The California Environmental Quality Act (CEQA) is a statute that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible. CEQA applies to certain activities of state and local public agencies. A public agency must comply with CEQA when it undertakes an activity defined by CEQA as a “project.” A project is an activity undertaken by a public agency or a private activity which must receive some discretionary approval (meaning that the agency has the authority to deny the requested permit or approval) from a government agency which may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in the environment.
The environmental review required during the CEQA process imposes both procedural and substantive requirements. If a proposed action is determined to be a “project” under CEQA, then at a minimum, an initial review, called an Initial Study (IS), of the project and its environmental effects must be conducted. The review is led by a “lead agency”, which is the agency conducting the action or permitting the discretionary action. Depending on the potential effects, a further, and more substantial, review may be conducted in the form of a Mitigated Negative Declaration or an Environmental Impact Report. A project may not be approved as submitted if feasible alternatives or mitigation measures are able to substantially lessen the significant environmental effects of the project.
Certain actions are not considered “projects” under CEQA, and are exempt from the environmental review process because they “have been determined not to have a significant effect on the environment”.
Commonly Used Exemptions (reference: this website)
- Class 1 is the “existing facilities” exemption. (Guidelines §15301)
- Class 2 consists of replacement or reconstruction of existing structures and facilities. (Guidelines §15302)
- Class 3 consists of construction of small structures. (Guidelines §15303)
- 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. (Guidelines §15307)
- Class 8 consists of actions taken by regulatory agencies to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.(Guidelines §15308)
Initial Study (IS)
An IS is prepared when a proposed action is determined to be a “project” under CEQA.
The IS is a checklist that asks specific questions about the project’s level of environmental impacts in the following categories:
- Agriculture and Forest Resources
- Air Quality
- Biological Resources
- Cultural Resources
- Geology and Soils
- Greenhouse Gas Emissions
- Hazards and Hazardous Materials
- Hydrology and Water Quality
- Land Use and Planning
- Mineral Resources
- Population and Housing
- Public Services
- Utilities and Service Systems
- Cumulative Impacts/Human Impacts
The CEQA checklist includes the following six questions regarding the level of impacts to biological resources:
Section IV. BIOLOGICAL RESOURCES — Would the project:
- Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service?
- Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department of Fish and Game or US Fish and Wildlife Service?
- Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means?
- Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites?
- Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance
- Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan?
Next to each question in the IS checklist is a series of 4 boxes, and you check one of the following levels of impact anticipated for each question:
- No Impact
- Less Than Significant Impact
- Less Than Significant with Mitigation Incorporated
- Potentially Significant Impact
CEQA defines “Significant” as:
“Substantial or potentially substantial adverse change to any of the physical conditions within the area affected by the project…”
CEQA defines “Mitigation” as:
“…feasible measures which could minimize significant adverse impacts…”
The level of environmental review of the project is determined by which boxes are checked on the checklist.
1. Negative Declaration (ND)
If the IS checklist has “No Impact” or “Less Than Significant Impact” for all categories and questions it qualifies as a Negative Declaration (ND). CEQA defines a ND as:
“a written statement describing the reasons that a proposed project will not have a significant effect on the environment”
A written justification for the findings of each question in the IS checklist must be included with a ND submitted during the CEQA process.
2. Mitigated Negative Declaration (MND)
If the IS checklist has a finding of “Less Than Significant with Mitigation Incorporated” for at least one of the questions (but no greater impacts) it qualifies as a Mitigated Negative Declaration (MND). CEQA defines an MND as:
“an ND for a project when the IS has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed ND and IS are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.”
The MND is typically a larger document than the ND that has a written mitigation strategy for each of the potentially significant impacts, and a thorough justification for why the strategy will reduce the potential impacts to a level that is truly “less than significant”. If biological resources are the reason for the mitigation, typically a biological resources technical study is completed to justify the findings and proposed mitigation.
Mitigation can include:
- Avoiding the impact altogether by not taking a certain action or parts of an action
- Minimizing impacts by limiting the degree or magnitude of the action and its implementation
- Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment
- Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action
- Compensating for the impact by replacing or providing substitute resources or environments
3. Environmental Impact Report (EIR)
If the IS checklist has a finding of “Potentially Significant Impact” for at least one of the questions an Environmental Impact Report (EIR) must be prepared. You do not need to complete the IS Checklist if you know that your project will have a Significant Impact, you can simply proceed with the EIR, but the IS Checklist must be completed if you are not sure if a Significant Impact will occur. CEQA defines an EIR as:
“…a detailed statement prepared under CEQA describing and analyzing the significant effects of a project and discussing ways to mitigate or avoid the effects”
A review of the environmental impacts of all reasonable alternatives to the proposed project is the major difference between a MND and an EIR. One of the alternatives that must be reviewed in the EIR is the no project alternative, which would review the environmental effects of leaving things as they are currently. Among all the alternatives, the EIR identifies the environmentally superior alternative, which is the one that is agreed by the stakeholders (including the public) has the least impact to the environment in total.