The lead agency shall prepare a final EIR before approving the project. The contents of a final EIR are specified in 14 CCR Section 15132 of the CEQA Guidelines. Lead agencies may provide an opportunity for review of the final EIR by the public or by commenting agencies before approving the project. The review of a final EIR should focus on the responses to comments on the draft EIR.
Certification of the Final EIR
Prior to approving a project, the lead agency shall certify that:
- The final EIR has been completed in compliance with CEQA;
- The final EIR was presented to the decision-making body of the lead agency, and that the decision-making body reviewed and considered the information contained in the final EIR prior to approving the project; and
- The final EIR reflects the lead agency’s independent judgment and analysis.
When an EIR is certified by a non-elected decision-making body within a local lead agency, that certification may be appealed to the local lead agency’s elected decision-making body, if one exists. For example, certification of an EIR for a tentative subdivision map by a city’s planning commission may be appealed to the city council. Each local lead agency shall provide for such appeals.
No public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings for each of those significant effects, accompanied by a brief explanation of the rationale for each finding. The possible findings are:
- Changes or alterations have been required in, or incorporated into, the project that avoid or substantially lessen the significant environmental effect as identified in the final EIR.
- Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency.
- Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR.
After considering the final EIR and in conjunction with making findings under 14 CCR Section 15091, the lead agency may decide whether or how to approve or carry out the project. A public agency shall not decide to approve or carry out a project for which an EIR was prepared unless either the project as approved will not have a significant effect on the environment, or the agency has:
- Eliminated or substantially lessened all significant effects on the environment where feasible as shown in findings under Section 15091, and
- Determined that any remaining significant effects on the environment found to be unavoidable under Section 15091 are acceptable due to overriding concerns as described in Section 15093.
Statement of Overriding Considerations
CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technical, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technical, or other benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered “acceptable.”
When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record. If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to 14 CCR Section 15091.
Notice of Determination
The lead agency shall file a notice of determination (NOD) within 5 working days after approval of the project by the lead agency. The notice shall include:
- An identification of the project including its common name where possible and its location.
- A brief description of the project.
- The date when the agency approved the project.
- The determination of the agency whether the project in its approved form will have a significant effect on the environment.
- A statement that an EIR was prepared and certified pursuant to the provisions of CEQA.
- Whether mitigation measures were made a condition of the approval of the project.
- Whether findings were made pursuant to Section 15091.
- Whether a statement of overriding considerations was adopted for the project.
- The address where a copy of the final EIR and the record of project approval may be examined.
- If a state agency is the lead agency, the NOD shall be filed with the State Clearinghouse.
If a local agency is the lead agency, the NOD shall be filed with the County Clerk of the county or counties in which the project will be located. If the project requires discretionary approval from a state agency, the NOD shall also be filed with the State Clearinghouse. A NOD filed with the State Clearinghouse is available for public inspection and shall be posted for a period of at least 30 days.
A NOD filed with the County Clerk is available for public inspection and shall be posted within 24 hours of receipt for a period of at least 30 days. Thereafter, the clerk shall return the notice to the local lead agency with a notation of the period during which it was posted. The local lead agency shall retain the notice for not less than 12 months. The filing of the NOD and the posting of such notice starts a 30-day statute of limitations on court challenges to the approval under CEQA; failure to file an NOD will allow a 180 day statute of limitations on court challenges..
Disposition of a Final EIR
The lead agency shall:
- File a copy of the final EIR with the appropriate planning agency of any city, county, or city and county where significant effects on the environment may occur.
- Include the final EIR as part of the regular project report that is used in the existing project review and budgetary process if such a report is used.
- Retain one or more copies of the final EIR as public records for a reasonable period of time.
- Require the applicant to provide a copy of the certified, final EIR to each responsible agency.