What is a Negative Declaration?
When faced with a discretionary project which is not exempt from the California Environmental Quality Act (CEQA), a Lead Agency must prepare an "initial study" to determine whether the project may have a significant adverse effect on the environment. If such an effect may occur, the Lead Agency must prepare an environmental impact report (EIR). If there is no substantial evidence for such an effect, or if the potential effect can be reduced to a level of insignificance through project revisions, a Negative Declaration can be adopted (Section 21080).
A mitigated Negative Declaration is used in the second situation. The statute provides that mitigated Negative Declarations are used "when the initial study 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 negative declaration and initial study 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" (Section 21064.5).
An initial study formalizes the Lead Agency's preliminary analysis to determine whether an EIR or Negative Declaration must be prepared. Most commonly, the initial study is based upon a checklist which illuminates the various environmental impacts which may result from development. The checklist, however, is only part of the initial study. The initial study also must explain the reasons for supporting the checklist findings and note or reference the source or content of the data relied upon in its preparation. Simply filling out an initial study checklist without citing supporting information is insufficient to show the absence of significant effects (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296). At the same time, keep in mind that the initial study is not intended to provide the full-blown analysis expected of a complete EIR (Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337 and San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608).
Supporting information may include specific studies which examine the potential significance of an anticipated environmental effect. It may include references to previous environmental documents or other information sources. In any case, a thorough, referenced initial study is a crucial part of the record supporting the Lead Agency's determination to prepare a mitigated Negative Declaration.
CEQA requires that the Lead Agency, through its initial study, review the whole of a project. A project must not be broken into smaller parts, each of which alone might qualify for a Negative Declaration, in an attempt to avoid preparing an EIR (Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151). The decision to prepare a mitigated Negative Declaration (and a Negative Declaration for that matter) must be grounded in an objective, good faith effort on the part of the Lead Agency to review the project's potential for significant impacts (Sundstrom v. County of Mendocino, supra).
Section 15071 of the CEQA Guidelines requires that the initial study be attached to any Negative Declaration circulated for public review. The purpose for this is to document the reasons supporting the finding that the project will not result in a significant effect. OPR recommends that prior to circulating a draft mitigated Negative Declaration the Lead Agency revise or annotate the initial study, if necessary, to reflect revisions to the project. The initial study circulated with a mitigated Negative Declaration should not indicate that there will be any significant effects of the project and should identify or reference the data which supports its determination that any potentially significant effects have been mitigated or avoided.
The original determination made on the basis of the initial study whether to prepare either a Negative Declaration or an EIR is subject to the "fair argument" test (Laurel Heights Improvement Assoc. v. U.C. Regents (1993) 47 Cal.4th 376). In other words, if a fair argument can be raised on the basis of "substantial evidence" in the record that the project may have a significant adverse environmental impact - even if evidence also exists to the contrary - then an EIR is required. A Negative Declaration is authorized when the Lead Agency determines that no substantial evidence exists supporting a fair argument of significant effect. A mitigated Negative Declaration applies when changes to the project or other mitigation measures are imposed which such that all potentially significant effects are avoided or reduced to a level of insignificance.
SB 919 adds to CEQA a definition of the term "substantial evidence" (subdivision (e), Section 21080). Although this does not affect application of the fair argument standard, it provides the Lead Agency a means by which to gauge the quality of evidence discovered during its review of a project. Similarly, a court examining the actions of the Lead Agency now has a consistent standard by which to judge the quality of the evidence which was before the Agency.
Pursuant to Section 21080, substantial evidence includes "facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." It does not include "argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment." Further, public controversy over the possible environmental effects of a project is not sufficient reason to require an EIR "if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment" (Section 21082.2).
Project Mitigation and Revision
There are two prerequisites to using a mitigated Negative Declaration:
A key question for the Lead Agency is: What level of mitigation or project revision is sufficient to avoid or eliminate a potential significant effect? There is no ironclad answer which would apply in every instance. The answer depends upon the specific situation; the Lead Agency must use its own independent and objective judgment, based on the information before it, to determine that "clearly no significant effect on the environment would occur" (Section 21064.5). Further, there must be evidence in the record as a whole to support that conclusion.
Pursuant to Section 15370 of the CEQA Guidelines, mitigation includes:
"(a) Avoiding the impact altogether by not taking a certain action or parts of an action.
"(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
"(c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment.
"(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
"(e) Compensating for the impact by replacing or providing substitute resources or environments."
