This page reviews 10 problems that may occur during the CEQA process.
1. The lead agency did not contact all responsible agencies.
In their normal capacity as lead agency, city and county planning departments do routinely prepare CEQA documents that are to be used by state state responsible and/or trustee agencies. If the project proponent were not forthcoming regarding required state agency approvals for their solid waste facility project, the lead agency may not be aware that they are required “…to consult informally with all responsible agencies and all trustee agencies responsible for resources affected by the project…”. They may not be aware of the role of the LEA and/or CalRecycle in the approval of solid waste facility permits (SWFPs). They may not be aware of the requirement to circulate CEQA documents to the State Clearinghouse when there is a state responsible and/or trustee agency.
Definition of a Responsible and State Agency: 14 CCR Sections 15381 and 15383
2. Early and/or complete consultation with responsible agencies.
The lead agency did not request early consultation with responsible agencies. Responsible agencies may have failed to respond to requests for consultation. The request for consultation may not be clearly identified, or understood by responsible agencies. The deadline for response may be too short for responsible agencies to generate a response.
Responsible agencies are required to use the lead agency’s CEQA for subsequent approvals to the lead agency’s approval. A responsible agency’s approval will usually focus on activities of a project that are germane to the agency’s statutory authority. The entitlements issued by the responsible agency frequently require a specialized or enhanced focus on activities which the agency is required to consider in their approval process. Therefore, a lead agency’s project focus may not be conducive to the responsible agencies’ needs in the CEQA process. Without a definitive source of data and information provided by each responsible agency for their approval, the CEQA document may be inadequate for the decision-making body to make an informed determination. Lack of response from a responsible agency is sometimes viewed as agreement relative to the lead agency findings.
If a responsible agency determines that the CEQA document prepared by the lead agency is inadequate for their approval(s), and the lead agency did not consult with the responsible agency prior to circulating the document, then the responsible agency may takeover the lead agency role on the project. If the lead agency consulted with the responsible agency regarding the project, and the responsible agency determines that the CEQA document is inadequate or incomplete, the responsible agency may choose litigation in order to get the CEQA document corrected.
References: 14 CCR Section 15052
Definition of a project: 14 CCR Section 15378
3. Project changes after review period ends and prior to approval of the project.
CEQA, by design, is initiated during the very early planning phases of a project. The CEQA process is initiated when an application is submitted for project/entitlement approval by a public agency, usually the local city or county planning department, and then CEQA is initiated predicated upon the entitlement requests. For example, a solid waste operator submits an application to the local planning department for a conditional use permit to operate a solid waste processing, transfer or disposal operation.
Based upon the restrictions for the particular land use zoning designations and zoning ordinances where the facility is to be located, the entitlement requests are predicated upon the particular land use restrictions of the [conditional] use permit. These restrictions may or may not be reflected in the terms and conditions of a solid waste facility permit. It is integral to the projects’ development that entitlements be approved prior to any capital investment by the project proponent. Inherently, a project plan will change due to facets that are either not anticipated or not foreseen until the time the project is under full and deliberate development. New information or changes in the project scope and/or design will frequently happen during project development. These differences or changes of the scope and parameters of the project by the proponent, if significant, may, or may not be of critical significant importance to the initial local approval, but frequently do render further scrutiny under CEQA for subsequent approval by responsible agencies like the CalRecycle and the local enforcement agency. The public and responsible agencies might not be informed of these changes. The lead agency may decide that the change does not warrant re-circulation. The changes might affect the comments and create new concerns of which the lead agency may not be aware.
4. The lead agency did not directly prepare an environmental document or review the prepared document for their approval prior to circulating it for public review.
Lead agencies have a wide variety of preferences on the preparation of an environmental document. Typically, a lead agency will send requests for proposals to private consultants and enter into a two-party contract. Under this scenario, a consultant will prepare an environmental document on behalf of the lead agency and the project applicant is given only minimal or no involvement in the process. Another scenario utilizes the three-party contract in which the agency, consultant and applicant all participate in the environmental document preparation. In lesser instances the applicant will prepare, or have prepared, an environmental document for the lead agency to use. Any agency that allows the applicant too much control over the CEQA document process could jeopardize it’s ability to defend the document if it is ever challenged. CEQA requires that the lead agency subject the draft environmental document to the lead agency’s own review and analysis and that the document must reflect the independent judgment of the lead agency. The lead agency is responsible for the adequacy and objectivity of the information, conclusions, and findings in the CEQA document sent out for public and agency review and comment. Without a complete and thorough review of the document, the lead agency may remain unaware of deficiencies in the document that it will be called upon to adopt or certify.
References: 14 CCR Section 15084
5. Lead agency did not circulate the document through the State Clearinghouse.
Lead agencies may consider all of the required approvals to be local and therefore may not have identified any State agencies as responsible agencies. Most solid waste facility projects will require permit action that requires concurrence by the CIWMB. Documents for projects requiring State agency approval must be circulated through the State Clearinghouse.
