NEPA and CEQA:

Integrating Federal and State Environmental Reviews

February 2014
 Table of Contents

I. Introduction: .............................................................................................................................................. 1
II. Questions and Answers............................................................................................................................. 3
A. Stage 1: Preliminary Questions ......................................................................................................... 3
1. What Activities Require Environmental Review? ......................................................................... 3
2. What Level of Environmental Review is Needed? ........................................................................ 5
Table 1: Summary and Comparison of NEPA and CEQA Processes .............................................. 7
3. How Does NEPA and CEQA Terminology Differ? .......................................................................... 8
a. “Action” (NEPA) versus “project” (CEQA): ................................................................................ 8
b. Significance: .............................................................................................................................. 8
c. Agency Designations: ................................................................................................................ 9
d. Categorical Exclusion versus Categorical Exemption: ............................................................... 9
e. Environmental Assessment and Finding of No Significant Impact versus Initial Study and
Negative Declaration: ..................................................................................................................... 10
Table 2: Comparison of the EA and IS Processes ........................................................................ 11
f. Environmental Impact Statement versus Environmental Impact Review: ............................. 13
Table 1: Comparison of EIS and EIR Processes............................................................................ 14
4. Can an Existing Review (Analysis and Documentation) be Used? .............................................. 15
a. Can Existing CEQA Review Satisfy NEPA? ............................................................................... 15
b. Can Existing NEPA Review Satisfy CEQA? ............................................................................... 15
B. Stage 2: Integrating and Managing NEPA and CEQA Processes ..................................................... 17
1. When Can Incorporation by Reference be Used?....................................................................... 17
2. When Can Tiering from an EIS/EIR be Used? .............................................................................. 18
3. When Should the Environmental Review Process Begin? .......................................................... 19
4. How Can Public Involvement Requirements be Satisfied? ......................................................... 21
5. What Other Timelines Apply to Environmental Review Schedules? .......................................... 25
C. Stage 3: Preparing the NEPA and CEQA Analyses and Documentation .......................................... 26
1. How Can Purpose and Need and Project Objectives be Aligned? .............................................. 26
2. Are EIS/EIR Alternatives Consistent? .......................................................................................... 27
3. How Should Environmental Impacts/Effects/Consequences be Considered? ........................... 30
4. How Should Cumulative Impacts be Considered? ...................................................................... 33
5. What are the Differences in Determining Significance? ............................................................. 35

ii
 6. When Should an EIS/EIR be Supplemented or Re-Released? ..................................................... 36
7. How do Mitigation Requirements Differ?................................................................................... 38
D. Stage 4: The Decision ...................................................................................................................... 40
1. How Do Agencies Document Their Final Environmental Decision Making?............................... 40
2. Which Statute of Limitations Will Apply? ................................................................................... 42
III. MOU Framework.................................................................................................................................... 43
A. MOU Elements ................................................................................................................................ 43
1. Introduction/Purpose ................................................................................................................. 44
2. Parties and Goals/Mutual Benefit and Interests ........................................................................ 45
3. Defining the Aspects of the Project’s Environmental Review/Roles and Responsibilities ......... 47
4. Issue Resolution .......................................................................................................................... 51
5. Amendments/Changes to the MOU ........................................................................................... 52
6. Post NEPA/CEQA collaboration and Cooperation:...................................................................... 52
IV. Joint Analyses Involving the California Energy Commission ................................................................. 54
Table 4: Summary and Comparison of NEPA and the CEC’s Power Plant Siting Processes ........ 55

iii
 I. Introduction:

This handbook provides advisory guidance to Federal, state, and local agencies and others
regarding projects that are subject to both the National Environmental Policy Act (NEPA) and
the California Environmental Quality Act (CEQA).

Once President Nixon signed NEPA on January 1, 1970, and California Governor Reagan
followed suit signing CEQA into law on September 18 of the same year, these laws expressly
required the incorporation of environmental values into governmental decision making. Those
statutes require Federal, state, and local agencies to analyze and disclose the potential
environmental impacts of their decisions, and, in the case of CEQA, to minimize significant
adverse environmental effects to the extent feasible.

NEPA was codified under Title 42 of the United States Code, in section 4331 et seq. (42 U.S.C.
§ 4331 et seq.). Under NEPA, Congress established the White House Council on Environmental
Quality (CEQ) to ensure that Federal agencies meet their obligations of the Act. CEQ’s
Regulations for Implementing the Procedural Provisions of NEPA (hereinafter CEQ NEPA
Regulations) are in Title 40 of Code of Federal Regulations section 1500 et seq. (40 C.F.R. §
1500 et seq.). In California, CEQA was codified under Division 13 of California’s Public
Resources Code, in sections 21000 et seq. (Cal. Pub. Resources Code, § 21000 et seq.). The
Guidelines for Implementation of the California Environmental Quality Act are in Title 14 of
California’s Code of Regulations, section 15000 et seq. (Cal. Code Regs., tit. 14, § 15000 et seq.;
hereafter CEQA Guidelines).

NEPA and CEQA are similar, both in intent and in the review process (the analyses, public
engagement, and document preparation) that they dictate. Importantly, both statutes encourage a
joint Federal and state review where a project requires both Federal and state approvals. Indeed,
in such cases, a joint review process can avoid redundancy, improve efficiency and interagency
cooperation, and be easier for applicants and citizens to navigate. Despite the similarities
between NEPA and CEQA, there are several differences that require careful coordination
between the Federal and state agencies responsible for complying with NEPA and CEQA.
Conflict arising from these differences can create unnecessary delay, confusion, and legal
vulnerability.

Federal, state and local agencies have cooperated in the environmental review of projects ranging
from infrastructure to renewable energy permitting. As the state and Federal governments
pursue shared goals, there will be a continued need for an efficient, transparent environmental
review process that meets the requirements of both NEPA and CEQA.

Recognizing the importance of implementing NEPA and CEQA efficiently and effectively, the
CEQ and the California Governor’s Office of Planning and Research (OPR) developed this
handbook to provide advisory guidance on conducting joint NEPA and CEQA review processes.
The CEQ oversees Federal agency implementation of NEPA, which includes writing the CEQ
NEPA Regulations 1 and preparing guidance and handbooks for Federal agencies. OPR plays

1
The CEQ Regulations for Implementing the Procedural Provisions of NEPA are available on www.nepa.gov at
ceq.hss.doe.gov/ceq_regulations/regulations.html.

1
several roles in the administration of CEQA, including developing the CEQA Guidelines 2 in
coordination with the California Natural Resources Agency, providing technical assistance to
state and local agencies, and coordinating state level review of CEQA documents.

The purpose of this handbook is to provide practitioners with an overview of the NEPA and
CEQA processes, and to provide practical suggestions on developing a single environmental
review process that can meet the requirements of both statutes. This handbook contains three
main sections. First is a “Question and Answer” section that addresses the key similarities and
differences between NEPA and CEQA. This section compares each law’s requirements or
common practices, and identifies possible strategies for meeting the requirements of both laws.
These strategies are not meant to prescribe methods that agencies must use; rather, this handbook
provides suggestions that will help agencies identify and think through potential issues. Indeed,
developing a common understanding of the NEPA and CEQA review processes and their
differences at the beginning of a joint review process may be among the most important ways to
conduct an efficient and effective review process.

Second, this handbook provides a framework for a Memorandum of Understanding (MOU)

between two or more agencies entering a joint NEPA/CEQA review process. MOUs can clarify
responsibilities and avoid potential conflicts. The MOU framework in this handbook highlights
a number of issues that agencies can consider before embarking on their joint effort. This
handbook is not intended to replace or replicate any existing MOUs; rather, it raises topics
agencies might consider incorporating into their own MOUs. Much like the Q&A document, a
key goal of this framework is to encourage state and Federal agencies to consider and resolve
potential challenges common to joint NEPA/CEQA review processes in order to avoid
complications late in the review process.

Finally, the third section addresses the California Energy Commission (CEC) licensing process
for decisions on thermal power plants 50 megawatts and larger. This licensing process is a
certified regulatory program under CEQA and therefore the process and documents prepared by
the CEC serve as the functional equivalent of a CEQA review (CEQA Guidelines, § 15251,
subd. (j)).

As noted above, this handbook is advisory and does not supplant the administrative regulations
set forth in the CEQA Guidelines, or the CEQ NEPA Regulations. Agencies conducting an
environmental review must also take into account any additional requirements or time periods
established in an individual agency’s administrative regulations or procedures implementing
NEPA and CEQA, which could prescribe additional or more stringent requirements than the
CEQ NEPA Regulations and the CEQA Guidelines.

2
The CEQA Guidelines are found in section 15000 et seq. of Title 14 of the California Code of Regulations.

2
 II. Questions and Answers

A. Stage 1: Preliminary Questions

1. What Activities Require Environmental Review?

NEPA and CEQA promote informed decision making by requiring an environmental review
process (i.e., analyses and documentation) before a final decision on whether and how to
proceed. NEPA applies specifically to Federal proposed actions and CEQA applies to state and
local government proposed actions.

NEPA Requirement: NEPA was the first major environmental law in the United States. It
requires agencies to assess the environmental effects of a proposed agency action and any
reasonable alternatives before making a decision on whether, and if so, how to proceed. The
NEPA review (a process involving environmental analyses and documentation) ensures that
decisions are better informed and allows for greater public involvement. NEPA applies to all
Federal agencies in the executive branch (40 C.F.R. § 1507.1). 3 NEPA applies to Federal actions
including not only broad actions, such as establishing or updating land management plans,
programs, or policies, but also to specific projects (Id. at § 1508.18(b)). With regard to private
actions, NEPA applies to any Federal decisions on approvals, permits, or funding required for
the private action. For example, private projects may involve Federal loan guarantees, Clean
Water Act section 404 permits, and Endangered Species Act Incidental Take Permits.

The CEQ NEPA Regulations encourage cooperation with state and local agencies in an effort to
reduce duplication in the NEPA process (40 C.F.R. § 1506.2). The regulation states that
cooperation shall include:

(1) Joint planning processes.

(2) Joint environmental research and studies.
(3) Joint public hearings (except where otherwise provided by statute).
(4) Joint environmental assessments.

