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Last Updated: Thursday, December 19, 2013 8:29 AM

Chapter 35 - Initial Study and Negative Declaration

WHAT DOES THIS TOPIC INCLUDE?

This chapter discusses the preparation and processing of a CEQA Initial Study and Negative Declaration.

LAWS, REGULATIONS AND GUIDANCE

- See also Chapter 2 - State Requirements

Policy Memos

Types of Agencies Under CEQA

A Lead Agency is the public agency that has the principal responsibility for carrying out or approving a project. The Department is the lead agency for its own projects. The Department may also be lead agency for private projects that require Department approval, for example, a private telecommunications company proposing to install equipment with the Department’s right-of-way.

A responsible agency is any public agency other than the Department that has discretionary approval power over the project. A trustee agency means a state agency having jurisdiction by law over natural resources affected by a project that are held in trust for the people of the State of California. Trustee agencies include:

  1. The California Department of Fish and Wildlife with regard to the fish and wildlife of the state, to designated rare or endangered native plants, and to game refuges, ecological reserves, and other areas administered by the department;
  2. The State Lands Commission with regard to state owned "sovereign" lands such as the beds of navigable waters and state school lands;
  3. The State Department of Parks and Recreation with regard to units of the State Park System;
  4. The University of California with regard to sites within the Natural Land and Water Reserves System.

Common examples of responsible agencies include: the Regional Water Quality Control Board for its Section 401 Water Quality Certification , the Department of Fish and Wildlife for its Section 1602 Lake or Streambed Alternation Agreement, the Office of Historic Preservation for its concurrence on affected cultural resources.

The Department can also be a responsible agency for non-Department projects that impact the Department’s facilities, for example, where a city will need to obtain an encroachment permit for conducting work within the Department’s right-of-way.

Responsible agencies must actively participate in the lead agency’s CEQA process and consider the lead agency’s environmental document prior to acting upon or approving the project. The responsible agency must certify that it reviewed and considered the information contained in the lead agency’s CEQA document. The responsible agency must also prepare and issue its own findings regarding the project.

Generally, a responsible agency must accept the lead agency’s environmental document as legally adequate. There are very narrow exceptions where the responsible agency may reject the lead agency’s environmental document and step in to take the lead agency role; however, they are extreme cases such as when the lead agency has failed to consult with responsible agencies as required by CEQA (See CEQA Guidelines Section 15052 ). Therefore, responsible agencies must participate early and actively in the lead agency’s CEQA process to ensure its concerns are met.

DEFINITION AND PURPOSE OF AN INITIAL STUDY

An Initial Study (IS) is a preliminary analysis which is prepared to determine the relative environmental impacts associated with a proposed project. It is designed as a measuring mechanism to determine if a project will have a significant adverse effect on the environment, thereby triggering the need to prepare a full environmental Impact Report (EIR). It also functions as an evidentiary document containing information which supports conclusions that the project will not have a significant environmental impact or that the impacts can be mitigated to a “Less Than Significant” or “No Impact” level.

If there is no substantial evidence, in light of the whole record before the agency, that the project may have a significant effect on the environment, the shall prepare a Negative Declaration (ND) . If the IS identifies potentially significant effects, but: (1) revisions in the project plans or proposals would avoid the effects or mitigate the effects to a point where clearly no significant effects would occur, and (2) there is no substantial evidence, in light of the whole record before the agency, that the project as revised may have a significant effect on the environment, then a Mitigated Negative Declaration (MND) shall be prepared.

EARLY CONSULTATION

Once it is determined to prepare an initial study, the lead agency must consult with all responsible agencies and trustee agencies responsible for resources affected by the project. Coordination should take place at the earliest appropriate time with all local, regional, state and federal agencies having jurisdictional authority over the project. At this stage of the process, the significant environmental issues should be identified to facilitate assessing the potential impact of the proposed project. Upon request, the Office of Planning and Research (OPR), State Clearinghouse, will assist the District Office in determining the various responsible agencies for a proposed project.

