Chapter 34 - Exemptions to CEQA
- What Does This Topic Include?
- CEQA Exemption Decision Tree
- Laws, Regulations and Guidance
- Definition of a CEQA Project
- Types of Agencies Under CEQA
- Statutory Exemption
- Ministerial Projects
- Emergency Exemptions
- Categorical Exemptions
- Exceptions to Categorical Exemptions
- Common Sense Exemption
- Preparing and Processing Exemptions
This chapter discusses the criteria that a project must meet to be exempt from the California Environmental Quality Act (CEQA) and the preparation and processing of the Categorical Exemption (CE) documentation for Caltrans projects. Local agencies may find this guidance useful for CEQA compliance for transportation projects for which they are the CEQA lead agency.See also Chapter 2 - State Requirements
- The California Environmental Quality Act of 1970 [Public Resources Code, Division 13, Sections 21000 et seq.]
- Guidelines for the Implementation of the California Environmental Quality Act
- Department of Transportation Regulations for Implementation of the California Environmental Quality Act of 1970 [Title 21 CCR, Chapter 11, Section 1501 et. seq.]
- Guidance for Determining CEQA Lead Agency Status for Project on the State Highway System
- Mandatory Filing of Notices of Exemption for Projects Subject to CEQA Gina Moran (March 21, 2012)
The first step in determining whether a public agency action is subject to the provisions of CEQA is to determine whether the action is a "project," as defined by CEQA (PRC Section 21065 and CEQA Guidelines Section 15378). The Guidelines define a "project" as the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is …an activity directly undertaken by any public agency including … public works construction and related activities. Under CEQA, "projects" must be discretionary, public agency actions which have the potential of affecting the environment.
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, where a private telecommunications company requires an encroachment permit to install equipment within 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:
- 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;
- The State Lands Commission with regard to state owned "sovereign" lands such as the beds of navigable waters and state school lands;
- The State Department of Parks and Recreation with regard to units of the State Park System;
- 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 California Department of Fish and Wildlife for its Section 1602 Lake or Streambed Alteration Agreement, and 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, as applicable, and file a Notice of Determination (NOD) with the California State Clearinghouse (SCH).
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.
The California Legislature has the power to create exemptions from the requirements of CEQA, and projects which fall under such exemptions can be made wholly or partially exempt, as determined by the Legislature. Projects that the Legislature has determined should be exempted from CEQA are found either in the statute itself or the CEQA Guidelines (Sections 15260-15285) and may be cross-referenced in codes other than the Public Resources Code. These actions are not subject to CEQA; however it is advisable that the Department includes documentation in the project file that offers evidence that the project is exempt by statute. The Categorical Exemption/Categorical Exclusion (CE/CE) form can be used to describe the project and indicate that it is exempt by statute.
Examples of the statutory exemptions that may apply to the Department’s activities include ministerial projects and emergency exemptions (see below); the establishment or modification of tolls; a project for the institution or increase of passenger or commuter services on rail or highway rights-of-way already in use, including modernization of existing stations and parking facilities; a project for the institution or increase of passenger or commuter service on high-occupancy vehicle lanes already in use, including the modernization of existing stations and parking facilities; facility extensions not to exceed four miles in length which are required for the transfer of passengers from or to exclusive public mass transit guideway or busway public transit services; the development of a regional transportation improvement program, the state transportation improvement program, or a congestion management program.
A ministerial action is a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. Such decisions use a series of fixed standards or objective measurements, and do not involve the use of personal or subjective judgments in deciding whether or how the project should be carried out. Examples of ministerial projects would include automobile registrations and some building permits limited to determining proper zoning. Ministerial actions, by definition, are not "projects" because they are not discretionary actions by a public agency.
Projects which require specific actions necessary to prevent or mitigate an emergency, can qualify for an exemption under CEQA (CEQA Guidelines 15269). An emergency exemption under CEQA does not necessarily remove the Department's responsibility to comply with other state laws nor does it have any bearing on compliance with federal laws. Informal consultation and further environmental studies may need to be initiated with applicable resource agencies, such as the U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, U.S. Coast Guard, California Coastal Commission, park officials, U.S. Department of Interior/National Park Service, Advisory Council on Historic Preservation, and State Historic Preservation Officer to obtain agreement on expedited environmental processes to address the requirements of other federal and state environmental laws. Please see the Emergency Projects and Environmental Compliance page for additional information.
An emergency is defined as "a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services. "Emergency" includes such occurrences as fire, flood, earthquake, or other soil or geologic movements, as well as such occurrences as riot, accident, or sabotage." The concept of "emergency" should be interpreted narrowly and would include such projects as the following:
- Projects to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster stricken area in which a state of emergency has been proclaimed by the Governor pursuant to the California Emergency Services Act. This includes projects that will remove, destroy, or significantly alter an historical resource when that resource represents an imminent threat to the public of bodily harm or of damage to adjacent property or when the project has received a determination by the State Office of Historic Preservation pursuant to Section 5028 (b) of Public Resources Code.
- Emergency repairs to publicly or privately owned service facilities necessary to maintain service essential to the public health, safety or welfare. Emergency repairs include those that require a reasonable amount of planning to address an anticipated emergency.
