EPA 600/574-023
October 1974
Socioeconomic Environmental Studies Series
California Environmental Quality
Act: Innovation In State and Local
Decisionmaking
%
\
UJ
CD
Office of Research and Development
U.S. Environmental Protection Agency
Washington, D.C. 20460
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RESEARCH REPORTING SERIES
Research reports of the Office of Research and Development, Environmental
Protection Agency, have been grouped into five series. These five broad
categories were established to facilitate further development and appli-
cation of environmental technology. Elimination of traditional grouping
was consciously planned to foster technology transfer and a maximum inter-
face in related fields. The five series are:
1. Environmental Health Effects Research
2. Environmental Protection Technology
3. Ecological Research
4. Environmental Monitoring
5. Socioeconomic Environmental Studies
This report has been assigned to the SOCIOECONOMIC ENVIRONMENTAL STUDIES
series. This series includes research on environmental management,
economic analysis, ecological impacts, comprehensive planning and fore-
casting and analysis methodologies. Included are tools for determining
varying impacts of alternative policies, analyses of environmental plan-
ning techniques at the regional, state and local levels, and approaches
to measuring environmental quality perceptions, as well as analysis of
ecological and economic impacts of environmental protection measures.
Such topics as urban form, industrial mix, growth policies, control and
organizational structure are discussed in terms of optimal environmental
performance. These interdisciplinary studies and systems analyses are
presented in forms varying from quantitative relational analyses to manage-
ment and policy-oriented reports.
EPA REVIEW NOTICE
This report has been reviewed by the Office of Research and Development,
EPA, and approved for publication. Approval does not signify that the
contents necessarily reflect the views and policies of the Environmental
Protection Agency, nor does mention of trade names or commercial products
constitute endorsement or recommendation for use.
For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 - Price $2
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EPA-600/5-7^-023
October 1974
CALIFORNIA ENVIRONMENTAL QUALITY ACT:
INNOVATION IN STATE AND LOCAL DECISIONMAKING
by
Thaddeus C. Trzyna and Arthur W. Jokela
Contract No. 68-01-1818
Program Element 1HA095
21ARF/04
Project Officer
Harold V- Kibby
Washington Environmental Research Center
Washington, D..C. 20460
Prepared for
OFFICE OF RESEARCH AND DEVELOPMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
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FOREWORD
The widespread use of environmental impact analysis as a means of
achieving Federal agency decisionmaking responsive to environmental
concerns was initiated by the passage of the National Environmental
Policy Act of 1969. The Act required that Federal agencies prepare
statements assessing the environmental impact of their major actions
significantly affecting the human environment.
In subsequent years, Federal agencies developed procedures for the
preparation of environmental impact statements, often requiring
similar analyses and statements from local governments and the
private sector as a requirement for the award of Federal permits or
grants. In addition, some States adopted environmental impact state-
ment requirements.
Recent revisions of guidelines for the preparation of Federal impact
statements, issued by the Council on Environmental Quality, have
defined clear requirements as to what can be expected in impact
statements from Federal agencies. However, such uniformity of
procedure and approach has not been extended below the Federal
level on either Federal agency requirements or individual State
requirements. Further, while the guidelines may specify what is
desired in Federal impact statements, technical approaches to
meeting these objectives may not always be available and universally
acceptable.
As a part of its series of Socioeconomic Environmental Studies, the
Environmental Protection Agency, Office of Research and Develop-
ment, is conducting research whose objectives are to:
— Improve the technical quality of environmental impact analyses
in areas of Agency responsibility;
— Improve the ability of the Agency to provide substantive tech-
nical review of environmental impact statements prepared by
other agencies; and
— Improve the effectiveness of the use of environmental impact
analysis in influencing decisionmaking at all governmental
levels.
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This publication is the third of a three-part series of reports on
environmental impact analysis requirements several State governments
have instituted. The first two reports analyzed requirements of the
various States. The present report provides a more detailed analysis
of the environmental impact reporting program instituted in California,
the most extensive of the State programs.
This series of studies is being conducted by Thaddeus C. Trzyna and
Arthur W. Jokela and their associates at the Center for California
Public Affairs (an affiliate of The Claremont Colleges), 226 W.
Foothill Boulevard, Claremont, California 91711, under contract to
the Washington Environmental Research Center.
Edwin B. Boyce
Director
Environmental Impact Analysis Staff
Washington Environmental
Research Center
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ABSTRACT
The California Environmental Quality Act of 1970 (CEQA) requires
State and local agencies to prepare an environmental impact report on
public and private projects that may have a significant effect on the
environment. It is patterned after the National Environmental Policy
Act of 1969.
The development and current status of California's environmental
impact assessment program is described. CEQA was virtually
ignored during its first two years, largely because there was no clear
authority or deadline for issuance of detailed guidelines. The turning
point was CEQA's judicial discovery and enforcement by the California
Supreme Court, and its subsequent amendment by the State Legislature.
CEQA's greatest impact has been on private projects permitted by
cities and counties. In many localities, environmental impact reports
clearly influence decisions on such permits. Still, some State and
local agencies are not fully complying with CEQA, and the act's
implementation is hampered by the lack of a State agency with authority
and resources to enforce it. Based on California's experience, some
general recommendations are made for other States considering
adopting similar requirements.
This report was submitted in partial fulfillment of Contract No.
68-01-1818, Program Element 1HA095, under the sponsorship of the
Office of Research and Development, Environmental Protection
Agency.
IV
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CONTENTS
Section
I Conclusions 1
II Recommendations 3
IE Introduction 5
IV Context: State and Local Government Roles 7
The Role of State Government 7
The Roles of Local and Regional Governments 8
V CEQA: The Law and its Origins 11
Enactment 11
NEPA, the Parent 13
CEQA, the Offspring 14
VI Beginnings 17
Unanswered Questions 17
The 1971 Draft Guidelines 20
The 1972 Draft Guidelines 22
Enter the Legislature and the Courts 23
VII The "Friends of Mammoth" Decision 25
The Decision 25
Reaction to "Friends of Mammoth" 26
VIII CEQA is Amended 31
The Court Clarifies "Mammoth" 31
The Legislature Acts 32
Amended CEQA 35
IX Fleshing Out the Act 40
The February 1973 Guidelines 40
Amendment of the Guidelines 43
The "California EIR Monitor" 48
X Management of CEQA-Mandated Processes 51
Implementation in State Government 51
Management in Local Government 53
The Impact of CEQA 59
XI Acknowledgments 62
Xn References 63
XIII Bibliography 78
XIV Appendices 82
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SECTION I
CONCLUSIONS
1. The California Environmental Quality Act was slow to be imple-
mented largely because the law as originally enacted left important
questions unanswered and failed to provide clear authority and a
deadline for issuance of detailed guidelines.
2. Implementation of CEQA is still hampered by the lack of a State
agency with authority, staff, and funding to monitor and enforce its
application.
3. CEQA's greatest impact has been on private development projects
licensed by cities and counties.
4. While most State and local agencies at least attempt to carry out
their responsibilities under CEQA, there is some evidence suggesting
that some agencies are not complying fully with the act.
5. Some progressive local governments have applied CEQA in creative
ways that suit local conditions. The diversity of environmental impact
assessment practices in California could be beneficial to other States
in illustrating different approaches that could be useful in their own
jurisdictions.
6. Because of the considerable variation in approaches taken by
local governments, it is difficult to generalize about the effectiveness
of California's program. However, environmental impact reports
certainly provide a better factual basis for decisionmaking, and in
many cases clearly influence decisions.
7. Relatively few permits for projects are flatly denied as the result
of an environmental impact report* However, it is common for
projects to be modified during the review process. Also, CEQA
discourages "bad" projects from being started, and it encourages
developers to design their projects from the beginning with the know-
ledge that environmental damage must be avoided or mitigated.
8. CEQA has encouraged public participation, and it has helped to
educate those who make decisions.
9. California State policymakers lack systematic information about
what is actually happening and. what works at the local level concerning
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CEQA. This is a major constraint against development of sound
statewide land use policies.
10. There is a need to integrate the environmental impact assessment
system into the planning process, and eventually into the development
of a more comprehensive approach to environmental'quality manage-
ment.
11. Professional, governmental, and citizens' groups with vested
interests in CEQA are emerging; this may help to insure a continuing
role for environmental analysis in planning and decisionmaking in
California.
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SECTION II
RECOMMENDATIONS
States considering adopting or expanding environmental impact assess-
ment procedures can benefit from California's experience, as well as
the experience of other States with similar programs. However, it is
difficult, based on our study of CEQA, to make specific recommenda-
tions for designing and implementing such a program in other States
because of the wide variation in State and local problems, needs, laws,
institutions, and political cultures. We would make the following
general suggestions:
1. A State environmental impact assessment program should be based
on careful analysis of existing State and local environmental protection
mechanisms, and should be designed to complement and be closely
integrated with other ongoing processes of public management of land
use and environmental quality.
2. The Suggested State Environmental Policy Act developed by the
Council of State Governments can be an excellent starting point for
drafting legislation; however, the exact language should reflect the
State's special needs.
3. The requirement for environmental impact statements should apply
to private, as well as public, projects. (The Suggested Act provides
this.)
4. Since, in most States, the great majority of land use decisions is
made by local governments, the requirement for environmental impact
statements should apply to actions of local, as well as State, agencies.
The State Government should set minimum standards for local impact
assessment programs, but allowance should be made for adaptation of
the procedure to local needs and programs. (The Suggested Act con-
tains alternative language extending the requirement to local govern-
ments. )
5. A single, high-level agency should be given clear legal authority to
issue detailed guidelines for implementation of the State law (with a
deadline for issuing them) and to review and enforce local and State
agency procedures. This agency should be given adequate funding and
staffing.
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6. The responsible State agency should make a concerted effort to
stimulate two-way communication on the environmental impact process.
This might include an information and education program directed
especially toward public officials, developers, and environmentalists.
It might also include some formal means of feedback from all of the
affected sectors, perhaps in the form of a well-balanced advisory
committee. A training program for State and local officials directly
concerned with the process would also be useful.
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SECTION III
INTRODUCTION
Probably no single law has had as great an effect on environmental
decisionmaking at the Federal level than the National Environmental
Policy Act of 1969 (NEPA), which requires an environmental impact
statement to be prepared in advance of major Federal actions which
significantly affect the quality of the human environment.
Encouraged by NEPA's accomplishments, some 15 States have now
adopted analogous procedures for projects affecting environmental
quality that require State or local permits, and at legist twenty other
States have such requirements under consideration. California's
system is the oldest and most extensive of these State programs. The
California Environmental Quality Act (CEQA) requires environmental
impact reports to be prepared on a wide range of public and private
projects licensed by State agencies, counties, cities, and other local
governments.
This study describes the development of California's environmental
impact assessment program from the enactment of CEQA in 1970
through the spring of 1974. We hope it will be helpful to other States
that are considering the adoption or expansion of environmental impact
requirements.
Our study concentrates on the public policy and administrative aspects
of the CEQA story, rather than its technical legal aspects, which have
been discussed extensively elsewhere (see the bibliography). One
important and still unresolved legal question is whether CEQA imposes
a duty on agencies to prevent environmental damage. A finding by the
courts that the act does impose such an obligation would give greater
importance to the role of the environmental impact report.
This report is based on interviews and correspondence with State and
local officials, citizen environmentalists, consultants, attorneys, and
developers throughout California; review of published material, inclu-
ding the legal literature and legislative and administrative documents;
review of certain files of the State Resources Agency; and attendance
at several conferences. Research was completed in May 1974.
A future report wiU discuss in greater detail the implementation of
CEQA at the local level.
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SECTION IV
CONTEXT: STATE AND LOCAL GOVERNMENT ROLES
The California Environmental Quality Act of 1970 imposed a new series
of requirements on an already complex structure of State, local, and
regional environmental programs. It was only one of several far-
reaching measures enacted in California in the late 1960s and early
1970s in response to a need for new means of dealing with the State's
critical environmental problems. Thus, a brief description of the
roles in environmental management of State agencies, cities, counties,
and other forms of government in California might be helpful in under-
standing the successes and failures of CEQA.
THE ROLE OF STATE GOVERNMENT
Responsibility for managing and protecting California's environment is
divided among a maze of Federal, State, regional, and local agencies.
The role of State Government is limited by two major factors. First,
nearly half of the State's land area (49%) is under the direct control of
the Federal Government. Second, California has a strong tradition of
home rule. Many of the most important decisions relating to environ-
mental quality- including most land use decisions, are left to local
governments.
The State retains ultimate authority over non-Federal lands, however,
and over the years it has kept direct jurisdiction in a number of key
areas. Recently, the State has been assuming greater powers in fields
where local governments have been slow to act. For example, State
agencies have full or substantial authority over water quality matters,
development of water resources, rural subdivisions, vehicular sources
of air pollution, forest practices, fish and wildlife, the use of pesti-
cides, and numerous specialized activities such as the siting and under-
grounding of utility lines and oil and gas well drilling. State agencies
also have permit authority over uses in the coastal zone, San Francisco
Bay, and State-owned tidelands and submerged lands.
Some of the most significant new environmental programs created by
State legislation operate not through agencies of State government, but
rather by imposing requirements on local governments. Typically, in
such cases, the State's role is limited to coordination; there are no
specific provisions for monitoring or enforcement, other than judicial
review. These programs include the requirement that cities and
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counties adopt a general plan with specified elements, and the environ-
mental impact requirement imposed on local governments under
CEQA.
Most State environmental functions are within the Resources Agency,
one of four State Agencies under the Governor which were created in
1961 to coordinate the activities of groups of departments, boards,
and commissions. The Resources Agency differs from the environ-
mental "superagencies" created recently in some other States in two
important respects. First, it includes units which have development,
as well as regulatory, functions. Second, decisionmaking is decentra-
lized. Policies for most departments within the Agency are made by
autonomous, single-purpose boards or commissions created by statute.
Several key environmental quality functions are located outside the
Resources Agency. Some of these functions are administered by
departments located within the other three Agencies. The State
planning function, as in most States, is within the Governor's Office.
But the State Attorney General, who is authorized by statute to inter-
vene in any judicial or administrative proceeding related to environ-
mental quality "which could affect the public generally, " ^ is an
elected official who is independent of the Governor. The California
Coastal Zone Conservation Commission, created through the
initiative and referendum process, is also independent (though a
third of its members are appointed by the Governor).
THE ROLES OF LOCAL AND REGIONAL GOVERNMENT
California has two levels of general-purpose local government:
counties and cities. About 80% of the population lives within the
boundaries of some 400 cities, which range in size from the City of
Los Angeles, with 2. 8 million people, to small communities of a few
hundred. The 58 counties are responsible for providing municipal
services to the unincorporated areas outside city limits, which include
some highly urbanized, as well as rural, areas.
From the standpoint of environmental management, the roles of cities
and counties are similar. Each of the 78 cities in Los Angeles
County, for example, is responsible for land use planning and zoning
within its boundaries. The county government is responsible for
planning and zoning outside the cities. Cities and counties also have
primary responsibility within their areas for such functions as roads,
parks, sewage disposal, harbors, and airports, though in some cases
these activities are handled by special districts.
8
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In some fields, county governments have authority over their entire
areasj including the incorporated cities. Such responsibilities include
regulation of stationary sources of air pollution, enforcement of public
health standards, and airport zoning.
The cities and counties have a key role in environmental management
that is by no means limited to carrying out State-mandated require-
ments. Under their general police powers, and under a variety of
permissive State laws, they have fairly wide latitude to shape their
physical surroundings. Some local governments have made good use
of this authority. They have created extensive systems of parks and
parkways, for example, banned development in scenic or ecologically
significant areas, instituted strict architectural and sign controls,
enacted strong noise control ordinances, and contracted with land
owners to preserve agricultural lands threatened by urbanization.
Most local governments, however, have taken little advantage of the
opportunities open to them. Many are reluctant to carry out even the
minimum programs required by State legislation. ^
The basic State-mandated local environmental management program is
the general plan. Under the State Planning Act, ^ each city and
county must establish a planning agency to develop and maintain a
general plan containing a statement of development policies along with
maps and text indicating the proposed uses of land for various purpo-
ses. First required in 1955, the general plan originally consisted of
two mandatory "elements": land use and circulation. A housing
element was added in 1969.
The general plans of cities and counties have been oriented more
toward orderly development, rather than maintaining or improving the
quality of the local environment, minimizing effects of environmental
hazards, or avoiding misuse of natural resources. Commonly, they
have reflected existing and projected, rattier than ideal, patterns of
use. Problems such as preservation of open space lands, geologic
hazards, and flooding have usually received scant attention.
Also, even when carefully prepared, a general plan by itself has not
necessarily meant very much. Zoning — and thus the uses permitted
under zoning ordinances — has not been required to conform strictly
to the general plan, and in any case, the plans have been relatively
easy to change. Under political pressure from developers, local
authorities have not infrequently decided to allow uses incompatible
with the general plan, or to amend the plan itself.12
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Recent additions to the State Planning Act are changing this. The
general plan document itself has been strengthened by the addition of
six new mandatory elements: conservation (which includes water qua-
lity, soil erosion, flood control, and several other specified matters),
open space, seismic safety, noise, scenic highways, and safety. More
important, zoning — and thus actual use of land — must conform to
the general plan by January 1, 1974. The law now also forbids adopting
changes in the general plan more than three times a year (although
annual review wUl be necessary), and requires a delay after a general
plan is changed before any related zoning changes can be made. 13
Cities and counties are not the only forms of local government in
California. Often cutting across their boundaries, and usually gov-
erned separately by elected or appointed boards, are some 3, 500
limited-purpose "special districts. " Most of them are involved in
some way in activities that affect environmental quality. They range
from small soil conservation, irrigation, and mosquito abatement
districts, to urban public utility and mass transportation districts,
to huge agencies such as the 4, 800-square-mile Metropolitan Water
District of Southern California, which supplies supplemental water to
most of the Los Angeles-San Diego region. These special districts
tend to be much less subject to public scrutiny than cities or counties.
There are a number of regional.agencies (that is, agencies that are
concerned with more than a local area) whose activities affect the
quality of California's environment. Some of these agencies are
organized as special districts, for example, the Metropolitan Water
District, and the three-county San Francisco Bay Area Rapid Transit
District. Other regional bodies are special units of State Government
created to deal with problems of critical areas, for instance, the six
Regional Coastal Zone Conservation Commissions, and the California
Tahoe Regional Planning Agency.
Regional councils of governments (COGs) are another type of regional
agency. Organized to discuss, study, and develop recommendations
on regional problems of mutual concern, with a major emphasis on
transportation and environmental planning, COGs are composed of
representatives of cities and counties within their boundaries. Strict-
ly speaking, COGs are not governmental agencies because they lack
any authority. Membership in them is voluntary, and some cities and
counties have refused to participate. Their recommendations are
only advisory.
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SECTION V
CEQA: THE LAW AND ITS ORIGINS
ENACTMENT
The California Environmental Quality Act (CEQA) was one of several
bills introduced in the 1970 Session of the California Legislature by
the Assembly Select Committee on Environmental Quality. This
special, temporary body, composed of chairmen of standing commit-
tees concerned with matters related to the environment, was charged
by Speaker Bob Monagan with developing a "comprehensive environ-
mental program" for the State. 15
Considering the controversy that has surrounded it, CEQA was enacted
with surprisingly little dissent. The committee's bill, AB 2045, was
approved in somewhat amended form by the Assembly by a 59-7 vote,
and passed the Senate in a slightly different version, 39-0. The Assem-
bly concurred in the Senate amendments, 62-1, and CEQA was signed
by Governor Ronald Reagan on September 18 without comment. It took
effect on November 23, 1970. *6
Why did CEQA become law so easily? One reason, perhaps, is that
1970 was the "year of the environment" (April 22 was celebrated as
the first Earth Day), and public concern was at a high level. Citizens'
groups, the media, and elected officials were calling for something to
be done about the deteriorating quality of the State's environment. In
February, the State Environmental Quality Study Council, an official
body created by a 1969 statute, reported that,
Our in-depth study of California's environmental ills has
revealed an extremely pessimistic picture. Our beauti-
ful State is in severe danger of being destroyed as a
desirable place to live... It is even questionable whether
major portions of the State will be capable of supporting
tolerable human life within several more decades.
Having been called upon for the past 25 years to accommo-
date one of the greatest bursts of iirrm'gration and popu-
lation growth the world has ever known, California's
legendary environmental assets have been squandered
in a grossly negligent fashion, and much of it obliterated
beyond repair. If the present course is continued, our
posterity will inherit a vast wasteland. ^
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The chairman of the select committee, Assemblyman George Milias,
described the political climate of 1970 in these words:
The environment issue was like an iceberg. It had been
there for years but most of it was not visible. There was
a tremendous body of public opinion that had been growing
and growing until all of a sudden it was just enormous.
Then a few things happened. There was the Santa Barbara
oil spill. Some of the more literate individuals began to
come out with publications like the Population Bomb. You
had quite a bit of talk about pesticide problems and DDT
in fish and other wildlife. All of a sudden people got
very, very uptight about the environment, and that's why
it became a big issue in 1970.18
Yet, despite this aroused interest, the record shows that the Legis-
lature took little action. Of some 300 environmental bills introduced
1 Q
in 1970, only a handful became law.x Among the major measures
that failed to pass were bills to plan for and protect the coastline, to
prohibit power plants in parks, and to use up to one cent per gallon of
State gasoline taxes to combat air pollution. ^0 The one other basic
measure proposed by the select committee (in addition to CEQA), an
"Environmental Bill of Bights" to be included in the State Constitution,
was also defeated. Two prominent environmentalists later wrote that
the 1970 Session yielded "more stagecraft than statecraft. "22
One plausible explanation for CEQA's easy passage might be that it
was, on its face, a fairly simple measure, consisting of a broad
declaration of environmental policy and a requirement that State and
local agencies prepare an environmental impact report on any project
which "could have a significant effect on the environment. " Its opera-
tive provisions appeared to be procedural, rather than substantive.
Also, there was an important precedent. Although the select commit-
tee's report fails to mention it, CEQA clearly was patterned after the
National Environmental Policy Act of 1969 (NEPA), signed by President
Nixon on January 1, 1970 as his first official act of the new decade.
One thing is certain: CEQA was understood by some legislators to apply
only to projects undertaken directly by governmental agencies and not
to private projects permitted or funded by government. Most of the
controversy over CEQA would be over its application to such private
activities.
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NEPA, THE PARENT
The National Environmental Policy Act has been described as "the
most important piece of environmental legislation ever written. " 24
NEPA accomplished several things. First, it declared a broad nation-
al policy for environmental protection. 25 Second, it created certain
"action-forcing" procedures to insure that the policy is carried out. 26
Third, it established a Council on Environmental Quality in the
Executive Office of the President. 27
Of the action-forcing provisions in NEPA, the most innovative and
far-reaching is the requirement, in Section 102 (2) (C), that Federal
agencies prepare an environmental statement in advance of "every
recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the human
environment. " These statements must include certain specified
elements, including a discussion of alternatives to the proposed action,
and they must be circulated for comment to other Federal agencies,
affected State and local governments, and the public.
The primary purpose of this process is to force full disclosure of the
environmental consequences of a proposed action, thus alerting
agencies, the public, and ultimately the President and the Congress
to the environmental risks involved. An important and intended
result is to build into the decisionmaking processes of Federal agen-
cies a continuing and systematic consideration of environmental
factors. 28
Although NEPA applies only to Federal agencies or to Federally-funded
or -licensed projects, State and local agencies become involved signi-
ficantly in the resulting process. Many of their own projects may
require an impact statement under NEPA if Federal funds are to be
used (for example, in the case of an interstate highway). State and
local authorities are also asked to comment on impact statements for
OQ r
Federal projects affecting their areas. *y
As important as this involvement is, the adoption by the States of
"little NEPAs" extending the environmental impact requirement to
State and local actions not subject to the Federal law will probably
have a far more profound effect on environmental decisionmaking
below the national level. In enacting CEQA, California became the
first State to establish an environmental impact requirement patterned
after NEPA (although a Puerto Rico statute preceded it by a few
months). Since then, another 14 States have enacted "little NEPAs. "
While a few of these States have made innovative departures from the
13
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Federal model, California's law has had the broadest effect. 30
CEQA, THE OFFSPRING
As enacted in 1970, CEQA consisted of a declaration of legislative
findings and policy and two operative chapters requiring environmental
impact reports to be prepared on State and local projects, respective-
ly. (The term "environmental impact report" is used in the California
act; the words "environmental impact statement" are usually used to
describe the document required under the Federal law.) Unlike NEPA,
CEQA did not establish an agency like the Federal Council on Environ-
mental Quality.
While much of CEQA was subsequently amended, its declaration of
findings and policy has remained unchanged. * Among other things,
the act declares that it is the policy of the State to:
Develop and maintain a high quality environment now and
in the future, and take all action necessary to protect,
rehabilitate, and enhance the environmental quality of
the state.
Take all action necessary to provide the people of this
state with clean air and water, enjoyment of aesthetic,
natural, scenic, and historic environmental qualities,
and freedom from excessive noise...
Ensure that the long term protection of the environment
shall be the guiding criterion in public decisions...
Require governmental agencies at all levels to develop
standards and procedures necessary to protect environ-
mental quality.
Require governmental agencies at all levels to consider
qualitative factors as well as economic and technical
factors and long-term benefits and costs, in addition to
short-term benefits and costs and to consider alternatives
to proposed actions affecting the environment. ^2
As enacted in 1970, the first operative chapter of CEQA required all
"state agencies, boards and commissions" to prepare an environmen-
tal impact report (EIR) on "any project they propose to carry out
which could have a significant effect on the environment of the state. "
14
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(NEPA requires an impact statement on "legislation and other major
Federal actions significantly affecting the quality of the human environ-
ment. ")33 Six specific points of information were to be covered in an
EIR:
(a) The environmental impact of the proposed action.
(b) Any adverse environmental effects which cannot be
avoided if the proposal is implemented.
(c) Mitigation measures proposed to minimize the impact.
(d) Alternatives to the proposed action.
(e) The relationship between the local short-term uses
of man's environment and the maintenance and en-
hancement of long-term productivity.
(f) Any irreversible environmental changes which would
be involved in the proposed action should it be im-
plemented. 34
__ ^?R
These elements are substantially the same as those listed in NEPA,
with the exception of the "mitigation measures" item. NEPA itself
does not specifically address the mitigation issue; however, the
guidelines issued by the Council on Environmental Quality for the
implementation of the Federal act cover it under the category of
"alternatives to the proposed action. "
This chapter of CEQA also specified that State comments on any
proposed Federal project include an EIB. No State report on such a
project could be transmitted to the Federal Government unless it
included such a statement. In effect, this meant that the State was
required to prepare an EIR on a Federal project even when no environ-
mental impact statement under NEPA was required. ^1 Also, no State
agency could provide or request funds for a project which could have
a significant effect on the environment unless an EIR had been comple-
ted. Projects involving only planning were exempted from this
requirement. ^°
Before issuing an EIR, the "responsible state official" was required
to consult with, and obtain comments from, "any governmental
agency which has jurisdiction by law or special expertise with respect
to any environmental impact involved. "3^ The EIR, along with any
comments received from other agencies, was to be included as part
of the regular project report used in the existing review and budgetary
process. The EIR was to be available to the Legislature and to the
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general public. All State agencies were to request in their budgets
the funds necessary to protect the environment in relation to problems
caused by their activities. 41 All State agencies were to review their
statutory authority, rules, regulations, policies, and procedures to
determine any inconsistencies which would "hinder compliance" with
CEQA, and were to propose any measures needed to comply with the
act to the Governor and the Legislature no later than January 1971. 42
The Office of Planning and Research in the Governor's Office was
designated to "coordinate the development of objectives, criteria,
and procedures to assure the orderly preparation and evaluation" of
EIRs.43
The second operative chapter of CEQA related to local governments.