PUBLIC PARTICIPATION AND PUBLIC NOTICE

Public participation is considered an essential part of the CEQA process and reflects a belief that citizens can make important contributions to environmental protections and notions of balanced decision-making through wide public involvement. CEQA does not require formal hearings at any stage of the environmental review process for an IS. However, CEQA does require public notice of the intent to adopt a ND or MND. To comply with CEQA and the CEQA Guidelines, the Department must provide a notice of intent to adopt a negative declaration or mitigated negative declaration to the public, responsible agencies, trustee agencies, and the county clerk of each county within which the proposed project is located, sufficiently prior to adoption by the lead agency of the negative declaration or mitigated negative declaration to allow the public and agencies the 30 day review period. The Department must mail a notice of intent to adopt a negative declaration or mitigated negative declaration to the last known name and address of all organizations and individuals who have previously requested such notice in writing and must also give notice of intent to adopt a negative declaration or mitigated negative declaration by at least one of the following procedures to allow the public the 30 day review period:

  1. Publication at least one time in a newspaper of general circulation in the area affected by the proposed project. If more than one area is affected, the notice must be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas.
  2. Posting of notice on and off site in the area where the project is to be located.
  3. Direct mailing to the owners and occupants of contiguous property shown on the latest equalized assessment roll.

As a matter of Department policy, the Notice of Intent to Adopt an ND or MND must be published in the local paper.

For further information regarding public notices and public hearings, please see Chapter 37 of the Standard Environmental Reference and Chapter 11 and Appendix HH of the PDPM.

PREPARING AN INITIAL STUDY

Although the CEQA Guidelines do not dictate the precise format required for an initial study, certain information is required and is considered fundamental to analyzing the potential impacts associated with a proposed project, an initial study must contain the following [CCR Title 14, Section 15063]:

  • Information identifying the project’s environmental effects, if any, by use of a checklist, matrix, or other method, provided that entries on a checklist or other form are briefly explained to indicate that there is some evidence to support the entries. The brief explanation may be either through a narrative or reference to another information source such as an attached map, photographs, or an earlier EIR or negative declaration. A reference to another document should include a citation to the page or pages where the information is found.
  • A discussion of the ways to mitigate the significant effects identified, if any,
  • An examination of whether the project would be consistent with existing zoning, plans, and other applicable land use controls; and
  • The name of the person or persons who prepared or participated in the initial study.

Project Description

The Project Description performs as a type of road map providing information which characterizes the project’s goals and objectives. It’s intended to describe the project providing sufficient detail to set forth the baseline of information for use as a foundation in analyzing the specific media components later in the document. The project description should describe the project’s activities, identify and discuss any jurisdictional issues relating to project commencement such as the acquisition of applicable permits, project duration, location and a listing of related environmental review and consultation requirements mandated by federal, state or local laws, regulations or policies [CCR Title 14, Section 15124]. Additionally, the project description should include an attachment of site, regional and vicinity maps to give the reader a sense of geographical location respecting the project site and its surroundings.

Environmental Effects

The lead agency must undertake a reasonable investigation of potential impacts when it prepares an Initial Study. The Initial Study checklist must be completed, and each answer must include a fact-based explanation. The discussion will normally include the following information:

  • Description of the affected resource.
  • Technical report(s) on which the information is based.
  • Statutory or regulatory standards for evaluating level or severity of impacts.
  • Criteria of impact evaluation where no statutory or regulatory standard is established.
  • Any consultation or regulatory reviews undertaken and their outcome.

For each resource, the Initial Study must address a number of impact types:

  • long-term impacts (the project and its operation)
  • short-term construction-related impacts
  • direct and indirect impacts
  • cumulative impacts

If the Initial Study determines that there will be no significant direct or indirect impact on the environment, prepare a Negative Declaration.