Project revisions may include such things as changes in design, location, operations, or scope. Effective project revisions will perform any or all of the above functions (a) through (e).
Effective mitigation measures are those written in clear, declaratory language specifying what is required to be done, how it is to be done, when it is to be done, and who will be responsible for doing it. The words "will" and "shall" are preferred to "may" and "should" when directing an action. Furthermore, measures must be feasible to undertake and complete. Avoid measures that are conditional upon feasibility (i.e., required only "when feasible"), rather than applied directly or at a specified project stage. Also avoid deferred mitigation and mitigation measures consisting of monitoring and future studies not tied to performance standards and contingency plans (Sundstrom v. County of Mendocino, supra).
|Some jurisdictions require the applicant to sign the draft mitigated Negative Declaration, indicating agreement with the mitigation measures or project revisions included therein, prior to circulating the document. In others, the applicant and the agency may negotiate over the revisions or mitigation measures until they are mutually acceptable and enter into a more formal agreement. Whatever the procedure, agreement must be reached before the draft mitigated Negative Declaration is circulated for review and comment.|
A mitigated Negative Declaration is subject to the same consultation and notice requirements as any Negative Declaration (see Sections 21080.3, 21091, and 21092 for details on current requirements). Practitioners should note that AB 1888 shortened the minimum local review period for Negative Declarations from 21 to 20 days (a minimum of 30 days is still required for drafts submitted to the State Clearinghouse) and revised Section 21092 to require that the notice of a draft Negative Declaration include an address where copies of the draft and all documents referenced in the draft will be available for review during the comment period.
The Lead Agency must consider the comments it receives during the review period prior to adopting a mitigated Negative Declaration. If these comments include substantial evidence that a potential environmental effect may occur despite the project revisions or mitigation measures included in the mitigated Negative Declaration, the Lead Agency must either require further revisions to the project which would effectively avoid or mitigate that effect, or if that is not possible, prepare an EIR. Although not explicitly required by CEQA, OPR recommends that under the first circumstance the Lead Agency recirculate the revised mitigated Negative Declaration for review prior to acting on the project and adopting the document. This ensures that the public will have been afforded the chance to review the new mitigation measures as well as the revised project (Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337 and Perley v. County of Calaveras (1982) 137 Cal.App.3d 424). As before, the proponent must have agreed to or made the additional project changes before the mitigated Negative Declaration is recirculated.
Upon adopting a mitigated Negative Declaration, the Lead Agency must make both of the following findings:
Revising Mitigation Measures
If the lead agency concludes prior to approval of a project that one or more of the mitigation measures identified in the Negative Declaration are infeasible or otherwise undesirable, Section 21080(f) provides that the lead agency may delete those measures and substitute other equivalent or better measures without having to recirculate the mitigated Negative Declaration for review. The lead agency must: (1) hold a public hearing on the matter before substituting new mitigation measures; (2) impose the new measures as conditions of project approval or otherwise make them a part of the project approval; and (3) find that the new measures will effectively reduce potentially significant effects to a level of insignificance and will not cause any potentially significant effects of their own.
When a mitigation measure imposed as a condition of project approval is set aside by either an administrative body or a court, the lead agency's approval of the mitigated Negative Declaration for the project is invalidated and a new environmental review is required. However, pursuant to Section 21080(g), the lead agency may avoid invalidation and the need for a new environmental review if it substitutes equivalent or better measures. The procedure and findings for substituting new measures is the same as described above.
One court has held that after project approval an agency has some flexibility in interpreting the manner in which mitigation measures are complied with, within reasonable bounds. "[T]he agency's interpretation is reasonable in the CEQA context only if it imposes no significant new or adverse environmental impacts. Such a standard would promote the Legislature's expressed concern for balancing environmental considerations against the social and economic burdens of compliance with CEQA mandates" (Stone v. Board of Supervisors (1988) 205 Cal.App.3d 927, 934). Although the court allowed the defendant county to substitute one means of complying with a mitigation measure for its functional equivalent, it also implied that actually amending a mitigation measure would require further CEQA review.
Mitigation Monitoring or Reporting Program
|Upon approving a project for which a mitigated Negative Declaration is adopted, the Lead Agency must also adopt a mitigation monitoring or reporting program pursuant to Section 21081.6. The purpose of the program is to ensure compliance with the required mitigation measures or project revisions during project implementation. Section 21081.6 also requires that mitigation measures be adopted as conditions of approval. A detailed discussion of program requirements is contained in OPR's publication Tracking CEQA Mitigation Measures Under AB 3180.|
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