State agencies allocating State or Federal funds on a project-by-project
basis to local agencies for land acquisition or construction projects
which might have a significant effect on the environment were to require
an EIR from the responsible local agency prior to allocating funds,
except for planning purposes.44
Finally, CEQA provided that:
The legislative bodies of all cities and counties which
have an officially adopted conservation element of a
general plan shall make a finding that any project they
intend to carry out, which may have a significant effect
on the environment, is in accord with the conservation
element of the general plan. All other local govern-
mental agencies shall make an environmental impact
report on any projects they intend to carry out which
may have a significant effect on the environment and
shall submit it to the appropriate local planning agency
as part of the report required by Section 65402 of the
Government Code. 45
The great majority of cities and counties had not adopted a conservation
element of a general iplan. (this was not to become mandatory until
December 31, 19734 ) and thus most local governments were required
to prepare EIRs.
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SECTION VI
BEGINNINGS
UNANSWERED QUESTIONS: WHO WOULD
ANSWER THEM?
CEQA left a number of important issues unanswered. An EIR was to
be required for any "project" which could have a "significant effect"
on "the environment. " Did the term "project" encompass governmen-
tal actions other than public works activities, such as zoning or the
setting of utility rates ? Did it include matters involving governmental
licensing or funding of private activities ? Did the EIR requirement
apply to so-called "beneficial" activities conducted for the express
purpose of protecting the quality of the environment, for example,
setting air and water quality standards ? In operational terms, what
was a "significant effect"? What, after all, was "the environment"?
Further, did the new law apply to continuing projects that had been
started, authorized, or funded prior to the date it went into effect?
Were local governments other than cities and counties -- school
districts and special districts -- included in the EIR requirement?
What about emergency or temporary projects ? How was an EIR to be
"made available" to the "general public"? How was the EIR require-
ment related to other State and local environmental programs such as
the general plan?
Obviously, detailed guidelines for the EIR program would be needed
before CEQA could be implemented by the hundreds of State and local
agencies that were affected by the act. But the law was vague on how
such guidelines were to be issued. It merely said that the Office of
Planning and Research "shall, in conjunction with appropriate state,
regional, and local agencies, coordinate the development of objectives,
criteria, and procedures to assure the orderly preparation and evalu-
ation of environmental impact reports. " 47
How the State Administration handled the problem of the CEQA guide-
lines is best described by comparing the California experience to the
Federal experience under NEPA.
Like CEQA, NEPA was a rather vague statute. But shortly after
NEPA was enacted, President Nixon issued an executive order direc-
ting the newly-created Council on Environmental Quality (CEQ), part
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of the Executive Office of the President, to issue guidelines to Federal
agencies for preparing and processing environmental impact state-
ments. 48 CEQ's guidelines were issued in interim form on April 30,
1970, four months after the act went into effect. 49 They answered
many of the questions raised by NEPA. and tended to guide agencies
toward a "broad reading" of the law. 5" Various terms used in the act,
including "significant effect" and "major action, " were defined in some
detail. Deadlines were set down for the adoption by agencies of formal
procedures for processing environmental impact statements. Most
significantly, the guidelines made clear that NEPA extended not only
to projects undertaken directly by Federal agencies, but also to private
activities involving Federal funding or "involving a Federal lease,
permit, license, certificate or other entitlement for use. "^1
CEQ's role was limited mainly to promulgating the guidelines and
persuading agencies to comply with NEPA. It had no enforcement
authority. Much of NEPA's fleshing out would be left to the courts
and to the responses of the individual agencies. Nevertheless, CEQ's
broad interpretation of NEPA and the active role that it took in publi-
cizing the act's requirements, in involving the public in the process,
and in working with agencies to set up and improve their procedures,
did much to get the Federal environmental impact statement process
firmly established within a year after NEPA was enacted.
In contrast to the NEPA experience (and notwithstanding the fact that
California could draw on that experience in developing its own guide-
lines), implementation of CEQA got off to a very slow start. Part of
the reason for this was probably that no agency had clear authority
simply to "issue" guidelines for CEQA (as did the Federal Council on
Environmental Quality for the NEPA guidelines). The Office of
Planning and Research (OPR) was directed only to "coordinate the
development" of guidelines in conjunction with other agencies.
Like CEQA, OPR was a brainchild of the Assembly Select Committee
on Environmental Quality. A part of the Governor's staff, it was
assigned "primary responsibility for assuring orderly operation of the
process of environmental policy development and implementation within
state government. " However, its mandate specifically denied it "any
direct operating or regulatory powers. OPR was also given the
duty of preparing and maintaining a comprehensive State "Environ-
mental Goals and Policy Report, " a document which was to "serve as
a basis for judgments about the design, location and priority of major
public programs... including the allocation of state resources for
environmental purposes. " °*
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By placing OPR in the Governor's Office, the select committee intended
to make planning and environmental policy development an integral
part of the management of the Executive Branch under the direct super-
vision of the Chief Executive. 5^ Recent experience in other States
tends to affirm the validity of placing this function close to the Gover-
nor. 55 However, the Administration gave OPR a rather small staff
and budget. 56 The first "Environmental Goals and Policy Report"
issued by the office stated:
State Government should intercede in local matters only
where necessary to mediate jurisdictional disputes or
where environmental problems and/or resources are of
such a magnitude or unique quality that their significance
extends beyond local jurisdictional boundaries. *?
Thus, in view of the limited role given to OPR by both the Legislature
and the Administration, it was not surprising that the Administration
decided to give primary responsibility for developing the CEQA
guidelines to the Resources Agency. ^ While it seemed reasonable
to place this responsibility in the hands of an operating line agency,
rather than a staff research office, this also had its disadvantages.
First of all, the Resources Agency is a fairly loose collection of
departments, boards, and commissions, all with varying degrees of
autonomy, and which often have conflicting aims. The role of the
Secretary for Resources is limited by law to "general supervision"
over these units. Second, some important State activities subject
to the EIR requirement are located outside the Resources Agency.
Delegated the rather vague responsibility of "coordinating the develop-
ment" of EIR guidelines, the Resources Agency — more specifically
the Office of Secretary for Resources Norman B. Livermore, Jr. —
began early in 1971 to develop such a document through a process of
circulating drafts to concerned State offices. It was a slow and diffi-
cult process. A major barrier in developing the guidelines, as policy-
level officials repeatedly emphasized to us, was the resistance of the
bureaucracy. Many members of single-purpose departments both
inside and outside the Resources Agency were accustomed to playing
down or ignoring the broad environmental consequences of their
actions. They considered the new EIR program an intrusion, and made
every attempt to minimize its impact on their activities. There was
considerable disagreement among agencies as to what the guidelines
should say, and it was not until June that the first formal draft was
issued to the public.
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THE 1971 DRAFT GUIDELINES
The "proposed guidelines" issued in June 1971 by the Resources Agency60
gave a narrow view of CEQA: although the act called for guidelines on
local, as well as State, EIRs, only State activities were covered. 61
Hearings were held on the document in July, where numerous objections
were raised by environmentalists and others. However, the most cogent
expression of these objections was in a petition issued two months later
by the State Attorney General, Evelle J. Younger. 62
In the Attorney General's petition, Deputy Attorney General Nicholas C.
Yost stated:
[CEQA] is perhaps the most far-reaching environmental
legislation ever enacted in California. It makes environ-
mental factors a part of all governmental decision-making
in California. The guidelines promulgated under it, if
adopted so as to comply with the Act, will have enormous
potential to contribute to the preservation and enhance-
ment of California's environment... This Act can and
will be the subject of a vast amount of litigation. The
experience of the federal courts under the parent statute,
[NEPA] , will be repeated at the state level... We trust
that California's administrative regulations interpreting
[ CEQA] will be legally sufficient and will conform to
both the letter and the spirit of the Act. Only this will
serve the statutory purpose of making environmental
values the primary ones to be protected. 63
The petition alleged that the proposed guidelines were an "unnecessarily
crabbed" interpretation of CEQA. It called attention to the absence of
procedures for local governments, and questioned the authority of the
Resources Agency to "officially adopt" the guidelines ("the Office of
Planning and Research is charged with this task"). 64 The Attorney
General criticized the policy statement in the guidelines, which said
that the "purpose" of CEQA was to "provide relevant environmental
information" to agencies and the public. 65 The petition countered that
the law was "not restricted to the provision of information.. .the Act
builds the environment into all phases of governmental decision .
making. " 66
The Attorney General considered the guidelines deficient in many other
respects, including their treatment of exemptions to the EIR require-
ment, the content of the EIR, the requirement that agencies preparing
an EIR consult with all other agencies having jurisdiction or special
20
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fi7
expertise in the matter, and public participation. '
But the petition gave greatest significance to the guidelines' definition
of the term "project":
"Project" includes any major work segment involving
siting, land purchases, design, or construction activities,
utilizing state or federal funds carried out by any or all
levels of government, which could have a significant
effect on the environment of the state. 68
This "extraordinarily restricted definition, " the petition said, "effec-
tively guts" CEQA. First of all, the Attorney General noted, the
word "major" was not included in CEQA's description of projects
covered by the EIK requirement (although it was used in NEPA).
"Minor projects may significantly affect the environment. A segment
of a highway may be minor, but the sum of such segments significant." 69
But more important, the Attorney General saw the act as extending not
only to activities undertaken directly by governmental agencies, but
also to private activities permitted or funded by State or local govern-
ment. The petition argued that since CEQA was modeled after NEPA,
both NEPA and the NEPA guidelines must be seen as part of the legis-
lative history of CEQA. The term "project" in CEQA was equivalent
to the term "action" in NEPA, it said, and the Federal guidelines
included private activities within the definition of "action. "^^ The
Attorney General offered his own definition of "project":
Project includes activities:
(a) Directly undertaken by state or local governmental
agencies;
(b) Supported in whole or in part through state or local
public agency contracts, grants, subsidies, loans
or other forms of funding assistance;
(c) Involving a state or local governmental agency lease,
permit, license, certificate or other entitlement for
use.71
Caught between the conflicting demands of development-oriented
interests, the environmentalists, and the Attorney General, the
Resources Agency was faced with coming up with a new set of guide-
lines. CEQA's first anniversary went by in November 1971 without
any implementing guidelines. Some State and local agencies had begun
to develop their own procedures for EIRs, '* but on the whole the
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requirement was ignored.
On January 28* 1972, Assemblywoman March K. Fong, Chairman of
the Assembly Committee on Environmental Quality (successor to the
Select Committee on Environmental Quality, which had drafted CEQA),
sent a letter to the Governor asking when the guidelines might be
released. No reply was received to that inquiry. On May 2, the
Assembly committee invited representatives of the Administration to
appear before it to explain the status of the guidelines. 73 On May 5,
the Administration released a new draft.
THE 1972 DRAFT GUIDELINES
The May 1972 "interim guidelines" had been prepared by the Resources
Agency, but were circulated by OPR. *74 Like the June 1971 guidelines,
they were merely a draft and had no legal effect; they were issued
"for review only — subject to revision prior to adoption. "75 The
cover letter stated that comments would be welcome during a 30-day
review period, after which a revised set of guidelines would be adopted
by the Secretary for Resources "following Cabinet approval. " 1®
The new guidelines were more detailed than the 1971 document, and
satisfied some of the objections raised by the Attorney General and the
environmentalists. For example, the definition of an EIR as an
informational document was omitted. ^' To alert the public and agencies
that an EIR was available for review, a twice-monthly California
Environmental Monitor would be issued. ° However, the new document
still failed to give any guidance to local agencies on preparing EIRs.
Its definition of "project" omitted the word "major, " but still did not
include private sector activities permitted or funded by government.
On May 12, the Fong Committee held a "special hearing" to review the
new proposed guidelines. Formal testimony was received from repre-
sentatives of the Resources Agency, the Office of Planning and Re-
search, the Attorney General, the Sierra Club, and the Environmental
Defense Fund. The committee came to many of the same conclu-
sions that the Attorney General had'arrived at with respect to the 1971
guidelines. Its report recommended, among other things, that the
guidelines define "project" in the way suggested in the Attorney Gene-
rals 1971 petition, arid that the guidelines "should be made to apply
to local government in order to assure uniform objectives, criteria,
and procedures." °*
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ENTER THE LEGISLATURE AND THE COURTS
Meanwhile, how CEQA was to be implemented became a judicial and
a legislative issue (and, in fact, definitive guidelines for the law as it
was enacted in 1970 were never issued).
In July 1972, Assemblyman John T. Knox (who, as chairman of the
Local Government Committee of the lower house, had been a member
of the select committee that drafted CEQA) introduced a bill to obviate
some of the most important problems raised by the draft guidelines
and their critics. His bill, AB 889, drafted primarily by the Attorney
General's Office, defined the term "project" to include agency approval
of private development projects (this was stated to be declaratory of
existing law).
In addition, AB 889, as introduced in July, required local governments
to prepare an EIR irrespective of whether they had made a finding that
a project was consistent with a conservation element of a general plan.
A discussion of the "growth-inducing" effects of a project was added to
the required elements of the EIR. The phrase "significant effect" was
defined to "make clear that the cumulative effect of minor projects"
had to.be considered. The Secretary for Resources was to issue
guidelines within 180 days of the adjournment of the 1972 Legislature.
AB 889 was passed by the Assembly, but was assigned in the Senate
to a committee where, according to an environmentalist observer;
it had little likelihood of being approved, since a majority of its
members opposed the application of CEQA to private projects. **2
Several other .bills were introduced early in the 1972 legislative
session to strengthen or clarify CEQA. °* However, the only measure
to be enacted was AB 301, which made clear that CEQA's require-
ment that local governments prepare EIRs applied to: special districts,
as well as cities and counties. 84
The summer of 1972 also saw the first major court decisions under
CEQA. In Keith v. Volpe, 85 the plaintiffs, who included the Sierra
Club, the Environmental Defense Fund, and the National Association
for the Advancement of Colored People, asked the U.S. District Court
to stop Federal and State highway agencies from continuing work on
the Century Freeway in Los Angeles County until the environmental
impact requirements of both NEPA and CEQA had been complied with.
The main issue in the case was whether the project was far enough
along at the time the statutes went into effect as to excuse the agencies
from preparing environmental impact assessments. The court ruled
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in favor of the plaintiffs. 86
In Environmental Defense Fund, Inc. v. Coastside County Water
District8'* (in which the State Attorney General joined the lawsuit on
behalf of plaintiffs), a State Court of Appeal set important precedents
by ruling on the adequacy of an EIR. The trial court had enjoined a
water storage and supply project until the water district prepared an
EIR and submitted it to the local planning agency, as required by
CEQA. The district then submitted an impact report to the county
planning commission, which found it acceptable. The plaintiffs argued
that the contents of the EIR did not comply with CEQA, but the trial
court lifted its injunction, believing that it was not within its authority
to: consider the adequacy of an EIR.
The appellate court, citing NEPA case law as precedent, affirmed the
duty of the courts to review the content of an EIR, and directed the
water district to prepare a new impact report. The EDF v. Coastside
ruling established the right of citizens to sue under CEQA, established
that it was possible to obtain an injunction under the act, and — perhaps
most important — established that NEPA and NEPA case law were
relevant to interpreting CEQA.88
In both of these cases, the courts took a broad view of CEQA; their
decisions strengthened the role of the EIR. But in the meantime, the
stage was being set for a court ruling that would have a far greater
impact.
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SECTION VII
THE "FRIENDS OF MAMMOTH" DECISION
THE DECISION
The decision of the California Supreme Court in the Friends of
Mammoth v. Board of Supervisors of Mono County case89 is one of the
most discussed rulings in environmental law. - Details of the case have
been described adequately elsewhere; 90 the basics are as follows.
In April 1971, International Recreation, Ltd., filed a request with the
planning commission of Mono County (pop. 4, 016) for a permit to build
a 184-unit condominium complex in the village of Mammoth Lakes, a
resort community located at the base of Mammoth Mountain, an impor-
tant ski area on the eastern side of the Sierra Nevada. The commission
granted the permit. A few property owners appealed the decision to the
County Board of Supervisors which, after holding the required hearing,
upheld the planning commission.
On July 12, the Friends of Mammoth, a property-owners' association
made up mainly of absentee landlords from the Los Angeles area,
asked the State Court of Appeal to overrule the Board of Supervisors,
asserting among other things that CEQA applied to private activities
permitted by government, as well as projects directly undertaken by
governmental agencies, and that no EIR had been prepared before the
condominiums had been approved. They were turned down. After
more legal maneuvering and further defeats, the counsel for the
Friends of Mammoth, Claremont attorney John McCarthy (who owned
property at Mammoth Lakes) decided to ask the California Supreme
Court to take direct jurisdiction and decide the case on its merits.
On January 13, 1972, the Supreme Court granted the petition for a
hearing and stayed all activities of the developer. Intent on proving
its point that the term "project" in CEQA included State or local
governmental permission of private activity, the State Attorney
General filed an amicus curiae brief in support of the plaintiffs. ^2
The Center for Law in the Public Interest, a Los Angeles-based non-
profit public interest law firm, also filed an amicus brief on behalf of
the Sierra Club.
On September 21, 1972, the Supreme Court of California handed down
its landmark opinion in Friends of Mammoth; that CEQA did indeed
apply to private activities. In a 6-1 decision written by Justice
25
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Stanley Mosk, *3 -j^g court held that an impact report was mandatory
before a governmental entity could act either for itself or in approving
private projects:
These reports compel state and local agencies to consider
the possible adverse consequences to the environment of
the proposed activity and to record such impact in writing.
In an era of commercial and industrial expansion in which
the environment has been repeatedly violated by those who
are oblivious to the ecological well-being of society, the
significance of this legislative act cannot be understated.
The court gave a detailed analysis of the legislative history and the
intent to protect the environment in the act in reaching the conclusion
that CEQA be given a broad construction. A review of the act's policy
statement, read in conjunction with other sections of the act, showed,
according to the court, that the Legislature intended to include private
activities.
The court observed that NEPA, which went into effect some eight
months before CEQA, was used as a pattern for the California law.
Noting that the key provision in both acts, the environmental impact
statement or report, was the same, the Supreme Court observed that
the Federal guidelines would have required an impact statement under
similar circumstances.
Finally, after noting that the term "project" was not defined in CEQA,
the court rejected the defendant's contention that "project" applied
only to public works projects. Instead, the court held that a minimal
link between the government and the proposed project was enough to
require an impact report. Such a link, the court said, could be "either
by direct interest or by permitting, recommending, or funding private
activities. " The Mono County Board of Supervisors was ordered to set
aside the building permit that it had issued to International Eecreation,
Ltd.
REACTION TO "FRIENDS OF MAMMOTH"
The Mammoth decision caused an immediate and widespread controver-
sy. Private projects subject to State or local governmental permission
would now require an environmental impact report if they could have a
significant effect on the environment. The ruling appeared to take
effect immediately. But what about developments where construction
had been started, permits had been issued, or financing had been
26
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arranged? What about the thousands of projects that had been approved
without an EIR since CEQA went into effect in November 1970? Fur-
ther, just what was a "significant effect"? The court, in its Mammoth
opinion, seemed to equate "significant" with "nontrivial. " 95 This
appeared to describe a great many governmental actions which before
then had been handled in a routine fashion, such as the issuance of
building permits.
The construction industry, the building trade unions, and the financial
community reacted with surprise and alarm at the ruling, claiming that
the survival of the building industry and the economic well-being of
the whole State had been put in jeopardy. The chairman of the construc-
tion industry committee of the Los Angeles Area Chamber of Commerce,
for example, predicted that,
there will be 100, 000 people out of work [in Los Angeles
County] within 30 days if something is not done... [Imple-
mentation of CEQA. should be deferred] until the true intent
of the act is clarified and until we can strike some semblance
of balance between the job of protecting the ecology and pro-
tecting people's jobs. Nobody has defined what the environ-
ment is or what the report [the EIR] is, so we should have
Qfi
some delay or we're going to have a vast economic problem.
The head of a subsidiary of Levitt & Sons, Inc., a major housing pro-
ducer, said that because California's law went far beyond those of
other States his firm might shift its operations elsewhere. An official
of Par dee Construction Co., a division of Weyerhauser Co., said his
company was considering expanding its business in Las Vegas, rather
than in California, as a result of the Mammoth ruling. (A somewhat
different opinion was given by a vice president of Kaufman & Broad,
one of the State's largest homebuilders, who pointed out that the
decision would be beneficial in the long run, since it would tend to
penalize only the "fast-buck" operators who were able to undersell
responsible housing producers under the old rules; under the Mammoth.
ruling, all builders would be in the same position.97)
On October 6, in Governor Reagan's absence, Lieutenant Governor
Ed Reinecke called an emergency session of the Cabinet to discuss the
"potentially disastrous effect [the Mammoth ruling] is having on
California. ":
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I am extremely concerned that the plain language in the
law had been ignored by the court. The. Legislature and
the Governor did not intend for the law to bring Califor-
nia^ construction industry to a grinding halt, forcing
thousands of workers off their jobs by stopping hundreds
of construction, projects. At the time [CEQA] was
approved, everyone agreed that it applied only to govern-
mental projects. The court's ruling has broadened the
law far beyond any reasonable interpretaion of the
statute. 98
The Governor said on October 12 that he would order a special session
of the Legislature if it became necessary to avoid letting "the construc-
tion industry and the economy be wrecked. " 9 A few days later, the
Lieutenant Governor called a special, meeting of representatives of
State agencies, organized labor, and the construction, agriculture,
real estate, and lending industries to discuss "possible courses of
action aimed at achieving both interim and permanent solutions to the
problem. " 10°
Much of the developers' concern was over statements that banks were
holding up construction loans pending clarification of or compliance
with the court's decision. Lieutenant Governor Reinecke said, after
his meeting with industry representatives on October 18, that about
$500 million in such loans was being withheld. However, a spokesman
for Bank of America, the State's biggest bank, said he was "mystified"
at how the Lieutenant Governor came up with such a figure. Most
major banks reported that they were continuing to grant loans when they
were satisfied that firms had complied with the law. *"* The Chairman
of the Orange County Board of Supervisors,, who was also vice president
of a savings and loan association, declared that if a builder could not
find financing for a project, "send him to me. "102 n was reported
later, in fact, that there had been a record number of construction
starts in California during October and November. *"^
Since few private projects require State approval, local governments,
rather than State agencies, were most affected by the Mammoth ruling.
In the absence of definitive State CEQA guidelines, few local goverm-
ments had instituted EIB procedures even for public projects., Cities
and counties were ill-prepared to begin writing and processing EIRs,
and there was much confusion over what should be done to comply with
the decision. Likening the MamTnoth ruling to the U. S. Supreme Court
opinions on reapportionment and school integration, the executive direc-
tor of the League of California Cities, Richard Carpenter, said,
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I can't think of any other decision that will have a more
far-reaching effect on the operation of cities than this
one. It is a major change not contemplated by those
affected and the details are left for future decisions, 104
Local governments reacted in different ways in the first week after the
Supreme Court ruling. Some of them, including Los Angeles County,
simply stopped issuing building permits pending clarification of the
decision. 105 Some required applicants to sign a "disclaimer" releasing
them from liability should a permit later be held invalid under CEQA.
Other jurisdictions proceeded cautiously: "We are trying to use our
best judgment and psych out what Justice Mosk meant, " the Newport
Beach City Attorney stated. 106 Aside from the questions of when an
EIR should be prepared, what it should contain, and whether the court
decision was retroactive, cities and counties were also concerned
about where funding and staff to handle the EIR workload would come
from, and whether private consultants could be hired to write the
reports. 107
Still, it appeared that the majority of local officials were not unalterably
opposed to the Mammoth ruling. This was brought out at a special
hearing of the Assembly Committee on Local Government held in con-
junction with the annual convention of the League of California Cities
in Anaheim. The Sacramento Bee reported that, "Virtually all of the
municipal representatives who spoke at the hearing conceded they
could live with the basic finding of the ruling: that environmental impact
reports are required for private construction projects, " though it was
clear they needed guidelines and clarification.
The Sacramento City Attorney, whose office had already put forward a
proposed ordinance on EIR procedures, urged the committee to "design
enough flexibility into its revisions of [CEQA] to permit the cities to
draft procedures which are workable for each city individually. " Repre-
sentatives of the real estate, banking, and building interests also
appeared and, as before, spelled out warnings of "impending disaster." 108
The Attorney General, who had favored CEQA's application to private
projects all along, also appeared at the Anaheim hearing, where he
greeted the Mammoth decision as "a landmark in environmental law, "
and declared that much of the controversy surrounding the decision was
"unnecessary and in many instances the result of manufactured hys-
teria. "109 jn contrast to the flurry of press releases issued elsewhere,
his environment unit had moved quickly after Mammoth to prepare and
distribute a "checklist" for implementation of CEQA, directed primarily
at local agencies. This document stated that it was
29
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intended to provide immediate guidance. It is not intended
to preempt the functions of the Office of Planning and Re-
search, which is charged.with adopting guidelines. However,
until guidelines in conformity with [CEQA] are adopted,
local governments are faced with real and immediate
problems... 1^°
The "checklist, " actually a fairly lengthy compilation of some 90 pages,
drew heavily on the federal guidelines under NEPA which, it stated,
"provide excellent guidance. "HI For several months, the "checklist"
would be the only formal guide public agencies had to CEQA as it was
interpreted by the Mammoth decision.
The Supreme Court handed down its ruling only six weeks before a
general election in which land use was already a major issue. Environ-
mentalists had placed an initiative measure on the ballot -- Proposition
20 — to enact a Coastal Zone Conservation Act creating a system of
commissions with permit powers and planning responsibilities in
California's 900-mile-long coastal zone. Proposition 20 was strongly
opposed by development interests and many local governments in the
affected area, as well as the Reagan Administration. *** Nearly $1
million would be spent by its opponents for a massive advertising
effort in which loss of jobs due to "environmental extremism" was a
major theme. 113 The alleged economic impact of the Mammoth
decision was pointed to as an example of the chaos such "extremism"
could create. "The confusion has been seized upon by those who would
like to free private development from all environmental restraints, "
the Los Angeles Times commented editorially, "and they are proposing
that the Legislature resolve the problem by throwing out [CEQA] .114
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SECTION VIII
CEQA IS AMENDED
THE COURT CLARIFIES "MAMMOTH"
Matters rapidly came to a head in the month of November 1972. On
November 6, the Supreme Court issued a modification to the Friends
of Mammoth decision. 1-^ Earlier, at the request of the Governor, the
Attorney General had asked the court to modify its ruling so that it
would not apply retroactively, and so that it would not go into effect
until 61 days after the adjournment of the Legislature. Mono County
officials and the private developer directly involved in the Mam moth
case had sought a rehearing on the whole question of CEQA's applica-
tion to private activities. H6 The court refused to reconsider its
September 21 decision that CEQA applied to private projects, refused
to limit its ruling to projects filed after the decision was final, and
also declined to delay the effective date of its ruling.
While it left the original Mammoth decision unchanged, the court issued
a brief addition to its opinion emphasizing that an environmental impact
report was required by CEQA only for a project which may have a
"significant effect" on the environment. Stressing that this qualification
must not be used as a subterfuge to avoid making EIRs, the court went
on to explain that
[C] ommon sense tells us that the majority of private
projects for which a government permit or similar
entitlement is necessary are minor in scope -- e.g.,
relating only to the construction, improvement, or
operation of an individual dwelling or small business —
and hence, in the absence of unusual circumstances,
have little or no effect on the public environment.
Such projects, accordingly, may be approved exactly
as before the enactment of [CEQA] . H?