If the Initial Study determines that the proposed action, with the incorporation of identified mitigation measures, will not have a significant effect on the environment, prepare a Mitigated Negative Declaration.

If the Initial Study concludes that there may be significant direct or indirect impact on the environment, after mitigation, an Environmental Impact Report is required.

For more specific discussion and guidance on assessing potential impacts of a proposed project, consult specific environmental resource chapters (Chapters 7 through 28) on the SER.

Mitigation Measures

When significant environmental effects are identified, the Lead Agency will propose feasible mitigation measures to address each adverse effect. Under CEQA, mitigation measures may include the following:

  • Avoid
  • Minimize
  • Rectify (repair, rehabiltiate, or restore)
  • Reduce or eliminate the impact over time by preservation and maintenance during the life of the action
  • Compensate, replace, create.

As noted above, under “Environmental Effects,” a public agency (the Caltrans District environmental office) will prepare a Negative Declaration (ND) when:

  • The Initial Study shows that there is no substantial evidence, in light of the whole record before the agency, that the project may have a significant effect on the environment.

Or a Mitigated Negative Declaration (MND) when,

  • The initial study identifies potentially significant effects but:
    • Revisions in the project plans or proposals made by, or agreed to by the applicant before a proposed mitigated 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 effects would occur; and,
    • There is no substantial evidence, in light of the whole record before the agency, that the project as revised may have a significant effect on the environment.

When adopting an MND, the Caltrans District Office adopts a reporting or monitoring program for the changes made to the project. The reporting or monitoring program is designed to ensure compliance during project implementation.

A tool that is available to ensure that environmental commitments are fulfilled in the post-PA&ED phase is the PS&E Tool. The SER provides guidance (with examples) on the Environmental Commitment Record. Further guidance on mitigation monitoring and reporting during and after construction are being developed.


Notice of Intent to Adopt a Negative Declaration or Mitigated NEGATIVE Declaration

The Office of Planning and Research, State Clearinghouse review of a Negative Declaration (ND) or Mitigated Negative Declaration (MND) with accompanying Initial Study is required when a state agency such as Caltrans is the Lead Agency, a Responsible Agency, a Trustee Agency, or otherwise has jurisdiction by law over a project.

When the Department approves an ND or MND and Initial Study for public circulation, copies of the document and the Notice of Completion are submitted to the State Clearinghouse. For up-to-date information on the State Clearinghouse submittal process, including number of copies, go to their website

When a proposed ND or MND have been submitted to the State Clearinghouse, the review period is not less than 30 calendar days, unless a shorter review period is approved by the State Clearinghouse.

The Department must provide a Notice of Intent (NOI) to adopt an ND or MND to the public, responsible agencies, trustee agencies, and the county clerk of each county in which the proposed project is located.

The Department must mail the NOI to the last known name and address of all organizations and individuals who have previously requested such notice in writing and must also provide an NOI through at least one of the following procedures to allow the public a 30 calendar day review period:

  1. Publication at least one time in a newspaper of general circulation in the area affected by the proposed project. If more than one area is affected, the notice must be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas.
  2. Posting of notice on and off site in the area where the project is to be located.
  3. Direct mailing to the owners and occupants of contiguous property shown on the latest equalized assessment roll.

The NOI includes the following information:

To avoid expense and duplication of effort, the Notice of Intent to adopt a Negative Declaration or Mitigated Negative Declaration is combined with the Notice of Public Hearing or Notice of Opportunity into one notice.