Federal agencies are directed to cooperate in fulfilling the requirements of state and local laws
and ordinances where those requirements are in addition to, but not in conflict with, Federal
requirements, by preparing one document that complies with all applicable laws (40 C.F.R. §
1506.2(c)). When preparing a joint Environmental Impact Statement (EIS)/Environmental
Impact Report (EIR), “one or more Federal agencies and one or more state or local agencies shall
be joint lead agencies” (Id. at § 1506.2(c)). CEQ NEPA Regulations further provide agencies
with the ability to combine documents, by stating that “any environmental document in
compliance with NEPA may be combined with any other agency document to reduce duplication
and paperwork” (Id. at § 1506.4). Furthermore, if an existing document cannot be utilized,

3
NEPA does not apply to the President, the Congress, or the Federal courts (40 C.F.R. § 1508.12).

3
portions may be incorporated by reference (See below, Q&A, WHEN CAN INCORPORATION BY
REFERENCE BE USED?).

CEQA Requirement: CEQA applies to projects of all California state, regional or local
agencies, but not to Federal agencies. Its purposes are similar to NEPA. They include ensuring
informed governmental decisions, identifying ways to avoid or reduce environmental damage
through feasible mitigation or project alternatives, and providing for public disclosure (CEQA
Guidelines, § 15002, subd. (a)(1)-(4)). CEQA requirements apply to public agency projects
including “activities directly undertaken by a governmental agency, activities financed in whole
or in part by a governmental agency, or private activities which require approval from a
governmental agency” (Id. at14 CCR § 15002, subd. (b)(1)-(2)). CEQA also applies to private
projects that involve governmental participation, financing, or approval (Id. at §§ 15002, subd.
(c) & 15378, subd. (a)(2)).

Like NEPA, CEQA encourages cooperation with Federal agencies to reduce duplication in the
CEQA process. In fact, CEQA recommends that lead agencies rely on a Federal EIS “whenever
possible,” so long as the EIS satisfies the requirements of CEQA (Cal. Pub. Resources Code, §
21083.7). CEQA does not authorize state agencies to simply delay action until Federal agencies
complete the NEPA process. Rather, CEQA Guidelines section 15223 provides that if a state
agency knows that its authorization will be needed for a project undergoing Federal
environmental review, that agency “shall consult as soon as possible with the Federal agency”
(emphasis added).

Opportunities for Coordination: Both NEPA and CEQA have similar goals of ensuring that
governmental actors are making informed decisions regarding projects and operations that may
affect the environment, and their implementing regulations are designed to allow flexibility in
consolidating and avoiding duplication among multiple governmental layers of review.

4
 2. What Level of Environmental Review is Needed?

Both NEPA and CEQA require agencies to determine whether a proposed action or project may
have a significant impact on the environment, and to determine the appropriate level of
environmental review. When NEPA and CEQA apply, agencies must therefore first determine
what level of review is required. The agency has the following three options: (1) Categorical
Exclusion/Categorical Exemption; (2) Environmental Assessment (EA) and Finding of No
Significant Impact (FONSI) (or Mitigated FONSI)/Initial Study (IS)) and Negative Declaration
(ND) (or Mitigated Negative Declaration (MND)); or (3) EIS/EIR.

NEPA Requirement: Individual agencies may designate Categorical Exclusions in their agency
NEPA implementing procedures that identify categories of actions they have determined
typically do not have a significant impact on the environment, and for which neither an EA nor
an EIS is necessary (40 C.F.R. § 1508.4). If the proposed project is an activity described in a
Categorical Exclusion, and there are no extraordinary circumstances—the “safety net” provision
ensuring that there are no unusual circumstances associated with applying the Categorical
Exclusion to a specific proposed action—then the NEPA review is complete.

When the proposed action is not subject to a Categorical Exclusion, and is not one which the
Federal agency has determined to have the potential to cause significant environmental effects,
requiring an EIS, then the agency can prepare an EA (40 C.F.R. § 1508.9). An EA is a typically
concise public document that provides evidence and analysis on the proposed action’s potential
environmental effects. An EA is prepared to determine whether a project would cause any
significant effects. The EA process concludes with one of four agency decisions: 1) a FONSI;
2) a Mitigated FONSI; 3) a decision to prepare an EIS; or 4) a decision not to proceed with the
project. A FONSI is appropriate where the agency determines the project has no potentially
significant effects. A Mitigated FONSI is appropriate where any potentially significant impacts
can be mitigated to a point where they are no longer potentially significant (40 C.F.R. §
1508.13). If the EA identifies any significant impact that the agency cannot mitigate, has not
disclosed in a broader (programmatic) NEPA environmental review, or does not commit to
mitigating to a point where the impact is less than significant, then the agency prepares a Notice
of Intent to begin the EIS process, or decides not to proceed with the proposed action (40 C.F.R.
§ 1501.4).

Where agency experience and judgment indicate the potential for significant impacts, the agency
may choose to bypass preparation of an EA and instead prepare an EIS from the outset. The
most rigorous NEPA review, an EIS is a detailed discussion of a project’s potential
environmental effects with all relevant data and analysis and an evaluation of alternatives. An
EIS is required for “major Federal actions significantly affecting the quality of the human
environment.” There is no initial test of whether the action is major or minor; instead, an EIS is
required when there is the potential for a proposed action to have a significant impact on the
human environment (40 C.F.R. § 1508.18). In cases where an EIS is not required, agencies may
be able to meet their NEPA responsibilities by applying a Categorical Exclusion or preparing an
EA.

5
CEQA Requirement: The CEQA Guidelines contain a list of Categorical Exemptions for
which no additional environmental analysis is needed, subject to certain exceptions (CEQA
Guidelines, § 15300 et seq.). Likewise, the CEQA Guidelines contain a list of many of the
Statutory Exemptions for which no additional environmental analysis is needed. Some Statutory
Exemptions are complete exemptions from CEQA without exception” (Id. at § 15260). Note that
not all of the Statutory Exemptions are listed in the CEQA Guidelines. Similar to NEPA, an
agency prepares an IS if the project is not exempt. A CEQA lead agency must prepare an EIR if
there is “substantial evidence” that a project “may have a significant effect on the environment”
(Id. at § 21082.2, subds. (a) & (d)).” If the project will not have any adverse impacts, or such
impacts can be mitigated to a point where clearly no significant effects would occur, the lead
agency may adopt a ND or a MND (Id. at §§ 15063, subd. (b)(2) & 15064, subd. (b)(2)).

Opportunities for Coordination: NEPA and CEQA largely dictate the same process for
determining the need for an EIS or EIR. Where it is not clear whether an EIS/EIR will be
required, agencies prepare a less detailed analysis (IS or EA) to get a sense of the potential extent
of any impacts and whether such impacts can be mitigated. If the action will not have significant
impacts, agencies may adopt a FONSI/Mitigated FONSI and ND/MND. If a project will clearly
have one or more significant impacts, agencies can immediately proceed to preparing an EIS/EIR
without first preparing an EA or an IS (40 C.F.R. § 1501.3(a); CEQA Guidelines, § 15063, subd.
(a)).

There is some divergence between the laws in the standard for determining significance. Under
CEQA, an EIR is required if substantial evidence supports a fair argument that a project may
have a significant impact, even if other substantial evidence indicates that the impact will not be
significant. Under NEPA, deference is given to the agency’s determination based on its
assessment of the context and intensity of the potential impacts, when that determination is
demonstrated in the NEPA document and supported by the administrative record (40 C.F.R. §
1508.27).

NEPA and CEQA lead agencies must each reach their own conclusions about which level of
environmental review and environmental document a particular proposed project requires. The
lead agencies should keep each other informed about what they are considering and why. If
beneficial, agencies may do a joint IS/EA to gauge the potential significance of a project’s
impacts.

Because the fair argument standard, described above, favors preparation of an EIR, a CEQA lead
agency may decide that an EIR is appropriate, while a NEPA lead agency may decide that an EA
is appropriate for the same action. It is still possible to write a joint EA/EIR—indeed, this is
fairly common with transportation projects. The joint document should explain why one agency
has identified a potential significant impact, while another has not. This explanation can
describe the different definitions of significance and different standards for determining

6
significance. Even if a joint document is not prepared, agencies can make the process more
efficient by sharing background reports, data, analyses, and other common elements.

Table 1: Summary and Comparison of NEPA and CEQA Processes

National Environmental Policy Act California Environmental Quality Act

Initial Review for Categorical Exclusion Initial Review for Categorical Exemption
• Excluded if there are no extraordinary • Exempt if the project falls within:
circumstances o A statutory exemption, or
o A categorical exemption, and no
exception applies

Environmental Assessment Initial Study

• Engage the public to the extent practicable • Required consultation with responsible and
• If no significant impacts, adopt a Finding of No trustee agencies
Significant Impact or, if mitigation is required • Notice of Intent
to reduce an impact, a Mitigated Finding of No • Public and Agency Review and Comment
Significant Impact • If no significant impacts, adopt a Negative
• If there is the potential for an impact to be Declaration or, if mitigation is required to
significant, prepare an Environmental Impact reduce an impact, a Mitigated Negative
Statement Declaration
• If there is the potential for an impact to be
significant, prepare an Environmental Impact
Report

Environmental Impact Statement Environmental Impact Report

7
 3. How Does NEPA and CEQA Terminology Differ?

a. “Action” (NEPA) versus “project” (CEQA):

NEPA applies to Federal agency decisions on “proposals for legislation and other major Federal
actions” (42 U.S.C. § 4332(2)(c)). Federal actions include actions with the potential for
environmental impacts. Such actions may include adoption and approval of official policy,
formal plans, programs, and specific Federal projects (40 C.F.R. § 1508.18). NEPA also applies
in cases where an agency is exercising its discretion in deciding whether and how to exercise its
authority over an otherwise non-Federal project (for example, issuing a permit or approving
funding). 4

CEQA applies to state and local agency decisions to carry out or approve “discretionary
projects… including, but not limited to, the enactment and amendment of zoning ordinances, the
issuance of zoning variances, the issuance of conditional use permits, and the approval of
tentative subdivision maps unless the project is exempt from this division” (Cal. Pub. Resources
Code, § 21080). CEQA broadly defines “project” to include “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” (CEQA Guidelines, § 15378).
Therefore, CEQA may apply to a broader range of projects than does NEPA.

b. Significance:

“Significance” is a term used in both NEPA and CEQA (40 C.F.R. § 1508.27; CEQA
Guidelines, § 15382).