In refusing to limit its ruling to future projects only, the court pointed
out that very few, if any, of the projects previously approved without
an impact report would still be subject to attack. This, the court said,
was because most counties had short time limits for challenging the
granting of a building permit.
Finally, the court declined to delay the effective date of its ruling to
allow more time for governmental agencies to develop procedures and
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guidelines for applying CEQA to private projects. Such agencies, the
court explained, had been charged with administering the law for almost
two years and "can now draw upon their planning and experience in the
public sector to aid in solving whatever problems they may have in the
private sector. " However, the court added, "To the extent such
planning and experience prove inadequate to the task at hand, we do
not doubt that with the good will and cooperation of all concerned
appropriate new guidelines and procedures can be promptly devised. "
The court concluded that
[I]f some delays nevertheless ensue in processing appli-
cations for certain projects which threaten to have a
significant effect on the environment, it should be remem-
bered that such delays are implicit in the Legislature's
primary decision to require preparation of a written,
detailed environmental impact report in precisely those
cases. H8
THE LEGISLATURE ACTS
The Supreme Court announced its final decision on Monday, November
6. Tuesday was election day. Proposition 20, the coastal initiative,
passed by 55.1%. The vote demonstrated the degree of public concern
over misuse of the land. It thus undoubtedly added weight to environ-
mentalist positions in the subsequent legislative maneuvering over the
fate of CEQA.
On the day after the election, the Legislature reconvened after a
campaign recess, and the focus of the CEQA controversy shifted to
the halls and hearing rooms of the State Capitol. Legislators, who
had already been under pressure before the election, now found them-
selves besieged with requests from numerous cities and counties, as
well as groups representing development interests, to modify — or
at least to delay -- the effect of CEQA as it had been interpreted by
the Supreme Court. Surprisingly, no bill was introduced to repeal
CEQA as a whole, H9 and few organized groups came out publicly for
repeal. Even the powerful California Builders Council, representing
the State's home builders' and construction associations, did not come
out formally for abolishing the EIR requirement entirely, although the
council's lobbyist said he personally favored repeal. 1^0 Nonetheless,
environmentalists clearly.were on the defensive.
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Although several bills were introduced to amend CEQA, the attention
of developers and environmentalists alike soon concentrated on
Assembly Bill 889. This was the measure (discussed above121) that
had been drafted by the Attorney General's office and introduced
back in July by Assemblyman John Knox, the chairman of the lower
house Committee on Local Government. As passed by the Assembly,
AB 889 would have strengthened CEQA in a number of ways, including
the addition of a declaration that the law applied to private projects.
At the time of the Mammoth decision, the bill was languishing in the
Senate Committee on Governmental Organization, where it had little
chance of being approved. AB 889 was now seized upon by all sides
of the controversy as the means of clarifying CEQA and/or lessening
the impact of the court's interpretation.122
Press reports indicated that development-oriented interests, including
builders, lenders, and labor leaders, were in general agreement in
seeking validation of completed and ongoing projects, and in asking
for a delay in implementing the Mammoth decision. Local govern-
ments wanted clarification of the terms used in the act, such as
"significant effect" and "environment, " but most of all, like the
developers, they wanted a moratorium to give them time to develop
procedures for handling EIRs.
Environmental organizations and the Attorney General, on the other
hand, wished to preserve the broad effect of the Mammoth ruling, but
realized that some compromises would be necessary in order to
preserve CEQA in any form at all. The leading role in the environ-
mentalists' effort was taken by the Sierra Club. The Planning and
Conservation League also played an important role.
In mid-November, after hearing the views of all sides, Assemblyman
Knox amended AB 889. The provision defining "significant effect, "
which made clear that the cumulative effect of minor projects had to
be considered in an EIR, was deleted, as was the requirement that
public agencies with special expertise be consulted by the agency
preparing an EIR. Other amendments included the definition of an
EIR as an "informational document, " the retroactive exemption of
past private and some public projects, and the imposition of a 120-
day moratorium for all private projects. The Secretary for Resources
would be authorized to exempt certain classes of projects from the act.
Also, all "non-discretionary projects, " expressly including all
building and grading permits, would be permanently exempted from
the EIR requirement.
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The Sacramento Bee, in an editorial published November 22, said it
feared that
the amendments would go so far as to make [CEQA]
inoperable and therefore ineffective. Not only would
this thwart the ruling of the Supreme Court, it would
go against the mood of the public — which is in favor
of more governmental action in making certain the
environment is protected.
Kesults of the recent election demonstrated this public
concern. What should be remembered is the purpose
of the environmental law is not to stop growth but to
challenge it into sensible development. The lawmakers
should avoid approving any legislation under the guise
of implementing the law which would take the state
backward instead of forward. 124
The amended version of AB 889 was vigorously attacked by environ-
mental groups. Sierra Club attorney Richard Gutting said the bill
would reduce CEQA to a "mere skeleton" because most private
development would be excluded under its exemption for building and
grading permits and other provisions. 125 The 120-day moratorium
was also criticized. John McCarthy, the attorney for the Friends of
Mammoth organization, noted that the measure would enable developers
to resume plans for building the condominium complex that was the
original issue acted upon by the Supreme Court in the Mammoth case.
California would find itself with a gap in building controls similar to
"the gold rush, " McCarthy complained. "And within the 120-day
moratorium called for in the bill they can use the cheapest,
schlockiest approaches to land use. "126
The environmentalists mounted an extensive grass-roots campaign
"to save CEQA. " Some legislators received hundreds of telephone
calls. All of the members of the Legislature received numerous
letters and telegrams. Trained volunteer groups of up to 30 people
lobbied legislators daily during'the latter part of November. Position
papers and arguments were distributed in the Capitol. Other civic
groups and homeowners1 organizations joined in the effort. 127
In late November, after a great deal of political maneuvering, and
with the end of the 1972 legislative session fast approaching, Assem-
blyman Knox, the Attorney General's office, and groups representing
the building industry, financial institutions, labor, and environmenta-
lists went into intensive negotiations in an effort to agree on a
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compromise bill. They were successful. The final version of AB 889
passed both houses of the Legislature on the final day of the session.
It was signed by Acting Governor Reinecke on December 5, and took
effect immediately. 128
AMENDED CEQA
The California Environmental Quality Act as amended by AB 889 was
a true compromise: it was acceptable to most everyone, but not really
satisfactory to anyone. It was also much more complex and detailed
than the 1970 law, though the declaration of findings and policy was
left intact (see Appendix A for the full text of the amended act). 129
AB 889 made the following major changes in CEQA:
1. Private projects. The most important change in CEQA related to
its application to private projects. "Project" was defined as:
(a) Activities directly undertaken by any public agency.
(b) Activities undertaken by a person which are supported
in whole or in part through contracts, grants, subsi-
dies, loans, or other forms of assistance from one
or more public agencies.
(c) Activities involving the issuance to a person of a
lease, permit, license, certificate, or other entitle-
ment for use by one or more public agencies. 130
"Person" included businesses and other organizations, as well as
State and local agencies. 1^1
2. Moratorium. AB 889 established a 120-day moratorium on CEQA's
application to private projects. However, public agencies were given
the option of requiring EIRs for such projects despite the moratorium
(and many did so). 1^2 The moratorium expired April 4, 1973.
3. Grandfather clause. AB 889 validated all private projects which
had been approved prior to the effective date of the bill (December 5,
1972), with the exception of projects which had become the subject of
litigation, unless "substantial construction had occurred. "I33 Thus,
among other things, the grandfather clause would not apply to the now-
famous condominium at Mammoth Lakes,, a project which had taken on
much symbolic, as well as real, meaning for environmentalists.
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4. "Environment. " The term "environment" was defined as meaning
"the physical conditions which exist within the area which will be
affected by a proposed project, including land, air, water, minerals,
flora, fauna, noise, objects of historic or aesthetic significance. "I34
5. "Significant effect. " The troublesome term "significant effect"
was defined to include, at minimum, any of the following conditions:
(a) A proposed project has the potential to degrade the
quality of the environment, curtail the range of the
environment, or to achieve short-term, to the dis-
advantage of long-term, environmental goals;
(b) The possible effects of a project are individually
limited but cumulatively considerable;
(c) The environmental effects of a project will cause
substantial adverse effects on human beings, either
directly or indirectly. 135
*
6. EIR an informational document. An environmental impact report
was defined as an "informational document" the purpose of which is
to
provide public agencies with detailed information about
the effect which a proposed project is likely to have on
the environment; to list ways in which any adverse
effects of such a project might be minimized and to
suggest alternatives to such a project. ^3^
When such a definition was first suggested, environmentalists strongly
opposed it, believing that a public agency could ignore an adverse
EIR and approve a bad project anyway, without fear of a lawsuit under
CEQA. However, various sections of the act were changed, accor-
ding to environmentalists, to provide that it is an abuse of discretion
for an agency to fail to follow the recommendations of an EIR.
7. Deadlines for guidelines. -One of the weakest provisions of the
1970 act, calling for the Office of Planning and Research to "coordi-
nate the development" of EIR guidelines, was given teeth. AB 889
specified that OPR "shall prepare" guidelines and transmit them to
the Secretary for Resources, who was required to "certify and adopt"
them within 60 days of the effective date of the bill,138 and provide for
their "timely distribution to all public agencies. " I39 In addition, all
State and local agencies were required to adopt their own "objectives,
criteria and procedures" for EIRs no later than 60 days after the
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Resources Agency adopted the general guidelines. 140
8. Growth-inducing effects. AB 889 added a significant new item to
the list of topics that must be covered in an EIR: a discussion of the
"growth-inducing impact of the proposed action. " 141 This addition
was proposed by environmentalists and the Attorney General's office.
Deputy Attorney General Nicholas Yost has described the reasoning
behind it:
The whole concept embodied in this requirement... is
surely one of the lessons repeatedly learned in this
time of environmental awareness. Not only does a
highway or an airport cause certain environmental
disruptions incident to its construction and not only
do the automobiles or aircraft which use it cause
certain air and noise pollution consequences, but the
facility itself fosters population growth and resultant
land use changes.. .these secondary consequences of
a facility may be the most profound ones. 142
9. Public notice. State agencies that approve a project subject to
CEQA were now required to file a notice of such approval with the
Resources Agency. 143 Local agencies that approve a project subject
to the act were required to file a similar notice with the county
clerk. 144
10. Fees. Explicit authorization was given to State and local agencies
to collect a reasonable fee from a developer to offset the cost of
preparing an EIR. 145
11. Judicial review. AB 889 set forth fairly detailed procedures
for court review of actions taken by public agencies that are challenged
on the ground of noncompliance with CEQA. These were stated to be
declaratory of existing law. 146
12. Conservation element exception. CEQA as enacted in 1970
exempted local governments which had adopted a conservation element
of a general plan from preparing EIRsj they had only to "make a
finding" that any project subject to CEQA was "in accord" with the
conservation element. AB 889 did away with this provision, which
environmentalists and many officials considered to be an illogical
loophole. 147
13. Coastal commissions protected. AB 889 specifically stated that
no provision of CEQA could restrict the authority of the new Coastal
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Zone Conservation Commissions. This clause was designed by
environmentalists to thwart what they perceived to be an effort to
emasculate Proposition 20. The amended act gave the Resources
Agency authority to exempt certain classes of projects from the EIR
requirement,149 and all public agencies were directed to conform
their rules, regulations, and policies for evaluation of projects with
the provisions of CEQA. 15° This created the possibility that a project
subject to the scrutiny of a coastal commission could be deemed
exempt from Proposition 20 because of a prior ruling by the Resources
Agency that such a project did not have an adverse effect on the
environment. 151
14. Exemptions. AB 889 provided for a number of significant
exemptions from the EIR requirement. The guidelines issued by the
Resources Agency were to include a list of "classes of projects which
have been determined not to have a significant effect on the environ-
ment and which shall be exempt from the provisions of [CEQAJ. "152
(These are termed "categorical exemptions.) "Emergency repairs
to public service facilities necessary to maintain service" 153 and
projects undertaken to alleviate disaster 154 were specifically exempted
in the law, as were "ministerial projects. "155 jn iaWj "ministerial"
acts --as opposed to discretionary acts -- are actions in "which a
person performs in a given state of facts in a prescribed manner in
obedience to the mandate of legal authority, without regard to or the
exercise of his. own judgment upon the propriety of the act being
done. "156 AB 889 included within its definition of discretionary
projects "the enactment and amendment of zoning ordinances, the
issuance of conditional use permits and the approval of subdivision
maps" (except in specified cases). 15?
From the standpoint of the environmentalists and their allies, AB 889
was a victory in the long run in that it confirmed CEQA's application
to private projects; limited the moratorium to 120 days, rather than
the six months or indefinite period that had been proposed by some
groups (though even 120 days was thought to be too long); and formula-
ted stronger standards and judicial review procedures for EIRs. The
bill also served to accomplish' a number of other environmentalist
aims: the protection of existing lawsuits under CEQA (including the
symbolically important Mammoth case), guarantees of public notice
and participation, protection of the coastal zone act, modification of
the definition of the EIR as an "informational" document, firm dead-
lines for the issuance of guidelines, removal of the conservation
element loophole, and the addition of the "growth inducing effects"
item to the list of matters to be discussed in an EIR.
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From the standpoint of the development interests, AB 889 was a
victory in the short run in that it validated private projects which had
been approved before the bill went into effect (with only a handful of
exceptions) and provided a 120-day moratorium in which they could
gear up to comply with an unfamiliar procedure. Developers were
also pleased with the rather narrow definition of "environment"
(limited to "physical conditions"158^ as weu as the various project
exemptions allowed in the new law.
From the viewpoint of local governments, AB 889 was a success
because it allowed time to develop necessary procedures to comply
with CEQA. Cities and counties also welcomed the explicit provision
that they could charge fees from developers to cover the cost of
preparing EIRs.159
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SECTION IX
FLESHING OUT THE ACT
The amended version of CEQA was a compromise reached in the heat
of controversy during the final, hectic days of one of the longest legis-
lative sessions in California's history. AB 889 still left many questions
unanswered, questions that would have to be addressed in the guidelines,
which the law said must be issued by the Resources Agency by early
1973. The debate over CEQA and how it should be implemented now
shifted away from the Legislature, and again to the Executive Branch
and the courts.
THE FEBRUARY 1973 GUIDELINES
The Secretary for Resources issued a draft set of guidelines on Decem-
ber t9, only two weeks after AB 889 was signed into law. 16° Hearings
were held on January 30. As they did in the cases of the 1971 and 1972
draft guidelines, the Attorney General's office and the Sierra Club took
the major roles in criticizing the document.
In a detailed, 40 -page statement, Deputy Attorney General Louise
Renne said the Resources Agency had made a "genuine effort" to meet
both the letter and spirit of the law. However, she said, many revi-
sions were required "if the guidelines adopted are to be fully in accord
with [CEQA] . " 162 Among the numerous specific changes suggested
by the Attorney General's office were stronger provisions for public
participation ("the guidelines proposed fail to provide any means by
which the public can effectively provide input" 163), removal of what
was felt to be an implication that a public agency could simply adopt an
EIR submitted by a developer without "independent investigation and
analysis, " 164 g^^ inclusion of general plan ejiactment or amendment
within the definition of the term "project. "I65 The Attorney General
also objected to various items in the proposed list of categorical exemp-
tions from the EIR requirement, .for example, sidewalk repairs:
We understand that "sidewalk repair" has been used as
an excuse for chopping down large numbers of trees.
We therefore suggest adding after "sidewalk" the
following "(not involving the cutting down of trees). "
In addition, the Attorney General argued that the guidelines' definition
of "significant effect" should include "beneficial" as well as "detri-
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mental" effects (this had become an important issue at the Federal
level with respect to NEPA), that more detailed procedures should be
given for the processing of EIRs, ^^ and that the "policy" section of
the guidelines 168 distorted the meaning of the act. *"^
1 70
The Sierra Club's statement*' covered many of the main issues
raised by the Attorney General, but in some cases with rather different
recommendations. While it said that the proposed guidelines represen-
ted "a step forward in aiding State and local agencies to implement the
letter and spirit of CEQA, " it emphasized that more specific provisions
for public participation should be included. The club also criticized
the proposed definition of "emergency project" (a point not discussed by
the Attorney General), which it said should not arise upon the "unsup-
ported 'claim1 of the sponsor of a project, " but rather upon the formal
declaration of an emergency.
The Los Angeles Times commented on the draft guidelines in an editorial:
No one is entirely happy with [them] . But they provide a
reasonable starting point for discussions and are in line
with the common-sense approach called for by the Cali-
fornia Supreme Court in holding that such impact reports
must be filed on private as well as public projects. And
they represent an improvement over prior interim
guidelines that had been roundly criticized by the attorney
general's environmental protection unit...
Some developers believe that the category of exemptions
is too narrow. Conservationists, on the other hand,
note that some language in the guidelines appears to
conflict with specific provisions of [ CEQA] and might
tend to weaken the effect of the high court's decision
in the Friends of Mammoth case...
A workable compromise must be achieved quickly to
end confusion over the scope of the high court decision
and the Environmental Quality Act itself, l^l
On February 5, 1973 — less than a week after the hearings, and just
two months after AB 889 was enacted — the Secretary for Resources
issued the first definitive guidelines for implementation of CEQA. 1^2
Like AB 889, the guidelines were a compromise. Some of the sugges-
tions offered by the Attorney General and by the environmentalists
were adopted. Likewise, some provisions supported by development
interests were incorporated, including various exemptions from the
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EIR requirement.
The environmentalists were critical of a number of provisions in the
final guidelines, but particularly those that dealt with public participa-
tion, the definition of "significant effect, " and categorical exemptions.
In his weekly newsletter, Sierra Club Sacramento lobbyist John Zierold
wrote:
We may have struck it rich on Mammoth, but OPR [the
agency held responsible for preparing the guidelines
under CEQA] has discovered a bit of political alchemy
that is transmuting our gold back into base metal.
They've worked their magic through an arcane process
called "categorical exemptions"...
There are exceptions to inch-forward bureaucracies,
notably the Resources Agency. It customarily hums
with the brisk diligence of dedicated functionaries.
This was particularly evident last month as the final
CEQA guidelines were being put together. But when
it came to categorical exemptions, the melodious hum
of objectivity took on the distinct whine of a chain saw,
as the final score clearly reads. l7^
Secretary for Resources Livermore conceded that the document "may
have some rough edges. "174 jje said he would amend the guidelines
in August, based on any criticism he received. 175
Some members of the environmental movement would not wait. On
June 29, the Center for Law in the Public Interest, a Los Angeles-
based public interest law firm, filed a petition on behalf of itself and
the League of Women Voters of California seeking a judicial declaration
that the guidelines did not comply with CEQA. 176 The major points
in the center's petition were that:
1. The CEQA guidelines were legally invalid in many "crucial"
respects:
— Regarding "negative declarations, " the guidelines were invalid
because they did not require that such declarations include the reasons
for a determination that a project would not have a "significant
effect. " 177
— Regarding "categorical exemptions, " the guidelines were invalid
because they were "overly broad" and because the procedures used in
adopting them were inadequate. I78
— Regarding public agency responsibility in the EIR process, the
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provision permitting an applicant to prepare his own EIR was invalid:
"The agency itself must make its own independent investigation and
research. " 1^
— Regarding the guidelines' provisions for preparation of EIRs, the
use of a single EIR to describe more than one project was invalid
without a determination that alternatives and mitigation effects "are
also 'similar enough to warrant the same treatment in an EIR. '"180
2. The CEQA guidelines ignored the issue of whether CEQA imposes a
duty on agencies to prevent environmental damage. 181
3. The provisions of the guidelines regarding preparation of EIRs for
ongoing projects were invalid, since they went beyond the "period of
grace" specified in CEQA.182
4. The provisions regarding determination of "significant effect" on
the environment were invalid, because they restricted the term to
"substantial adverse impact, " "actual" impacts, and other narrow
definitions of the phrase.18^
5. The provisions regarding public participation in the EIR process
were invalid, because they were too restrictive and "downgraded" the
basic requirements of the act to "mere horatory [sic] admonitions. "184
The Resources Agency's response to the center's suit was based on
jurisdictional grounds. The Agency's attorneys argued that the petition-
ers had an adequate remedy available in the ordinary course of law,
and that they had not exhausted their administrative remedies. They
also argued that the Legislature had vested broad discretionary powers
in the Secretary for Resources to be exercised in the light of complex
factual considerations. 185
On August 16, 1973, the Supreme Court denied the center's petition;
a similar request to the State Court of Appeal was dismissed in Octo-
ber. l8^ While the center failed in its effort to obtain a judicial remedy,
the Center for Law in the Public Interest v. Livermore case reaffirmed
the willingness of the environmentalists to go to court, if necessary, to
assert their broad interpretation of CEQA.
AMENDMENT OF THE GUIDELINES
As promised, the Secretary for Resources prepared proposed amend-
ments to the CEQA guidelines in August 1973.18*7 They were circulated
widely among State agencies, local governments, citizens1 groups, and
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business and industrial organizations. From the standpoint of under-
standing the development of CEQA, the specific amendments that were
proposed are probably less interesting than the written comments the
Resources Agency received in response to them. Many of these com-
ments dealt, with issues that were not covered in the proposed amend-
ments. They might be summarized as follows:188
1. There was a need for a reviewable record to support an agency's
determination, in a "negative declaration, " that a project would not
have a significant effect on the environment.
2. Public agencies should be allowed to charge fees of developers for
any environmental evaluation activity, not just the preparation of an
EIR.
3. A "non-lead agency, " that is, an agency which is not primarily
responsible for the preparation of an EIR, but which is concerned with
the effects of a project, should be allowed to formally challenge the
determination made by a "lead agency. "
4. A transition period was needed for State and local agencies to bring
their procedures into conformity with the amended guidelines.
Specific responses to the proposed amendments included these:
— Standard Oil Company of California, the State's largest industrial
corporation, asked that a clause excluding construction activities from
a provision exempting actions of regulatory agencies "which are taken
for the protection of the environment or natural resources" be elimi-
nated. It cited several cases where the proposed regulations would
"delay compliance with air and water pollution control regulations to
the detriment of the environment, " for example, a proposed bio-
oxidation pilot plant at one of its producing installations which would
be built to test a method for treating an effluent in order to meet State
ocean discharge standards. "Preparation of an EIR in accordance with
these Guidelines would result in considerable delay and preclude our
staying on the schedule set by the State Water Resources Control
Board, " the company said. 1°9
— The State Department of Fish and Game objected to a proposed
addition to the guidelines which would require agencies to weigh "other
public objectives, including economic and social factors in determining
whether and how a project should be approved, " in addition to environ-
mental damage. It argued that this would not be in keeping with, the
section of CEQA that states that "long-term protection of the environ-
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ment shall be the guiding criterion in public decisions. "190
-- The Sacramento County Board of Supervisors, by resolution,
argued that a proposed amendment to the guidelines to set firm mini-
mum review periods of 30 days, both for draft EIRs and final EIRs,
was unreasonable (no minimum period had been set in the February
1973 guidelines). In an explanatory memorandum, the County said
it believed "the proposed 30 day minimum review periods are based on
several misconceptions: (a) that all local governmental agencies are
attempting to 'hide1 the EIR process from the public; (b) that equal
amounts of time are required for review of Draft and Final EIRs;
(c) that small-scale, privately-initiated projects require the same
type of review as large-scale, publicly-initiated projects. " It proposed
shorter review periods for private projects and for final EIRs. *91
Before the proposed amendments were issued, the Attorney General
had sent the Secretary for Resources two lengthy memorandums on
the February guidelines. 192 Among the Attorney General's main
objections were that the list of categorical exemptions "appears to be
unacceptable, as a matter of law. " 1 ^ While he noted that a number
of the suggestions made by his office in January had not been taken
(including the one relating to sidewalk repair), he said that all of his
"earlier comments pale in comparison when the new list... is re-
viewed. "194 jn particular, the Attorney General noted, two provisions
appeared to "exempt virtually all actions taken by regulatory agencies
throughout the State. " For example, the first provision exempted from
the EIR requirement
actions taken by regulatory agencies, as authorized by
state law or local ordinance, to assure the maintenance,
restoration, or enhancement of natural resources,
including but not limited to wildlife preservation. 195
"Does this mean that the timber industry as one example is now categor-
ically exempt from CEQA?", the memo asked, "it would appear so. "196
The Attorney General also disagreed with the guidelines1 definitions of
"ministerial projects" and "significant effect. " He called for better
means of involving the public in the EIR process, and for more "hard
and fast" rides in the provisions dealing with the role of public partici-
pation. 19?
A number of other comments were received by the Resources Agency
before the proposed amendments were issued, including an analysis of
the guidelines by the Planning Directors Association of California's
and a long letter from the Environmental Defense Fund and the Sierra
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Club.199
The Planning Directors Association questioned the inclusion of a general
plan program in the definition of "project, " and asked for clearer defini-
tions of terms such as "significant effect" and "growth inducing. " "A
building permit should be specifically and unequivocally included in the
list of ministerial acts, " it stated. The planning directors also asked
for review of filing procedures for EIRs and negative declarations, and
for removal of a requirement that an EIR be officially "adopted" by a
public agency prior to acting on a project: "It is sufficient that the EIR
be available in a completed form and recognized with other testimony
relating to the action on the project. " Significantly, the association
asked that the State sponsor "a comprehensive program to assist and
support public agencies in the implementation of CEQA and the [EIR]
program. "
This program [the planning directors said] should include
... informational seminars periodically throughout the
state to assist in developing consistency in the interpre-
tation and administration of CEQA and EIR guidelines.
A staff of professionals should be available to contact
personally local agencies experiencing difficulty with
interpretation or the application of the guidelines.
A central office should be established where questions
of interpretation may be directed from local agencies
experiencing difficulty. The questions and responses
should be catalogued and distributed periodically to all
jurisdictions for their information and use. 200
The Environmental Defense Fund and the Sierra Club stated that the
guidelines were "improper and unlawful in the following respects:"
.c agencies to
1. They fail to recognize the duty of publi
mitigate harm to the environment.
2. They improperly diminish the statutory standard: of
"significant impact" [sic] and thus unlawfully restrict
the number of projects which will require environmental
impact reports.
3. They fail to guarantee members of the public with a
full and fair public hearing on projects having a signifi-
cant impact on the environment. 201
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Their letter suggested changes in provisions relating to the definition
of "significant effect" and "project, " the use of a single EIR for several
projects, and preparation of an EIR by an applicant ("the private propo-
nent of a project [should not be allowed] to submit a draft EIR").
Greatest attention, however, was given to the question of public partici-
pation:
A principal purpose of the Guidelines must be to encou-
rage public participation in the CEQA process. The
Guidelines must establish procedures which afford
maximum access to that process. Guideline provisions
which tend to limit or restrict such participation must
be revised. ^02
Hearings were held on the proposed amendments to the guidelines in
Los Angeles and Sacramento in October. In view of the controversy
that had surrounded CEQA after the Mammoth decision a year before,
attendance at the Los Angeles hearing was surprisingly sparse. About
50 people were at the hearing held on October 11 in the old State
Building. Secretary Livermore presided. He noted that a court repor-
ter had been asked to take down a transcript of the proceedings as a
basis for court review, if it should become necessary. People were
"waiting in the wings" to challenge the guidelines, he explained. But
only five people spoke: two officials of the City of Los Angeles, a rep-
resentative of the San Diego Region Comprehensive Planning Organiza-
tion, a leader of a neighborhood citizens1 group, and a city attorney.
Perhaps this was a sign that CEQA had become generally accepted.
