15162.
Subsequent EIRs and Negative Declarations
(a) When an EIR
has been certified or a negative declaration adopted for a project, no
subsequent EIR shall be prepared
for that project unless the lead agency determines, on the basis of substantial
evidence in the light of the whole record, one or more of the following:
(1) Substantial changes are proposed in the
project which will require major revisions of the previous EIR or negative declaration due to the involvement
of new significant environmental effects or a substantial increase in the
severity of previously identified significant effects;
(2) Substantial changes occur with respect to
the circumstances under which the project is undertaken which will require
major revisions of the previous EIR
or Negative Declaration due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified
significant effects; or
(3) New information of substantial importance,
which was not known and could not have been known with the exercise of
reasonable diligence at the time the previous EIR
was certified as complete or the Negative Declaration was adopted, shows any of
the following:
(A) The project will have one or more
significant effects not discussed in the previous EIR
or negative declaration;
(B) Significant effects previously examined
will be substantially more severe than shown in the previous EIR;
(C) Mitigation measures or alternatives
previously found not to be feasible would in fact be feasible, and would
substantially reduce one or more significant effects of the project, but the
project proponents decline to adopt the mitigation measure or alternative; or
(D) Mitigation measures or alternatives which
are considerably different from those analyzed in the previous EIR would substantially reduce one or more
significant effects on the environment, but the project proponents decline to
adopt the mitigation measure or alternative.
(b) If changes to a project or its
circumstances occur or new information becomes available after adoption of a
negative declaration, the lead agency shall prepare a subsequent EIR if required under subdivision (a). Otherwise
the lead agency shall determine whether to prepare a subsequent negative
declaration, an addendum, or no further documentation.
(c) Once a project has been approved, the lead
agency's role in project approval is completed, unless further discretionary
approval on that project is required. Information appearing after an approval
does not require reopening of that approval. If after the project is approved,
any of the conditions described in subdivision (a) occurs, a subsequent EIR or negative declaration shall only be prepared
by the public agency which grants the next discretionary approval for the
project, if any. In this situation no other responsible agency shall grant an
approval for the project until the subsequent EIR
has been certified or subsequent negative declaration adopted.
(d) A subsequent EIR
or subsequent negative declaration shall be given the same notice and public
review as required under Section 15087 or Section 15072. A subsequent EIR or negative declaration shall state where the
previous document is available and can be reviewed.
Note: Authority
cited: Public Resources Code Section 21083; Reference: Section 21166, Public
Resources Code; Bowman v. City of
Petaluma (1986) 185 Cal.App.3d 1065; Benton
v. Board of Supervisors (1991) 226 Cal.App.3d 1467; and Fort Mojave Indian Tribe v. California
Department of Health Services et al. (1995) 38 Cal.App.4th 1574.
Discussion:This
section implements the requirements in Section 21166 of CEQA which limit
preparation of a subsequent EIR to
certain situations. This section provides interpretation of the three
situations in which the statute requires preparation of a subsequent EIR. These interpretations are necessary to add
certainty to the process.
This section also clarifies that a
subsequent EIR may be prepared
where a negative declaration had previously been adopted. Further, a subsequent
negative declaration may be adopted where none of the situations described in
subsection (a) have occurred.
Subsections (b) and (c) explain
which agency would have responsibility for preparing a subsequent EIR under different circumstances. A subsequent EIR must, of course, receive the same circulation
and review as the previous EIR.
Fund for Environmental Defense v. Orange (1988) 204 Cal. App. 3d
1538, contains a discussion of the application of §15162 and §15163. The Court
in Bowman v. Petaluma (1986) 185 Cal.
App. 3d 1065 distinguished requirements for a subsequent EIR from the threshold required for initial EIR preparation, saying "whereas §15064 (§21151
PRC) requires an EIR if the
initial project may have a significant effect on the environment, §15162
(§21166 PRC) indicates a quite different intent, namely, to restrict the powers
of agencies by prohibiting them from requiring a subsequent or supplemental EIR unless "substantial changes" in the
project or its circumstances will require major revisions to the EIR. §15162 (§21166 PRC) comes into play precisely
because in-depth review has already occurred, the time for challenging the
sufficiency of the original EIR
has long since expired, and the question is whether circumstances have changed
enough to justify repeating a substantial portion of the process.
15164.
Addendum to an EIR or Negative
Declaration
(a) The lead agency or responsible agency
shall prepare an addendum to a previously certified EIR
if some changes or additions are necessary but none of the conditions described
in Section 15162 calling for preparation of a subsequent EIR have occurred.
(b) An addendum to an adopted negative
declaration may be prepared if only minor technical changes or additions are
necessary or none of the conditions described in Section 15162 calling for the
preparation of a subsequent EIR or
negative declaration have occurred.
(c) An addendum need not be circulated for
public review but can be included in or attached to the final EIR or adopted negative declaration.
(d) The decision making body shall consider
the addendum with the final EIR or
adopted negative declaration prior to making a decision on the project.
(e) A brief explanation of the decision not to
prepare a subsequent EIR pursuant
to Section 15162 should be included in an addendum to an EIR, the lead agency's findings on the project, or
elsewhere in the record. The explanation must be supported by substantial
evidence.
Note: Authority
cited: Public Resources Code Section 21083; Reference: Section 21166, Public
Resources Code; Bowman v. City of
Petaluma (1986) 185 Cal.App.3d 1065; and Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467.
Discussion: This
section is designed to provide clear authority for an addendum as a way of
making minor corrections in EIRs and negative declarations without
recirculating the EIR or negative
declaration.
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