NEPA requires that an EIS be prepared when the proposed Federal action as a whole has the
potential to “significantly [affect] the quality of the human environment….” (42 U.S.C. § 4332.)
The NEPA determination of significance is based on context and intensity. (40 C.F.R. §
1508.27.) Under NEPA, an EA can be prepared to determine whether a finding of no significant
impact can be made (Id. at § 1508.9). An EIS is needed when the proposal has the potential for a
significant impact as shown by an EA or when an agency’s initial determination indicates an EIS
is appropriate. (Id. at § 1501.4.)

4
A NEPA review is not required when an agency has no discretion (no decisionmaking) for a proposed action. The
courts have held that ministerial acts which require no agency discretion or decisionmaking are not within the
purview of NEPA. State of South Dakota v. Andrus, 614 F.2d 1190 (8th Cir. 1980), cert. denied, (“since
Department of the Interior had no discretion to consider environmental factors in issuing a mineral patent, it was a
ministerial act and not subject to NEPA”) (citing Sugarloaf Citizens Ass’n v. F.E.R.C., 959 F.2d 508, 513 (4th Cir.
1992). See also, Atlanta Coalition on Transp. Crisis, Inc. v. Atlanta Regional Comm’n, 599 F.2d 1333 (5th Cir.
1979); NAACP v. Medical Center, Inc., 584 F.2d 619 (3d Cir. 1978). Further, State of Alaska v. Andrus, 591 F.2d
537, 538, 541 (9th Cir. 1979) (“the nonexercise of power by an executive-branch office does not call for compliance
with NEPA”). The D.C. Circuit, for example, has reasoned that: “No agency could meet its NEPA obligations if it
had to prepare an environmental impact statement every time the agency had power to act but did not do so.”
Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1246 (D.C. Cir. 1980).

8
CEQA requires the identification of each “significant effect on the environment” resulting from
the whole of the action and ways to mitigate each significant effect (CEQA Guidelines, §§
15064, subd. (a) & 15126.4). If the action may have a significant effect on any environmental
resource, an EIR must be prepared (Id. at § 15063, subd. (b)). In addition, the CEQA Guidelines
list a number of circumstances requiring a mandatory finding of significance, and, therefore,
preparation of an EIR (Id. at § 15065). Each and every significant effect on the environment
must be disclosed in the EIR and mitigated if feasible (Id. at §§ 15126.2 & 15126.4).

Agency staff engaged in joint processes should, therefore, take into account that some impacts
determined to be significant under CEQA may not necessarily be determined significant under
NEPA.

c. Agency Designations:

Lead Agency: Under NEPA, the lead agency has “primary responsibility for preparing the
environmental impact statement” (40 C.F.R. § 1508.16), or EA. NEPA allows agencies to share
the lead role as co-leads. CEQA defines the lead agency as “the public agency which has the
principal responsibility for carrying out or approving a project. The lead agency will decide
whether an EIR or Negative Declaration will be required for the project and will cause the
document to be prepared” (CEQA Guidelines, §§ 15051 & 15367). CEQA does not provide for
co-leads; consequently, where more than one agency has responsibility for a project, one agency
shall be the lead agency that prepares the CEQA review for that project (Id. at § 15050, subd.
(a)). Therefore, there may be a NEPA and a CEQA co-lead; however, there may not be multiple
CEQA leads. For ease of administration and to reduce public confusion, the Federal agencies
should endeavor to have one lead for purposes of developing the environmental review with the
CEQA co-lead.

Cooperating Agency versus Responsible and Trustee Agencies: Under NEPA, a cooperating
agency is “any Federal agency other than a lead agency which has jurisdiction by law or special
expertise with respect to any environmental impact involved in a proposal. . . ” (40 C.F.R. §
1508.5). Tribal, state, local, or other Federal governmental agencies with responsibilities for
managing resources potentially affected by the proposed action may also, with the agreement of
the lead agency, become cooperating agencies. Cooperating agencies participate in the NEPA
process at the request of the lead agency and, upon request, provide expertise for the
environmental analysis. Under CEQA, responsible agencies are “all public agencies other than
the Lead Agency which have discretionary approval power over the project,” and participate in
the CEQA process through required consultation with the lead agency (CEQA Guidelines, §§
15096 & 15381). Agencies without approval authority, but which have jurisdiction by law over
resources potentially affected by the project, are known as trustee agencies which must be
included in the consultation and review process (Id. at § 15386).

d. Categorical Exclusion versus Categorical Exemption:

NEPA and CEQA both allow certain government actions to proceed without further NEPA or
CEQA review if that type of action has been previously determined not to have a significant
impact on the environment. Actions defined in either a Categorical Exclusion or Categorical

9
Exemption may be subject to further environmental review in the case of extraordinary
circumstances under NEPA or exceptions to the exemptions under CEQA (40 C.F.R. § 1508.4;
CEQA Guidelines, §§ 15061, subd. (b), & 15300.2).

California currently has thirty-three Categorical Exemptions identified in sections 15301 through
15333 of the CEQA Guidelines, as well as exceptions to those exemptions in section 15300.2.
Individual state and local agencies may also specify in their own implementing regulations
which particular activities tend to fall within those Categorical Exemptions (CEQA Guidelines, §
15022, subd. (a)). Under CEQA, a Categorical Exemption applies to classes of projects,
regardless of the agency considering the project proposal. Under NEPA, the Categorical
Exclusions are specific to the agency that has established them and included them in their NEPA
implementing procedures. Consequently, a proposed project requiring multiple Federal agency
actions will require a NEPA review that satisfies all the agencies’ implementing procedures and
could, if each of the agencies does not have an appropriate Categorical Exclusion, require further
review in an EA or an EIS.

All Categorical Exemptions are subject to certain exceptions (CEQA Guidelines, § 15300.2).
CEQA gives lead agencies the discretionary authority to determine whether substantial evidence
supports application of a Categorical Exemption for the proposed project (Id. at § 15061).
NEPA allows agencies to determine Categorical Exclusions on an independent basis (See 40
C.F.R. §§ 1507.3 & 1508.4). The agency Categorical Exclusions are found in the agency NEPA
implementing procedures available at
http://ceq.hss.doe.gov/nepa_contacts/Federal_Agency_NEPA_Implementing_Procedures_7Marc
h2013.pdf.

In cases where both a Categorical Exclusion under NEPA and a Categorical Exemption under
CEQA may apply, the agencies should coordinate to ensure that the consideration of potential
effects is consistent with the review of extraordinary circumstances or exceptions.

Both NEPA and CEQA also provide for certain statutory exemptions. As acts of Congress and
of the California Legislature, NEPA and CEQA are subject to exceptions also enacted by
Congress or the Legislature. The exemptions can be complete, limited, or conditional depending
on the statutory language in the exemption. Many CEQA statutory exemptions are contained
within CEQA while others are found in other laws. The NEPA statutory exemptions are
contained in other laws.

e. Environmental Assessment and Finding of No Significant Impact versus Initial

Study and Negative Declaration:

A FONSI under NEPA is a brief statement by an agency that explains why an action will not
have a significant effect on the human environment (40 C.F.R. § 1508.13). A FONSI generally
includes the EA document, which provides the basis for the FONSI. Federal agencies shall
engage the public in the preparation of an EA; however, the type and form of public involvement

10
is left to the individual agency. NEPA also provides for a Mitigated FONSI, 5 which explains
that an action may pose some significant effects, but that mitigation measures that will be
adopted by the agency will reduce these effects to a level where they are no longer significant.

Under CEQA, the lead agency may adopt a ND 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” (CEQA Guidelines, § 15070, subd. (a)). A proposed ND must be circulated for
public review along with an IS. An IS briefly describes the project and any potential impacts.
As with NEPA, CEQA allows for a MND in which mitigation measures are proposed to reduce
potentially significant effects so that they are less than significant (Id. at § 15369.5). Proposed
mitigation measures must generally be subject to review by the public, responsible agencies,
trustee agencies, and the county clerk of each county within which the proposed project is
located, prior to adoption of a MND (Id. at §§ 15072 (requirements for notice of intent to adopt a
negative declaration), 15073.5 (new mitigation measures necessary to reduce a significant impact
require recirculation) & 15074.1 (different mitigation measures may be substituted if they are
equally effective if the lead agency holds a hearing and makes a specific finding)).

Table 2: Comparison of the EA and IS Processes

5
See the CEQ Memorandum to the Heads of Federal Departments and Agencies, Appropriate Use of Mitigation and
Monitoring and Appropriate Use of Mitigated Findings of No Significant Impact, January 14, 2013, available at
http://ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.

11
 National Environmental Policy Act California Environmental Quality
Act
Initial Study (IS): brief description of the
Environmental Environmental Assessment (EA): a
project and any potential impacts.
Document concise document discussing the need
for the project, alternative courses of
action, and environmental impacts
Project is not exempt, and there is no
Application Project is not subject to a Categorical
substantial evidence that a project may
Exclusion and it is unclear whether, or
have significant effects on the
unlikely that, project has the potential to
environment.
cause significant environmental effects.

Conclusions Finding of No Significant Impacts: the Negative Declaration: there is no

determination that a proposed project substantial evidence that the project may
will not cause any significant have a significant effect on the
environmental impacts. environment.

Mitigated Finding of No Significant Mitigated Negative Declaration: any

Impact: the project may result in adverse impacts of the project can be
significant impacts to the environment mitigated to a point where it is clear that no
but the agency’s proposed mitigation significant effects would occur
measures will reduce the impacts to the
point that they are no longer significant

Determination to Prepare an Determination to Prepare an

Environmental Impact Statement Environmental Impact Report

Notice of Intent Not Required Required for a Negative Declaration

Scoping Agency has discretion whether and how Required for projects of statewide or area-
to scope. wide significance
Required consultation with responsible and
Public/ Agency Agencies have discretion to involve the
trustee agencies
Engagement public and agencies.

Commenting Agency must provide FONSI for public A Negative Declaration must be circulated
review only when the action has never for public review along with the IS.
before been done by that agency or it is Proposed Mitigation Measures are also
something that would typically require generally subject to review.
an EIS. The review period lasts 30 days.
Review Period 30 days as described above
20 days - most projects
30 days - projects where state agency is the
lead/responsible/trustee agency or are of
state/area/region-wide significance

12
 f. Environmental Impact Statement versus Environmental Impact Review:

An EIS under NEPA closely resembles an EIR under CEQA. A table summarizing and
comparing the NEPA and CEQA processes and the procedural differences between an EIS and
an EIR follows.