The most telling comment at the Los Angeles hearing may have been the
one made by the Senior Assistant City Attorney of Beverly Hills, Jack
Allen:
If you must make a different interpretation [of CEQA],
make it in favor of the environment. .. not because I
favor the environmentalists, but because it is more
likely to be decided that way by the courts and less
likely to be litigated. 204
The Secretary for Resources issued amended CEQA guidelines on
December 17, 1973205 (see Appendix B). The most significant changes
in the document were a requirement that negative declarations shall
state the reasons for a conclusion that an EIR need not be prepared,
and an explicit provision that public agencies may use a draft EIR pre-
pared by a developer only after giving the draft an independent evalu-
ation. 207 In addition, the new guidelines permitted local agencies to
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combine an EIR on a general plan with the general plan document. 208
Public agencies were given two months to bring their procedures into
conformity with the amended guidelines. 209
A covering memo explained, however, that five major questions still
remained unresolved in the guidelines:
1. The definition of significant effect.
^^^ >
2. The scope and record required for categorical
exemptions.
3. Whether there is an overriding duty to prevent
environmental damage.
4. Whether further provisions for public participation
should be required.
5. Whether a developer may prepare his own draft
EIR.
"Instead of delaying the Amendments," the Resources Agency said, "we
decided to adopt the Amendments now and do additional work on the five
remaining issues. " Additional hearings would be scheduled "when we
have formal proposals to discuss. "210
THE "CALIFORNIA EIR MONITOR"
In December 1973, the Resources Agency began publishing California
EIR Monitor, a twice-monthly bulletin containing public notice of
proposed amendments to the CEQA guidelines; a listing of draft EIRs
completed in cities and counties throughout the State, compiled from
notices of completion received in the Office of the Secretary for Re-
sources; and a listing of EIRs and negative declarations received by
the State Clearinghouse for State review. In addition, the Monitor
includes comments by the Secretary on problems of implementing
CEQA, and articles on various aspects of the EIR process.
California EIR Monitor is patterned after the idf Monitor published by
the Federal Council on Environmental Quality on environmental impact
statements filed under NEPA. Like the 102 Monitor, it is distributed
on a subscription basis. 211 By March 1974, some 400 public agencies,
private organizations, and individuals had paid $20 to receive the
California EIR Monitor.212 When compared to the Federal experience,
this is an impressive record. The Federal 102 Monitor began publication
in February 1971. Initially, it was distributed without charge (later, a
4.8
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$6 fee was required of non-government subscribers). By August 1971,
102 Monitor had only about 2, 000 subscribers for a publication of
national interest.213
The first eight issues of California EIR Monitor listed an average of
about 155 draft EIRs completed in cities and counties. Here are two
typical listings from the March 25, 1974 issue:
Title; ERG 74/92/EIR: PZ 73-152
Location; Kingsburg
Description; Reclassification of a five acre parcel of
land from the A-l zone to the R-A-43 zone in order
to change the existing zoning to one which will allow
division of property into smaller parcels of land.
Available from; Tulare County Planning Department,
Courthouse, Room 107, Visalia, CA 93277
Review period; 30 days from 3/18
Contact; William Henry, 209-732-5511, ext. 341
Title; Northridge Community Environmental Impact
Report [part of the general plan program]
Location; Los Angeles
Description; The Plan is part of the General Plan to
promote an arrangement of land use, circulation and
services which will encourage and contribute to the
economic, social and physical health, safety, welfare
and convenience of the citizens of Northridge Com-
munity.
Available from; City Department of Environmental
Quality, Room 550, City Hall East, 200 N. Main St.,
Los Angeles 90012
Review period; 3/18- 4/19/74
Contact; Gary Morris, 213-485-5386
One of the major purposes of the Monitor is to inform concerned agen-
cies and members of the public that a draft EIR is available for review
and comment. However, in many cases, review periods are short.
The State Guidelines say the review time "should" be at least 30 days
and no longer than 90 days, but 30-day deadlines are common, and
some local governments specify periods as short as seven days. By
the time local agencies have sent the information to Sacramento and it
is compiled, typed, reproduced, mailed, and received and read by the
ultimate user, the review periods for many of the projects listed have
expired.215
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Another problem with the listings of local draft EIRs in the Monitor
is the question of their completeness. The Resources Agency has no
way of knowing whether all of California's 466 cities and counties are
complying with CEQA's provision that notices of all draft EIRs be
sent to it, but a State official told us that it is suspected that more
than a few local agencies are ignoring the requirement.
The Monitor also lists Federal environmental impact statements,
EIRs, and negative declarations received for State review by the
State Clearinghouse (a part of the Office of Planning and Research).
In the first eight issues, an average of about 50 such documents were
listed.
In addition to project listings, nearly every number of California EIR
Monitor has included official announcements or other guidance on
CEQA. Published in the first few issues of the Monitor were announce-
ments about the amendments to the guidelines, a report on the Center
for Law in the Public Interest lawsuit, ^" an index to the guide-
lines, 2^1 an 18-page article by two University of California profes-
sors on the processing of EIRs by county agencies, ^° an announce-..
ment about a television course on EIRs, a review of current litigation
under CEQA, ^19 and clarifications of various points in the act or in
the guidelines. The California EIR Monitor promises to play an
important role in furthering the purposes of the act by quickly dis-
seminating current information to those directly concerned with its
implementation.
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SECTION X
MANAGEMENT OF CEQA-MANDATED PROCESSES
IMPLEMENTATION IN STATE GOVERNMENT
Management of CEQA is hampered at the State level by the lack of a
central staff with full-time responsibility for monitoring and fostering
the development of EIR processes either within State agencies or at the
local level. The Resources Agency has designated one staff official,
a Special Assistant to the Secretary, to handle general CEQA policy
matters in addition to his regular duties; his main CEQA responsibilities
are the State guidelines and the California EIR Monitor.220 There is no
State office parallel to the Council on Environmental Quality at the
Federal level which regularly consults with local administrators seeking
aid in interpreting the act. Conversely, there is no continual updating
of information to indicate what changes in the State guidelines would be
most helpful at the working level in local government.
There is also no enforcement authority in the State Administration that
can require compliance with the act. There are no sanctions for failure
to file an EIR, nor for failure to implement an EIR management
process. The regulations and procedures adopted by State agencies and
local governments under CEQA are not reviewed. Enforcement of
CEQA is made the responsibility of the political process and the judicial
system. In effect, State and local agencies are allowed to evade the act
if they so desire, and if they can avoid being challenged. 22*
A recent investigation of the implementation of CEQA by the Environ-
mental Defense Fund found a number of shortcomings in State Govern-
ment processes under the act. According to EDF:
— There has been a widespread effort on the part of State agencies
to exempt their programs from the EIR requirement. Categorical
exemptions that had been granted by the Resources Agency were not
supported by adequate findings, the report said.
— Some agencies that approve projects having significant environ-
mental impact had not yet adopted formal regulations for EIRs as
required by AB 889;222 these included the Divisions of Oil and Gas;
Forestry; Mines and Geology; and Resource Conservation, all parts of
the State Department of Conservation, which had issued department-
level regulations. Such assumption at the departmental level of the
responsibility for preparing and evaluating EIRs, EDF claimed,
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results in situations where the agency actually issuing the permits and
approvals subject to CEQA is not directly involved in assessing the
environmental impact of the proposed projects.
— Few written comments on draft EIRs are obtained by agencies
from other public agencies having relevant expertise, the report
stated.
— There is little use made of the data in EIRs, other than by the
agency responsible for its preparation; a statewide index system for
EIRs is needed, EDF said.
— Finally, according to the report, the records of the Secretary
for Resources appeared to be incomplete, suggesting that EIRs on
a number of State projects either had not been prepared or had not
been filed. 223
State agencies generally carry EIR work as an overload in addition to
regular tasks. With few exceptions, no additional funds or positions
have been made available to State agencies for the EIR process. 22^
The State Attorney General's Office is the most prominent exception to
the State Government's minimization of its role under CEQA., as should
be apparent from the earlier discussion of the act's history. A second
major exception is the Department of Fish and Game in the Resources
Agency, which has several staff members assigned full time to prepare
comments on State and local draft EIRs. The reason for this is that
wildlife matters in California are almost entirely preempted by the
State, and many proposed projects affect wildlife resources; as the
"public agency which has jurisdiction by law, " the Department receives
a large number of draft EIRs on which it must comment.
A third exception is the Office of Planning and Research, which is re-
sponsible for managing the paper flow of the State's participation in the
EIR process. ^^ The State Clearinghouse in OPR, before enactment
of CEQA, had developed a computerized system for processing Federal
grant award information and A-95 review procedures. The new EIR
processing requirements fit into this system with only minor changes
in procedures; however, additional keypunching personnel were hired
to handle the additional load on the system. 22°
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MANAGEMENT IN LOCAL GOVERNMENT
A substantial virtue of the State Administration's laissez faire approach
to CEQA has been the wide range of flexibility allowed local agencies in
implementing the law. The act and the guidelines specify numerous
procedures, but give little indication of the professional skills or
management structures to be used in executing them. The result has
been a wide variety of administrative approaches adapted to local
conditions.
•
In some cases, this adaptation has involved a considerable degree of
enterprise and creativity on the part of local officials in relating the
EIR to ongoing governmental processes and other new legal require-
ments. Little of this innovation could have been prescribed in the law,
or was foreseen in the guidelines.
Although CEQA was widely ignored by local governments before the
Friends of Mammoth decision, some cities and counties moved ahead
on their own initiative. The City of Claremont, for example, established
an Environmental Resources Task Force in October 1970 -- immediately
after enactment of CEQA. This group, composed largely of college
faculty, did a carefully-documented study of the community's physical
environment, and helped to enact a local ordinance setting up an EIR
management process that included — some nine months before
Mammoth — a requirement for analysis of private projects.226
The County of San Diego had similarly enacted in June 1970 (when NEPA
was law but CEQA was still in the Legislature) an ordinance to estab-
lish an "Environmental Development Agency. "227 ^ program of envi-
ronmental studies begun at that time, together with innovative steps
toward new forms of management process, later led to funding by the
Ford Foundation of an ambitious program there, the "integrated
Regional Environmental Management" project (IREM). Stated intentions
of this project were to use the EIR process as a means of changing
relationships among agencies, of breaking down internal barriers
among governmental units, and of incorporating citizens in the new
activities. The project began in April 1971, two years before state-
wide implementation of AB 889. Its annual budget of over $400, 000
was three times that of the State Office of Planning and Research, though
it was still far smaller than the planning budgets of the County, the
City of San Diego, or the Comprehensive Planning Organization (San
Diego County's regional council of governments), which together
totaled about $5 million for the year 1971-72.
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E.I.R. PROCESS FOR PRIVATE PROJECTS
COUNTY OF SAN DIEGO
CJ1
EXEMPT PROJECTS.
ENVIRONMENTAL
REVIEW BOARD
Fine screening
environmental
assessment to
determine if
complete and
significant
j Time: 10 days
APPLICANT
Prepares draft
environmental
impact report
E.R.B.
Accepts draft
environmental
impact reports
E.R.B.
o Public notification
o Agency notification
o Public review
o Review comments
O Review draft E.I.R.
o Write final E.I.R.
o Prepare findings
o E.R.B. approval
AVERAGE PROCESSING TIME FROM
RECEIPT OF DRAFT E.I.R 45 DAYS
PROCESSING TIME FOR NEGATIVE
DECLARATIONS —10 DAYS
PROCESSING
AGENCY
o Accumulate
other reports
o Prepare
planning
commission
report
j Time: 25-55 days
I concurrent with other J
j required processes I
CLER'K
Of the board, or
other responsible
authority shall
transmit notice
of determination
to county clerk
FIGURE 1.
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The EIR management process adopted by San Diego County and deve-
loped through the IREM project is similar in structure to the approach
now used by the majority of California's cities and counties. However,
it involves considerably more staff effort, and a higher degree of
technical content, than is usual. It also involves more steps. The
EIR procedures adopted by most local governments can be described
as streamlined versions of the San Diego County process. 228
The EIR process for private projects in the County of San Diego is
illustrated by Figure 1. The "Processing Agency" is the County
Office of Environmental Management, a successor to the functions of
the IREM staff. It is organized as a unit of the Environmental Develop-
ment Agency, which is also the parent agency of the County Planning
Department. The Environmental Review Board (ERB) is composed of
staff representatives of OEM and the Departments of Planning, Public
Health, and County Engineer.
The fee for initial screening to determine whether a project would have
a "significant effect" is $70. If an EIR is required, it is prepared in
draft form, generally by a private consultant on behalf of the applicant.
Typical costs to the developer on an average project of a few acres to
a few tens of acres would range from $5, 000 to $10, 000. Processing
fees charged by the County for review and preparation of the final EIR
range from $150 to $900, depending on the type of application. The
final EIR, prepared by the OEM staff, consists of:
1. The draft EIR as amended by the ERB;
2. A section containing the comments received through the consultation
process, either verbatim or in summary;
3. The response of the ERB to the significant environmental points
raised in the review and consultation process.
The Environmental Impact Analysis Division of OEM was budgeted in
1973-74 for 14 full-time staff positions, including 11 professional
analysts. The number of EIRs processed during 1973 was 192, inclu-
ding 172 on private projects. The total number of environmental
assessments processed was 2, 378, of which 2, 258 were for private
projects (94. 9%).
A few other examples of how local governments have implemented
CEQA will be cited to show alternative approaches to EIR management
taken in other parts of the State.
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In Santa Clara County (pop. 1, 000, 000), at the south end of San Fran-
cisco Bay, an active effort is made by the County's EIR staff to press
developers into active participation in the EIR process. 229 Here,
unlike San Diego County, the EIR system is an integral element of
the planning function of the County. EIRs are handled within the
Planning Department by a Senior Planner-Environmental Specialist,
Richard Hall, who is aided on an "as needed" basis by four other
planners. Much less staff effort is available for EIR management than
in San Diego. For reasons of efficiency as well as utility, emphasis
is given to early consultation and review of development plans — at the
idea stage, if possible. In this context, CEQA provides the basis for
a broad-ranging negotiation with a developer. Consideration is given
to improvement of design concept as well as to avoidance of technical
impacts.
Admittedly, the "horse-trading" aspect of this process can open the
way to abuses, if the public is not attentive to the results. For the
approach to be effective, much reliance must be placed on the moti-
vations, knowledge, and design skills of staff involved in the prelimi-
nary negotiations. On the other hand, this reliance is much to the
liking of the professional planners involved; for them, CEQA is provi-
ding in this context an extraordinary opportunity for bridging between
two major traditional roles of planners: that of making plans, and
that of struggling against development proposals that violate the plans.
The newly-established "middle ground" can allow the planner to
design around environmental problems, or to invoke appropriate miti-
gating measures. The incentive for the developer is that a negative
declaration on the project may reasonably be granted, or that the
conditions imposed might allow his project to pass EIR review. In
some cases, projects and sites that are likely to have severe adverse
effects can be identified before the developer has made major com-
mitments of time, money, or professional pride.
Credibility of the EIR process itself is essential to the viability of
planner-developer negotiations. In the case of Santa Clara County,
most projects are screened out or altered before they reach the stage
of formal EIR processing. The EIR itself becomes almost an "appeals"
process by which the developer attempts to show that his project is not
damaging. Few projects that reach this stage are able to pass through
it. On the average, only about one project per month is making the
attempt.
According to Mr. Hall, "developers don't try to push bad projects any
more; they need better odds going in, and the ante is too high when an
EIR costs $3,000 to $5,000. It's a different game from the days when
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a subdivider could get a draftsman friend to crank out a tentative map,
file it with a $25 fee, and turn a fast profit. " Hall also reports that
banks and savings and loan associations in Santa Clara County are
requiring, in an increasing number of cases, an analysis of environ-
mental consequences as part of the preliminary feasibility appraisal
of development projects proposed for financing. To the extent that
capable design professionals and environmental analysts are hired by
development companies, the Santa Clara County approach tends to
become self-regulating; it may minimize the EIR workload on the
planning staff, and maximize their opportunity to engage in "environ-
mental planning. "
OQf)
The City of Irvine *°" offers another unusual approach to EIR manage-
ment. Irvine (pop. 20, 000) is in Orange County at the southern reaches
of the suburbs of Los Angeles. It lies entirely within the boundaries
of the privately-owned Irvine Ranch, a huge area that is gradually
being transformed into a "new town. " At the end of the AB 889
moratorium, early in 1973, several major EIRs for development
projects within the City were already half-completed, entirely at the
initiative of the developers, who were hoping to minimize the delay
on the approvals of their projects. City planning staff did not feel
prepared to review these EIRs in-house, and they proceeded to set up
a process in which a consultant was hired by the City (in addition to
the consultant which had prepared the draft report for the developer),
at the applicant's expense, to review the draft and prepare a final
EIR. This process seems to have worked well, though it was expen-
sive for the applicant. Fees for the second consultant ranged from
$1, 500 to $7, 500 for review of the EIR.
This process is now changing to a management model in which the
City will be the client for the consultant on the initial EIR draft. The
City's planning staff wishes to develop a system in which it serves as
a "general contractor, " hiring its own subcontractors to carry out
aspects of the EIR analysis and management process.
The approach of the local government serving as client for the private
EIR consultant is now practiced in a number of jurisdictions; it seems
to be especially popular in the San Francisco Bay Area. An example
is the City of Sausalito (pop. 6, 000), just across the Golden Gate from
San Francisco. 231 Here, a request for proposals (RFP) is circulated
among a select group of consultants judged qualified by the City. The
developer is allowed to choose three candidates from a list of ten.
Only those three are given the RFP, and the City makes the final
selection. In every case to date, the nod has gone to the firm with the
lowest cost estimate, though according to City officials, this is not
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considered a major basis for judging consultant proposals. The City
tries to specify closely the specific kinds of information most needed
and desired in the immediate decisionmaking process. In Sausalito,
these tend to be traffic congestion, social, and economic impacts.
These items are perhaps somewhat out of line with the original purpose
of CEQA, but they are permitted under the law and the guidelines.
Two full-time planners constitute the entire planning and EIR manage-
ment staff for Sausalito. However, this small City has a burden of
pending development proposals of about $100 million, and the town is
politically divided on development issues. The EIRs have played an
important role here in evaluating such proposals. A major saving
grace of CEQA. in Sausalito is the provision (added by AB 889) that
explicitly allows public agencies to charge for the costs of preparing
and reviewing EIRs, thus greatly increasing the City's capability to
fund needed studies of development proposals. The planning staff
spends a large portion of its time servicing EIRs in its role as con-
tract officer and project monitor for the City. The developers deposit
funds with the City to cover EIR costs. They participate in the pro-
cess only by supplying information, and by discussing mitigation
measures and alternative project concepts as these possibilities
emerge.
Lake Sausalito, the City of Del Mar is a small and very attractively
situated community with considerable development pressure.232 Del
Mar (pop. 4,500) is located on the coast immediately north of the
City of San Diego. Here, as in Sausalito, a planning director and one
assistant handle both planning and EIR management. EIR preparation
is done by a consultant under the direction of the planning director.
But in this case, a "sole source" contractor is used. The consultant
is available as needed, but he is not given a retainer or formal con-
tract until a specific EIR is required. The planning director has
worked with this firm to help determine how its skills might be im-
proved for his EIR needs.
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THE IMPACT OF CEQA
The greatest impact of CEQA has been on local agencies, and particu-
larly on private projects licensed by local agencies (since private
proposals form the great majority of those on which EIRs are written).
In fact, California's 58 counties, 408 cities, and numerous special-
purpose jurisdictions constitute a high proportion of the total number
of agencies presently applying the environmental impact assessment
process at the local level in the United States.
Implementation of CEQA at the local level will be discussed in greater
detail in a future report in this series on management alternatives for
environmental impact analysis. That report, to be prepared late in
1974 under an extension of our present contract with EPA, will de-
scribe adaptation of the EIR process to highly variable conditions of
local polity, society, economy, and physical environment.
It is difficult to generalize about the effectiveness of CEQA because
of the considerable variation in management practices taken by local
governments. The following report will attempt to evaluate the degree
of CEQA's success in bringing environmental factors into the decision-
making process within the context of each of the major approaches.
Officials from other States who inquire about CEQA invariably ask
about the cost of the process and to what degree it has resulted in
delays of projects. In this regard, the conclusions of a study spon-
sored by the San Diego Construction Industry Coordinating Council
(CICC) of environmental review procedures in the San Diego region^ 3
are worth quoting here at some length, especially since the construc-
tion industry was among the most vocal opponents of extending the
EIR requirement to private projects at the time of the AB 889 nego-
tiations.
Project delay was a major concern of the development interests at the
time of the Friends of Mammoth decision. The CICC study concluded,
however, that in general,
The time to obtain a discretionary permit which is
subject to the environmental review under CEQA does
not appear to be significantly affected by current
environmental review procedures. Stated differently,
if the CEQA environmental review process were
eliminated, the time required to obtain a discretionary
permit would not be significantly reduced. Exceptions
to this conclusion occur when incomplete or inadequate
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information is filed by the applicant; when the findings
or conclusions are appealed; and when the ecological
consequences of projects are complex and difficult to
analyze.
This situation represents a significant improvement in
conditions which existed early in 1973 when the review
procedures were in the process of being established. 234
In contrast, the review processes of the San Diego Regional Coastal
Zone Conservation Commission created in 1972 were found by the
CICC study to delay projects on the average of three to six months,
compared to the situation prior to passage of Proposition 20. "Less
than 1% of the discretionary permits subject to CEQA review are
denied and approximately 12% of regular permit applications to the
Coastal Commission are denied, " the report found. "However, these
statistics fail to recognize the degree to which projects are modified
during the review. "235
It should also be noted that these figures do not account for projects
that are simply not initiated, or which are designed from the beginning
with the knowledge that environmental damage will have to be avoided
or mitigated. One attorney from a well-known firm who frequently
appears before the South Coast Regional Coastal Zone Commission
has said candidly, "I've turned down more developments in my office
than the Commission has voted down. "236
The expected high cost of CEQA was also a factor in the construction
industry's earlier resistance to applying the EIR requirement to the
private sector. The CICC study found that since the EIR procedures
are still undergoing change,
It is difficult for the moment to assess the cost to the
San Diego region of conducting environmental reviews.
It is clear, however, that the cost should be assumed
to be no less than several millions of dollars per year
and that it is a cost which will ultimately be paid for by
the consumer.
While the costs of conducting environmental reviews may
be justified in terms of improved environmental quality,
it is currently difficult to assess the benefits of these
environmental review procedures. The reaction of
environmental special interest groups and the govern-
mental staffs appear favorable and it is believed that
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[the CICC report continues] the quality, from an
environmental standpoint, of governmental planning
process is being improved and the environmental
quality of development projects submitted for approval
has improved. However, there is little objective
evidence to date to support a conclusion that the envi-
ronmental review process is achieving its objective.
There is a growing "establishment" of persons both
in government and in the private sectors with a vested
interest in conducting environmental reviews or
writing environmental impact statements. This estab-
lishment may be expected to influence the perpetuation
of existing environmental review procedures, regard-
less of true benefits, as other groups may argue for
their abolishment. Since land use decisions are not
determined solely by environmental quality but also
by community economic arid social goals, we may
expect to see substantial changes in the way the com-
munity perceives the benefits of environmental review
in the future.
Thus, it is extremely important to assess the effective-
ness of environmental review procedures as soon as
possible since only in this way can vague perceptions
of the cost effectiveness of the concept be understood
and debated.
Regardless of the ultimate effectiveness of environ-
mental review processes [the report concludes] , there
can be little argument that the system and procedures
used to execute the reviews be as efficient as possible.
If the environmental review introduces delay and un-
certainty into the permit issuance process, it is impor-
tant to be sure that these delays and uncertainties are
serving a substantive purpose. 237
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SECTION XI
ACKNOWLEDGMENTS
The principal investigator of this project was Thaddeus C. Trzyna,
President of the Center for California Public Affairs. His collaborator
was Arthur W. Jokela, Director of Research of the Center.
We appreciate the help given to us by the numerous State and local
officials, citizen environmentalists, and planning consultants who
contributed to this study. Special thanks are due to Richard E. Gutting,
Jr., Environmental Defense Fund, Berkeley; Richard Hall, County of
Santa Clara; Norman E. HiU, Office of the Secretary for Resources,
Sacramento; Foster Knight, State Attorney General's Environment
Unit, San Diego; David Nielsen, County of San Diego; John B.
Passerello, Office of Planning and Research, Sacramento; and
Nicholas C. Yost, State Attorney General's Environment Unit, San
Francisco.
The support of the Environmental Protection Agency, and the assistance
given us by Edwin B. Royce and Harold V. Kibby of EPA's Office of
Research and Development, is gratefully appreciated.
All errors of fact, faults of judgment and omissions are the authors1
responsibility.
62
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SECTION XII
REFERENCES
1. (a) Trzyna, Thaddeus C., Environmental Impact Requirements
in the States. Office of Research and Development, Environ-
mental Protection Agency, Washington, D. C. (Socioeconomic
Environmental Studies Series EPA R5-73-024), July 1973. Re-
printed in 102 Monitor, the monthly bulletin of the U. S. Council
on Environmental Quality, May 1973, pp. 21-41. (b) Trzyna,
Environmental Impact Requirements in the States: NEPA's
Offspring. Office of Research and Development, Environmental
Protection Agency, Washington, D.C. (Socioeconomic Environ-
mental Studies Series EPA-600/5-74-006), April 1974. This is
an expanded and updated version of the above report.
2. Included in the 1974 volume of Suggested State Legislation,
Council of State Governments (1150 17th St., N.W., Washington,
D.C. 20036), 1973. Reprinted with commentary in Trzyna
(Note Ib).
3. See Trzyna (Note Ib).
4* The State Attorney General and various environmental organi-
zations maintain that CEQA does impose such an obligation, and
the California Supreme Court has agreed to consider a case in
which this is an issue. See Ronald B. Robie, "California's
Environmental Quality Act: A Substantive Right to a Better
Environment?" tjos Angeles Bar Bulletin 49, No. 1, pp. 17-
43 (1974). The key phrase is in CEQA's statement of policy:
"... it is the policy of the state to: ... Ensure that the long-term
protection of the environment shall be the guiding criterion in
public decisions. " (CEQA, Sec. 21001, emphasis added). A
bill was introduced in 1973 (SB 1051) to amend this to read:
"... shall be a. guiding criterion... " (emphasis added). Such an
amendment would have greatly weakened the argument that
agencies have an overriding duty to prevent environmental
damage, and would have had the legal effect of insulating agen-
cies from judicial review on the ground of abuse of discretion.
The bill was defeated. The question of substantive obligation
has also been a major issue at the Federal level. See, for
example, Jane S. Kumin, "Substantive Review under the National
Environmental Policy Act: EDF vs. Corps of Engineers. "
Ecology Law Quarterly, 3, No. 7 (1973), pp. 173 ff. See also
Anderson (Note 28).
63
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5. California's environmental problems, and the State's efforts to
meet those problems, are well documented. For general treat-
ment, see, e.g., Raymond F. Dasmann, The Destruction of
California (Macmillan, 1965); Richard G. Lillard, Eden in
Jeopardy; Man's Prodigal Meddling with his Environment: The
Southern California Experience (Knopf, 1966); Alfred Heller,
ed., The California Tomorrow Plan, rev. ed. (William Kauf-
mann, Inc., 1 First St., Los Altos, California 94022, 1973);
and Robert C. Fellmeth, project director, Politics of Land;
Ralph Nader's Study Group Report on Land Use in California
(Grossman, 1973). See also the quarterly journal, Cry Califor-
nia, issued since 1965 by California Tomorrow (681 Market St.,
San Francisco 94105); and California Environment Yearbook &
Directory (1973-), published by the Center for California
Public Affairs (P.O. Box 30, Claremont, California 91711).