References: 14 CCR Section 15205
6. Misuse of exemptions
When the lead agency files a notice of exemption (NOE) for a project, it is their independent finding that the project proposal/activity under their purview/consideration is either not subject to CEQA or that the activity clearly does not “…have the potential for causing a significant effect on the environment”. The NOE is the notice of the finding of exemption and is not an environmental document. “The responsible agency complies with CEQA by considering the environmental impact report (EIR), [mitigated negative declaration (MND)] or negative declaration (ND) prepared by the lead agency and by reaching its own conclusions on whether and how to approve the project involved” [14, CCR, section 15096(a)].
A categorical exemption might be inappropriately cited, or it may not apply. An exemption might be applied without benefit of a preliminary review. Responsible Agencies might accept the exemption as being in compliance with CEQA without making a preliminary review of the project. Supporting information for an exemption may not have been available to responsible agencies to aid them in determining the appropriate use of the exemption for CEQA compliance.
A general rule for the application of a CEQA exemption of a project is “where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.” The primary overriding concern is whether, or not, there may be a ‘significant’ effect on the environment. CEQA defines a significant effect on the environment as “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.” Webster’s dictionary defines adverse as “unfavorable or harmful.” The degree to which an impact is considered unfavorable or harmful is substantial.
7. Responsible agency comments may conflict with those of other agencies.
This may lead to confusion if two agencies provide conflicting comments. CEQA provides that responsible agency comments “should focus on any shortcomings in the EIR, the appropriateness of using a negative declaration, or on additional alternatives or measures which the EIR should include. The comments shall be limited to those project activities which are within the agency’s area of expertise or which are required to be carried out or approved by the agency or which will be subject to the exercise of powers by the agency.” This does not preclude that responsible agencies’ comments will not overlap, as certain regulations will have communal authority (e.g. Title 27, California Code of Regulations). Coordination between responsible agencies regarding comments is prudent, but arranging such meetings may be difficult because of the short turn-around times for comments to be forwarded to the lead agency. Therefore, in a circumstance which clearly involves some regulatory overlap, it would be very helpful in preparing meaningful comments to consult with, or coordinate comments with, other [State] agencies reviewing the project.
References: 14 CCR Sections 15096(d); 15204; 15205
8. Lead agency did not provide notice of the availability of the environmental document for public review or did not notice the date when the project approval will be considered.
The CEQA process requires appropriate noticing of the circulation of an environmental document, public hearings on the project proposal, and document availability to those parties, both public and private, whom have a vested interest in the project. Noticing that meets the minimum requirements of CEQA may be inadequate in reaching the members of the public most concerned with the project, therefore, doing more noticing than required to reach those interested parties would be beneficial.
References: 14 CCR Review of Environmental Documents
9. Lead agency did not consider comments from responsible agencies.
Comments provided by responsible agencies often times reflect issues directly related to that agency’s regulatory authority concerning project activities which are within that agency’s expertise and/or powers, or which are required to be carried out or approved by the agency. When a permit is to be considered by a responsible agency for project approval, there will be specific quantitative values governing the size and scope of the project. Those quantitative values must be addressed in the CEQA document proposal, or project description, and analyzed in the impact(s) assessment, or initial study, of the CEQA document. In other words, if there are limits or restrictive values in the permit, then those values must be proposed and analyzed in the environmental documentation being used to support the decision to issue or deny the permit.
If the responsible agency’s approval criteria are not addressed in the project description of the CEQA document, 14 CCR Section 15096(e)(4) provides that a responsible agency may “Assume the lead agency role as provided in 14 CCR Section 15052(a)(3) if [the] responsible agency believes that the final EIR or negative declaration prepared by the lead agency, is not adequate for use by the responsible agency….”
If the responsible agency believes that the environmental analyses is incorrect or inadequate, 14 CCR Section 15096(e)(1) provides that a responsible agency may “Take the issue to court within 30 days after the lead agency files a notice of determination;” or within 180 days of the commitment to go ahead or approve the project where a notice of determination is not filed.”
Reference: 14 CCR Section 15112(c)(5)
10. Lead agency did not file a notice of determination (NOD) with the county clerk and/or State Clearinghouse.
The filing of a notice of determination (NOD) reduces the opportunity for legal challenge to the project approval and informs responsible agencies of the conclusion of the CEQA process. It also provides a definitive date on which the project was approved and which documents were utilized to support the approval.
If the responsible agency believes that the environmental analyses in the CEQA document is incorrect or inadequate, 14 CCR Section 15096(e)(1) provides that a responsible agency may “…take the issue to court within 30 days after the lead agency files a NOD, or within 180 days of the commitment to go ahead or approve the project where a NOD is not filed.”