13
Table 1: Comparison of EIS and EIR Processes

Environmental Impact Statement Process Environmental Impact Report Process

Notice of Intent Notice of Preparation

Scoping Scoping

Draft EIS Draft EIR

Filing with EPA which publishes a Notice of State Clearinghouse Distribution for State
Availability in the Federal Register Agency Review (if required)

Public and Agency Review and Comment Public and Agency Review and Comment

Final EIS Final EIR

Provide proposed responses to public agency

comments at least 10 days prior to certification
of the EIR

Filing and EPA Notice of Availability in the Certify EIR, adopt Findings on Project’
Federal Register, Public and Agency Review Significant Environmental Impacts and
(if designated) Alternatives, Mitigation Monitoring and
Reporting Program, and, if necessary, a
Statement of Overriding Considerations

30 Day Review Period (Agency may convert

this into a public review and comment period).

Agency Decision Agency Decision

Record of Decision Notice of Determination

14
 4. Can an Existing Review (Analysis and Documentation) be Used?

a. Can Existing CEQA Review Satisfy NEPA?

Under NEPA, a Federal agency may use a completed CEQA review when it has participated in
the preparation of the CEQA review and the CEQA review will meet NEPA requirements.
Agencies should note, however, that compliance with other laws may also be necessary for
proposed actions, including, but not limited to, Section 7 of the Federal Endangered Species Act,
Section 106 of the National Historic Preservation Act, and Section 404 of the Clean Water Act.
Consequently, agencies should consider working collaboratively to address those requirements
as well.

NEPA Requirement: Under NEPA, a Federal agency must participate in the preparation of an
environmental review (the analysis and documentation) in order for it to satisfy NEPA (42
U.S.C. § 4332(2)(D)(ii)). Furthermore, a Federal agency may not use a completed EIR to meet
its own requirements until the Federal agency has reviewed the CEQA document and
accompanying administrative record and determined that it satisfies all the agency’s NEPA
requirements.

Opportunities for Coordination: Federal agencies interested in using a CEQA document for
their own requirements should work closely with the agency preparing the environmental review
as soon as possible in an effort to prepare a joint document that complies with NEPA
requirements.

In the event that a joint document complying with NEPA cannot be prepared, CEQ regulations
allow agencies to incorporate by reference the relevant portions of the CEQA review (See below,
Q&A, WHEN CAN INCORPORATION BY REFERENCE BE USED?).

b. Can Existing NEPA Review Satisfy CEQA?

The CEQA Guidelines allow a state or local agency to use an EIS or EA and FONSI if
completed before an EIR or ND would otherwise be prepared for the project and the NEPA
review meets CEQA requirements.

CEQA Requirement: Section 15221 of the CEQA Guidelines sets forth rules governing use of
a NEPA document to satisfy CEQA. It states:

(a) When a project will require compliance with both CEQA and NEPA, State or
local agencies should use the EIS or Finding of No Significant Impact rather than
preparing an EIR or Negative Declaration if the following two conditions occur:
(1) An EIS or Finding of No Significant Impact will be prepared before an EIR
or Negative Declaration would otherwise be completed for the project; and
(2) The EIS or Finding of No Significant Impact complies with the provisions
of these Guidelines.

15
 (b) Because NEPA does not require separate discussion of mitigation measures or
growth inducing impacts, these points of analysis will need to be added,
supplemented, or identified before the EIS can be used as an EIR.

Opportunities for Coordination: State or local agencies interested in using Federal documents
to satisfy state requirements should work closely with the Federal agency preparing the NEPA
review as soon as possible in order to ensure that it meets the requirements of CEQA, or prepare
any additional analysis needed to meet CEQA standards.

If the timing of the NEPA and CEQA review processes is such that an EIS or EA/FONSI would
not be done before an EIR or Negative Declaration, agencies should enter a joint NEPA/CEQA
process (CEQA Guidelines, §§ 15222 & 15226).

16
 B. Stage 2: Integrating and Managing NEPA and CEQA Processes

1. When Can Incorporation by Reference be Used?

To reduce duplication and bulk, NEPA and CEQA allow environmental documents to reference
and summarize information from other documents rather than repeating large amounts of
information.

NEPA Requirement: Agencies can, consistent with NEPA and the CEQ NEPA Regulations,
incorporate by reference analyses and information from existing documents into an EA or EIS
provided the material has been appropriately cited and described, and the materials are
reasonably available for review by interested parties (40 C.F.R. § 1502.21).

CEQA Requirement: An EIR or ND can incorporate by reference any document that is part of
the public record or available to the public (CEQA Guidelines, § 15150, subd. (a)). The
incorporated part of the referenced document must be briefly summarized or described (Id. at §
15150, subd. (b)).

Opportunities for Coordination: NEPA and CEQA both allow incorporation by reference, as
long as the referenced material is briefly summarized in the environmental document and is
available for public review within the time allowed for comment. Agencies can make referenced
material readily available by publishing the relevant materials in an appendix or otherwise
making them available to the public. Some techniques that would take the place of publishing
the materials in a publicly available appendix include providing a hyperlink to an internet copy
of the material or placing material in local libraries or facilities accessible to the public (CEQ,
IMPROVING THE PROCESS FOR PREPARING EFFICIENT AND TIMELY ENVIRONMENTAL REVIEWS
UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT, 2012, available at:
http://ceq.hss.doe.gov/current_developments/docs/Improving_NEPA_Efficiencies_06Mar2012.p
df).

17
 2. When Can Tiering from an EIS/EIR be Used?

If previous environmental documents have already analyzed a particular impact, NEPA and
CEQA allow subsequent environmental analysis and documents to tier from an earlier analysis
rather than duplicating work.

NEPA Requirement: Agencies are encouraged to issue a tiered or subsequent EIS or EA when
the environmental issues have been analyzed in a broader (programmatic) NEPA review. The
tiered analysis and documentation can thereby focus on specific issues relevant to the subsequent
action (40 C.F.R. § 1502.20).

CEQA Requirement: CEQA encourages tiering from a broader EIR, like a General Plan EIR,
when appropriate. This allows subsequent analyses to focus on project-specific impacts (CEQA
Guidelines, § 15152).

Opportunities for Coordination: Although NEPA and CEQA allow similar tiering processes,
they do not expressly allow the tiering of a CEQA document from a previous NEPA document,
nor vice versa. A joint NEPA/CEQA document could tier from a broader joint NEPA/CEQA
analysis to take full advantage of the benefits of a tiered analysis. When tiering, the responsible
agencies need to ensure that the relevant resource impacts were sufficiently analyzed in the
broader joint (programmatic) document when they rely upon that analysis in the subsequent,
tiered document.

18
 3. When Should the Environmental Review Process Begin?

Generally, the environmental review process should begin as early as possible to facilitate timely
government decisions and avoid delay. Environmental values should be considered early in the
process but late enough that there is sufficient context for the review and information about the
proposed action or project to provide a useful analysis.

NEPA Requirement: The preparation of environmental reviews shall occur as close as possible
to the time an agency begins developing or is presented with a proposal so that the environmental
review will serve as an important contribution to the decision making process (40 C.F.R. §
1502.5). A proposal exists when an agency has a goal and is actively preparing to make a
decision on one or more alternative means of accomplishing that goal and the NEPA analysis
begins when environmental effects can be meaningfully evaluated (40 C.F.R. § 1508.23).
Applying NEPA early in the process also ensures that the planning reflects environmental values
early, avoiding potential delay later in the process (40 C.F.R. § 1501.2). Environmental reviews
should not justify or rationalize decisions already made (40 C.F.R. § 1502.5). Until an agency
issues a Record of Decision, regulatory limitations preclude the agency from taking actions
during the NEPA process which would (1) have an adverse environmental impact; or (2) limit
the choice of reasonable alternatives (40 C.F.R. § 1506.1).

CEQA Requirement: EIRs and NDs should be prepared early enough to allow environmental
considerations to influence project design and yet late enough to provide meaningful information
for environmental review (CEQA Guidelines, § 15004, subd. (b)). California agencies cannot
commit to carrying out actions concerning a project that will have significant impacts or limit the
choice of alternatives or mitigation measures before a CEQA review is complete. 6

Opportunities for Coordination: Similar to CEQA, CEQ NEPA Regulations forbid project
activity during environmental review that would impact the environment or limit alternatives.
However, NEPA recognizes that some projects may proceed if they are independently justified,
accompanied by their own NEPA review (e.g. Categorical Exclusion, EA, or EIS) and will not
prejudice the ultimate decision (40 C.F.R. § 1501.6(c)(1)-(3)).

CEQA recognizes that limited project-related activities may occur prior to completion of
environmental review. 7 CEQA review must be complete, however, before California agencies
constrain their discretion in any way, particularly regarding the adoption of project alternatives
or mitigation measures.

6
Such activities could include, depending on the circumstances, entering into development and services agreements
(See, e.g., Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116).
7
Agencies may designate a preferred site for CEQA review and enter into land acquisition agreements when the
agency has conditioned the site’s further use on CEQA compliance (CEQA Guidelines, § 15004, subd. (b)(2)(A)).
Agencies should be aware that environmental review will have to occur for that purchase before it actually takes
place (See, Save Tara, supra, 45 Cal.4th 116). Depending on the circumstances, an agency may choose to enter into
an option agreement rather than a purchase and sale agreement if environmental review has not yet been completed
(See, e.g., Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150 (analyzing whether a “term sheet”
constituted a project requiring prior CEQA review)).

19
State and Federal agencies should begin NEPA/CEQA procedures as early as possible in their
planning processes in order to allow environmental considerations to influence project design.
As always, these issues are subject to individual agency regulations regarding implementation of
NEPA and CEQA, which could prescribe more stringent requirements than the general
regulations.

Experience has shown that critical environmental concerns can often be most efficiently and
effectively addressed in early phases of project development; consequently, we recommend:

•
o Conduct early, in-depth resource analyses through processes such as the lead
agencies’ due diligence process or project application submittal. Completing key
environmental analyses (e.g. estimation of the extent of state jurisdictional waters
and Waters of the U.S., quantification of potential impacts to threatened and
endangered species, and identification of compensatory mitigation lands) as early
as possible can help determine a project’s viability and avoid potential project
delays later in the process.
o Direct applicants, during the early stages of a project application process, to fully
consider environmentally-preferable alternatives, including alternate sizes and/or
siting locations (e.g., consider any available neighboring disturbed sites).
Information regarding the availability of suitable alternative sites not on Federal
lands is important for Federal agencies to consider in their assessment of the “No
Action” alternative, since it is reasonable to expect that, in the event a Federal
land management agency does not approve a proposed right-of-way, a project
proponent would consider alternative locations. Consistent resource analyses,
across a range of alternatives, should be conducted as early as possible to set the
stage for a robust alternatives analysis in the subsequent NEPA process, and to
facilitate incorporating environmental improvements into the project design.