The latter reference includes a detailed bibliography.
6. For summaries of California State environmental law, see
Gerald R. Mylroie, ed., California Environmental Law; A
Guide (Center for California Public Affairs, annual, 1971-);
Primer on Environmental Law in California (California Depart-
ment of Justice, 350 McAllister St., San Francisco 94102,
revised periodically); and Joseph J. Brecher and Manuel E.
Nestle, Environmental Law Handbook (University of California,
Continuing Education of the Bar, 2150 Shattuck Ave., Berkeley
94704, 1970). The latter includes much California material,
but is now somewhat outdated.
7. For a discussion of such agencies, see Elizabeth H. Haskell and
Victoria S. Price, State Environmental Management; Case
Studies of Nine States (Praeger, 1973). California was not
among the States studied.
8. Cal. Gov't Code Sees. 12600-12616.
9. On this point, see Eleanor Cohen, ed., Expanding the Environ-
mental Responsibility of Local Government (Center for Califor-
nia Public Affairs, 1972); and Gordon C. Rhea and others,
California Land Use Primer; A Legal Handbook for Environ-
mentalists (Stanford Environmental Law Society, Stanford,
California 94305, 1972).
i
10. On the reluctance — and failure — of local governments to carry
out State-mandated requirements, see Local Planning in Califor-
nia; A Survey (California Council on Intergovernmental Relations,
1400 Tenth St., Sacramento 95814, April 1973). This agency,
which is charged with coordinating the general plan program
64
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discussed below, made a survey to determine the progress of
cities and counties in meeting the requirements of the State
Planning Act. Answers were received from only 55% of the
cities and 65% of the counties. The reluctance of local agencies
to comply with such requirements is shown by the fact that only
38% of the cities and 67% of the counties responding had adopted
a housing element of a general plan, an item that had been
"required" since 1969. The report did not speculate on the per-
formance of the local governments that did not respond to the
survey.
11. Cal. Gov't Code Sees. 65100 et seq.
12. For a concise history of the California general plan require-
ment, see "The Local 'General Plan1 in California. " San Diego
Law Review, 9, No. 1* pp. 1-27 (1971).
13. The major new requirements are set down in the California
Government Code as follows: Every city and county is required
to adopt a general plan under Sees. 65300, 65302, and 65700.
The land use and circulation elements are required, respective-
ly, under Sees. 65302 (a) and (b). The conservation and open
space elements were to be completed by December 31, 1973
under Sees. 65302 (d) and (e), and Sees. 65560 et seq., respec-
tively. The seismic safety, noise, scenic highways, and safety
elements are to be completed by September 20, 1974, under
Sees. 65302 (f), (g), and (h), and Sec. 65302.1, respectively.
Consistency of zoning with the general plan is required by Sec.
65860.
The new general plan program is described in General Plan
Guidelines, issued in September 1973 by the California Council
on Intergovernmental Relations, 1400 Tenth St., Sacramento
95814. UCLA Law Professor Donald G. Hagman, an authority
on urban planning law, notes that California's State Planning
Act contains the "strongest planning-regulation consistency laws
in the country. " (He also claims that, "if all the planners in
America were enticed to California, good planning could not be
produced as the Legislature has directed... because no one has
provided the tenfold increase in funding necessary to prepare
these crash plans. ") Hagman, "NEPA's Progeny Inhabit the
States.-- Were the Genes Defective?" Urban Law Annual, 1974,
p. 48.
14. For a discussion of special districts, see Samuel E. Wood and
Alfred E. Heller, The Phantom Cities of California (California
Tomorrow, 1963).
65
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15. Environmental Bill of Rights. Assembly Select Committee on
Environmental Quality, March 1970, p. 5.
16. Cal. Pub. Res. Code Sees. 21000 et seq., AB 2045 (1970 Reg.
Sess.), Chap. 1433, Stats. 1970 (hereinafter cited as CEQA
(1970)). Legislative history is taken from the Journals and
Final Histories of the 1970 Regular Session.
17. Environmental Quality in California; A Strategy for Action.
State Environmental Quality Study Council, March 1972, p.
11. This was the final report of the council, which had an im-
portant influence on the development of new State environmental
policies during 1969-72. See James E. Krier, "Environmental
Watchdogs: Some Lessons from a 'Study1 Council. " Stanford
Law Review, 23, No. 4, pp. 623-675 (1971).
18. Interview with George Milias. California Journal, November
1970, p. 316.
19. California Environmental Law (see Note 6), 1971 ed.
20. : "A Dozen Murders Solved. " Planning and Conservation League,
press release, Sacramento, October 6j 1970.
',
21. Environmental BiH of Rights (Note 15).
22. McCloskey, J. Michael, and John H. Zierold, "The California
Legislature's Response to the Environmental Threat. " Pacific
Law Journal, 2, pp. 575-602 (1971).
23. 42 U.S.C. 4231 et seq., 83 Stat. 853, Pub. L. 91-190 (herein-
after cited as NEPA).
24. Environmental Law Handbook (Note 6), p. 123.
25. NEPA, Sec. 101.
26. NEPA, Sec. 102.
27. NEPA, Sec. 202.
28. A good deal has been written about the Federal environmental
impact requirement. From a legal standpoint, the most com-
prehensive examination is Frederick R. Anderson, NEPA in
the Courts; A Legal Analysis of the National Environmental
Policy Act (Resources for the Future, 1755 Massachusetts Ave.,
N.W., Washington, D.C. 20036, 1973). The annual reports of
the U. S. Council on Environmental Quality (722, Jackson PI.,
N.W., Washington, D.C. 20006) are basic to an understanding
of how NEPA works. Also useful:is Steven B. Fishman's arti-
cle, "A Preliminary Assessment of the National Environmental
66
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Policy Act of 1969. " Urban Law Annual, 1973, pp. 209-241.
Non-legal, as well as some legal, material is included in a
bibliography issued by the Council of Planning Librarians (P. O.
Box 229, MonticeUo, Illinois 61856), "National Environmental
Policy Act of 1969 (P.L. 91-190): Bibliography on Impact
Assessment Methods and Legal Considerations, " Exchange
Bibliography No. 415, June 1973.
29. "Preparation of Environmental Impact Statements: Guidelines, "
38 Fed. Reg. 20550-20562, August 1, 1973, Sec. 1500. 9. This
document, issued by the U.S. Council on Environmental Quality,
is hereinafter referred to as the NEPA guidelines or Federal
guidelines. It is included as an appendix in Environmental
Quality; The Fourth Annual Report of the Council on Environ-
mental Quality (Government Printing Office, 1973).
30. For a detailed comparison of CEQA and the other "little NEPAs, "
see Trzyna (Note Ib). Since publication of Trzyna's earlier
report, New Mexico repealed its environmental policy act.
31. For the text of CEQA as amended through May 1974, see Appen-
dix A. The original version of CEQA was printed in full in the
1971 and 1972 editions of California Environmental Law (Note 6).
32. CEQA (1970), Sees. 21001 (a), (b), (d), (f), and (g).
33. NEPA, Sec. 102 (2) (C). Underlining added.
34. CEQA (1970), Sec. 21100.
35. NEPA, Sec. 102 (2) (C).
36. NEPA guidelines, Sec. 1500. 8 (a) (4).
37. CEQA (1970), Sec. 21101. The 1970 version of the act did not
deal with the question of whether a California EIR was required
to be prepared even if a Federal impact statement was written
on the same project. When the law was amended in 1972, it
was made clear that all or any part of a Federal impact state-
ment can be submitted in lieu of all or any part of a CEQA EIR.
CEQA (as amended), Sec. 21083.5.
38. CEQA (1970), Sec. 21102.
39. CEQA (1970), Sec. 21104.
40. CEQA (1970), Sec. 21105.
41. CEQA (1970), Sec. 21106.
42. CEQA (1970), Sec. 21107.
67
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43. CEQA (1970), Sec. 21103.
44. CEQA (1970), Sec. 21150.
45. CEQA (1970), Sec. 21151.
46. Regarding the requirement for a conservation element of a
general plan, see Note 13. The April 1973 survey made by the
Council on Intergovernmental Relations (see Note 10), found
that only 27% of the State's counties, and only 18% of its cities,
had adopted a conservation element. However, answers were
received from only 69% of the counties and 55% of the cities.
The conservation element was to have been completed by July 1,
1973 (the deadline was later extended to December 31, 1973).
47. CEQA (1970), Sec. 21103.
48. Executive Order 11514, 35 Fed. Reg. 4247 (March 5, 1970).
49. 35 Fed. Reg. 7390.
50. Anderson, NEPA in the Courts (Note 28), p. 13.
51. 35 Fed. Reg. 7390 Sec. 5 (a).
52. Cal Gov't Code Sec. 65035.
53. Cal Gov!t Code Sees. 65041-65049.
54. "New State Planning Office Charts Course Through Troubled
Waters. " California Journal, November 1970, p. 315.
55. See Haskell and Price, State Environmental Management (Note
7), pp. 260-262.
56. In 1971-72, the office was funded at $125, 000 (including both
State and Federal money). Press Release No. 335, Governor's
Office, June 1, 1971, Appendix HI.
57. Summary Report: Environmental Goals and Policy. Office of
Planning and Research, March 1, 1972, p. 2. Similar state-
ments are included in the 1973 edition of the report.
58. This delegation of responsibility is documented by Robert
Andrews, Jr., in "Aftermammoth: Friends of Mammoth and the
Amended California Environmental Quality Act. " Ecology Law
Quarterly, 3, No. 2, p. 353 (1973).
59. Cal Gov't Code Sec. 12850.
60. Proposed Guidelines for the Preparation and Evaluation of
Environmental Impact Statements [sic] under the California
Environmental Quality Act of 1970. Office of the Secretary
68
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for Resources, June 21, 1971 (hereinafter cited as 1971 State
guidelines).
61. CEQA (1970), Sec. 21103, called for guidelines on EIRs "re-
quired by this division," referring to Division 13 of the Public
Resources Code, i. e., CEQA, which covered local, as well as
State, activities. CEQA (1970), Sec. 21151.
62. Attorney General of the State of California, Petition, "in re
Proposed Guidelines for the Preparation and Evaluation of
Environmental Impact Statements under the California Environ-
mental Quality Act of 1970, " September 3, 1971 (hereinafter
cited as Attorney General's petition). It should be noted that
partisan considerations played little or no part in the CEQA
controversy. The Attorney General and the Governor were
members of the same political party. The leaders on both
sides of the controversy have come from both political parties.
63. Ibid., pp. 30-32.
64. Ibid., pp. 1-3.
65. 1971 State guidelines, Sec. 2.
66. Attorney General's petition, pp. 3-6.
67. Ibid.
68. 1971 State guidelines, Sec. 3 (d).
69. Attorney General's petition, p. 10.
70. Ibid., pp. 8-20.
71. Ibid., p. 9.
72. This is discussed below, p. 55.
73. Report on Proposed Interim Environmental Impact Statement
Guidelines. California Assembly Committee on Environmental
Quality, June 5, 1972, p. 1.
74. Interim Guidelines for the Preparation of Environmental Impact
Statements [ sic] under the California Environmental Quality
Act of 1970. Office of the Secretary for Resources, April 28,
1972, circulated under memorandum from the Office of Planning
and Research, May 5, 1972 (hereinafter cited as 1972 State
guidelines).
75. Ibid., p. 1.
76. Ibid., covering memorandum.
69
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77. Ibid., pp. 3, 22.
78. Ibid., p. 25.
79. Ibid., p. 4.
80. Committee report (Note 73), p. 1.
81. Ibid., pp. 3-4.
82. Gutting, Richard E., Jr., personal communication, December
1972. Gutting, as attorney for the Sierra Club, played an impor-
tant role in the AB 889 negotiations. He subsequently became
a member of the staff of the Environmental Defense Fund in
Berkeley.
83. AB 1056, AB 2041, SB 177, SB 1047, SB 1061, SB 1099,
SB 1619.
84. AB 301, Chap. 971(1972). This measure was superseded by
AB 889 as finally enacted, but its main point was reaffirmed
in the latter bill. CEQA (as amended), Sec. 21063.
85. 352 F. Supp. 1324 (C.D. Cal. 1972).
86. Our summaries of the Keith v. Volpe and EDF v. Coastside
cases follow Hagman (Note 13), pp. 14-15 and 18-19. Gutting
(Note 82) was also helpful in explaining the significance of the
EDF v. Coastside decision. The Keith v. Volpe ruling was
partially reversed by a U. S. Circuit Court of Appeals in Decem-
ber 1973. Los Angeles Times, December 6, 1973.
87. 27 Cal. App. 3d 695, 104 Cal. Rptr. 197 (1972).
88. See Note 86.
89. 8 Cal. 3d 247, 502 P. 2d 1049, 104 Cal. Rptr. 761 (1972).
90. See the bibliography.
91. Our summary of the early Mammoth history follows Andrews
(Note 58), pp. 353-354.
92. Attorney General of the State of California, "Amicus Curiae
Brief of the State of California in Support of Petitioners and
Appellants, Friends of Mammoth v. Mono County Board of
Supervisors," March 29, 1972.
93. See Note 89. Justice Raymond L. Sullivan filed a vigorous and
lengthy dissent. The following summary of the decision is
taken, in part, from News Release No. 100, Administrative
Office of the Courts, San Francisco, September 21, 1972.
70
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94. Supreme Court decision (Note 89), p. 7.
95. Ibid., p. 39, footnote 10.
96. Press release, Los Angeles Area Chamber of Commerce,
October 10, 1972.
97. WaH Street Journal, October 9, 1972.
98. Press Release No. 557, Governor's Office, October 6, 1972.
99. Los Angeles Times, October 13, 1972.
100. Press Release No. 569, Governor's Office, October 16, 1972.
101. Sacramento Bee, October 20, 1972.
102. Los Angeles Times, October 22, 1972.
103. Daily Pacific Builder, December 20, 1972, p. 1.
104. Los Angeles Times, October 1, 1972.
105. Sacramento Bee, October 18, 1972.
106. Los Angeles Times, October 1, 1972.
107- Sacramento Bee, October 18, 1972.
108. Sacramento Bee, October 20, 1972.
109. Los Angeles Times, October 19, 1972.
110. Attorney General's Checklist for Implementation of the California
Environmental Quality Act, October 1972, p. 1.
111. Ibid., p. 1.
112. The Governor was quoted by the Los Angeles Times on September
23 as being strongly opposed to Proposition 20.
113. The Sacramento Bee said on October 28, more than a week before
the election, that the opponents of Proposition 20 had reported
$873, 876 in campaign expenses to the Secretary of State. The
Los Angeles Times said on November 2 that the proponents of
the measure (primarily the California Coastal Alliance and the
Sierra Club) had reported $128, 642 in campaign expenses.
114. Los Angeles Times, October 16, 1972.
115. 8 Cal. 3rd 348d, Pamphlet #33. The summary that follows is
taken mainly from News Release No. 116, Administrative Office
of the Courts, November 6, 1972.
71
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116. Los Angeles Times, November 7, 1972.
117. News Release No. 116 (Note 115), pp. 1-2.
118. Ibid., p. 2.
119. California Legislature, Final Calendar, 1972 Regular Session.
120. Los Angeles Times, November 7, 1972.
121. See p. 23.
122. The following discussion of the negotiations leading up to
enactment of AB 889 relies heavily on personal communications
from Richard Gutting (see Note 82) in November and December
1972.
123. AB 889 as amended November 10, 1972.
124. • Sacramento Bee, November 22, 1972.
125. Los Angeles Times, November 17, 1972.
126. San Jose Mercury, November 11, 1972.
127. Gutting (Note 122), December 5, 1972.
128. Chap. 1154 (1972).
129. As of June 1, 1974, only one minor amendment had been made
to CEQA as changed by AB 889. See Appendix A.
130. California Environmental Quality Act (Cal. Pub. Res. Code
Sees. 21000 et seq.) as amended by AB 889 (hereinafter cited
as CEQA), Sec. 21065.
131. CEQA, Sec. 21066.
132. CEQA, Sec. 21171.
133. CEQA, Sec. 21169.
134. CEQA, Sec. 21060.5.
135. CEQA, Sec. 21083.
136. CEQA, Sec. 21061.
137. Gutting (Note 122), .December 1972.
138. CEQA, Sec. 21083.
139. CEQA, Sec. 21088.
140. CEQA, Sec. 21082.
141. CEQA, Sec. 21100 (g).
72
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142. Yost, Nicholas C., "NEPA's Progeny: State Environmental
Policy Acts. " Environment Reporter, August 1973.
143. CEQA, Sec. 21108.
144. CEQA, Sec. 21152.
145. CEQA, Sec. 21089.
146. CEQA, Sees. 21167-21168.7.
147. CEQA (1970), Sec. 21151.
148. CEQA, Sec. 21174.
149. CEQA, Sec. 21084.
150. CEQA, Sec. 21082.
151. Sierra Club, "Urgent Notice to Save the Coastal Zone Conserva-
tion Act, " memorandum to legislators, n. d. [November 1972] .
152. CEQA, Sec. 21084.
153. CEQA, Sec. 21085.
154. CEQA, Sec. 21172.
155. CEQA, Sec. 21080 (a).
156. Black's Law Dictionary, 4th ed. (1957), p. 1148.
157. 21080 (a).
158. CEQA, Sec. 21060.5.
159. For detailed discussions of the effects of AB 889.from a legal
point of view, see the articles by Andrews, Hagman, and
Seneker listed in the bibliography.
160. "Guidelines for the Preparation and Evaluation of Environ-
., mental Impact Reports under the California Environmental
Quality Act of 1970, " draft. Office of the Secretary for Re-
sources, December 19, 1972.
161. "Hearing Before the Secretary of Resources, Proposed Guide-
lines for Implementation of the Environmental Quality Act...
Presentation of the Attorney General of California, " January
30, 1973.
162. Ibid., p. 2.
163. Ibid., p. 39.
164. Ibid., pp. 13-14.
73
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165. Ibid., p. 19.
166. Ibid., p. 35
167. Ibid., p. 32.
168. Draft guidelines (Note 160), pp. 1-3.
169. Attorney General's presentation (Note 161), pp. 3-16.
170. Gutting (Note 122), personal communication, January 23, 1973.
171. Los Angeles Times, January 3, 1973.
172. Guidelines for Implementation of the California Environmental
Quality Act of 1970. Office of the Secretary for Resources,
February 5, 1973.
173. Zierold, Jphn, "impact Statement Guidelines for CEQA. "
Capitol Calendar, supplement to Sierra Club National News
Report, March 2, 1973.
174. Los Angeles Times, February 18, 1973.
175. Los Angeles Times, February 6, 1973.
176. Center for Law in the Public Interest v. Norman B. Livermore,
Petition for a Writ of Mandate with Memorandum of Points and
Authorities, filed June 29, 1973. Petition denied, August 16,
1973.
177. Ibid., pp. 10-21.
178. Ibid., pp. 22-27.
179. Ibid., pp. 28-35.
180. Ibid., p. 36.
181. Ibid., pp. 37-62.
182. Ibid., pp. 62-65.
183. Ibid., pp. 65-77.
184. Ibid., pp. 77-80.
185. "Lawsuit Challenging Guidelines is Dismissed. " California EIR
Monitor (Office of the Secretary for Resources), 1, Np.l, pp. 1-2
(December 3, 1973).
186. Ibid., p. 2.
187. "Proposed Amendments to Guidelines for Environmental Impact
Reports, " Office of the Secretary for Resources, August 31,
1973.
74
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188. One of the authors (T. C. T.) reviewed the written comments
received by the Secretary for Resources. This summary is
based on one prepared by the Resources Agency staff.
189. Letter to Secretary Livermore from C.D. Mims, President,
Standard Oil Company of California Western Operations, Inc.,
October 11, 1973.
190. Memorandum to Secretary Livermore from the Department of
Fish and Game, August 30, 1973.
191. "Comments by Sacramento County on the Proposed Amendments
to State Guidelines for Environmental Impact Reports, " October
15, 1973. Resolution No. 73-2036, October 15, 1973.
192. "Analysis of CEQA Guidelines Issued by the Resources Agency
on February 5, 1973, " n. d. "Supplementary Comments to
Memorandum entitled 'Analysis of CEQA Guidelines...,'"
transmitted under letter to Secretary Livermore from Attorney
General Younger, August 24, 1973. The original analysis was
attached to the supplement.
193. "Analysis" (Note 192), p. 1.
194. Ibid., p. 5.
195. CEQA guidelines, Februarys, 1973 (Note 172), Sec. 15107,
Class 7.
196. "Analysis" (Note 192), p. 5.
197. "Supplementary Comments" (Note 192), pp. 1-12.
198. "Report on State Guidelines for the Preparation of Environ-
mental Impact Reports by a Committee of the Planning Directors
Association of California, " William H. Fraley, Chairman,
August 19, 1973.
199. Letter to Secretary Livermore from Richard E. Gutting, Jr.,
Environmental Defense Fund, Berkeley, July 11, 1973. EDF
submitted its comments on behalf of itself and the Sierra Club.
Similar comments were sent to the Secretary by both EDF and
the club in response to the proposed amendments in September.
200. Planning Directors1 report (Note 198), p. 2.
201. Gutting (Note 199).
202. Ibid.
203. One of the authors (T.C.T.) attended the Los Angeles hearing.
The Sacramento hearing, held two days later, was somewhat
75
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better attended and generated more debate. Richard Gutting,
personal communication, June 1974.
204. As repeated in a letter to Secretary Livermore from Jack Allen,
October 25, 1973. Allen spoke as an interested citizen.
205. Guidelines for Implementation of the California Environmental
Quality Act of 1970, as Amended December 17, 1973. Office of
the Secretary for Resources, December 17, 1973. See Appendix
A (which includes amendments through June 1, 1974).
206. Ibid., Sec. 15083 (b).
207. Ibid., Sec. 15061 (b).
208. Ibid., Sees. 15147 (b) and (c).
209. Ibid., Sec. 15014 (b).
210. Ibid., covering memorandum.
211. For information, contact the Office of the Secretary for Re-
sources, 1416 Ninth St., Sacramento 95814.
212. Conversation with Norman E. Hill, Special Assistant to the
Secretary, March 6, 1974.
213. Environmental Quality; The Second Annual Report of the Council
on Environmental Quality. Government Printing Office, 1971,
p. 28.
214. CEQA guidelines, December 17, 1973 (Note 205), Sec. 15160 (c).
215. That review periods are generally short, and that deadlines for
many projects expire before subscribers receive the issue of the
Monitor in which they are listed, is apparent from examining
the listings.
216. California EIR Monitor, 1, No. 1, pp. 1-2 (December 3, 1973).
217. California EIR Monitor, 1, No. 3, pp. 4-8 (January 11, 1974).
218. Catalano, Ralph, and Richard Reich, "County Processing of
EIRs." California EIR Monitor, 1, No. 4, pp. 4-21 (January
25, 1974).
219. California EIR Monitor, 1, No. 5, pp. 3-10 (February 8, 1974).
220. Publication of the Monitor is supported by subscription fees;
no State funds have been set aside specially for this purpose.
221. Our description of CEQA's operation at the State level is based
largely on conversations with Norman E. Hill, Special Assis-
tant to the Secretary for Resources; and John B. Passerello,
76
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Office of Planning and Research, October 1973.
222. CEQA, Sec. 21082.
223. "Comments of the Environmental Defense Fund and the Sierra
Club on the Proposed Amendments to Guidelines for the Califor-
nia Environmental Quality Act of 1970 as Amended, " n. d. [De-
cember 1973] .
224. CEQA guidelines, December 17, 1973 (Note 205), Sec. 15161 (e).
225. Interview with John Passerello (Note 221).
226. The results of this study are discussed in Cohen (Note 9).
227. One of the authors (A. W. J.) participated in the development of
the EDA and the IREM Project.
228. Our description of the San Diego County process is based largely
on interviews with David Nielsen of the County staff, and on
the County's EIR guidelines. Descriptions of the practices of
other jurisdictions are based similarly on conversations with
the officials listed, and on the local guidelines. Interviews were
conducted mainly during the period from August 1973 through
January 1974.
C'
229. Interview with Richard Hall, County of Santa Clara (see Note
228).
230. Interview with Mel Roop, City of Irvine (see Note 228).
231. Interview with Herb Case, City of Sausalito (see Note 228).
232. Interview with Gary Binger, City of Del Mar (see Note 228).
233. Environmental Review Procedures in the San Diego Region.
San Diego Construction Industry Coordinating Council, 1973.
234. Ibid., pp. 1-2.
235. Ibid., p. 6.
236. As quoted by Joseph Edmiston, personal communication, April
1974.
237. Environmental Review Procedures (Note 233), pp. 14-15.
77
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SECTION XIE
BIBLIOGRAPHY
Among the major books and articles helpful to understanding CEQA are
the following. See the references (pp. 67-81) for other sources.
Anderson, Frederick R., NEPA in the Courts; A Legal Analysis of the
National Environmental Policy Act. Resources for the Future (1755
Massachusetts Ave., N.W., Washington, B.C. 20036), 1973.
The most comprehensive study of NEPA to date. While State envi-
ronmental policy acts are not discussed, many of the legal issues
under CEQA and other State environmental impact laws are similar
to those under NEPA. Also, the State courts have drawn extensive-
ly on NEPA case law in interpreting CEQA.
Andrews, Robert, Jr., "Aftermammoth: Friends of Mammoth and the
Amended California Environmental Quality Act. " Ecology Law
Quarterly, 3, No. 2, pp. 349-389 (1973).
A lengthy and much-documented analysis of the Friends of Mammoth
decision and Assembly Bill 889.
California EIR Monitor. Office of the Secretary for Resources (1416
Ninth St., Sacramento 95814), semimonthly (December 1973- ).
Includes articles on various aspects of the EIR process, as well as
listings of impact reports and official notices related to CEQA.
See pp. 49-51.
"California Environmental Quality Act - A Significant Effect on Paper
Pollution?" Pacific Law Journal, 5, No. 26 (January 1974).
California Environmental Quality Act Developments. Program Material,
University of California, Continuing Education of the Bar (2150
Shattuck Ave., Berkeley 94704), 1973.
A compendium of documents and case summaries. A list of related
publications and magnetic tapes is available from CEB.
Corwin, Ruthann, Environmental Impact Review; An Introduction to the
Federal and California Processes. Environmental Information
Clearinghouse (2177 Allston Way, Berkeley, California 94704), 1973.
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Dickert, Thomas G., and Katherine R. Domeny, eds., Environmental
Impact Assessment; Guidelines and Commentary. University of
California, University Extension (Berkeley 94720), 1974.
Ellman, Howard N., "The Primary Failings of CEQA. " Cry California
(California Tomorrow, 681 Market St., San Francisco 94105), Winter
1972-73.
Graff, Thomas J., "A First Step Toward Sanity in Land Use Planning. "
Cry California, Winter 1972-73.
Graff sees CEQA as amended by AB 889 as a necessary first step
toward strong statewide land use regulation; Ellman (see above)
views it as interfering with that goal.
Hagman, Donald G., "NEPA's Progeny Inhabit the States — Were the
Genes Defective?" Urban Law Annual, 1974, pp. 3-56.
A thoughtful analysis and critique of State impact requirements,
focusing mainly on CEQA, by an authority on urban planning law.
Discusses the relation of the EIR process to land use controls and
to social and economic considerations.
Kane, Kevin P., "Friends of Mammoth; The Expanding Scope of
Environmental Law in California. " Los Angeles Bar Bulletin,
January 1973, pp. 81 ff.
A brief analysis of the Mammoth decision and AB 889.
Robie, Ronald B., "California's Environmental Quality Act: A Substan-
tive Right to a Better Environment?" Los Angeles Bar Bulletin, 49,
No. 1, pp. 17-43(1974).