Chapter 11, Article 2 and Appendix HH of the Project Development Procedures Manual provide detailed information on the format and publication of these notices.
  • A brief description of the proposed project and its location.
  • The starting and ending dates for the review period during which the Lead Agency will receive comments on the proposed ND or MND, including starting and ending dates for the review period.
  • The date, time, and place of any scheduled public meetings or hearings to be held by the Lead Agency on the proposed project, when known at the time of notice.
  • The address or addresses where copies of the proposed ND or MND and all documents referenced in the proposed ND or MND are available for review. This location or locations must be readily accessible to the public during the lead agency’s normal working hours.
  • A description of how the ND or MND shall be provided in electronic format. (Added by AB 209, Statutes of 2011, which expanded Public Resources Code Section 21092(b)(1) to include this requirement.)
  • The presence of the site on any list of hazardous waste facilities, land designated as hazardous waste property, and hazardous waste disposal sites, and the information in the Hazardous Waste and Substances Statement required under Government Code, Section 65962.5 (f).
  • Other information specifically required by statute or regulation for a particular project or type of project.

 

Opportunity for Public Hearing or Public Hearing

Public hearings are encouraged, but not required as an element of the IS/ND process. However, the Project Development Procedures Manual (PDPM) requires a public hearing for any projects that:

  1. Require significant right of way
  2. Require substantial changes to the layout, or to the function of connecting roadways, or facility being improved,
  3. Have a significant adverse impact on abutting real property, or
  4. Have a significant environmental, economic, social, or other effect.

A "Notice of Opportunity" for a public hearing may be used to satisfy the requirement for a hearing if the project is non-controversial and a hearing request is unlikely. This can be determined by analysis of comments received from the public or local agencies or through prior contacts and information meetings.

Chapter 11, Article 7 of the PDPM includes a discussion of how to plan, prepare and conduct a public hearing.

Notice of the public hearing must be published in English in a newspaper having a general circulation in the vicinity of the proposed project, as well as in any foreign language and community newspapers with a substantial circulation in the area. Each notice must be published in a prominent location in the newspaper other than in the legal notices section and be published twice before the public hearing.

RECIRCULATION

A lead agency is required to recirculate a negative declaration when the document must be substantially revised after public notice of its availability has previously been given, but prior to its adoption [CCR Title 14, Section 15073.5]. A “substantial revisions” of the negative declaration shall mean:

A new, avoidable significant effect is identified and mitigation measures or project revisions must be added in order to reduce the effect to insignificance, or

The lead agency determines that the proposed mitigation measures or project revisions will not reduce potential effects to less than significance and new measures or revisions must be required. Recirculation is not required under the following circumstances:

  • Mitigation measures are replaced with equal or more effective measures.
  • New project revisions are added in response to written or verbal comments on the project’s effects identified in the proposed negative declaration which are not new avoidable significant effects.
  • Measures or conditions of project approval are added after circulation of new significant environmental effects and are not necessary to mitigate an avoidable significant effect.
  • New information is added to the negative declaration which merely clarifies, amplifies, or makes insignificant modifications to the negative declaration.

CONSIDERATION AND ADOPTION OF A NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION

Prior to approving a project, the decision-making body of the lead agency shall consider the proposed negative declaration or mitigated negative declaration together with any comments received during the public review process. The decision making body shall adopt the proposed negative declaration or mitigated negative declaration only if it finds on the basis of the whole record before it (including the initial study and any comments received), that there is no substantial evidence that the project will have a significant effect on the environment and that the negative declaration or mitigated negative declaration reflects the lead agency’s independent judgment and analysis [CCR Title 14, Section 15074].

When adopting a negative declaration or mitigated negative declaration, the lead agency shall specify the location and custodian of the documents of other material which constitute the record of proceedings upon which its decision is based.

When adopting a mitigated negative declaration, the lead agency shall also adopt a program for reporting on or monitoring the changes which it has either required in the project or made a condition of approval to mitigate or avoid significant environmental effects.

INTERNAL REVIEW AND APPROVAL

QA/QC Review

  • Technical Specialist Review
  • Internal Peer Review
  • Supervisor Review
  • Technical Editor Review

Each district or region has developed its own quality control plan. QA/QC review for ISs consists of four components. The first is a technical specialist review. This is in essence a review of the environmental document by the Project Development Team, including appropriate specialists and district units. The second is a peer review and should be performed by an associate or journey-level environmental planner/coordinator who is not directly involved with the project. The third review is a supervisor’s review of the document. The fourth review is a review by a technical editor.