20
 4. How Can Public Involvement Requirements be Satisfied?

Public involvement in the NEPA and CEQA review process is critical for the overall framework
of informed decision making. Public review serves as a check on accuracy in analysis. Public
comments inform agencies about public opinions and values. The specific procedures used
under the two statutes differ in some ways and need to be followed carefully.

NEPA Requirement: CEQ NEPA Regulations require agencies to make diligent efforts to
involve the public in implementing their NEPA procedures and preparing environmental reviews
(40 C.F.R. § 1506.6). The EA, FONSI, and EIS all have different requirements for public
involvement.

EA: Agencies preparing an EA are required to involve “environmental agencies, applicants, and
the public, to the extent practicable” (emphasis added) (40 C.F.R. § 1501.4(b)). Although public
involvement is required, it is up to the individual agencies in their NEPA implementing
procedures or agency practice to determine the extent to which they engage the public in
preparing an EA. Some agencies engage the public through scoping-like outreach during the
development of the EA, while others wait and provide the public an opportunity to review the
EA or FONSI. In Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs
(9th Cir. 2008) 524 F.3d 938, 953, the Ninth Circuit stated (citing CEQ NEPA Regulations) that
the EA must “provide the public with sufficient environmental information, considered in the
totality of the circumstances, to permit members of the public to weigh in with their views and
thus inform the agency decision-making process.”

FONSI: Under 40 C.F.R. § 1501.4(e)(2), agencies have a duty to provide a FONSI for public
review for a period of 30 days when “the type of proposed action hasn’t been done before by the
particular agency, or . . . the action is something that typically would require an EIS under the
agency NEPA procedures.” Otherwise, public review of a FONSI is not required by the CEQ
NEPA Regulations.

EIS Notice of Intent and Scoping: An agency begins the EIS process with a Notice of Intent
(NOI) stating the agency’s intent to prepare an EIS (40 C.F.R. § 1508.22). This is published in
the Federal Register and includes information regarding meetings and information about how the
public can get involved. At the scoping level, public involvement is encouraged to help identify
impacts and alternatives regarding the proposed project as well as any existing studies or
information that can be used during the NEPA review. Using scoping to identify issues that do
not require detailed analysis or are not relevant is just as important as identifying those issues
that merit detailed analysis. Following scoping, agencies prepare a draft EIS and make it
available for public review and comment for a minimum of 45 days (40 C.F.R. § 1506.10,
1503.1(a)(4)). 8 A Notice of Availability is published by the Environmental Protection Agency
(EPA) to begin the required review and comment period. During the comment period, agencies
may conduct public meetings or hearings to help solicit comments.

8
Be sure to check the Federal agency’s NEPA implementing procedures to see whether a longer period is required.

21
Final EIS: Once a Final EIS is complete, the agency files the Final EIS with EPA which
publishes a Notice of Availability in the Federal Register. A minimum 30-day waiting period
before an agency makes a decision on a proposed action is required by the CEQ NEPA
Regulations; however, the agency may designate this as a notice and comment period (40 C.F.R.
§ 1503.1(b)) and the agency may also provide a longer time period. When an agency provides
an administrative appeal process that provides an opportunity to alter the decision, then the
agency may make the decision at the same time that the final EIS is published (40 C.F.R. §
1506.10(b)). After the minimum 30 day period, the agency issues a Record of Decision
informing the public of the final decision and identifying all alternatives considered in reaching
the decision (40 C.F.R. § 1505.2).

Supplemental EIS: In the event the agency needs to prepare a Supplemental EIS, then the same
process, including the public review and comment periods, that applies to a regular EIS should
be followed, except that scoping is not required. Agencies shall prepare supplements to a draft
or final EIS if substantial changes are made to the proposed action that raise environmental
concerns; or if there are significant new circumstances or information relevant to environmental
concerns (40 C.F.R. § 1502.9(c)(1)(i)-(ii)). Because the NEPA process varies among agencies, a
Federal agency’s NEPA implementing procedures may provide additional opportunities for
public involvement throughout the process.

CEQA Requirement: Public participation plays an important and protected role in the CEQA
process. (Laurel Heights Improvement Association v. Regents of the University of California
(1988) 47 Cal.3d 376, 392 (“The EIR process protects not only the environment but also
informed self government.”); Concerned Citizens of Costa Mesa, Inc. v. 32nd District
Agricultural Association (1986) 42 Cal.3d 929, 936 (members of the public have a “privileged
position” in the CEQA process).)

“Each public agency should include provisions in its CEQA procedures for wide public
involvement, formal and informal, consistent with its existing activities and procedures, in order
to receive and evaluate public reactions to environmental issues related to the agency’s activities.
Such procedures should include, whenever possible, making environmental information
available in electronic format on the Internet, on a web site maintained or utilized by the public
agency” (CEQA Guidelines, § 15201). The lead agency must consider all “comments it receives
on a draft environmental impact report, proposed negative declaration, or proposed mitigated
declaration” (Cal. Pub. Resources Code, § 21091, subd. (d)(1); CEQA Guidelines, § 15074,
subd. (b)). At a minimum, state and local agencies must adhere to the consultation and public
notice requirements set forth in the state CEQA Guidelines.

EIR or Negative Declaration: Under CEQA, agencies preparing either a Negative Declaration or
an EIR are required to file a Notice of Intent to adopt and provide a public and agency comment
period prior to certification (Cal. Pub. Resources Code, § 21092). An agency must provide the
public a minimum review period of 20 days for review of a Negative Declaration. However,
projects involving a state agency, as a lead, responsible or trustee agency, or projects of

22
statewide, regional, or area-wide significance must be submitted to the State Clearinghouse 9 and
require a 30 day comment period (CEQA Guidelines, § 15205, subd. (d)). The review period for
a draft EIR “shall not be less than 30 days nor should it be longer than 60 days except under
unusual circumstances,” although projects submitted to the State Clearinghouse should have a
comment period of at least 45 days (Id. at § 15105, subd. (a)). Since review by some state
agency is typically required, the longer review period will normally apply. 10

Under CEQA, lead agencies may provide a review period for the final EIR, but are not required
to do so (CEQA Guidelines, § 15089, subd. (b)). Lead agencies must provide proposed
responses to public agency comments to those commenting agencies at least 10 days before
certifying the final EIR (Id. at § 15088, subd. (b)).

Agency Consultation: In addition to the public review periods described above, the CEQA
Guidelines also provide for consultation with specific agencies under certain circumstances. For
example, agencies are required to “consult with all responsible agencies and trustee agencies”
prior to determining whether a Negative Declaration or EIR is required (Cal. Pub. Resources
Code, § 21080.3). Applicants that request a lease, permit, license, certificate, or other
entitlement for use approval by a public agency are entitled, upon their request, to a pre-
application consultation period with the lead agency. In such cases, the lead agency is required
to consult regarding “the range of actions, potential alternatives, mitigation measures, and any
potential and significant effects on the environment” (Id. at § 21080.1). If the project is “of
statewide, regional or area wide significance,” the lead agency is also required to consult with
regional transportation agencies and public agencies that have transportation facilities (Id. at §
21092.4). If a public agency submits comments, the lead agency is required to notify that agency
in writing of any public hearing for the project going forward (Id. at § 21092.5; CEQA
Guidelines, § 15073, subd. (e)).
Scoping: Additionally, agencies must provide at least one scoping meeting for projects of
statewide or area-wide significance for which an EIR will be prepared, and must invite
neighboring cities and counties, any responsible agencies, and any agencies with jurisdiction by
law over any resources affected by the project (CEQA Guidelines, § 15082). Scoping is also
specifically required for joint NEPA/CEQA documents (Id. at § 15083).

Opportunities for Coordination: In general, comment periods are similar for CEQA and
NEPA. Public involvement primarily occurs during scoping, after draft environmental
documents are released for public review, and when the lead agency requests public comments.

Timing requirements in the two review processes differ somewhat. Comment periods for Draft
EISs are specifically mandated to be no less than 45-days, where EIRs may in some limited

9
The “State Clearinghouse” is a unit within OPR that is responsible for distributing environmental documents to
state agencies, departments, boards, and commissions for review and comment (CEQA Guidelines, § 15023, subd.
(c)).
10
Under certain circumstances, OPR may provide for a shorter review period. Such shorter review may be
appropriate where the document is a supplement to a previously reviewed document, or the project is under extreme
time constraints (See CEQA Guidelines, Appendix K).

23
circumstances only require a 30-day review period. The review period for EIRs also generally
would not exceed 60 days. Remember that the individual Federal agencies’ own NEPA
implementing procedures may require review periods longer than 45-days. 11 It should be noted
that although the CEQA Guidelines provide for an EIR comment period of up to 60 days, barring
“unusual circumstances,” a Federal agency requiring a longer comment period would likely
qualify as an unusual circumstance that would permit a CEQA agency to extend its comment
period. 12

Finally, a Record of Decision (ROD) may only be issued 30 days after the Notice of Availability
of a Final EIS and 90 days after the Notice of Availability for a Draft EIS have been published
(40 C.F.R. § 1506.10(b)(1)-(2)).

In cases where agencies have formal internal appeals, an exception to the rules on timing may be
made (40 C.F.R. § 1506.10(b)(2)). Likewise, “an agency engaged in rulemaking under the
Administrative Procedure Act or other statute specifically for the purpose of protecting the
public health or safety, may waive the time period” and publish a decision of the final rule
simultaneously with the publication of the notice of availability of final EIS (Ibid.).

Where possible, joint NEPA/CEQA documents should attempt to provide a unified public
participation process, including jointly conducted public hearings, comment periods and final
review periods. Both NEPA and CEQA regulations recommend joint public hearings that would
meet both agencies’ requirements (40 C.F.R. § 1506.2(b); CEQA Guidelines, § 15226). When
combining documents and analyses, agencies must adhere to the strictest requirements. At a
minimum, a joint FONSI/Negative Declaration document requires an initial filing of a Notice of
Intent to adopt the proposed declaration. Subsequently, 30 days of public and agency comment
prior to certification would also be required to ensure that the CEQA requirement is met. A joint
draft EIS/EIR document requires 45 days for public review and comment to ensure the NEPA
requirement is met. Lastly, the joint NEPA/CEQA documents should also comply with CEQA’s
consultation requirements outlined above. As a practical matter, the agencies should keep in
mind that cultivating active public participation and responding to public concerns about projects
can help to minimize the risk of legal challenge and protracted litigation.