Discusses the issue of whether CEQA imposes upon public agencies
a substantive obligation to prevent environmental damage.
Root, Thomas E., "Environmental Law — State and Federal Environ-
mental Impact Statements — What Type of Activity Constitutes a
Project or Major Action" (case note). Land and Water Review, 8,
No. 2, pp. 565-581 (1973).
The Mammoth decision and its meaning for other States.
Sedway, Paul H., "The Environmental Impact Report. " Cry California,
9, No. 3, pp. 10-13 (1974).
Discusses the relation of the EIR to the general plan process.
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Seneker, Carl J., H, "The Legislative Response to Friends of Mam-
moth: Developers Chase the Will-o1 -the-Wisp. " California State Bar
Journal, 48, No. 2, pp. 126 ff. (1973).
"An examination and evaluation of the requirements and effects of
tiie Act, and an analysis of the major questions that emanate from
the court's opinion and that still remain unanswered despite the
passage of clarifying legislation and the adoption of implementing
guidelines. " Thorough and well-documented,
Trzyna, Thaddeus C., Environmental Impact Requirements in the States:
NEPA's Offspring. Office of Research and Development, Environmen-
tal Protection Agency, Washington, D.C., April 1974. Separate edition
issued by the Center for California Public Affairs^ January 1974.
Summarizes and compares the requirements of States that have such
programs; discusses key issues in developing environmental impact
assessment systems. Part of a series which includes the present
report.
Winters, John M., "Environmentally Sensitive Land Use Regulation in
California. " San Diego Law Review, June 1973, pp. 693 ff.
Yost, Nicholas C., "NEPA's Progeny: State Environmental Policy
Acts. " Environment Reporter, August 1973.
Major emphasis is on CEQA.
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SECTION XIV
APPENDICES
Page
Appendix A. California Environmental Quality
Act of 1970 as Amended 82
Appendix B. Guidelines for Implementation of the
California Environmental Quality Act of 1970 95
81
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APPENDIX A
CALIFORNIA ENVIRONMENTAL QUALITY ACT
OF 1970 AS AMENDED*
(Public Resources Code Sees. 21000 et seq.)
21000. The Legislature finds and declares as follows:
(a) The maintenance of a quality environment for the people of this
state now and in the future is a matter of statewide concern.
(b) It is necessary to provide a high-quality environment that at all
times is healthful and pleasing to the senses and intellect of man.
(c) There is a need to understand the relationship between the main-
tenance of high-quality ecological systems and the general welfare of
the people of the state, including their enjoyment of the natural resour-
ces of the state.
(d) The capacity of the environment is limited, and it is the intent
of the Legislature that the government of the state take immediate steps
to identify any critical thresholds for the health and safety of the people
of the state and take all coordinated actions necessary to prevent such
thresholds being reached.
(e) Every citizen has a responsibility to contribute to the preserva-
tion and enhancement of the environment.
(f) The interrelationship of policies and practices in the management
of natural resources and waste disposal requires systematic and concer-
ted efforts by public and private interests to enhance environmental
quality and to control environmental pollution.
(g) It is the intent of the Legislature that all agencies of the state
government which regulate activities of private individuals, corpora-
tions, and public agencies which are found to affect the quality of the
environment, shall regulate such activities so that major consideration
is given to preventing environmental damage.
21001. The Legislature further finds and declares that it is the
policy of the state to:
(a) Develop and maintain a high-quality environment now and in the
future, and take all action necessary to protect, rehabilitate, and
enhance the environmental quality of the state.
(b) Take all action necessary to provide the people of this state with
clean air and water, enjoyment of aesthetic, natural, scenic, and
amended by AB 889 (Chap. 1154), 1972; AB 2338 (Chap. 56), 1974.
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historic environmental qualities, and freedom from excessive noise.
(c) Prevent the elimination of fish or wildlife species due to man's
activities, insure that fish and wildlife populations do not drop below
self-perpetuating levels, and preserve for future generations represen-
tations of all plant and animal communities and examples of the major
periods of California history.
(d) Ensure that the long-term protection of the environment shall
be the guiding criterion in public decisions.
(e) Create and maintain conditions under which man and nature
can exist in productive harmony to fulfill the social and economic
requirements of present and future generations.
(f) Require governmental agencies at all levels to develop stan-
dards and procedures necessary to protect environmental quality.
(g) Require governmental agencies at all levels to consider
qualitative factors as well as economic and technical factors and long-
term benefits and costs, in addition to short-term benefits and costs
and to consider alternatives to proposed actions affecting the environ-
ment.
21050. This division shall be known and may be cited as the
Environmental Quality Act of 1970.
21060. Unless the context otherwise requires, the definitions in
this chapter govern the construction of this division.
21060. 5. "Environment" means the physical conditions which
exist within the area which will be affected by a proposed project,
including land, air, water, minerals, flora, fauna, noise, objects of
historic or aesthetic significance.
21061. "Environmental impact report" means a detailed statement
setting forth the matters specified in Section 21100. It includes any
comments on an environmental impact report which are obtained pur-
suant to Section 21104 or 21153, or which are required to be obtained
pursuant to this division.
An environmental impact report is an informational document
which, when its preparation is required by this division, shall be con-
sidered by every public agency prior to its approval or disapproval of
a project. The purpose of an environmental impact report is to pro-
vide public agencies with detailed information about the effect which a
proposed project is likely to have on the environment; to list ways in
which any adverse effects of such a project might be minimized and to
suggest alternatives to such a project.
21062. "Local agency" means any public agency other than a state
agency, board, or commission. For purposes of this division, a re-
development agency is a local agency, and not a state agency, board
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or commission.
21063. "Public agency" includes any state agency, board, or
commission, any county, city and county, city, regional agency,
public district, redevelopment agency, or other political subdivision.
21065. "Project" means the following:
(a) Activities directly undertaken by any public agency.
(b) Activities undertaken by a perspn which are supported in whole
or in part through contracts, grants, subsidies, loans, or other forms
of assistance from one or more public agencies.
(c) Activities involving the issuance to a person of a lease, permit,
license, certificate, or other entitlement for use by one or more
public agencies.
21066. "Person" includes any person, firm, association, organi-
zation, partnership, business, trust, corporation, company, district,
county, city, town, the state, and any of the agencies and political
subdivisions of such entities.
21067. "Lead agency" means the public agency which has the
principal responsibility for carrying out or approving a project which
may have a significant effect upon the environment.
21080. (a) Except as otherwise provided in this division, this
division shall apply to discretionary projects proposed to be carried
out or approved by public agencies, including, but not limited to, the
enactment and amendment of zoning ordinances, the issuance of
zoning variances, the issuance of conditional use permits and the
approval of tentative subdivision maps (except where such a project is
exempt from the preparation of an environmental impact report pur-
suant to Section 21166).
(b) This division shall not apply to ministerial projects proposed
to be carried out or approved by public agencies.
21082. All public agencies shall adopt by ordinance, resolution,
rule or regulation, objectives, criteria and procedures for the evalua-
tion of projects and the preparation of environmental impact reports
pursuant to this division. The objectives, criteria and procedures
shall be consistent with the provisions of this division and with the
guidelines adopted .by the Secretary of the Resources Agency pursuant
to Section 21083. Such objectives, criteria and procedures shall be
adopted by each public agency no later than 60 days after the Secre-
tary of the Resources Agency has adopted guidelines pursuant to
Section 21083.
21083. The Office of Planning and Research shall prepare and
develop proposed guidelines for the implementation of this division
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by public agencies. Such guidelines shall include objectives and
criteria for the orderly evaluation of projects and the preparation of
environmental impact reports in a manner consistent with this divi-
sion.
Such guidelines shall specifically include criteria for public
agencies to follow in determining whether or not a proposed project
may have a "significant effect on the environment. " Such criteria
shall require a finding of "significant effect on the environment" if
any of the following conditions exist:
(a) A proposed project has the potential to degrade the quality of
the environment, curtail the range of the environment, or to achieve
short-term, to the disadvantage of long-term, environmental goals;
(b) The possible effects of a project are individually limited but
cumulatively considerable;
(c) The environmental effects of a project will cause substantial
adverse effects on human beings, either directly or indirectly.
Such guidelines shall also include procedures for determining the
lead agency pursuant to the provisions of Section 21165.
The Office of Planning and Research shall develop and prepare
such proposed guidelines as soon as possible and shall transmit them
immediately to the Secretary of the Resources Agency. No later than
60 days after the effective date of this section the Secretary of the
Resources Agency shall certify and adopt such guidelines pursuant
to Chapter 4. 5 (commencing with Section 11371) of part 1, Division 3,
Title 2 of the Government Code, which shall become effective upon
the filing thereof, provided that such guidelines shall not be adopted
without compliance with Sections 11423, 11424, and 11425 of the
Government Code.
21083. 5. The guidelines prepared and adopted pursuant to Section
21083 may provide that when an environmental impact statement has
been, or will be, prepared for the same project pursuant to the re-
quirements of the National Environmental Policy Act of 1969 and
implementing regulations thereto, all or any part of such statement
may be submitted in lieu of all or any part of an environmental impact
report required by this division, provided that such statement, or the
part thereof so used, shall comply with the requirements of this
division and the guidelines adopted pursuant thereto.
21084. The guidelines prepared and adopted pursuant to Section
21083 shall include a list of classes of projects which have been de-
termined not to have a significant effect on the environment and which
shall be exempt from the provisions of this division. In adopting the
guidelines, the Secretary of the Resources Agency shall make a
finding that the list or classification of projects referred to in this
section do not have a significant effect on the environment.
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21085. All classes of projects designated pursuant to Section
21084, together with emergency repairs to public service facilities
necessary to maintain service, shall be exempt from the provisions of
this division.
21086. A public agency may, at any time, request the addition or
deletion of a class of projects, to the list designated pursuant to Sec-
tion 21084. Such a request shall be made in writing to the Office of
Planning and Research and shall include information supporting the
public agency's position that such class of projects does, or does not,
have a significant effect on the environment.
The Office of Planning and Research shall review each such request
and, as soon as possible, shall submit its recommendation to the
Secretary of the Resources Agency. Following the receipt of such
recommendation, the Secretary of the Resources Agency may add or
delete the class of projects to the list of classes of projects designated
pursuant to Section 21084 which are exempt from the requirements of
this division.
The addition or deletion of a class of projects, as provided in this
section, to the list specified in Section 21084 shall constitute an
amendment to the guidelines adopted pursuant to Section 21083 and
shall be adopted in the manner prescribed in Sections 21083, 21084,
and 21087.
21087. The Office of Planning and Research shall periodically
review the guidelines adopted pursuant to Section 21083 and shall
recommend proposed changes or amendments to the Secretary of the
Resources Agency. Changes or amendments to the guidelines shall
be adopted by the Secretary of the Resources Agency in the same
manner as provided in Section 21083 for the adoption of the original
guidelines.
21088. The Secretary of the Resources Agency shall provide for
the timely distribution to all public agencies of the guidelines and any
amendments or changes thereto. In addition, the Secretary of the
Resources Agency may provide for publication of a bulletin to provide
public notice of the guidelines, or any amendments or changes thereto,
and of the completion of environmental impact reports prepared in
compliance with this division.
21089. A public agency may charge and collect a reasonable fee
from any person proposing a project subject to the provisions of this
division in order to recover the estimated costs incurred by the public
agency in preparing an environmental impact report for such project.
21090. For all purposes of this division all public and private
activities or undertakings pursuant to or in furtherance of a redevelop -
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ment plan shall be deemed a single project.
21100. All state agencies, boards, and commissions shall pre-
pare, or cause to be prepared by contract, and certify the completion
of an environmental impact report on any project they propose to
carry out or approve which may have a significant effect on the environ-
ment. Such a. report shall include a detailed statement setting forth
the following:
(a) The environmental impact of the proposed action.
(b) Any adverse environmental effects which cannot be avoided if
the proposal is implemented.
(c) Mitigation measures proposed to minimize the impact.
(d) Alternatives to the proposed action.
(e) The relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity.
(f) Any irreversible environmental changes which would be
involved in the proposed action should it be implemented.
(g) The growth-inducing impact of the proposed action.
21101. In regard to any proposed federal project in this state
which may have a significant effect on the environment and on which the
state officially comments, the state officials responsible for such
comments shall include in their report a detailed statement setting
forth the matters specified in Section 21100 prior to transmitting
the comments of the state to the federal government. No report shall
be transmitted to the federal government unless it includes such a
detailed statement as to the matters specified in Section 21100.
21102. No state agency, board, or commission shall request
funds, nor shall any state agency, board, or commission which au-
thorizes expenditures of funds, other than funds appropriated in the
Budget Act, authorize funds for expenditure for any project, other
than a project involving only feasibility or planning studies for pos-
sible future actions which the agency, board, or commission has not
approved, adopted or funded, which may have a significant effect on
the environment unless such request or authorization is accompanied
by an environmental impact report.
Feasibility and planning studies exempted by this section from the
preparation of an environmental impact report shall nevertheless
include consideration of environmental factors.
21104. Prior to completing an environmental impact report, the
responsible state agency shall consult with, and obtain comments
from, any public agency which has jurisdiction by law with respect to
the project, and may consult with any person who has special exper-
tise with respect to any environmental impact involved.
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21105. The responsible state agency shall include the environ-
mental impact report as a part of the regular project report used in
the existing review and budgetary process. It shall be available to
the Legislature. It shall also be available for inspection by the
general public who may secure a copy thereof by paying for the actual
cost of such a copy. It shall be filed by the responsible state agency
with the appropriate local planning agency of any city, county, or
city and county which will be affected by the project.
21106. ALL state agencies, boards, and commissions shall re-
quest in their budgets the funds necessary to protect the environment
in relation to problems caused by their activities.
21108. [Amended by AB 2338, Chap. 56, 1974.] (a) Whenever a
state agency, board, or commission approves or determines to carry
out a project which is subject to the provisions of this division, it shall
file notice of such approval or such determination with the Secretary
of the Resources Agency. Such notice shall indicate the determination
of the agency, board, or commission whether the project will, or will
not, have a significant effect on the environment and shall indicate
whether an environmental impact report has been prepared pursuant to
the provisions of this division.
(b) Whenever a state agency, board, or commission determines
that a project is not subject to the provisions of this division pursuant
to subdivision (b) of Section 21080 or pursuant to Section 21085 or
21172, and it approves or determines to carry out such project, it, or
the person specified in subdivision (b) or (c) of Section 21065, may
file notice of such determination with the Secretary of the Resources
Agency. Any notice filed pursuant to this subdivision by a person
specified in subdivision (b) or (c) of Section 21065 shall have a certi-
ficate of determination attached to it issued by the state agency,
board, or corn-mission responsible for making the determination that
a project is not subject to the provisions of this division pursuant to
subdivision (b) of Section 21080 or pursuant to Section 21085 or 21172.
The certificate of determination may be in the form of a certified
copy of an existing document or record of the state agency, board, or
commission.
(c) All notices filed pursuant to this section shall be available for
public inspection, and a list of such notices shall be posted, on a
weekly basis in the Office of the Resources Agency. Each such list
shall remain posted for a period of 30 days.
21150. State agencies, boards, and commissions responsible for
allocating state or federal funds on a project-by-project basis to local
agencies for any project which may have a significant effect on the
environment, shall require from the responsible local governmental
-------
agency a detailed statement setting forth the matters specified in
Section 21100 prior to the allocation of any funds other than funds
solely for projects involving only feasibility or planning studies for
possible future actions which the agency, board, or commission has
not approved, adopted, or funded.
21151. All local agencies shall prepare, or cause to be prepared
by contract, and certify the completion of an environmental impact
report on any project they intend to carry out or approve which may
have a significant effect on the environment. When a report is re-
quired by Section 65402 of the Government Code, the environmental
impact report may be submitted as a part of that report.
21152. [Amended by AB 2338, Chap. 56, 1974.] (a) Whenever a
local agency approves or determines to carry out a project which is
subject to the provisions of this division, it shall file notice of such
approval or such determination with the county clerk of the county,
or counties, in which the project will be located. Such notice shall
indicate the determination of the local agency whether the project will,
or will not, have a significant effect on the environment and shall
indicate whether an environmental impact report has been prepared
pursuant to the provisions of this division,
(b) Whenever a local agency determines that a project is not
subject to the provisions of this division pursuant to subdivision (b)
of Section 21080 or pursuant to Section 21085 or 21172, and it approves
or determines to carry out such a project, it, or the person specified
in subdivision (b) or (c) of Section 21065, may file notice of such de-
termination with the county clerk of the county, or counties, in which
the project will be located. Any notice filed pursuant to this subdivi-
sion by a person specified in subdivision (b) or (c) of Section 21065
shall have a certificate of determination attached to it issued by the
local agency responsible for making the determination that a project
is not subject to the provisions of this division pursuant to subdivision
(b) of Section 21080 or pursuant to Section 21085 or 21172. The certi-
ficate of determination may be in the form of a certified copy of an
existing document or record of the local agency.
(c) All notices filed pursuant to this section shall be available for
public inspection, and a list of such notices shall be posted on a week-
ly basis in the office of the county clerk. Each such list shall remain
posted for a period of 30 days.
21153. Prior to completing an environmental impact report,
every local agency shall consult with, and obtain comments from, any
public agency which has jurisdiction by law with respect to the project,
and may consult with any person who has special expertise with re-
spect to any environmental impact involved.
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21154. Whenever any state agency, board, or commission issues
an order which requires a local agency to carry out a project which
may have a significant effect on the environment, any environmental
impact report which the local agency may prepare shall be limited to
consideration of those factors and alternatives which will not conflict
with such order.
21160. Whenever any person applies to any public agency for a
lease, permit, license, certificate, or other entitlement for use, the
public agency may require that person to submit data and information
which may be necessary to enable the public agency to determine
whether the proposed project may have a significant effect on the
environment or to prepare an environmental impact report.
If any or all of the information so submitted is a "trade secret"
as defined in Section 6254. 7 of the Government Code by those sub-
mitting that information, it shall not be included in the impact report
or otherwise disclosed by any public agency. This section shaU not
be construed to prohibit the exchange of properly designated trade
secrets between public agencies who have lawful jurisdiction over the
preparation of the impact report.
21161. Whenever a public agency has completed an environmental
impact report, it shall cause a notice of completion of such report to
be filed with the Secretary of the Resources Agency. The notice of
completion shall briefly identify the project and shall indicate that an
environmental impact report has been prepared. Failure to file the
notice required by this section shall not affect the validity of a
project.
21165. When a project is to be carried out or approved by two or
more public agencies, the determination of whether the project may
have a significant effect on the environment shall be made by the lead
agency and such agency shall prepare, or cause to be prepared by
contract, the environmental impact report for the project, if such a
report is required by this division. In the event that a dispute arises
as to which is the lead agency, any public agency may submit the
question to the Office of Planning and Research, and the Office of
Planning and Research shall designate the lead agency, giving due
consideration to the capacity of such -agency to adequately fulfill the
requirements of this division.
21166. When an environmental impact report has been prepared
for a project pursuant to this division, no subsequent environmental
impact report shall be required unless either of the following occurs:
(a) Substantial changes are proposed in the project which will
require major revisions of the environmental impact report.
(b) Substantial changes occur with respect to the circumstances
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under which the project is being undertaken which will require major
revision in the environmental impact report.
21167. [Amended by AB 2338, Chap. 56, 1974.] Any action or
proceeding to attack, review, set aside, void, or annul the following
acts or decisions of a public agency on the grounds of noncompliance
with this division shall be commenced as follows:
(a) An action or proceeding alleging that a public agency is
carrying out or has approved a project which may have a significant
effect on the environment without having determined whether the
project may have a significant effect on the environment shall be com-
menced within 180 days of the public agency's decision to carry out
or approve the project, or, if a project is undertaken without a formal
decision by the public agency, within 180 days after commencement of
the project.
(b) Any action or proceeding alleging that a public agency has
improperly determined whether a project may have a significant
effect on the environment shall be commenced within 30 days after the
filing of the notice required by subdivision (a) of Section 21108 or
subdivision (a). of Se ction 2115 2.
(c) Any action or proceeding alleging that an environmental im-
pact report does not comply with the provisions of this division shall
be commenced within 30 days after the filing of the notice required
by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.
(d) Any action or proceeding alleging that a public agency has
improperly determined that a project is not subject to the provisions
of this division pursuant to subdivision (b) of Section 21080 or pursuant
to Section 21085 or 21172 shall be commenced within 35 days after the
filing by the public agency, or person specified in subdivision (b) or
(c) of. Section 21065, of the notice authorized by subdivision (b) of
Section 21108 or subdivision (b) of Section 21152. If such notice has
not been filed, such action or proceeding shall be commenced within
180 days of the public agency's decision to carry out or approve the
project, or, if a project is undertaken without a formal decision by
the public agency, within 180 days after commencement of the
project.
(e) Any action or proceeding alleging that any other act or
omission of a public agency does not comply with the provisions of this
division shall be commenced within 30 days after the filing of the
notice required by subdivision (a) of Section 21108 or subdivision (a)
of Section 21152.
21167. 5. Proof of prior service by mail upon the public agency
carrying out or approving the project of a written notice of the com-
mencement of any action or proceeding described in Section 21167
identifying the project shall be filed concurrently with the initial
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pleading in such action or proceeding.
21168. Any action or proceeding to attack, review, set aside,
void or annul a determination or decision of a public agency, made as
a result of a proceeding in which by law a hearing is required to be
given, evidence is required to be taken and discretion in the determi-
nation of facts is vested in a public agency, on the grounds of noncom-
pliance with the provisions of this division shall be in accordance with
the provisions of Section 1094. 5 of the Code of Civil Procedure.
In any such action, the court shall not exercise its independent
judgment on the evidence but shall only determine whether the act or
decision is supported by substantial evidence in the light of the whole
record.
21168. 5. In any action or proceeding, other than an action or
proceeding under Section 21168, to attack, review, set aside, void or
annul a determination or decision of a public agency on the grounds of
noncompliance with this division, .the inquiry shall extend only to
whether there was a prejudicial abuse of discretion. Abuse of discre-
tion is established if the agency has not proceeded in a manner required
by law or if the determination or decision is not supported by substan-
tial evidence.
21168. 6. In any action or proceeding under Sections 21168 or
21168. 5 against the Public Utilities Commission the writ of mandate
shall lie only from the Supreme Court to such commission.
21168. 7. Sections 21168 and 21168. 5 are declaratory to existing
law with respect to the judicial review of determinations or decisions
of public agencies made pursuant to this division.
21169. Any project defined in subdivision (c) of Section 21065
undertaken, carried out or approved on or before the effective date
of this section and the issuance by any public agency of any lease,
permit, license, certificate or other entitlement for use executed or
issued on or before the effective date of this section notwithstanding
a failure to comply with this division, if otherwise legal and valid, is
hereby confirmed, validated and declared legally effective. Any pro-
ject undertaken by a person which was supported in whole or part
through contracts with one or more -public agencies on or before the
effective date of this section, notwithstanding a failure to comply with
this division, if otherwise legal and valid, is hereby confirmed, vali-
dated and declared legally effective.
21170. (a) Section 21169 shall not operate to confirm, validate or
give legal effect to any project the legality of which was being contested
in a judicial proceeding in which proceeding the pleadings, prior to the
effective date of this section, alleged facts constituting a cause of
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action for, or raised the issue of, a violation of this division and
which was pending and undetermined on the effective date of this
section; provided, however, that Section 21169 shall operate to con-
firm, validate or give legal effect to any project to which this subdi-
vision applies if, prior to the commencement of judicial proceedings
and in good faith and in reliance upon the issuance by a public agency
of any lease, permit, license, certificate or other entitlement for
use, substantial construction has been performed and substantial
liabilities for construction and necessary materials have been incurred.
(b) Section 21169 shall not operate to confirm, validate or give
legal effect to any project which had been determined in any judicial
proceeding, on or before the effective date of this section to be illegal,
void or ineffective because of noncompliance with this division.
21171. This division, except for Section 21169, shall not apply to
the issuance of any lease, permit, license, certificate or other entitle-
ment for use for any project defined in subdivision (c) of Section 21065
or to any project undertaken by a person which is supported in whole
or in part through contracts with one or more public agencies until
the 121st day after the effective date of this section. This section
shall not apply to any project to which Section 21170 is applicable or
to any successor project which is the same as, or substantially iden-
tical to, such a project.
This section shall not prohibit or prevent a public agency, prior
to the 121st day after the effective date of this section, from consi-
dering environmental factors in connection with the approval or
disapproval of a project and from imposing reasonable fees in con-
nection therewith.
21172. This division shall not apply to any project undertaken,
carried out or approved by a public agency to maintain, repair, re-
store, demolish or replace property or facilities damaged or
destroyed as a result of a disaster in a disaster stricken area in
which a state of emergency has been proclaimed by the Governor
pursuant to Chapter 7 (commencing with Section 8550) of Division 1,
Title 2 of the Government Code.
21172. 5. Until the 121st day after the effective date of this section
any objectives, criteria and procedures adopted by public agencies in
compliance with this division shall govern the evaluation of projects
defined in subdivisions (a) and (b) of Section 21065 and the preparation
of environmental impact reports on such projects when required by
this division.
Any environmental impact report which has been completed or on
which substantial work has been performed on or before the 121st
day after the effective date of this section, if otherwise legally
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sufficient, shall, when completed, be deemed to be in compliance
with this division and no further environmental impact report shall
be required except as provided in Section 21166.
21173. If any provision of this division or the application thereof
to any person or circumstances is held invalid, such invalidity shall
not affect other provisions or applications of this division which can
be given effect without the invalid provision or application thereof,
and to this end the provisions of this division are sever able.
21174. No provision of this division is a limitation or restriction
on the power or authority of any public agency in the enforcement or
administration of any provision of law which it is specifically permit-
ted or required to enforce or administer including, but not limited to,
the powers and authority granted to the California Coastal Zone Con-
servation Commission or any regional coastal zone conservation com-
mission pursuant to Division 18 (commencing with Section 27000) of
the Public Resources Code. To the extent of any inconsistency or
conflict between the provisions of the California Coastal Zone Conser-
vation Act of 1972, Division 18 (commencing with Section 27000) of
the Public Resources Code, and the provisions of this division, the
provisions of Division 18 (commencing with Section 27000) of the
Public Resources Code shall control.
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APPENDIX B
GUIDELINES FOR IMPLEMENTATION OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT OF 1970*
ARTICLE 1. General
15000. Authority. The regulations contained herein are prescribed
by the Secretary for Resources pursuant to authority granted in Public
Resources Code Section 21083 to be followed by all state agencies,
boards, and commissions, all counties, cities and counties, cities
including charter cities, regional agencies, public districts, rede-
velopment agencies, and all other political subdivisions of the State
in the implementation of the Environmental Quality Act of 1970 dealing
with environmental quality, the evaluation of projects, and the prepa-
ration and evaluation of environmental impact reports. These Guide-
lines have been developed by the Office of Planning and Research for
adoption by the Secretary for Resources in accordance with Section
21083. Additional information may be obtained by writing:
Secretary for Resources
Room 1311, 1416 Ninth Street
Sacramento, CA 95814
ARTICLED. Purpose
15005. Purpose. The purpose of these Guidelines is to provide
public agencies with principles, objectives, criteria, and definitions
of statewide application to be used in the implementation of the Cali-
fornia Environmental Quality Act of 1970, Public Resources Code
Sections 21000-21174 as amended by Chapter 1154 of the Statutes of
1972 (AB 889). Public agencies shall adopt objectives, criteria, and
procedures for the orderly evaluation of projects and the preparation
of environmental documents. Such procedures, objectives, and
criteria shall be consistent with CEQA and these guidelines.
