The terms Negative Declaration or Mitigated Negative Declaration are sometimes misunderstood. A Negative Declaration or Mitigated Negative Declaration is simply a statement that a project will not create significant environmental harm, or that environmental impact has been mitigated to a less than significant level. A Negative Declaration (ND) or Mitigated Negative Declaration (MND) is issued after an Initial Study has been prepared. It is a "positive" outcome for the project. If a project is approved with the use of a Negative Declaration or Mitigated Negative Declaration, a Notice of Determination will be filed at the County Clerk’s Office stating that the project will not have a significant effect on the environment.
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The California Environmental Quality Act (CEQA), which became law in 1970, reigns as the broadest environmental protection law in California. CEQA is a statute that requires state and local agencies to identify the potentially significant environmental impacts of a project and to avoid or mitigate those impacts, if feasible.
The basic purposes of CEQA are to:
Most proposals for development will require the applicant to undergo at least some environmental review in compliance with CEQA. CEQA is required for projects that will have a substantial impact on the community. However, even small-size projects must follow the CEQA process, especially if they have adverse impacts on the environment.
The Act focuses on the project applicant bearing the burden of the cost as the community assesses the project. In short, the public does not pay for this process. CEQA requires the governing agency to review the project in its totality, not one-off smaller pieces. This ensures the broadest impact is weighed and measured throughout this process.
Under CEQA governing bodies will undergo some form of environmental review in the form of an Initial Study. The governing body or lead agency must determine if the proposed project will have a limited impact on the environment or a large impact. In the case of limited impact, a negative declaration is made. However, on larger impact projects, an Environmental Impact Report (EIR) must be prepared.
To follow CEQA guidelines, many documents must be generated. These documents include technical information about the project, the environment, traffic, air quality, aesthetics, etc. These documents also focus on applicable environmental laws and plans and how the impacts of said project can be reduced to a less than significant level.
A project is a proposal (or any part of a proposal) requiring discretionary approval, which may result in physical changes to the environment. The CEQA Guidelines provide a clear definition of a project (Governor’s Office of Planning and Research). Some examples of projects are applications to change adopted plans (i.e. General Plan Amendments), road widening projects, use permit requests, and subdivisions of property. The term "project" refers to the activity that causes the environmental impact.
CEQA only applies to projects that require discretionary approval by a government agency. A discretionary approval requires the use of judgment on the part of the approver. For example, if you want to change the zoning on your property to subdivide the property for a housing development, a discretionary action would need to be taken by the Board of Supervisors. This simply means that the Board of Supervisors has a choice to either approve or disapprove your request.
CEQA also applies to ministerial (non-discretionary) projects, however may qualify for an exemption as allowed by CEQA. A project requiring only ministerial approval simply involves a comparison of a project with specific standards or checklists and checking for compliance. For example, a County Building Department may check your house plans against electric and plumbing standards to make sure that the plan complies with adopted safety and sanitary regulations. Generally, the issuance of a building permit consistent with zoning and other land-use regulations is a ministerial action.
The CEQA Guidelines outline certain types of projects that are not expected to impact the environment to be exempt from environmental review requirements. Some examples of exempt classes of projects, known as Categorical Exemptions, are:
There are other exemptions under CEQA known as Statutory Exemptions. These are projects exempt from CEQA as determined by the State Legislature. For example, a project for restriping streets or highways to relieve traffic congestion or the installation of a new pipeline or the maintenance, or restoration of an existing pipeline as long as the project does not exceed one mile in length.
General Rule Exemptions are sometimes applied to proposals that are clearly not expected to impact the environment but do not fit into any of the specified exemptions categories of CEQA.
Even if a project is listed as an exempt class, it will be subject to environmental review if the lead agency determines that special circumstances exist that could result in an environmental impact. For example, a small parcel split that may otherwise be a candidate for an Exemption happens to be in the floodplain, contains special habitat, has a historic building, or other special characteristics that would trigger the need for environmental review. A project proposed on such a parcel is not likely to qualify for an exemption.
An Initial Study is a preliminary analysis of a project intended to:
An Initial Study is used to make a determination if potentially significant impacts would occur. If there are significant impacts, the Initial Study identifies mitigation measures to reduce impacts to less than significant levels. In Nevada County, an Initial Study consists of a written report that addresses such issues as land use, access/circulation, traffic generation, drainage, air quality, noise, biological resources, impacts to trees, cultural resources, provision of public services, etc. An Initial Study Checklist is part of the staff report and provides a summary of potential environmental impacts in each area analyzed.
The term “Significant Impact" means substantial damage to the physical environment. Harmful changes to land, water, air, biological resources, wildlife, mineral resources, noise levels, and cultural resources are examples of physical impacts which are to be avoided whenever possible. Projects that substantially pollute the water supply, use prime farmland for nonagricultural purposes, cause substantial flooding, erosion, or affect rare and endangered species generally result in significant adverse impacts upon the environment. In some cases, generally accepted or adopted thresholds of significance are used.
If thresholds are exceeded, a determination of significant impact is made. Independent judgment and local circumstances also come into play in deciding whether a project may have the potential to cause substantial environmental harm. During the evaluation process, impacts will be assessed and quantified so that scientifically based findings of significant impact can be accurately reported. Sometimes, significant impacts are identified which can be eliminated or significantly reduced using various mitigation measures.
A mitigation measure is a requirement that is placed on a project to reduce or eliminate environmental impacts that will be caused by building the project. For example, if a development causes the removal of native oaks trees, there may be a requirement to redesign the project to save more trees as well as a requirement to replace those trees that could not be saved. Another example of a mitigation measure is to build a sound wall between a housing project and a noisy street to reduce traffic noise impacts.
When an Initial Study indicates that a project has the potential to "significantly" impact the environment, CEQA requires that an EIR be prepared. An EIR is an informational document to be used by the decision-makers when making a decision about a project. CEQA does not require technical perfection in an EIR, but rather adequacy, completeness, and a good faith effort at full disclosure. In an EIR, significant environmental impacts (also called effects) are identified; methods (mitigation measures) for reducing or avoiding impacts are identified, and project alternatives are developed which seek to reduce or avoid environmental impacts.
Once the Final EIR (or MND in the case of a Mitigated Negative Declaration) is finished, the project planner can prepare the staff report for the hearing body/bodies. The environmental document only presents the results of an objective review based on facts. The staff report is the document that contains extensive staff analysis on the merits of the project and the recommendation as to whether a project should be approved or denied. The recommendation is based in part on the findings of the environmental review It also takes into account other considerations such as recommendations from an advisory commission such as the Agricultural Advisory Commission or the Nevada County Airport Land Use Commission. Also, the staff report ties in recommendations or findings from the General plan such as land use compatibility and consistency with established land-use policies. The actual decision to approve or deny a project rests with one or more of the following hearing bodies: Nevada County Board of Supervisors, Nevada County Planning Commission, or the Zoning Administrator.
Once all the information is generated and reviewed, the lead agency must make the final decision to permit the project. Nevada County has adopted procedures that require a public hearing for all environmental documents (Environmental Impact Report, Negative Declaration, and Mitigated Negative Declaration) to provide an opportunity for written or oral comments by interested parties. During the public hearing, the County’s Planning Commission and/or Board of Supervisors accept public testimony on the environmental document, as well as the project itself. While many projects go through the CEQA process without issue. Once the lead agency gives its final determination, anyone who objects or is adversely impacted can challenge the project’s approval. This action may further develop the project, bring additional mitigation or adaptation measures to the project.
The heart of CEQA is public disclosure. Public review is considered one of the most important parts of the CEQA process and is required under CEQA.