QA/QC review should include all members of the Project Development Team!

 

In addition to readability, conciseness, focus on issues, and consistency, the reviewer should check for such things as format, content, clarity, and quality of exhibits, grammar, punctuation, and typographical errors. Some of these reviews may take place concurrently.

If requested by the District Environmental Office Chief, the draft IS may be submitted to the Headquarters Division of Environmental Analysis (DEA) Coordinator for a quality review.

Following the QA/QC review, the District will need to revise the Draft IS as necessary to resolve any conflicting comments or other issues.

The Draft IS must contain the unsigned proposed ND or proposed MND following the title sheet. The Draft IS becomes part of the Draft Project Report. Once the Draft Project Report is assembled, it is submitted to the District Director (or designee) for signature.

FILING A NOTICE OF DETERMINATION

Within five working days of approving a project for which it has approved a Negative Declaration or a Mitigated Negative Declaration, the Department must file a Notice of Determination (NOD) with the State Clearinghouse. (Filing with the county clerk of each involved county is optional.) The NOD must be signed by the Environmental Branch Chief and completed in full before the State Clearinghouse will post it. The Notice must also be sent to anyone previously requesting notice.

This notice starts a statute of limitation period and must contain enough information so that people can see whether the notice applies to the project with which they are concerned [CCR Title 14, Section 15705]. The Notice of Determination must include:

  • An identification of the project including its common name where possible, and it location.
  • A brief description of the project.
  • The date on which the agency approved the project.
  • The determination of the agency that the project will not have a significant effect on the environment.
  • A statement that a negative declaration or a mitigated negative declaration has been prepared pursuant to the provisions of CEQA.
  • The Address where a copy of the negative declaration or mitigated negative declaration may be examined.

When filing the NOD with the State Clearinghouse, the district must submit proof of payment of an environmental filing fee to the State Department of Fish and Wildlife (CDFW) if the document identified any potential impacts on fish or wildlife resources (see Fish and Game Code Section 711.4 ). A check made out to the Department of Fish and Wildlife should be sent to the State Clearinghouse along with the NOD. If the project will have no effect on fish and wildlife, the district can seek to have the fee waived by contacting the CDFW region in which the project is located, and obtaining CDFW's determination and documentation that the project is exempt from the fee. For further information, including current fees, please see the CEQA Environmental Document Filing Fees.

The State Clearinghouse cannot post a NOD without the required Fish and Wildlife filing fee or determination of fee exemption from CDFW. All notices filed pursuant to this section shall be available for public inspection and shall be posted for a period of at least 30 days, this starts the 30-day statute of limitations on court challenges to the approval under CEQA. Agencies must make 1 copy of the NOD for submission to OPR. Please refer to the CEQA Guidelines, Appendix D for an example of the NOD form.

The NOD, payment of the Fish and Wildlife (CDFW) filing fee (or determination of fee exemption from CDFW), and a copy of the final ND or MND are sent to:

State Clearinghouse
P.O. Box 3044
Sacramento, CA 95812-3044

ELECTRONIC SUBMITTAL

Public Resources Code 21082.1(c)(4) requires that a state lead agency, such as the Department, submit an electronic format of the IS/ND or IS/MND as well as hard copies of the document. Acceptable formats include word files and pdf files and should be submitted on a CD along with the hard copies of the document and the NOC.

California Transportation Commission (CTC) submittal process

For projects requiring action by the California Transportation Commission (CTC) - i.e., approval of funds and/or new public road connection and/or route adoption - a submittal package must be sent to the Division of Environmental Analysis for forwarding to the CTC. Click here for the CTC submittal instructions.

 

(Last content update:12/19/2013, JH)