ARTICLE 3. Policy
15010. Legislative Declaration. The Legislature has declared that:
(a) Every citizen has a responsibility to contribute to the preser-
vation and enhancement of the environment.
(b) It is the intent of the Legislature that all agencies of the state
As amended December 17, 1973; January 11, 1974; and March 22,
1974. Appendices are not included here. Punctuation, etc., as in
original.
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government which regulate activities of private individuals, corpora-
tions, and public agencies which are found to affect the quality of the
environment:, shall regulate such activities so that major consideration
is given to preventing environmental damage.
15011. State Policy. The Legislature has declared that it is the
policy of the state to:
(a) Develop and maintain a high-quality environment now and in the
future, and take all action necessary to protect, rehabilitate, and
enhance the environmental quality of the state.
(b) Take all action necessary to provide the people of this state
with clean air and water, enjoyme nt of aesthetic, natural, scenic,
and historic environmental qualities, and freedom from excessive
noise.
(c) Prevent the elimination of fish or wildlife species due to man's
activities, insure that fish and wildlife populations do not drop below
self-perpetuating levels, and preserve for future generations repre-
sentations of all plant and animal communities and examples of the
major periods of California history.
(d) Ensure that the long-term protection of the environment shall
be the guiding criterion in public decisions.
(e) Create and maintain conditions under which man and nature
can exist in productive harmony to fulfill the social and economic
requirements of present and future generations.
(f) Require governmental agencies at all levels to develop stan-
dards and procedures necessary to protect environmental quality.
(g) Require governmental agencies at all levels to consider quali-
tative factors as well as economic and technical factors and long-term
benefits and costs, in addition to short-term benefits and costs and to
consider alternatives to proposed actions affecting the environment.
15012. Informational Document. An Environmental Impact Report
is an informational document which, when fully prepared in accordance
with-CEQA and these Guidelines, will inform public decision-makers
and the general public of the environmental effects of projects they
propose to carry out or approve. The EIR process is intended to
enable public agencies to evaluate a project to determine whether it
may have a significant effect on the environment, to examine and
institute methods of reducing adverse impacts, and to consider alter-
natives to the project as proposed. These things must be done prior
to approval or disapproval of the project. An EIR may not be used
as an instrument to rationalize approval of a project, nor do indica-
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tions of adverse impact, as enunciated in an EIR, require that a pro-
ject be disapproved. While CEQA requires that major consideration
be given to preventing environmental damage, it is recognized that
public agencies have obligations to balance other public objectives,
including economic and social factors in determining whether and how
a project should be approved. Economic information may be included
in an EIR or may be presented in whatever form the agency desires.
15013. Early Preparation. An EIR is a useful planning tool to
enable environmental constraints and opportunities to be considered
before project plans are finalized. EIR's should be prepared as early
in the planning process as possible to enable environmental considera-
tions to influence project program or design.
15014. Application, (a) These Guidelines have only general appli-
cation to the diversity of projects undertaken or approved by public
agencies. They provide basic principles, objectives, criteria and
definitions which individual public agencies shall adapt for internal
use, interpreting these Guidelines in terms of specific projects. To
implement these principles, objectives, criteria, and definitions,
public agencies shall specify procedures to be followed which must be
consistent with CEQA and these Guidelines.
(b) [Amended January 11, 1974.] Until February 15, 1974, any
objectives, criteria, and procedures adopted by public agencies in
compliance with CEQA and these Guidelines may continue to govern the
evaluation of projects and the preparation of environmental impact
reports without being brought into conformity with the amended Guide-
lines before February 15, 1974.
15015. Terminology. The following words are used to indicate
whether a particular subject in the Guidelines is mandatory, advisory,
or permissive:
(a) "Must" or "shall" identifies a mandatory element which all
public agencies are required to follow.
(b) "Should" identifies guidance provided by the Secretary for
Resources based on policy considerations contained in CEQA, in the
legislative history of the statute, or in federal court decisions which
California courts can be expected to follow. Public agencies are
advised to follow this guidance in the absence of compelling, counter-
vailing considerations.
(c) "May" identifies a permissive element which is left fully to the
discretion of the public agencies involved.
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ARTICLE 4. Definitions
15020. General. Whenever the following words are used in these
Guidelines, unless otherwise defined, they shall have the meaning
ascribed to them in this article. These definitions are intended to
clarify but not to replace or negate the definitions used in CEQA.
15020. 5. Applicant. Applicant means a person who proposes to
carry out a project which needs a lease, permit, license, certificate,
or other entitlement to use or financial assistance from one or more
public agencies when that person applies for the governmental appro-
val or assistance.
15021. Approval means the decision by a public agency which com-
mits the agency to a definite course of action in regard to a project
intended to be carried out by any person. The exact date of approval
of any project is a matter determined by each public agency according
to its rules, regulations, and ordinances. Legislative action in regard
to a project often constitutes approval.
In connection with private activities, approval occurs upon the
earliest commitment to issue or the issuance by the public agency of
a discretionary contract, grant, subsidy, loan, or other form of
financial assistance, lease, permit, license, certificate, or other
entitlement for use of the project.
15022. CEQA. - California Environmental Quality Act. Califor-
nia Environmental Quality Act (CEQA) means California Public
Resources Code Sections 21000 through 21174.
15023. Categorical Exemption. Categorical Exemption means an
exception from the requirements of CEQA for a class of projects based
on a finding by the Secretary for Resources that the class of projects
does not have a significant effect on the environment.
15024. Discretionary Project. Discretionary project means an
activity defined as a project which requires the exercise of judgment,
deliberation, or decision on the part of the public agency or body in
the process of approving or disapproving a particular activity, as
distinguished from situations where the public agency or body merely
has to determine whether there has been conformity with applicable
statutes, ordinances, or regulations.
15025* Emergency. Emergency means a.sudden, unexpected
occurrence demanding immediate action to prevent or mitigate loss or
damage to life, health, property, or essential public services.
15026. Environment. Environment means the physical conditions
which exist within the area which will be affected by a proposed pro-
ject including land, air, water, minerals, flora, fauna, ambient
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noise, objects of historic or aesthetic significance.
15026.5. Environmental Documents. Environmental documents
means Draft and Final EIR's, Initial Studies, Negative Declarations,
Notices of Completion, and Notices of Determination.
15027. EIR - Environmental Impact Report. Environmental Im-
pact Report (EIR) means a detailed statement setting forth the environ-
mental effects and considerations pertaining to a project as specified
in Section 21100 of the California Environmental Quality Act.
(a) Draft EIR means an EIR containing the information specified
in Sections 15141, 15142, and 15143 of these Guidelines.
(b) Final EIR means an EIR containing the information specified
in Sections 15141, 15142, 15143, and 15144 of these Guidelines, a
section for comments received in the consultation process, and the
response of the Lead Agency to the comments received. The final
EIR is discussed in detail in Section 15146.
15028. EIS - Environmental Impact Statement. Environmental
Impact Statement (EIS) means an environmental impact report pre-
pared pursuant to the National Environmental Policy Act (NEPA).
The Federal Government uses the term EIS in the place of the term
EIR which is used in CEQA.
15029. Feasible. Feasible means capable of being accomplished
in a successful manner by reasonably available, economic, and
workable means.
15029. 5. Initial Study. Initial study means a preliminary analy-
sis prepared by the lead agency pursuant to Section 15080 to deter-
mine whether an EIR or a Negative Declaration must be prepared.
15030. Lead Agency. Lead agency means the public agency
which has the principal responsibility for preparing environmental
documents and for carrying out or approving a project which may
have a significant effect on the environment.
15031. Local Agency. Local agency means any public agency
other than a state agency, board or commission. Local agency in-
cludes but is not limited to cities, counties, charter cities and
counties, districts, school districts, special district, redevelopment
agencies and .any board, commission, or organizational subdivision
of a local agency when so designated by order or resolution of the
governing legislative body of the local agency.
15032. Ministerial Projects. Ministerial projects as a general
rule, include those activities defined as projects which are under-
taken or approved by a governmental decision which a public officer
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or public agency makes upon a given state of facts in a prescribed
manner in obedience to the mandate of legal authority. With these
projects, the officer or agency must act upon the given facts without
regard to his own judgment or opinion concerning the propriety or
wisdom of the act although the statute, ordinance, or regulation may
require, in some degree, a construction of its language by the officer.
15033. Negative Declaration. Negative declaration means a
statement by the lead agency briefly presenting the reasons that the
project, although not otherwise exempt, would not have a significant
effect on the environment and therefore does not require an EIR.
15034. Notice of Completion. Notice of Completion means a brief
report filed with the Secretary for Resources as soon as a lead agency
has completed a draft EIR and is prepared to send out copies for
review. The contents of this notice are explained in Section 15085 (c).
15035. Notice of Determination. Notice of Determination means
a brief notice to be filed by a public agency when it approves or
determines to carry out a project which is subject to the requirements
of CEQA. The contents of this report are explained in Section 15085
15035.5. [Added March 22, 1974.] Notice of Exemption. Notice
of exemption means a brief notice which may be filed by a public
agency when it has approved or determined to carry out a project, and
it has determined that it is ministerial, categorically exempt or an
emergency project. Such a notice may also be filed by an applicant
where such a determination has been made by a public agency which
must approve the project. The contents of this notice are explained
in Sec. 15074 (a) and (b).
15036. Person. Person includes any person, form, association,
organization, partnership, business, trust, corporation, company,
district, county, city and county, city, town, the State, and any of
the agencies' political subdivisions of such entities.
15037. Project.
(a) Project means the whole of an action, resulting in physical
impact on the environment, directly -or ultimately, that is any of the
following:
(1) an activity directly undertaken by any public agency inclu-
ding but not limited to public works construction and related activities,
clearing or grading of land, improvements to existing public struc-
tures, enactment and amendment of zoning ordinances, and the adoption
of local General Plans or elements thereof pursuant to Government
Code Sections 65100-65700.
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(2) an activity undertaken by a person which is supported in
whole or in part through public agency contracts, grants, subsidies,
loans, or other forms of assistance from one or more public agencies.
(3) an activity involving the issuance to a person of a lease,
permit, license, certificate, or other entitlement for use by one or
more public agencies.
(b) Project does not include:
(1) Anything specifically exempted by state law;
(2) Proposals for legislation to be enacted by the state Legis-
lature.
(3) Continuing administrative or maintenance activities, such
as purchases for supplies, personnel-related actions, emergency re-
pairs to public service facilities, general policy and procedure making
(except as they are applied to specific instances covered above),
feasibility or planning studies.
(4) The submittal of proposals to a vote of the people of the
State or of a particular community.
(c) The term "project" refers to the underlying activity and not to
the governmental approval process.
15038. Public agency. Public agency includes any state agency,
board or commission and any local or regional agency, as defined in
these Guidelines. It does not include the courts of the State. This
term does not include agencies of the federal government.
15039. Responsible Agency. Responsible agency means a public
agency which proposes to undertake or approve a project, but is not
the lead agency for the project. It includes all public agencies other
than the lead agency which have approval power over the project.
15040. Significant Effect. Significant effect means a substantial
adverse impact on the environment.
ARTICLE 5. General Responsibilities
15050. Public Agencies. All public agencies are responsible for com-
plying with the CEQA, according to these Guidelines. They must
develop their own procedures consistent with these Guidelines. Where
a public agency is a lead agency and prepares an EIR itself or con-
tracts for the preparation, that public agency is responsible entirely
for the adequacy and objectivity of the EIR.
15051. Office of Planning and Research (OPR). OPR is respon-
sible for the preparation and development of principles, objectives,
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criteria and definitions to implement the CEQA, prior to adoption by
the Secretary for Resources. OPR also, as part of guideline develop-
ment, shall consider proposals for Categorical Exemption and makes
appropriate recommendations to the Secretary for Resources. OPR
shall be responsible for resolving disputes over Lead Agency designa-
tion.
15052. The Secretary of the Resources Agency. The guidelines
shall be officially adopted by the Secretary of the Resources Agency,
including a finding that each class of projects given a Categorical
Exemption will not have a significant effect on the environment. He
also has the responsibility for consolidating all state comments on
federally sponsored projects. The Secretary of the Resources Agency
may issue supplements to these Guidelines, containing amendments
and/or additions.
15053. Fees.
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agency shall prepare environmental documents through its own efforts
or by contract unless the project is otherwise exempted by these
Guidelines.
(b) Where a project which may have a significant effect on the
environment is to be carried out by a non-governmental person subject
to approval, financial support, or some other involvement by a public
agency, the lead agency will prepare environmental documents by its
own efforts or by contract. However, the agency may require the
person to supply data and information, both to determine whether the
project may have a significant effect on the environment, and to assist
in the preparation of an EIR by the agency. This information may be
submitted in the form of a draft EIR, if the agency desires. If infor-
mation is provided in the form of a draft EIR, the lead agency may
not use the draft EIR as its own without independent evaluation and
analysis. The draft EIR which is sent put for public review must
reflect the independent judgement of the lead agency. The lead agency
should require an applicant to specify to the best of his knowledge
which other public agencies will have approval authority over the
project.
(c) Where the project is to be undertaken by a local agency, as
defined in these Guidelines, but requires state approval or financial
assistance, the state agency shall require the local agency to prepare
the EIR or Negative Declaration, to be submitted with the request for
approval of the proposed project. This must also be done where
federal funds are involved, but only if a state agency has discretionary
authority over the use of those funds. If the local project has been
mandated on the local agency by a state agency, the EIR prepared by
the local agency may be limited to consideration of those factors and
alternatives which do not conflict with the order.
(d) The EIR may be prepared as a separate document, or as part
of a project report. If prepared as a part of the project report, it
must still contain in one separate and distinguishable section the
elements required of an EIR, including the seven elements specified
in Section 15143 of these Guidelines.
(e) All public and private activities or undertakings pursuant to
or in furtherance of a redevelopment plan constitute a single project,
which shall be deemed approved at the time of adoption of the rede-
velopment plan by the legislative body. The EIR in connection with
the redevelopment plan shall be submitted in accordance with Section
33352 of the Health and Safety Code.
(f) All of the above is subject to the lead agency principle which
provides that not more than one EIR shall be prepared in connection
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with the same underlying activity and that the EIR shall be prepared
by the Lead Agency.
15063. Federal Projects.
(a) In regard to any proposed federal project in this state which
may have a significant effect on the environment and on which the state
officially comments, the state officials responsible for such comments
shall include in their comments an EIR setting forth the matters spe-
cified in Section 15143 of these Guidelines.
(b) In cases where these Guidelines require the preparation of an
EIR by a lead agency and an EIS has been or will be prepared for the
same project pursuant to the requirements of the National Environ-
mental Policy Act of 1969 and implementing regulations thereto, all
or any part of such statement may be submitted in lieu of all or any
part of an EIR required by these Guidelines, provided that the EIS
or the part thereof so used, shall comply with the requirements of
these Guidelines. In most cases where the federal EIS is used,
discussion of mitigation measures and growth inducing impact will
have to be added because these elements are required by CEQA but
not by the National Environmental Policy Act.
15064. Lead Agency Principle. Where a project is to be carried
out or approved by more than one public agency only one public agency
shall be responsible for preparation of environmental documents and
it will be the Lead Agency. Such environmental documents will be
prepared by the Lead Agency in consultation with all other responsible
agencies. The Lead Agency's environmental documents shall be the
environmental documentation for all responsible agencies. Such re-
sponsible agencies shall consider the Lead Agency's EIR or negative
declaration prior to acting upon or approving the projects, and they
shall certify that their decision-making bodies have reviewed and con-
sidered the information contained in them.
15065. Lead Agency Criteria.
(a) If the project is to be carried out by a public agency, the Lead
Agency shall be the public agency which proposes to carry out the
project.
(b) If the project is to be carried out by a nongovernmental person,
the Lead Agency shall be the public agency with the greatest responsi-
bility for supervising or approving the project as a whole. The Lead
Agency will generally be the agency with general governmental powers
rather than an agency with a single or limited purpose which is in-
volved by reason of the need to provide a public service or public
utility to the project; in such cases, the single or limited purpose
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agency will, upon request, provide data concerning all aspects of its
activities required to furnish service to the project to the agency draf-
ting the EIR, and no separate EIR will be required in regard to such
activities.
(c) Where more than one public agency equally meet the criteria
set forth in paragraph b above, the agency which is to act first on the
project in question shall be the Lead Agency (following the principle
that the environmental impact should be assessed as early as possible
in governmental planning).
(d) Where the provisions of subsections (a), (b), and (c) leave two
or more public agencies with an equal claim to be the lead agency, the
public agencies may by agreement designate which agency will be the
lead agency.
15065.5. Designation of Lead Agency by Office of Planning and
Research, (a) In the event that the designation of a Lead Agency is
in dispute, the following criteria shall apply:
(1) Public agencies should consult with each other in an effort
to resolve the dispute prior to submitting it to OPR.
(2) If an agreement cannot be reached, any public agency in-
volved may submit the dispute to the OPR for resolution.
(b) Regulations adopted by OPR for resolving lead agency disputes
may include the following:
(1) Submission of written statements to OPR and other dispu-
ting public agencies;
(2) Certification by OPR that a Lead Agency dispute exists;
(3) Publication of notice that a dispute has been submitted to
OPR;
(4) Determination of the dispute on the basis of written state-
ments or by a hearing.
(c) Designation of a Lead Agency by OPR shall be based on consi-
deration of the criteria in Section 15065 as well as the capacity of the
agency to adequately fulfill the requirements of CEQA.
15066. Consultation with Responsible Agencies. When more than
one public agency will be involved in undertaking or approving a pro-
ject, the Lead Agency shall consult with all responsible agencies (i. e.,
all the other public agencies involved in carrying out or approving the
project) before completing a draft EIR or Negative Declaration. This
early consultation is designed to insure that the EIR or Negative
Declaration will reflect the concerns of all responsible agencies which
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will issue approvals for the project. After completing the draft EIR
or Negative Declaration, the Lead Agency shall also consult with
other public agencies having jurisdiction by law and should consult
with persons having special expertise as described in Sections 15083
and 15085.
15067. Subsequent EIR. Where an EIR has been prepared, no
additional EIR need be prepared unless:
(a) Substantial changes are proposed in the project which will
require major revisions of the EIR, due to the involvement of new
environmental impacts not considered in a previous EIR on the project;
(b) There are substantial changes with respect to the circumstan-
ces under which the project is to be undertaken, such as a change in
the proposed location of the project, which will require major revisions
in the EIR due to the involvement of new environmental impacts not
covered in a previous EIR.
15068. Use of a Single EIR. 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. Lead Agencies may elect to write EIR's in
advance for entire programs or regulations, in order to be prepared
for project applications to come. Whenever an agency chooses to
utilize any of these alternatives, however, it must find that the envi-
ronmental effects of the projects are similar enough to warrant the
same treatment in an EIR and that the EIR will adequately cover the
impacts of any single project. If these tests are not met, an agency
should amend the EIR it prepares for a program to apply it to an
individual project with unusual characteristics.
15069. Multiple and Phased Projects. Where individual projects
are, or a phased project is, to be undertaken and where the total
undertaking comprises a project with significant environmental effect,
the Lead Agency must prepare a single EIR for the ultimate project.
Where an individual project is a necessary precedent for action on a
larger project, or commits the Lead* Agency to a larger project, with
significant environmental effect, an EIR must address itself to the
scope of the larger project. Where one project is one of several
similar projects of a public agency, but is not deemed a part of a
larger undertaking or a larger project, the agency may prepare one
EIR for all projects, or one for each project, but should in either
case comment upon the combined effect.
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15070. Ongoing Project, (a) A project as defined in Section
15037 (a) (1) of these Guidelines, approved prior to November 23,
1970, shall require an Environmental Impact Report or a Negative
Declaration if the project may have a significant effect on the environ-
ment, and either of the following conditions exists:
(1) A substantial portion of public funds allocated for the pro-
ject have not been spent and it is still feasible to modify the project to
mitigate potentially adverse environmental effects, or to choose
feasible alternatives to the project, including the alternative of "no
project" or halting the project; provided that this Section (1) shall not
apply to projects which come under the jurisdiction of the National
Environmental Policy Act (NEPA) and which, through regulations
promulgated under NEPA, were held to be too far advanced at the
time of NEPA's effective date to require an EIS in compliance with
those regulations.
(2) A public agency proposes to modify the project in such a
way that the project might have a new significant effect on the environ-
ment.
(b) A project as defined in Section 15037 (a) (3) or in Section 15037
(a) (2) as it relates to contracts, where the permit or other entitlement
was issued, or the contract approved, prior to April 5, 1973, shall
not require an EIR or Negative Declaration, subject to the following
provisions:
(1) CEQA expressly does not prohibit a public agency from
considering environmental factors in connection with the approval or
disapproval of a project, or from imposing reasonable fees on the
appropriate private person or entity for preparing an environmental
report. Local agencies may require environmental reports for
projects covered by this paragraph pursuant to local ordinances during
this interim period.
(2) Where the issuance or approval occurred prior to Decem-
ber 5, 1972, and prior to said date the project was legally challenged
for noncompliance with CEQA, the project shall be bound by special
rules set forth in Section 21170 of CEQA.
(3) Where a project involving the issuance of a lease, permit,
license, certificate or other entitlement to use has been granted a
discretionary governmental approval for part of the project before
April 5, 1973, and another or additional discretionary governmental
approvals after April 5, 1973, the project shall require an EIR or
Negative Declaration only if the approval or approvals after April 5,
1973, involve a greater degree of responsibility or control over the
project as a whole than did the approval or approvals prior to that date.
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(c) Any EIR which has been completed or on which substantial
work has been performed on or before February 15, 1974, in com-
pliance with procedures of a public agency consistent with CEQA and
these Guidelines as adopted on February 3, 1973, shall be deemed
to be in compliance with these Guidelines. No further EIR shall be
required except as provided in Subsections (a) and (b).
15071. Emergency Project. The following emergency projects
are exempt from the requirements of CEQA., and no EIR is required.
(a) Projects undertaken, carried out, or approved by a public
agency to maintain, repair, restore, demolish or replace property
or facilities damaged or destroyed as a result of a disaster in a
disaster stricken area in which a state of emergency has been pro-
claimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1, Title 2 of the Government Code.
(b) Emergency repairs to public service facilities necessary to
maintain service.
(c) Projects undertaken as immediate action necessary to pre-
vent or mitigate an emergency.
15072. Feasibility and Planning Studies. A project involving only
feasibility or planning studies for possible future actions which the
agency, board, or commission has not approved, adopted, or funded
does not require the preparation of an environmental impact report
but does require consideration of environmental factors as required
by Section 21102 of CEQA.
15073. Ministerial Projects. Ministerial projects are exempt
from the requirements of CEQA, and no EIR is required. The deter-
mination of what is "ministerial" can most appropriately be made
by the particular public agency involved based upon its analysis of its
own laws, and it is anticipated that each public agency will make such
determination either as a part of its implementing regulations or on
a case-by-case basis. It is further anticipated that the following
actions will, in most cases, be ministerial in nature.
(a) Issuance of building permits.
(b) Issuance of business licenses.
(c) Approval of final subdivision maps.
(d) Approval of individual utility service connections and discon-
nections.
In the absence of any discretionary provision contained in local
ordinance, it shall be presumed that these four actions are ministerial.
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Each public agency may, in its implementing regulations or ordinan-
ces, provide an identification or itemization of its projects and actions
which are deemed ministerial under the applicable laws and ordinan-
ces.
15074. [Added March 22, 1974.] Notice of Exemption, (a) When
a public agency determines that a project is exempt from the require-
ments of CEQA because it is an emergency project, a ministerial
project or categorically exempt, and the public agency approves or
determines to carry out the project, it may file a notice of exemption.
Such a notice shall include (1) a brief description of the project, (2)
a finding that the project is exempt, including a citation to the State
Guidelines section under which it is found to be exempt, and (3) a
brief statement of reasons to support the findings.
(b) Whenever a public agency approves an applicant's project,
it or the applicant may file a notice of exemption. The notice of
exemption filed by an applicant shall contain the information required
in subdivision (a) above, together with a certified document issued by
the public agency stating that it has found the project to be exempt.
This may be a certified copy of an existing document or record of the
public agency.
(c) If the public agency is a state agency, the notice of exemption
will be filed with the Secretary for Resources. A form for this notice
is provided in Appendix E [not included here] . Copies of all such
notices shall be posted on a weekly basis at the Resources Building
Information Desk, 1416 9th Street, Sacramento. Each such list will
remain posted for 30 days.
(d) If the public agency is a local agency, the notice of exemption
will be filed with the County Clerk of the county or counties in which
the project will be located. Copies of all such notices will be available
for public inspection and a list of such notices shall be posted on a
weekly basis in the office of the county clerk. Each such list shall
remain posted for a period of 30 days.
ARTICLE 7. Evaluating Projects
15080. Initial Study. If the project is not part of a class of pro-
jects that qualifies for a Categorical Exemption and there is a possibi-
lity that the project may have a significant effect on the environment,
the lead agency should conduct an initial study to determine if the
project may have a significant effect on the environment. If any of the
effects of a project may have a substantial adverse impact on the
environment, regardless of whether the overall effect of the project is
adverse or beneficial, then an environmental impact report must be
prepared where discretionary governmental action is involved.
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If the project is to be carried out by a nongovernmental person,
the lead agency may require such person to submit data and informa-
tion which will enable the agency to make this determination.
15081. Determining Significant Effect, (a) The determination of
whether a project may have a significant effect on the environment
calls for careful judgment on the part of the public agency involved,
based to the extent possible on scientific and factual data. An iron
clad definition of significant effect is not possible because the signifi-
cance of an activity may vary with the setting. For example, an
activity which may not be significant in an urban area may be signifi-
cant in a rural area. There may be a difference of opinion on whether
a particular effect should be considered adverse or beneficial, but
where there is, or anticipated to be, a substantial body of opinion that
considers or will consider the effect to be adverse, the lead agency
should prepare an EIR to explore the environmental effects involved.
(b) In evaluating the significance of the environmental effect of a
project, the lead agency shall consider both primary or direct and
secondary or indirect consequences. Primary consequences are
immediately related to the project (the construction of a new treatment
plant may facilitate population growth in a particular area), while
secondary consequences are related more to primary consequences
than to the project itself (an impact upon the resource base, including
land, air, water and energy use of the area in question may result
from the population growth).
(c) Some examples of consequences which may have a significant
effect on the environment in connection with most projects where they
occur, include a change that:
(1) Is in conflict with environmental plans and goals that have
been adopted by the community where the project is to be located;
(2) Has a substantial and demonstrable negative aesthetic
effect;
(3) Substantially affects a rare or endangered species of
animal or plant, or habitat of such a species;
(4) Causes substantial interfe'rence with the movement of any
resident or migratory fish or wildlife species;
(5) Breaches any published national, state, or local standards
relating to solid waste or litter control;
(6) Results in a substantial detrimental effect on air or water
quality, or on ambient noise levels for adjoining areas;
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(7) Involves the possibility of contaminating a public water
supply system or adversely affecting ground water;
(8) Could cause substantial flooding, erosion or siltation;
(9) Could expose people or structures to major geologic
hazards.
15082. Mandatory Findings of Significance. In every case where
any of the following conditions are found to exist as a result of a
project, the project shall be found to have impacts with a significant
effect on the environment:
(a) Impacts which have the potential to degrade the quality of the
environment or curtail the range of the environment.
(b) Impacts which achieve short-term, to the disadvantage of
long-term, environmental goals. A short-term impact on the
environment is one which occurs in a relatively brief, definitive period
of time while long-term impacts will endure well into the future.
(c) Impacts for a project which are individually limited, but cumu-
latively considerable. A project may affect two or more separate
resources where the impact on each resource is relatively small.