11
For instance, the BLM’s internal guidance calls for a 45 day comment period for most Draft EIS’s (Interior
Departmental Manual 516 4.26), but a 90 day comment period is required for Draft EIS’s amending a BLM land use
plan (BLM Land Use Planning Handbook H-1601-1).
12
Note that section 15105 of the CEQA Guidelines states that the comment period “should” not be longer than 60
days. The CEQA Guidelines use the word “should” to indicate that the directive is strongly suggested absent
countervailing policies.

24
 5. What Other Timelines Apply to Environmental Review Schedules?

Both NEPA and CEQA provide for developing schedules to guide the review processes.
However, the mandatory requirements differ between the two processes.

NEPA Requirement: NEPA regulations require few mandatory timelines. Under 40 C.F.R. §
1501.8, agencies are encouraged to and, “shall set time limits if an applicant for the proposed
action requests them” (40 C.F.R. § 1501.8(a)). Factors an agency may consider when setting
time lines include the potential for environmental harm, magnitude of the proposed project,
public need for the project etc. (See 40 C.F.R. § 1501.8(b)(1)(i)-(viii)). Similarly, an agency
may set timelines regarding the process such as scoping, preparation of draft EIS, review of
comments, preparation of final EIS, etc. (See 40 C.F.R. § 1501.8(b)(2)(i)-(vii)).

CEQA Requirement: CEQA is intended to be implemented in conjunction with other planning

and review processes. Two statutory timeframes can affect the CEQA process. First, the CEQA
Guidelines set deadlines for completing and certifying a Negative Declaration or EIR for a
private project, barring unreasonable delay by an applicant (CEQA Guidelines, §§ 15107-
15109). However these provisions do not apply to projects with Federal involvement, as the lead
agency may waive the Negative Declaration or EIR deadline at the request of an applicant (Cal.
Gov. Code, § 65954; CEQA Guidelines, § 15110).

Second, the California Permit Streamlining Act (Cal. Gov. Code, § 65920 et seq.) (PSA) also
sets time limits on how much time a state or local agency has to accept an application as
complete before the CEQA process begins, and to make a decision following the completion of
the CEQA process (Cal. Gov. Code, § 65950). For projects that are subject to the PSA, the
agency must approve or deny the application within 90 to 180 days of EIR certification or within
60 days of adoption of a Negative Declaration of a finding of exemption (Ibid).

An environmental document will not be deemed approved based on an agency’s failure to meet
the CEQA deadlines. Case law treats CEQA deadlines as directory, not mandatory. 13

Opportunities for Coordination: The only set time periods under NEPA are the public review
and comment periods following the Notice of Availability of a Draft or Final EIS. NEPA does
not set time periods for the overall review. 14 Certain projects submitted to California agencies
for review by non-agency proponents may be subject to the provisions of the PSA, which
requires accelerated timetables in order to speed permit issuance. However, the PSA specifically
states that accelerated timetables do not apply when there are longer Federal timelines. Further,
the PSA timelines for project consideration under CEQA, the decision on the proposed action
under NEPA, do not begin to run until after the joint NEPA/CEQA process is complete.

13
Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1221.
14
Recent legislation specific to surface transportation projects does set overall timelines (MAP-21, Transportation
Reauthorization 2012).

25
 C. Stage 3: Preparing the NEPA and CEQA Analyses and Documentation

1. How Can Purpose and Need and Project Objectives be Aligned?

Both NEPA and CEQA agencies must include a statement in the environmental document
explaining why the agency is considering a particular action or project. This is particularly
important when the objectives of multiple agencies are not identical.

NEPA Requirement: The NEPA regulations require a description of “the underlying purpose
and need to which the agency is responding” in considering a project (40 C.F.R. § 1502.13).

CEQA Requirement: The CEQA Guidelines require the description of a project in an EIR to
include a “statement of objectives sought by the proposed project (CEQA Guidelines, § 15124,
subd. (b)).”

Opportunities for Coordination: Under both CEQA and NEPA, the purpose and need/project
objectives provide similar functions: to explain why the project is being considered and assist in
the decision making process. Significantly, both the purpose and need and the project objectives
help determine which alternatives are considered in the environmental analysis. Different
agencies considering a project may have different missions or authorities, which in turn could
create different goals for a single project. Furthermore, lead agencies should cooperatively
review proposed project purpose and need and project objectives statements with other
participating or cooperating agencies that have jurisdiction and decision making roles for the
proposed action. This will provide an opportunity to accommodate the needs of all agencies
responsible for making a decision needed for the project to proceed by including all project
relevant NEPA and CEQA requirements in the joint document.

Where the involved Federal and state/local agencies do not share the same objectives, a joint
document may describe the Federal agency’s purpose and need and the CEQA project objectives
in separate sections. These sections can be accompanied by an explanation of why the agencies’
goals differ (e.g., that their statutory authorities or obligations require a different focus). Such an
explanation will also help explain any differences in the alternatives considered by the Federal
and state agencies (See below, Q&A, ARE EIS/EIR ALTERNATIVES CONSISTENT?).

26
 2. Are EIS/EIR Alternatives Consistent?

Both CEQA and NEPA require analysis of alternatives to the proposal before the agency. The
alternatives can be approached the same way for both, but each law requires certain matters to
specifically be addressed. Differences may arise over the number or range of alternatives that
agencies consider feasible and the level of detail in which alternatives are discussed.

NEPA Requirement: Analysis of an agency’s alternatives, including the proposed action, are
“the heart of the environmental impact statement” (40 C.F.R. § 1502.14). NEPA regulations
require an agency to “rigorously explore and objectively evaluate all reasonable alternatives” (40
C.F.R. § 1502.14(a)), to devote substantial treatment to each alternative (40 C.F.R. §
1502.14(b)), to identify the preferred alternative where one or more exists (40 C.F.R. §
1502.14(e)), and to present the environmental impacts of the proposed action and the alternatives
in comparative form to sharply define the issues and provide a clear basis for a choice among
alternatives by the decision maker and the public. Other requirements include:

• Providing a “no action” alternative (40 C.F.R. § 1502.14(d));

• Explaining why any alternatives were eliminated from detailed analysis (40 C.F.R. §
1502.14(a));
• Identifying the environmentally preferred alternative (40 C.F.R. § 1502.14(e)).

When determining the scope of an environmental review, the CEQ NEPA Regulations require an
agency to consider three types of alternatives. The three alternatives include the no action
alternative, other reasonable courses of action, and mitigation measures that are not an element
of the proposed action (40 C.F.R. § 1508.25(b)(1)-(3)).

When an agency has concluded an EIS, the decision is recorded in a public ROD (40 C.F.R. §
1505.2). The ROD needs to “identify all alternatives considered by the agency in reaching its
decision, specifying the alternative or alternatives which were considered to be environmentally
preferable” (40 C.F.R. § 1505.2(b)). The agency must discuss all factors essential to the agency
decision and discuss how those factors influenced the agency’s decision (40 C.F.R. § 1505.2(b)).

In addition to discussion of alternatives, the ROD shall state “whether all practicable means to
avoid or minimize environmental harm from the alternative selected have been adopted and if
not, why they were not” (40 C.F.R. § 1505.2(C)). Finally, the preferred alternative is not
necessarily the environmentally superior alternative. Nothing in NEPA requires that the
agency’s preferred alternative must have the least environmental impact.

CEQA Requirement: CEQA also requires analysis of a reasonable range of alternatives to the
proposed project to foster informed decision making and public participation (CEQA Guidelines,
§ 15126.6, subd. (a)). CEQA states that, “[t]he EIR shall include sufficient information about
each alternative to allow meaningful evaluation, analysis, and comparison with the proposed
project. A matrix displaying the major characteristics and significant environmental effects of
each alternative may be used to summarize the comparison. If an alternative would cause one or

27
more significant effects in addition to those that would be caused by the project as proposed, the
significant effects of the alternative shall be discussed, but in less detail than the significant
effects of the project as proposed” (emphasis added) (Id. at § 15126.6). The alternatives need
only “include sufficient information about each alternative to allow meaningful evaluation,
analysis, and comparison with the proposed project” (Id. at § 15126.6, subd. (d)). Other
requirements include:

• Providing a “no project” alternative (Id. at § 15126.6, subd. (e));

• Explaining why rejected alternatives are considered infeasible (Id. at § 15126.6, subd.
(c)); and
• Identifying the agency’s “environmentally superior alternative.” If the environmentally
superior alternative is the “no project” alternative, then the EIR must identify an
environmentally superior alternative among the other alternatives” (Id. at § 15126.6,
subd. (e)(2)).

Opportunities for Coordination: The framework for considering alternatives to a proposal as a

means of reducing environmental impacts is similar under NEPA and CEQA. The “no action”
and “no project” requirements are functionally the same and should examine the reasonably
foreseeable consequences of not taking the proposed action. They serve the purpose of
describing the current and future state of the potentially affected environment without
considering the potential impacts of the proposed action or project.

In practice, the NEPA standard of “devoting substantial treatment” to each alternative tends to
result in a more detailed look at alternatives. On the other hand, the CEQA focus on mitigation,
requires CEQA “reasonable” alternatives to include those that “are capable of avoiding or
substantially lessening any significant effects of the project, even if these alternatives would
impede to some degree the attainment of the project objectives, or would be more costly”
(CEQA Guidelines, § 15126.6, subd. (b)). NEPA alternatives are generally restricted to those
that meet the agency’s purpose and need (40 C.F.R. § 1502.13); however, mitigation alternatives
should be considered (40 C.F.R. § 1508.25(b)(3)). Reasonable alternatives include those that are
practical or feasible from the technical and economic standpoint and using common sense, rather
than simply being desirable from the standpoint of the applicant (NEPA’s 40 Most Asked
Questions, 19b, available at, http://ceq.hss.doe.gov/nepa/regs/40/40p3.htm).

Consequently, in practice, an EIS may contain the analysis of fewer alternatives but in more
detail than an EIR. Furthermore, differing purpose and need and objectives statements (see
above, Q&A) can lead to different ranges of alternatives. An alternative that meets the
objectives of one agency may not be consistent with the purpose and need of another agency, and
those differences should be explained in a joint document.