- Specific actions necessary to prevent or mitigate an emergency. This does not include long-term projects undertaken for the purpose of preventing or mitigating a situation that has a low probability of occurrence in the short-term, but this exclusion does not apply (i) if the anticipated period of time to conduct an environmental review of such a long-term project would create a risk to public health, safety or welfare, or (ii) if activities (such as fire or catastrophic risk mitigation or modifications to improve facility integrity) are proposed for existing facilities in response to an emergency at a similar existing facility.
- Projects undertaken, carried out, or approved by a public agency to maintain, repair, or restore an existing highway damaged by fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide, provided that the project is within the existing Right-of-Way of that highway and is initiated within one year of the damage occurring. This exemption does not apply to highways designated as official state scenic highways, nor any project undertaken, carried out, or approved by a public agency to expand or widen a highway damaged by fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide.
- Seismic work on highways and bridges pursuant to Section 180.2 of the Streets and Highways Code section 180 et seq.
The California Secretary for Natural Resources prepares and adopts a list of classes of projects which have been determined not to have a significant effect on the environment and are considered “exempt” from CEQA. These classes are known as “categorical exemptions.” However, a categorical exemption is conditioned by limitations defined in the Guidelines and by the statutory authorization limiting such exemptions to projects with no significant environmental effect (see below). The District/Region Senior Environmental Planner decides whether a project is eligible for a categorical exemption as part of the preliminary review of the project. The Department documents its determination that a project meets the criteria of a categorical exemption by completing the CE/CE form and retaining it in the project file. The list of exemption classes begins at Section 15301 in the CEQA Guidelines.
If the project is determined to be categorically exempt, the Department must consider whether the exemption is negated by an exception pursuant to CEQA Guidelines, Section 15300.2, and Public Resources Code, Section 21084. Such exceptions may apply under the following circumstances:
- The project site is environmentally sensitive as defined by the project's location. A project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant.
- The project and successive projects of the same type in the same place will result in cumulative impacts;
- There are "unusual circumstances" creating the reasonable possibility of significant effects;
- The project may result in damage to scenic resources, including, but not limited to, trees, historic buildings, rock, outcroppings, or similar resources, within an officially designated scenic highway, except with respect to improvements required as mitigation for projects for which negative declarations or EIRs have been prepared;
- The project is located on a site that the Department of Toxic Substances Control and the Secretary of the Environmental Protection have identified, pursuant to Government Code section 65962.5, as being affected by hazardous wastes or clean-up problems; or
- The project may cause a substantial adverse change in the significance of an historical resource.
If a project is not statutorily exempt and a categorical exemption does not apply, it may qualify for the common sense exemption (CEQA Guidelines 15061(b)(3)). If 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. Document the use of the common sense exemption on the CE/CE form.
The appropriate CE/CE form must be completed and shall include:
- Project Description: The project description should fully describe the action to be undertaken, including the project objectives (purpose and need), location, project limits, construction activities such as shoulder backing, culverts, staging areas and facilities, disposal and borrow sites required, any right-of-way requirements (such as acquisition), utility relocations, and construction activities that may require temporary facilities such as roads, detours, or ramp closures. Any state or federal permit or consultation requirements should be noted.
- A finding that the project is exempt from CEQA, including documentation of which type of exemption; statutory, categorical (state which class), or common sense.
- A brief statement of reasons to support the finding.
- Document signatures by the Project Manager and the District/Region Senior Environmental Planner.
The CE/CE form must be retained in the Project file along with any documentation to support its conclusions.
When the District/Region Senior Environmental Planner determines that a project on the State Highway System is exempt from CEQA and has signed the CE/CE form, a Notice of Exemption (NOE) must be filed with the SCH. The NOE shall be filed only after the project has been approved (CEQA Guidelines Section 15062). Typically, "project approval" means that the Project Report or equivalent is approved by the District Director or designee. For more information on the various types of project approval documents, please refer to the Project Development Procedures Manual Chapter 12.
The NOE serves as public notice that a project that is exempt from CEQA has been approved. The filing of an NOE and the posting on the list of notices starts a 35-day statute of limitations period on legal challenges to the agency's decision that the project is exempt from CEQA.
The procedures outlined below should be followed when filing the NOE:
- The notice is filed with the SCH. A form for this notice can be found on the Forms and Templates page of the SER. The notice is posted for a period of 30 days. It is not necessary to file a copy of the CE/CE form with the NOE. It is recommended that the District print and retain a copy of the NOE from SCH's CEQAnet Database as a record of the receipt date.
- When a local agency files this notice, the NOE must be filed with the county clerk of each county in which the project will be located. Copies of all such notices shall be available for public inspection and such notices shall be posted within 24 hours of receipt in the office of the county clerk. Each notice shall remain posted for a period of 30 days. Thereafter, the clerk shall return the notice to the local agency with a notation of the period it was posted. The local agency shall retain the notice for not less than 9 months.
- When Caltrans is the CEQA lead agency, filing the NOE with the county clerk is optional. Please be advised that California Government Code Section 26857 states that "No fee shall be charged by the clerk for service rendered to any municipality or county in the state, or to the state or national government, nor for any service relating thereto."