If the effect of the total of those impacts on the environment is signi-
ficant, an EIR must be prepared. This mandatory finding of signifi-
cance does not apply to two or more separate projects where the
impact of each is insignificant.
(d) The environmental effects of a project will cause substantial
adverse effects on human beings, either directly or indirectly.
15083. Negative Declaration, (a) A Negative Declaration shall
be prepared for a project which could potentially have a significant
effect on the environment, but which the lead agency finds on the basis
of. an Initial Study will not have a significant effect on the environment.
(b) A Negative Declaration must include a brief description of the
project as proposed, a finding that the project will not have a signifi-
cant effect on the environment, a brief statement of reasons to support
the findings, and a statement indicating who prepared the initial study
and where a copy of it may be obtained. The Negative Declaration
should normally not exceed one page in length.
(c) The Negative Declaration shall be made available to the
public with sufficient time before the project is approved to provide
an opportunity for members of the public to respond to the finding.
(d) After making a decision to carry out or approve the project,
the lead agency shall file a Notice of Determination with a copy of the
Negative Declaration attached. The Notice of Determination shall
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include the decision of the agency to approve or disapprove the pro-
ject, the determination of the agency whether the project will have a
significant effect on the environment, and a statement that no EIR has
been prepared pursuant to the provisions of CEQA.
(1) If the lead agency is a state agency, the Notice of Determi-
nation shall be filed with the Secretary for Resources.
(2) If the lead agency is a local agency, the Notice of Determi-
nation shall be filed with the county clerk of the county or counties in
which the project will be located.
15084. Decision to Prepare an EIR. If the lead agency finds after
an initial study, that the project may have a significant effect on the
environment, the lead agency must prepare or cause to be prepared
an Environmental Impact Report.
15085. EIR Process. The following steps shall be followed after
the lead agency decides to prepare an EIR.
(a) If the project is to be carried out by a nongovernmental person,
the lead agency may require such person to submit data and informa-
tion necessary to enable the lead agency to prepare the EIR. This
information may be transmitted in the form of a draft EIR. The
draft EIR which is sent out for public review must reflect the indepen-
dent judgment of the lead agency. Use of a draft EIR submitted by an
applicant is discussed in Section 15061 (b).
(b) The content of an EIR is described in Article 9 of these Guide-
lines. Each element of an EIR must be covered, and these elements
should be separated into distinct selections. Before completing a
draft EIR consisting of the information specified in Section 15141,
15142, and 15143 of these Guidelines, the lead agency should consult
directly with any person or organization it believes will be concerned
with the environmental effects of the project. Many public agencies
have found that early consultation solves many potential problems that
would arise in more serious form later in the review process. After
completing a draft EIR, the lead agency must consult with, and obtain
the comments of, any public agency which has jurisdiction by law with
respect to the project and may consult,with any person who has special
expertise with respect to any environmental impact involved. Opportu-
nity for comments from the general public should be provided.
(c) As soon as the draft EIR is completed, but before copies are
sent out for review, an official notice stating that the draft EIR has
been completed must be filed with the Secretary for the Resources
Agency. The notice shall include a brief description of the project,
its proposed location, and an address where copies of the EIR are
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available. This notice shall be referred to as a Notice of Completion.
A form for this notice is provided in the Appendices. The Notice of
Completion will provide the basis for information published by the
Secretary for Resources in an EIR Monitor. Where the EIR will be
reviewed through the state review process handled by the State
Clearinghouse, a Notice of Intent will be completed and filed with the
State Clearinghouse. The Notice of Intent will serve as the Notice
of Completion, and no Notice of Completion need be sent to the
Resources Agency. A form for the.Notice of Intent is shown in
Appendix D [not included here].
(d) The lead agency shall evaluate comments received from
persons who reviewed the draft EIR.
(e) The lead agency shall prepare a final EIR. The contents of a
final EIR are specified in Section 15146 of these Guidelines.
(f) The final EIR shall be presented to the decision-making body
of the lead agency. The lead agency shall certify that the final EIR
has been completed in compliance with CEQA and the state guidelines
and that the decision-making body or administrative official having
final approval authority over the project has reviewed and considered
the information contained in the EIR.
(g) After making a decision on the project, the lead agency shall
file a notice of action taken on the project. This notice shall be re-
ferred to as a Notice of Determination. Such notice shall include (1)
the decision of the agency to approve or disapprove the project, (2)
the determination of the agency whether the project will or will not
have a significant effect on the environment, and (3) a statement that
an EIR has been prepared pursuant to the provisions of CEQA.
(1) If the lead agency is a state agency, the Notice of Determi-
nation shall be filed with the Secretary for Resources.
(2) If the lead agency is a local agency, the Notice of Deter-
mination shall be filed with the county clerk of the county or counties
in which the project would be located.
(h) If the lead agency is a state agency, a copy of the final EIR
shall be filed with the appropriate planning agency of any city,
county, or city and county which will be affected by the project.
15086. EIR Combined with Existing Planning and Review Process.
To the extent possible, the EIR process should be combined with the
existing planning, review, and project approval process being used
by each responsible agency. The lead agency shall include the EIR
as a part of the regular project report where such a report is used
in the existing review and budgetary process.
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15087. Additional Notices. In their implementing procedures,
public agencies may provide for the filing of notices in addition to
the notices required by these Guidelines. Additional notices may
include the determination that a project is categorically exempt, that
a project is covered by the emergency exemption or the ministerial
exemption, or that an activity is not covered by the act at all. Such
notice should include reference to the documentation on which the
determination is based.
15088. Statement of Overriding Considerations. If a public agency
decides to approve a project for which serious adverse environmental
consequences have been identified in an EIR, the agency may wish to
make a statement identifying the other interests that warrant approval
in its point of view. If such a statement is made, it should be included
in the record of the project approval and may be attached to the Notice
of Determination.
ARTICLE 8. Categorical Exemptions
15100. Categorical Exemptions. Section 21084 of the Public
Resources Code requires these Guidelines to include a list of classes
of projects which have been determined not to have a significant effect
on the environment and which shall, therefore, be exempt from the
provisions of the Environmental Quality Act of 1970.
In response to that mandate, the Secretary for Resources has
found that the following classes of projects listed in this article do
not have a significant effect on the environment and they are declared
to be categorically exempt from the requirement for the preparation
of an EIR.
15101. Class 1; Existing Facilities. Class 1 consists of the
operation, repair, maintenance or minor alteration of existing public
or private structures, facilities, mechanical equipment, or topogra-
phical features, involving negligible or no expansion of use beyond
that previously existing, including but not limited to:
(a) Interior or exterior alterations involving such things as in-
terior partitions, plumbing, and electrical conveyances;
(b) Existing facilities of both investor and publicly owned utilities
used to provide electric power, natural gas, sewerage, or other
public utility services;
(c) Existing highways and streets (within already established
rights-of ^way) sidewalks, gutters, bicycle and pedestrian trails, and
similar facilities;
(d) Restoration, or rehabilitation of deteriorated or damaged
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structures, facilities or mechanical equipment to meet current stan-
dards of public health and safety, unless it is determined that the
damage was substantial and resulted from an environmental hazard
such as earthquake, landslide or flood;
(e) Additions to existing structures provided that the addition will
not result in an increase of more than 50 percent of the floor area of
the structures before the addition or 2500 square feet, whichever is
less;
(f) Addition of safety or health protection devices for use during
construction of or in conjunction with existing structures, facilities or
mechanical equipment, or topographical features including navigational
devices;
(g) New copy on existing on and off-premise signs;
(h) Maintenance of existing landscaping, native growth and water
supply reservoirs (excluding the use of economic poisons, as defined
in Division 7, Chapter 2, California Agricultural Code);
(i) Maintenance of fish screens, fish ladders, wildlife habitat areas,
artificial wildlife waterway devices, streamflows, springs and water-
holes, and stream channels (clearing of debris) to protect fish and
wildlife resources.
(j) Fish stocking by the California Department of Fish and Game.
(k) Division of existing multiple family rental units into condo-
miniums.
(1) Demolition and removal of buildings and related structures
except where they are of historical, archaeological or architectural
significance as officially designated by Federal, State or local govern-
mental action.
15102. Class 2; Replacement or Reconstruction. Class 2 consists
of replacement or reconstruction of existing structures and facilities
where the new structure will be located on the same site as the
structure replaced and will have substantially the same purpose and
capacity as the structure replaced, including but not limited to:
(a) Replacement or reconstruction of existing schools and hospitals
to provide earthquake resistant structures which do not increase
capacity more than 50%.
(b) Replacement of a commercial structure with a new structure of
substantially the same size and purpose.
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15103. Class 3; New Construction of Small Structures. Class 3
consists of construction and location of single, new, small facilities
or structures and installation of small new equipment and facilities
including but not limited to:
(a) Single family residences not in conjunction with the building of
two or more such units.
(b) Motels, apartments, and duplexes designed for not more than
four dwelling units if not in conjunction with the building of two or
more such structures.
(c) Stores, offices, and restaurants if designed for an occupant
load of 20 persons or less, if not in conjunction with the building of two
or more such structures.
(d) Water main, sewage, electrical, gas and other utility extensions
of reasonable length to serve such construction.
(e) . Accessory (appurtenant) structures including garages, carports,
patios, swimming pools and fences.
15104. Class 4; Minor Alterations to Land. Class 4 consists of
minor public or private alterations in the condition of land, water and/
or vegetation which do not involve removal of mature, scenic trees
except for forestry and agricultural purposes. Examples include but
are not limited to:
(a) Grading on land with a slope of less than 10 percent, except
where it is to be located in a waterway, in any wetland, in an officially
designated (by Federal, State or local governmental action) scenic
area, or in officially mapped areas of severe geologic hazard.
(b) New gardening or landscaping.
(c) Filling of earth into previously excavated land with material
compatible with the natural features of the site.
(d) Minor alterations in land, water and vegetation on existing
officially designated wildlife management areas or fish production
facilities which result in improvement of habitat for fish and wildlife
resources or greater fish production.
(e) Minor temporary uses of land having negligible or no permanent
effects on the environment, including carnivals, sales of Christmas
trees, etc.
(f) Minor trenching .and backfilling where the surface is restored.
15105. Class 5; Alterations in Land Use Limitations. Class 5
consists of minor alterations in land use limitations, except zoning,
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including but not limited to:
(a) Minor lot line adjustments, side yard and set back variances
not resulting in the creation of any new parcel nor in any change in land
use or density;
(b) Issuance of minor encroachment permits.
15106. Class 6; Information Collection. Class 6 consists of basic
data collection, research, experimental management and resource
evaluation activities which do not result in a serious or major distur-
bance to an environmental resource. These may be for strictly
information gathering purposes, or as part of a study leading to an ac-
tion which a public agency has not yet approved, adopted or funded.
15107. Class 7; Actions by Regulatory Agencies for Protection of
Natural Resources. Class 7 consists of actions taken by regulatory
agencies as authorized by state law or local ordinance to assure the
maintenance, restoration, or enhancement of a natural resource where
the regulatory process involves procedures for protection, of the envi-
ronment. Examples include but are not limited to wildlife preserva-
tion activities of the State Department of Fish and Game. Construc-
tion activities are not included in this exemption.
15108. Class 8. Actions by Regulatory Agencies for Protection
of the Environment. Class 8 consists of actions taken by regulatory
agencies, as authorized by state or local ordinance, to assure the
maintenance, restoration, enhancement, or protection of the environ-
ment where the regulatory process involves procedures for protection
of the environment. Construction activities are not included in this
exemption.
15109. Class 9; Inspections. Class 9 consists of activities limited
entirely to inspection, to check for performance of an operation, or
quality, health or safety of a project, including related activities such
as inspection for possible mislabeling, misrepresentation or adultera-
tion of products.
15110. Class 10. Loans. Class 10 consists of loans made by the
Department of Veterans Affairs under the Veterans Farm and Home
Purchase Act of 1943, mortgages for the purchase of existing struc-
tures where the loan will not be used for new construction and the pur-
chase of such mortgages by financial institutions. Class 10 includes
but is not limited to the following examples:
(a) Loans made by the Department of Veterans Affairs under the
Veterans Farm and Home Purchase Act of 1943.
(b) Purchases of mortgages from banks and mortgage companies
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by the Public Employees Retirement System and by the State Teachers
Retirement System.
15111. Class 11; Accessory Structures. Class 11 consists of con-
struction, or placement of minor structures accessory to (appurtenant
to) existing commercial, industrial, or institutional facilities, including
but not limited to:
(a) Qn-premise signs;
(b) Small parking lots.
15112. Class 12. Surplus Government Property Sales. Class 12
consists of sales of surplus government property except for parcels of
land located in an area of statewide interest or potential area of critical
concern as identified in the Governor's Environmental Goals and
Policy Report of June 1, 1973.
15113. Relation to Ministerial Projects.
Section 21080 of the Public Resources Code as added by Chapter
1154, Statutes of 1972, exempts all ministerial projects and activities
of public agencies from application of the CEQA. The matter of what is
or is not a ministerial project is up to the determination of each public
agency, based on an examination of the applicable laws and ordinances.
Thus, while the Categorical Exemptions listed in this subsection contain
classes or examples of projects which in many cases will be ministerial,
the inclusion of them is in no way intended to imply any finding here
that, in any particular jurisdiction, they are ministerial or discre-
tionary. The exemptions, naturally, only apply where the project in
question is found to be discretionary.
15114. Exception by location. Class 3, 4, 5, 6, and 11 are quali-
fied by consideration of where the project is to be located — a project
that is ordinarily insignificant in its impact on the environment may in
a particularly sensitive environment be significant. Therefore, these
classes are considered to apply in all instances, EXCEPT where the
project may impact on an environmental resource of hazardous or
critical concern as may be hereafter designated, precisely mapped,
and officially adopted pursuant to law by federal, state or local
agencies. Moreover, alT exemptions for" these classes are inapplicable
when the cumulative impact of successive projects of the same type
in the same place, over time is significant — for example, annual
additions to an existing building under Class 1.
15115. Revisions to Last of Categorical Exemptions. Any public
agency may, at any time, request that a new class of Categorical
Exemptions be added, or an existing one amended or deleted. This
request must be made in writing to the Office of Planning and Research
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and shall contain detailed information to support the request.
15116. Application by Public Agencies. Each public agency shall,
in the course of establishing its own procedures, list those specific
activities which fall within each of the exempt classes, subject to the
qualification that these lists must be consistent with both the letter and
the intent expressed in the classes. Public agencies may omit from
their implementing procedures classes and examples that do not apply
to their activities, but they may not require EIR's for projects de-
scribed in the classes and examples in this article except under the
provisions of Section 15114.
ARTICLE 9. Contents of Environmental Impact Reports
15140. General. Environmental impact reports shall contain the
information outlined in this article.
15141. Description of Project. The description of the project shall
contain the following information but should not supply extensive detail
beyond that needed for evaluation and review of the environmental im-
pact.
(a) The precise location and boundaries of the proposed project shall
be shown on a detailed map, preferably topographic. The location of
the project shall also appear on a regional map.
(b) A statement of the objectives sought by the proposed project.
(c) A general description of the project's technical, economic, and
environmental characteristics, considering the principal engineering
proposals and supporting public service facilities.
15142. Description of Environmental Setting. An EIR must include
a description of the environment in the vicinity of the project, as it
exists before commencement of the project, from both a local and
regional perspective. 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. Specific reference to related projects, both public and private,
both existent and planned, in the region should also be included, for
purposes of examining the possible cumulative impact of such projects.
15143. Environmental Impact. All phases of a project must be con-
sidered when evaluating its impact on the environment: planning, acqui-
sition, development and operation. The following subjects shall be
discussed, preferably in separate sections or paragraphs.
(a) The Environmental Impact of the Proposed Action; Describe
the direct and indirect impacts of the project on the environment,
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giving due consideration to both the short-term and long-term effects.
It should include specifics of the area, the resources involved,
physical changes, alterations to ecological systems and changes
induced in population distribution, population concentration, the
human use of the land (including commercial and residential develop-
ment) and other aspects of the resource base such as water, scenic
quality and public services.
(b) Any Adverse Environmental Effects Which Cannot Be Avoided
if the Proposal is Implemented; Describe any adverse impacts, inclu-
ding those which can be reduced to an insignificant level but not elimi-
nated. Where there are impacts that cannot be alleviated without
imposing an alternative design, their implications and the reasons
why the project is being proposed, notwithstanding their effect, should
be described. Do not neglect impacts on any aesthetically valuable
surroundings, or on human health.
(c) Mitigation Measures Proposed to Minimize the Impact;
Describe any mitigation measures written into the project plan to
reduce significant environmentally adverse impacts to insignificant
levels, and the basis for considering these levels acceptable. Where
a particular mitigation measure has been chosen from among several
alternatives should be discussed and reasons should be given for the
choice made.
(d) Alternatives to the Proposed Action; Describe any known
alternatives to the project, or to the location of the project, which
could feasibly attain the basic objectives of the project, and why they
were rejected in favor of the ultimate choice. The specific alternative
of "no project" must also always be evaluated, along with the impact.
Attention should be paid to alternatives capable of substantially redu-
cing or eliminating any environmentally adverse impacts, even if
these alternatives substantially impede the attainment of the project
objectives, and are more costly.
(e) The Relationship Between Local Short-Term Uses of Man's
Environment and the Maintenance and Enhancement of Long-Term
Productivity; Describe the cumulative and long-term effects of the
proposed project which adversely affect the state of the environment.
Special attention should be given to impacts which narrow the range
of beneficial uses of the environment or pose long-term risks to
health or safety. In addition, the reasons why the proposed project
is believed by the sponsor to be justified now, rather than reserving
an option for further alternatives, should be explained.
(f) Any Irreversible Environmental Changes Which Would Be
Involved in the Proposed Action Should It Be Implemented; Uses of
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nonrenewable resources during the initial and continued phases of the
project may be irreversible since a large commitment of such re-
sources makes removal or nonuse thereafter unlikely. Primary
impacts and, particularly, secondary impacts (such as a highway
improvement which provides access to a nonaccessible area) generally
commit future generations to similar uses. Also irreversible damage
can result from environmental accidents associated with the project.
Irretrievable commitments of resources should be evaluated to assure
that such current consumption is justified.
(g) The Growth-Inducing Impact of the Proposed Action: Discuss
the ways in which the proposed project could foster economic or
population growth, either directly or indirectly, in the surrounding
environment. Included in this are projects which would remove ob-
stacles to population growth (a major expansion of a waste water
treatment plant might, for example, allow for more construction in
service areas). Increases in the population may further tax existing
community service facilities so consideration must be given to this
impact. Also discuss the characteristic of some projects which may
encourage and facilitate other activities that could significantly affect
the environment, either individually or cumulatively. It must not be
assumed that growth in any area is necessarily beneficial, detrimental,
or of little significance to the environment.
15144. Organizations and Persons Consulted. The identity of
all federal, state or local agencies, other organizations and private
individuals consulted in preparing the EIR, and the identity of the
persons, firm or agency preparing the EIR, by contract or other
authorization must be given.
15145. Water Quality Aspects. With respect to water quality
aspects of the proposed project which have been previously certified
by the appropriate state or interstate organization as being in substan-
tial compliance with applicable water quality standards, reference to
the certification should be made.
15146. Contents of Final Environmental Impact Report, (a) The
Final EIR shall consist of the Draft EIR containing the elements de-
scribed in Sections 15141, 15142, and 15143 of these Guidelines, a
section listing the organizations and persons consulted and containing
the comments received through the consultation process described
in Article 10, either verbatim or in summary, and the response of
the Lead Agency to the significant environmental points raised in the
review and consultation process.
(b) The response of the Lead Agency to comments received may
take the form of a revision of the Draft EIR or may be an attachment
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to the Draft EIR. The response shall describe the disposition of
significant environmental issues raised (e.g., revisions to the pro-
posed project to mitigate anticipated impacts or objections). In
particular the major issues raised when the Lead Agency's position
is at variance with recommendations and objections raised in the
comments must be addressed in detail giving reasons why specific
comments and suggestions were not accepted, and factors of over-
riding importance warranting an override of the suggestions.
15147. Degree of Specificity. The degree of specificity required
in an EIR will correspond to the degree of .specificity involved in the
underlying activity which is described in the EIE.
(a) An EIR on a construction project will necessarily be more
detailed in the specific effects of the project than will be an EIR on
the adoption of a local general plan or comprehensive zoning ordi-
nance because the effects of the construction can be predicted with
greater accuracy.
(b) An EIR on projects such as the adoption or amendment of a
comprehensive zoning ordinance or a local general plan should focus
on the secondary effects that can be expected to follow from the
adoption, but the EIR need not be as detailed as an EIR on the specific
construction projects that might follow.
(c) The requirements for an EIR on a local general plan or
element thereof will be satisfied by the general plan or element
document, i.e., no separate EIR will be required, if: (1) the general
plan addresses all the points required to be in an EIR by Article 9 of
these Guidelines and (2) the document contains a special section or a
cover sheet identifying where the general plan document addresses
each of the points required.
ARTICLE 10. Evaluation of Environmental Impact Reports
15160. Adequate Time for Review and Comment. The Lead
Agency should provide adequate time for other public agencies and
members of the public to review and comment on an EIR that it has
prepared.
(a) Public agencies may establish time periods for review in
their implementing procedures and shall notify reviewing agencies of
the time periods.
(b) In setting time periods for review, public agencies shall give
consideration to their obligation to obtain comments from public
agencies having jurisdiction by law with respect to the project and to
the policy favoring public participation.
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(c) In order to provide sufficient time for public review, review
periods for draft EIR's should not be less than 30 days nor longer
than 90 days except in unusual situations. While state and local
agencies are not bound by federal guidelines for implementing the
National Environmental Policy Act, the time limits in the federal
guidelines provide an example that may be followed in some situations.
The federal guidelines require at least 90 days for review of a draft
EIR and another 30 days for the review of a final EIR. Review periods
of this length may be desirable for some large projects, but shorter
periods may be provided where the shorter period will still allow
adequate review.
(d) A review period for an EIR does not require a halt in other
planning activities related to a project. Planning should continue
in conjunction with environmental evaluation.
15161. Review of Environmental.Impact Reports.
(a) Public agencies must develop procedures to ensure that lead
agencies obtain and receive adequate comments on their EIRs from
public agencies which have jurisdiction by law with respect to the
project. Such procedures should include provisions for consultation
with persons who have special expertise in environmental matters.
It is suggested that public agencies utilize existing state, and regional
or local clearinghouses to distribute EIRs and other environmental
documents to appropriate agencies.
(b) Cities and counties should compile listings of other agencies,
particularly local agencies, which have legal jurisdiction and/or
special expertise with respect to various projects and project loca-
tions. Appendix B to these Guidelines [not included here] identifies
state agencies which have legal jurisdiction over, or special exper-
tise in, various impacts. This could be the basis for a part of such
listings. Such listings should be a guide in determining which agencies
should be consulted with regard to a particular project.
(c) Reviewers should focus on the sufficiency of the EIR in dis-
cussing possible impacts upon the environment, ways in which adverse
effects might be minimized, and alternatives to the project, in light
of the intent of the act to provide decision-makers with useful infor-
mation about such factors.
(d) Upon completion of reviewing an EIR, it is suggested that
reviewing agencies supply the project sponsor with the name of a
contact person who is available for later consultation should this
prove necessary.
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(e) EIR's and Negative Declarations to be reviewed by state
agencies shall be submitted to the State Clearinghouse, 1400 Tenth
Street, Sacramento, California 95814. When EIR's are submitted to
the State Clearinghouse, the review periods set by the responsible
agency shall be at least as long as the period provided in the state
review system operated by the State Clearinghouse.
15162. Failure to Comment. If any public agency or person who
is consulted with regard to an EIR fails to comment within a reasonable
time as specified by the Responsible Agency, it shall be assumed,
absent a request for a specific extension of time, that such agency or
person has no comment to make.
15163. Requests for Environmental Documents. The Responsible
Agency, after preparing an EIR or other environmental document
described in these Guidelines, is responsible for making such docu-
ments available to the public for inspection. Members of the general
public requesting copies of the EIR may be charged for the actual
cost of reproducing that copy.
15164. Public Participation. While the Environmental Quality
Act of 1970 does not require formal public hearings at any stage of
the environmental review procedure, it is a widely accepted desirable
goal of this process to encourage public participation. All public
agencies adopting implementing procedures in response to these
Guidelines should make provisions in their procedures for wide public
involvement, formal and informal, consistent with their existing
activities and procedures, in order to properly receive and evaluate
public reactions, adverse and favorable, based on environmental
issues.
15165. Public Hearings.
(a) 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 the CEQA and these Guidelines to
do so. The hearing may be held in conjunction with and as a part of
normal planning activities. To as great a degree as possible, these
hearings should include comments from reviewing agencies made
pursuant to these Guidelines.
(b) A Draft EIR 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.
(c) Notice shall be given of all public hearings in a timely manner.
This notice may be given in the same form and time as notice for other
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regularly conducted public hearings of the public agency.
(d) A public agency may include, in its implementing procedures,
procedures for the conducting of public hearings pursuant to this
section, which procedures may be consistent with already existing
hearing and notice requirements of the public agency for regularly
conducted legislative, planning and other proceedings.
(e) 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.
15166. Retention and Availability of Comments. Comments re-
ceived through the consultation process shall be kept on file for a
reasonable period and available for public inspection at an address
given in the final EIR. Comments which may be received indepen-
dently of the review of the Draft EIR shall also be considered and kept
on file.
ARTICLE 11. EIR Monitor
15180. EIR Monitor. The Secretary for Resources will provide
for publication of a bulletin entitled "California EIR Monitor" on a
subscription basis to provide public notice of amendments to the
Guidelines, the completion of draft EIR's and other matters as
deemed appropriate. Inquiries and subscription requests should be
sent to the following address:
Secretary for Resources
Attention: California EIR Monitor
1416 Ninth Street, Room 1311
Sacramento, California 95814
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SELECTED WATER
RESOURCES ABSTRACTS
INPUT TRANSACTION FORM
1. Report Ho.
3. A LC
No.
w
4. Title
California Environmental Quality Act:
Innovation 1n State and Local Declsionmaking
7. Author(s)
Thaddeus C. Trzyna and Arthur W. Jdkela
9. Organization
Center for California Public Affairs
Claremont, California
& Performing Organization
~ro.
iO. Protect No.
tion
is. supplementary Notes
Environmental Protection Agency Report
No. EPA-600/5-74-023, October 1971*
11. ComractfGranr Nu.
68-01-1818
23. Type of Report and
Period Coveted
Final Report
16. Abstract
The California Environmental Quality Act of 1970 requires State and local agencies to pre
pare an environmental impact report on public and private projects that may have a sig-
nificant effect on the environment. The development and current status of California's
environmental impact assessment program is described. CEQA's greatest impact has been
on private projects permitted by cities and counties. In many localities, environmental
Impact reports clearly influence decisions on such permits. Still, some State and local
agencies are not fully complying with CEQA, and the act's implementation is hampered by
the lack of a State agency with authroity and resources to enforce it. Based on Calif-
ornia's experience, some general recommendations are made for other States considering
adopting similar requirements.
Also, refer to EPA Report No. EPA-600/5-74-006, entitled Environmental Impaet
Requirements in the States; NEPA's Offspring.
17a. Descriptors
CEQA; NEPA
17b. Identifiers
17c. CO WRR Field & Group
16. Availability
ft
Abstractor
Send To:
WATER RESOURCES SCIENTIFIC INFORMATION CENTER
U.S. DEPARTMENT OF THE INTERIOR
WASHINGTON, D. C. 2O24O
Institution
v. WfeIC IO2 • «EV JUNE 1971)
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