Since joint documents must satisfy the requirements of both NEPA and CEQA, joint EIS/EIRs
should meet the NEPA standard for level of detail in describing the alternatives and their
impacts, as there is nothing in CEQA to prevent an agency from providing a more detailed
alternatives description than is customary. Such alternatives should also represent a range of
alternatives, including alternatives that would lessen any significant effects associated with the
proposed project. If an agency believes it must analyze a particular alternative, but that

28
alternative is not considered reasonable by another agency, one strategy would be to label that
particular alternative as a NEPA-only or CEQA-only alternative, explaining why one agency is
considering it but the other agency is not. 15

A robust range of reasonable alternatives will include alternatives for avoiding significant
environmental impacts and quantifying those impacts where possible can facilitate the
comparison between alternatives. Examples of alternatives considered in recent NEPA and
CEQA reviews for California energy projects include:

• Considering reduced acreage, reduced megawatt and modified footprint alternatives, as

well as alternative sites that focus on disturbed sites, degraded sites, contaminated sites,
and fallow or impaired agricultural lands;

• Considering alternative generating technologies and providing a description of the

benefits associated with those technologies; and

• Considering relocating portions of the project in other areas, including private land, to
reduce environmental impacts.

15
Agencies should consider the utility of analyzing alternatives that are not considered reasonable by one or more
agencies, and therefore presumably could not be implemented. NEPA does allow agencies to consider alternatives
outside their jurisdiction if those alternatives are reasonable (40 C.F.R. § 1502.14(c)).

29
 3. How Should Environmental Impacts/Effects/Consequences be Considered?

A key requirement of both NEPA and CEQA is the analysis of a project’s environmental
impacts. Generally the analysis of impacts under one law will meet the requirements of the
other. However, the individual laws include slightly different issues in their lists of subjects to
be addressed.

NEPA Requirement: The CEQ NEPA regulations use the terms “effects” and “impacts”
synonymously. The environmental consequences section of an EIS must discuss direct and
indirect impacts of the proposed project (40 C.F.R. § 1502.16(a)-(b)). The regulations define
“effects” as “direct effects, which are caused by the action and occur at the same time and place”
(40 C.F.R. § 1508.8(a)). Indirect effects include effects “later in time or farther removed in
distance, but are still reasonably foreseeable” (40 C.F.R. § 1508.8(b)). “Indirect effects may
include growth-inducing effects and other effects related to induced changes in the pattern of
land use, population density or growth rate, and related effects on air and water and other natural
systems, including ecosystems” (40 C.F.R. § 1508.8). Finally, cumulative impacts must be
considered. A “cumulative impact” is the environmental impact resulting from the incremental
impact of the action when added to other past, present and reasonably foreseeable future actions
that can result from individually minor but collectively significant actions taking place over a
period of time (40 C.F.R. § 1508.7).

Impacts should be addressed in proportion to their significance (40 C.F.R. § 1502.2(b)), meaning
that severe impacts should be described in more detail than less consequential impacts. This is
intended to help decision makers and the public focus on the project’s key effects. The NEPA
regulations explicitly require certain impacts to be discussed, including:

• Irreversible or irretrievable commitment of resources (40 C.F.R. § 1502.16);

• Tradeoffs between short term uses of the environment and long term productivity (40
C.F.R. § 1502.16); and
• Energy requirements and conservation potential of alternatives (40 C.F.R. § 1502.16(e)).

Effects include “ecological (such as the effects on natural resources and on the components,
structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social,
or health, whether direct, indirect, or cumulative.” Effects may also be both beneficial and
detrimental (40 C.F.R. § 1508.8).

Effects are measured against the “no action alternative” (CEQ, “Forty Most Asked Questions
Concerning CEQ's National Environmental Policy Act Regulations,” Answer to Question 3 (the
“no action alternative” analysis “provides a benchmark, enabling decisionmakers to compare the
magnitude of environmental effects of the action alternatives”)).

CEQA Requirement: CEQA focuses on adverse environmental changes (CEQA Guidelines, §

15382). The environmental impacts section of an EIR also must consider direct and indirect
impacts of the project (Cal. Pub. Resources Code, § 21065.3). EIRs should focus on significant

30
impacts (CEQA Guidelines, § 15126.2, subd. (a)). Impacts that are less than significant need
only be briefly described (Id. at § 15128). All potentially significant effects must be addressed.
Impacts are normally to be measured against the environmental setting, which the CEQA
Guidelines define to mean “physical environmental conditions in the vicinity of the project, as
they exist at the time the notice of preparation is published, or if no notice of preparation is
published, at the time environmental analysis is commenced, from both a local and regional
perspective” (Id. at § 15125, subd. (a)). 16

To assist lead agencies in evaluating all impacts, Appendix G of the CEQA Guidelines provides
an environmental checklist that informs the framing of the analysis. 17 In addition, the CEQA
Guidelines specifically require consideration of:

• Impacts of greenhouse gas emissions (CEQA Guidelines, § 15064.4);

• Energy Impacts (Id. at Appendix F);
• Impacts associated with placing projects in hazardous locations (Id. at § 15126.2, subd.
(a)); 18
• Growth-inducing impacts (Id. at § 15126.2, subd. (d));
• Irreversible significant environmental impacts for some types of projects, including those
requiring an EIS under NEPA (Cal. Pub. Resources Code, § 21100, subd. (b)(2); CEQA
Guidelines, § 15127, subd. (c)).

Individual agencies may also specify particular types of analysis that must be performed. For
example, the California Energy Commission has specific regulations, discussed further in
Section IV, below (20 CCR § 1743).

Opportunities for Coordination: Both laws encourage an environmental document to focus on

the most consequential potential impacts. CEQA agencies often structure their impact analysis
around the environmental factors listed in Appendix G of the CEQA Guidelines. However, this
checklist is only a sample form, and does not encompass all possible impacts that a project might
have (See, e.g., Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116
Cal.App.4th 1099). Similarly, the CEQ NEPA Regulations describe potential effects broadly
and call for the lead agency to focus the analysis on the relevant effects.

16
The California Supreme Court recently addressed when it is appropriate to depart from use of existing conditions
to analyze impacts and instead rely on projected future conditions. The Court explained: “Projected future
conditions may be used as the sole baseline for impacts analysis if their use in place of measured existing
conditions—a departure from the norm stated in Guidelines section 15125(a)—is justified by unusual aspects of the
project or the surrounding conditions. … [A]n agency does have discretion to completely omit an analysis of
impacts on existing conditions when inclusion of such an analysis would detract from an EIR's effectiveness as an
informational document, either because an analysis based on existing conditions would be uninformative or because
it would be misleading to decision makers and the public” (Neighbors for Smart Rail v. Exposition Metro Line
Construction Authority (2013) 57 Cal.4th 439, 451-452).
17
http://opr.ca.gov/docs/Inital_Study_Checklist_Form.pdf.
18
The validity of CEQA Guidelines section 15126.2(a), to the extent that it would require analysis of the impacts of
the environment on a project, was called into question in Ballona Wetlands Land Trust v. City of Los Angeles (2011)
201 Cal.App.4th 455.

31
The regulations governing the content of NEPA and CEQA accommodate joint analysis of
environmental impacts. Even requirements that are specific to one law can be applied to both.
For instance, NEPA has no explicit requirement to analyze a proposed action’s greenhouse gas
emissions. However, nothing precludes a Federal agency from analyzing greenhouse gases—
indeed, if the project will have emissions, a good NEPA analysis would analyze these impacts
regardless of CEQA requirements. Similarly, issues raised in a NEPA analysis of environmental
justice would be appropriately addressed in the environmental setting and cumulative impacts
analysis of a CEQA document. When the combined document addresses an issue that either
NEPA or CEQA would not typically require, that analysis can be labeled as a NEPA-only or
CEQA-only analysis.

Finally, agencies may reach different conclusions about the extent of some impacts, complicating
the drafting of the environmental impacts section (See below, discussion of Significance). For
example, different conclusions may result when the existing conditions used for the CEQA
analysis are different from the affected environment under the “no action alternative” used for
the NEPA analysis. Obviously, open communication between agencies throughout the analysis
of impacts will help to minimize these conflicts. If there is a difference in the document, then the
differences should be explained. It is good practice to have both agencies disclose differences in
methodology and assumptions, and to explain their respective approaches in the documents so
that the public and decision makers understand why there is a difference. However, agencies
may also wish to discuss this scenario at the beginning of a joint process and agree on how to
manage such a disagreement. Agencies should consider memorializing such a process in their
MOU. Such up front discussions will help resolve conflicts that arise late in the process when
deadlines are looming.

NEPA and CEQA review of large projects can necessitates numerous, detailed technical reports,
studies and data collection, as well as secondary review and approval. Moreover, in terms of
time and cost, these technical studies and secondary reviews approach or exceed the cost of
preparing the actual environmental document. While each agency is responsible for fulfilling its
own directives, improved integration between analogous state and federal regulations and
guidelines would help reduce compliance costs.

32
 4. How Should Cumulative Impacts be Considered?

Analyzing a project’s cumulative impacts can be one of the most challenging tasks in an
environmental review. Both CEQA and NEPA require cumulative impact analysis.

NEPA Requirement: NEPA defines a cumulative impact as an “impact on the environment

which results from the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or
person undertakes such other actions” (40 C.F.R. § 1508.7). The CEQ NEPA Regulations do not
provide specific criteria for a cumulative impact analysis, but the CEQ has produced a handbook
and guidance for doing cumulative effects analysis. The handbook recommends temporally and
spatially bounding the analysis by establishing a geographic scope and time frame that addresses
past, present, and reasonably foreseeable projects that could combine with the proposed action to
create cumulative impacts (CEQ, CONSIDERING CUMULATIVE EFFECTS UNDER THE NATIONAL
ENVIRONMENTAL POLICY ACT, 1997, available at:
http://ceq.hss.doe.gov/publications/cumulative_effects.html). Furthermore, CEQ guidance states
the CEQ NEPA Regulations do not require agencies to catalogue or exhaustively “list or analyze
all individual past actions unless such information is necessary to describe the cumulative effect
of all past actions combined” (CEQ, GUIDANCE ON THE CONSIDERATION OF PAST ACTIONS IN
CUMULATIVE EFFECTS ANALYSIS, 2005, available at:
http://ceq.hss.doe.gov/nepa/regs/Guidance_on_CE.pdf).

