 Cal. 4th 854.).

 

(b) When a public agency acts as a Responsible Agency for a project, the agency shall have more limited authority than a Lead Agency. The Responsible Agency may require changes in a project to lessen or avoid only the effects, either direct or indirect, of that part of the project which the agency will be called on to carry out or approve.

 

(c) With respect to a project which includes housing development, a Lead or Responsible Agency shall not reduce the proposed number of housing units as a mitigation measure or alternative to lessen a particular significant effect on the environment if that agency determines that there is another feasible, specific mitigation measure or alternative that would provide a comparable lessening of the significant effect.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21002, 21002.1, and 21159.26, Public Resources Code; Golden Gate Bridge, etc., District v. Muzzi, 83 Cal. App. 3d 707.

 

Discussion: This section explains the differences in authority an agency can exercise depending on whether it is acting as a Lead Agency or a Responsible Agency. Subsection (b) limits the powers of a Responsible Agency to considering the environmental effects that would be caused by the activity which the agency is called upon to approve. These environmental effects may be either direct or indirect, but they must be traced to the activity which the agency approves. This section is intended to resolve the confusion among Responsible Agencies concerning this issue. Some Responsible Agencies have believed that they could consider only the direct effects of the activity they approve.

This section reminds agencies of their responsibility to substantially lessen project impacts where feasible and of basic Constitutional principles which may act to limit the feasibility of mitigation measures. As noted in Section 15040 and Public Resources Code Section 21004, CEQA does not give an agency any new powers beyond those express or implied powers which it already holds. Recognizing the practical limitations on regulatory powers is key to preparing feasible mitigation measures.

 

15042. Authority to Disapprove Projects

 

A public agency may disapprove a project if necessary in order to avoid one or more significant effects on the environment that would occur if the project were approved as proposed. A Lead Agency has broader authority to disapprove a project than does a Responsible Agency. A Responsible Agency may refuse to approve a project in order to avoid direct or indirect environmental effects of that part of the project which the Responsible Agency would be called on to carry out or approve. For example, an air quality management district acting as a Responsible Agency would not have authority to disapprove a project for water pollution effects that were unrelated to the air quality aspects of the project regulated by the district.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21002 and 21002.1, Public Resources Code; Friends of Mammoth v. Mono County, 8 Cal. App. 3d 247; San Diego Trust and Savings Bank v. Friends of Gill, 121 Cal. App. 3d 203.

 

Discussion: This section is necessary to codify the holdings of the cases cited in the note. These cases hold that a public agency has authority to disapprove a project due to environmental problems even though that authority might not be expressly stated in the enabling legislation for the agency.

 

15043. Authority to Approve Projects Despite Significant Effects

 

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:

 

(a) There is no feasible way to lessen or avoid the significant effect (see Section 15091); and

 

(b) Specifically identified expected benefits from the project outweigh the policy of reducing or avoiding significant environmental impacts of the project. (See: Section 15093.)

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21002 and 21002.1, Public Resources Code; San Francisco Ecology Center v. City and County of San Francisco, (1975) 48 Cal. App. 3d 584; San Diego Trust & Savings Bank v. Friends of Gill, (1981) 121 Cal. App. 3d 203.

 

Discussion: The other side of the authority to disapprove, or require changes in, a project is the authority to approve a project despite significant environmental effects. As shown by the case cited in the note, CEQA provides authority to approve projects which have significant adverse environmental effects. CEQA requires, however, that the agency make such a decision only after going through the full CEQA process and making explicit findings to support its actions. This section is a codification of case law.

 

15044. Authority to Comment

 

Any person or entity other than a Responsible Agency may submit comments to a Lead Agency concerning any environmental effects of a project being considered by the Lead Agency.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21000, 21001, 21002.1, 21104, and 21153, Public Resources Code.

 

Discussion: This section reflects 1984 amendments enacted to Sections 21104 and 21153 of the Public Resources Code (Stats 1984, Ch 1514), which revised the duties of Responsible Agencies with regard to submitting comments to Lead Agencies on draft EIRs. The statute now limits the comments of Responsible Agencies to those areas in which the agency has expertise or jurisdiction.

 

15045. Fees

 

(a) For a project to be carried out by any person or entity other than the lead agency, the lead agency may charge and collect a reasonable fee from the person or entity proposing the project in order to recover the estimated costs incurred in preparing environmental documents and for procedures necessary to comply with CEQA on the project. Litigation expenses, costs and fees incurred in actions alleging noncompliance with CEQA are not recoverable under this section.

 

(b) Public agencies may charge and collect a reasonable fee from members of the public for a copy of an environmental document not to exceed the actual cost of reproducing a copy.

 

Note: Authority: Section 21083, Public Resources Code. Reference: Section 21089 and 21105, Public Resources Code.

 

Discussion: The authority to charge fees is an essential part of any discussion of authorities granted by CEQA. This section brings together two separate statutory authorities. These are the authority to charge a fee for the preparation of an EIR or Negative Declaration and the authority to charge a fee to a person requesting a copy of an EIR or Negative Declaration. The Guideline section adds the interpretation that the authority to collect a fee for a copy shall be limited to the actual cost of reproducing a copy. This interpretation responds to an effort by some agencies to say that the cost of the copy which they were entitled to recover included a prorata share of the cost of all studies and writing efforts in addition to the cost of printing the EIR. The Resources Agency believed that such an interpretation would be contrary to the policy of CEQA encouraging public participation. Further, the interpretation would enable agencies to charge fees twice for their cost of preparing the EIR, once to the applicant and second to people wanting a copy of the EIR. Subsection (b) of this section is necessary to protect public participation and to prevent agencies from charging exorbitant fees for copies of EIRs and Negative Declarations.

 

Section 21089 of the Public Resources Code gives the lead agency express authority to charge fees to cover the cost of preparing an EIR or negative declaration, as well as for reporting program.