Recirculation of an EIRDecember 2013
In This Issue
South County Citizens for Smart Growth v. County of Nevada, KKP Lake of the Pines, LLC
Who is Douglas Herring & Associates?


Our clients often grapple with whether or not to recirculate an EIR for public review, be it in response to changes to the project, new mitigation strategies, or to addressEl Cerrito trees at dusk new information pertaining to the project's environ-mental effects. For that reason, we wanted to draw your attention to a recent CEQA decision addressing EIR recircu-lation by the Third Appellate District Court. The summary of the case was guest authored by our colleague Ethan Guy.   

As always, let us know if there's anything else we can do to help lighten your work load.


Doug Herring, AICP

Archive:  Our previous eAlerts are now archived at:  DHA eAlerts Archive  

[Photography by Douglas Herring] 

South County Citizens for Smart Growth v. County of Nevada, KKP Lake of the Pines, LLC   

On October 8, 2013, the Third Appellate District Court held in South County Citizens for Smart Growth v. County of Nevada, KKP Lake of the Pines, LLC that the California Environmental Quality Act (CEQA) does not require recirculation of a Draft EIR (DEIR) based upon staff-generated project alternatives added after the preparation of a Final EIR (FEIR) if these alternatives are "not significant." Additionally, the court held that the subsequent findings regarding the feasibility of the staff alternative are not required if adequate alternatives were proffered after the FEIR.

This court decision means that recirculation of a DEIR is not required simply because new information is added. The Court recognized that an FEIR will almost always include additional information from the DEIR and recirculation is intended to be an exception rather than a general rule. Only if the additional information is considered significant, as defined by CEQA Guidelines Section 15088.5, should recirculation be considered.

The Court further clarified that an express finding is also not required by CEQA on whether new information is considered significant. The Court held that an agency's decision to certify an EIR without recirculation or public comment implies that the additional information was not significant. Alternatively, if new information becomes available the agency can deem the information significant triggering revision and recirculation.Gaw Samui beach

The Smart Growth decision also addressed whether additional findings were needed for staff alternatives to the DEIR. The Court ruled that findings are not required for a new alternative introduced after the close of the public review period for the DEIR if the DEIR already included a reasonable range of alternatives to the proposed project. The Court held that per CEQA Guidelines Section 15126.6-c, a lead agency needs to provide reasons for rejecting an alternative during the scoping process, but if the alternatives are proposed after completion of an EIR, the lead agency is not required to provide findings for rejecting that alternative.

Finally, the court reiterated that an EIR's analysis must be upon the actual environment, which will determine the baseline decisions for which a lead agency will determine if an impact is significant. When this is applied to roadways, an agency can look at the existing conditions of the roadway rather than the label attached to the roadway (i.e. minor arterial or major collector) when determining the actual environment for the EIR's analysis.

You can read more of the nuances of the case in the full decision here:
South County Citizens v. County of Nevada.

Who Is Douglas Herring & Associates?

Douglas Herring & Associates (DHA) works with public agencies, developers, and other businesses in California to expertly obtain the environmental and planning approvals needed to move projects from the conceptual stage to physical, benefit-generating reality in an efficient and cost-effective manner.  Since 1997, DHA has helped dozens of California cities and counties and scores of other businesses and organizations save money while obtaining high-quality planning and environmental analysis services necessary to get their projects expeditiously approved and built. Learn more on our website:  Douglas Herring & Associates.
We invite you to pass this article along to colleagues who need the information and who may wish to subscribe themselves: DHA Free Tips(Please use the Forward link below to ensure that the hyperlinks will function in the forwarded message.)