ENVIRONMENTAL IMPACT REVIEW PROCESS - 6826
Departments are responsible for demonstrating how a project complies with the California Environmental Quality Act (CEQA) prior to coming to the Board to request approval of any action for a given project. Legal statutes and related regulations covering CEQA can be found in Public Resource Code Section 21000 et seq. and its accompanying regulations, California Code of Regulations (CCR) 15000 et seq. Many actions brought before the Board for consideration and approval are “projects” within the definition of CEQA. These statutes and regulations set out the environmental review requirements for such projects.
Key definitions: For assistance on understanding the documents and notices required by CEQA, see the https://www.opr.ca.gov/ceqa/getting-started/. The webpage provides an explanation of the environmental process, definition of many common terms, and link to current guidelines. The following summarizes a few frequently used terms and describes what CEQA documents include:
1. Project per CEQA: The term project per CEQA is defined in CCR Section 15353 and includes, but is not limited to, an activity involving a lease, permit, or license issued to a person or entity.
2. Environmental Impact Report: An environmental impact report (EIR) is a detailed statement describing the significant environmental effects of a project, ways to mitigate or avoid the effects, and reasonable alternatives to the project. An EIR consists of draft and final documents. There are several types of EIR (focused, supplemental, program, etc.). An EIR is required when there is substantial evidence that a project may have a significant effect on the environment.
3. Negative Declaration: A negative declaration is used when the initial study for a project shows no substantial evidence that a project may have a significant effect on the environment. The declaration must include a copy of the initial study supporting the claim of no significant environmental impact or offsetting mitigation resulting in no significant environmental impact.
4. Categorical exemption: A categorical exemption is an exemption from CEQA based on one or more classes of actions/projects established in regulation. Each class of projects has been determined to not have a significant effect on the environment.
Related notices include:
1. Notice of determination: A notice of determination is a brief notice filed by the lead or responsible agency after it approves or determines to carry out a project or action that was subject to CEQA. For state projects, the notice is filed with the State Clearinghouse, Office of Planning and Research. Filing of this notice starts a 30-day statute of limitations. See CCR, Title 14, Division 6, for the contents of this notice. A notice of determination is used for both EIRs and negative declarations.
2. Notice of exemption: A notice of exemption is a brief notice that may be filed by the lead agency after it approves or determines to carry out a project or action that was exempt from CEQA because the project was ministerial, categorically exempt, etc. For state projects, the notice is filed with the State Clearinghouse. Filing of this notice starts a 35-day statute of limitations.
Department’s role: The lead agency has the responsibility for determining whether the project is subject to CEQA and how CEQA requirements are met. Departments must certify to the PWB that CEQA requirements have been met, including the expiration date for the statute of limitations.
Changes in circumstance: The department as lead agency ensures that there have been no changes in the project, site conditions, or other factors that may make it necessary to prepare additional environmental documentation. The need for additional documentation could arise for a variety of reasons, especially if there has been a substantial period between completion of the environmental review process and project submittal to the PWB. For example, if information becomes available that there is an unexpected problem of soil contamination within the project site, the lead agency may need to revise the previously approved environmental document. Other examples include the adoption of new regulatory standards that impose constraints on the project, changes in the setting of the project site such as the reduced availability of on-site utilities (water supplies, sewer service, etc.), increased traffic congestion, or the development of adjacent land uses that conflict with the project.
The department must also ensure that all projects remain in compliance with the environmental document prepared and adopted for each respective action. In some cases, it may be necessary to provide additional documentation to support the finding that the original environmental process remains valid. Both state and federal environmental review processes provide guidance on when supplemental or revised environmental documentation may be needed subsequent to the approval of a project.
PWB practices: Because resolution of CEQA concerns should generally precede PWB’s approval of state funds for a project, PWB follows these practices:
When processes should be completed: Departments must provide PWB with evidence that the state’s environmental review process has been completed by the lead agency (the public agency with primary authority for carrying out the action) prior to the required PWB action.
- For acquisition, this means prior to acquisition approval and potentially prior to site selection.
- For construction projects, this means prior to approval of preliminary plans or performance criteria.
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For build-to-suit/capitalized leases, this means prior to approval of the lease.
CEQA compliance outside the PWB process: CEQA requirements are not limited to projects reviewed by PWB. Actions not reviewed by PWB, such as minor capital outlay projects or deferred maintenance, may nonetheless constitute “projects” within the definition of CEQA and its accompanying regulations. Again, in each case the lead agency is responsible for determining the application of CEQA to each project and fulfilling the relevant requirements.