CEQA Requirement: CEQA defines a cumulative effect as “two or more individual effects
which, when considered together, are considerable or which compound or increase other
environmental impacts” (CEQA Guidelines, § 15355). The environmental document should
focus on instances in which the proposed project would incrementally contribute to a significant
cumulative impact. It need not discuss cumulative impacts that are not significant in detail
beyond justifying this determination, nor must it consider cumulative effects to which the
proposed project does not contribute (Id. at § 15130, subd. (a)).

Discussion of cumulative impacts should reflect those impacts’ severity and likelihood of
occurrence. The analysis may not require the same level of detail as the discussion of effects
attributable to the project alone (CEQA Guidelines, § 15130, subd. (b)). The analysis should
define and justify the geographic scope of the area affected by the cumulative impact (Id. at §
15130, subd. (b)(3)). The analysis may rely on considerations of past, present, or probable future
projects producing related or cumulative effects, including projects outside the agency’s control,
or may rely on projections of future effects contained in specified plans (Id. at § 15130, subd.
(b)(1)(A)). CEQA also does not require agencies to catalogue or exhaustively list or analyze all
individual past actions.

The CEQA Guidelines explicitly allow the cumulative effects analysis to be less detailed than the
discussion of effects attributable to the project alone; however, a sufficient amount of detail to
adequately apprise the public and decision-makers of a project’s cumulative effects must be
provided and so will depend on the circumstances surrounding the project and the impact at
issue.
33
Opportunities for Coordination: The CEQA Guidelines and the CEQ NEPA Regulations,
CEQ handbook, and guidance spell out similar cumulative impact analysis procedures:

• The analysis should address past, present, and reasonably foreseeable/probable future
projects that could combine with the impacts of the proposal at hand;
• The agencies should define and justify the geographic scope of possible cumulative
effects for each affected resource;
• The agencies should define and justify the temporal scope of possible cumulative effects
for each affected resource by establishing a timeframe which covers the reasonably
foreseeable duration of the effects; and
• A greater emphasis should be placed on those impacts that will be more severe, to focus
public review.

The main difference is the level of detail required for the analysis. To ensure compliance with
both laws, the cumulative impact analysis may need more detail than California agencies
typically provide under CEQA.

34
 5. What are the Differences in Determining Significance?

NEPA and CEQA have a shared purpose of identifying significant environmental impacts. They
have slightly different, although not incongruous, definitions, and approaches to determining
significance.

NEPA Requirement: The NEPA regulations define significance in terms of context and
intensity. Context refers to the need to consider impacts within the setting in which they occur
(40 C.F.R. § 1508.27(a)). Intensity refers to the severity of the impact, with 10 non-exclusive
criteria to consider specified in the regulations (Id. at § 1508.27(b)). If an agency determines
that an action will have one or more significant impacts on the environment, it must prepare an
EIS (42 U.S.C. § 4332(c)).

CEQA Requirement: The CEQA Guidelines define a significant impact as “a substantial, or

potentially substantial, adverse change within the area affected by the project” (CEQA
Guidelines, § 15382). The CEQA Guidelines encourage agencies to adopt their own thresholds
for what constitutes a significant impact (Id. at § 15064.7, subd. (a)). A “threshold of
significance” is “an identifiable quantitative, qualitative, or performance level of a particular
environmental effect, non-compliance with which means the effect will normally be determined
to be significant by the agency and compliance with which means the effect normally will be
determined to be less than significant” (Id. at § 15064.7). Thus, some state or local agencies may
have specific definitions of significance for particular resources or impacts. Even in the absence
of adopted thresholds, CEQA requires an agency to evaluate the factual and scientific data to
determine whether an impact may be significant. The determination of significance may depend
to some degree on the project’s context (Id. at § 15064, subd. (b)). CEQA documents also must
explicitly identify each impact the agency has determined to be significant (Id. at § 15126.2,
subd. (a)). These significance determinations must be “based on substantial evidence in the
record” (Id. at § 15064, subd. (f)). For the purposes of determining whether an EIR must be
prepared, the CEQA Guidelines identify certain circumstances in which a lead agency must find
that a project may have a “significant effect on the environment” (Id. at § 15065).

Opportunities for Coordination: NEPA and CEQA define significance in different terms.
Therefore, NEPA and CEQA agencies tend to treat significance differently in their
environmental documents.

CEQA and NEPA practices can be aligned in a joint environmental document by explaining
which significance determinations are being made. Specific significance determinations should
then be set forth in the document. The Federal and state agencies can describe each specific
impact in common language that is consistent with both NEPA and CEQA practice. Following
each description, the agencies should include a section in which the determination is made and
explained.

35
 6. When Should an EIS/EIR be Supplemented or Re-Released?

Under NEPA and CEQA, agencies consider a similar set of circumstances under which an
environmental document must be re-released for public and agency review when new
information becomes available after publication of the draft or final document.

NEPA Requirement: NEPA dictates a process for incorporating new information into an
already published EIS called supplementation. A supplemental EIS must be prepared if there are
“substantial changes in the proposed action” relevant to environmental concerns, or “significant
new circumstances or information relevant to environmental concerns and bearing on the
proposed action or its impacts” (40 C.F.R. § 1502.9(c)(1)). The supplement should focus on the
new information (40 C.F.R. § 1502.9(c)(1)). The CEQ has clarified that new alternatives outside
the range of alternatives already analyzed would trigger the requirement for a supplemental
review (NEPA’s 40 Most Asked Questions, 29b). Supplements may be prepared for either draft
or final EISs.

Although scoping is not required, an agency must publish the draft Supplemental EIS for public
review and comment before issuing a final EIS (40 C.F.R. § 1502.9(c)(4)). Agencies conducting
NEPA reviews also need to be sure to have support in their administrative record for their
decisions on whether and how to supplement to ensure those decisions are not arbitrary and
capricious.

CEQA Requirement: CEQA provides a similar process for recirculation of draft documents,
and supplementation of certified final documents. An agency must recirculate an EIR when
“significant new information” is added after the draft EIR is made available for public review,
but before the lead agency certifies the final EIR. Significant new information can include
changes to the project or circumstances surrounding the project leading to a new significant
environmental impact, a substantial increase in severity of an impact, or another feasible
alternative that would reduce impacts and is considerably different from other alternatives
(CEQA Guidelines, § 15088.5, subd. (a)). Recirculation is not necessary for new information
that merely clarifies, amplifies, or makes insignificant modifications to information that was
already presented to the public (Id. at § 15088.5, subd. (b)). An agency must provide adequate
notice of a recirculation (Id. at § 15088.5, subd. (d)), and if the new information only affects a
few sections of the EIR, only those sections must be recirculated (Id. at § 15088.5, subd. (c)).

Following certification of an EIR, new information will only trigger a subsequent or

supplemental EIR in limited circumstances. Supplemental review is required only if (1) the
project requires a further discretionary approval and (2) new information reveals that the project
will cause a new or substantially more severe impact or that mitigation measures or alternatives
would substantially reduce one or more significant impacts, but the project proponent declines to
adopt such measures or alternatives (CEQA Guidelines, § 15162). Where new information
triggers the need for supplemental review, no further discretionary approvals may be granted
until after the supplemental review is completed. Minor changes in the project or project
circumstances that do not trigger the requirements for supplemental review can be addressed in

36
an addendum to a previously adopted negative declaration or certified EIR (Id. at § 15164). An
addendum need not be circulated for additional public or agency review.

The CEQA guidelines include an explicit standard for supporting a decision not to recirculate
new information with “substantial evidence.”

Opportunities for Coordination: Under both NEPA and CEQA, recirculation/supplementation

is needed when any of the following occur:

• substantial changes to the proposal itself;

• a new alternative arises outside the range of those already analyzed; or
• any other new information arises that would significantly change the analysis of impacts.

What constitutes “significant” or “substantial” new information may be interpreted differently.

It is possible that NEPA and CEQA agencies may reach different conclusions on the need to
supplement or recirculate an analysis. Agencies should discuss how they will handle this type of
disagreement before embarking on a joint process, rather than trying to manage it ad hoc when
the issue arises and time may be short. Agencies may wish to memorialize a process for sorting
out such disagreements in their MOU.

Both NEPA and CEQA require similar notice and public review procedures, and both require the
agency to only recirculate the new information as long as the original EIS or EIR being
supplemented/ recirculated is available to the public.

The two laws’ requirements for recirculating/supplementing environmental documents are

similar enough that agencies presented with new information or project changes should generally
treat that information the same way (i.e., by supplementing or substantiating their determination
not to). Just as with the draft EIS/EIR, agencies should be able to release a joint supplemental
analysis with a joint public review period.

37
 7. How do Mitigation Requirements Differ?

Both NEPA and CEQA require consideration in environmental analyses of ways to lessen a
project’s adverse environmental impacts. NEPA and CEQA differ, however, on whether such
mitigation must actually be adopted as part of a project approval.

NEPA Requirement: Under NEPA, mitigation includes avoiding, minimizing, rectifying,

reducing over time, or compensating for an impact (40 C.F.R. § 1508.20). CEQ guidance says
that “all relevant, reasonable mitigation measures that could improve the project are to be
identified,” including those outside the agency’s jurisdiction (NEPA’s 40 Most Asked Questions,
19b, available at, http://ceq.hss.doe.gov/nepa/regs/40/40p3.htm). An agency is not limited to
considering mitigation only for significant impacts. It should identify feasible measures for any
adverse environmental impacts, even those that are not considered significant (40 C.F.R. §
1502.16(h)).

The CEQ NEPA Regulations do not require an agency to impose identified mitigation measures
for an environmental impact. When an agency determines it can mitigate impacts so that they
are not significant, then the agency can provide a commitment to ensure that mitigation is
performed and conclude the NEPA review with a mitigated FONSI. If the agency does not
commit to the mitigation, it can proceed to an EIS. If an agency does not adopt a feasible
mitigation measure in an EIS, it must justify its decision. If it does adopt mitigation measures,
then it must put in place a mitigation monitoring and enforcement program and, where
applicable, that program should be summarized in the ROD (40 C.F.R. § 1505.2(c)).

CEQA Requirement: CEQA defines mitigation the same way as NEPA (CEQA Guidelines, §
15370). An EIR must describe feasible mitigation measures for significant adverse impacts (Id.
at § 15126.4, subd. (a)(1)), and the agency must adopt feasible mitigation measures or
alternatives to substantially lessen the significant effect before approving the project (Cal. Pub.
Resources Code, §§ 21002 & 21002.1). “Feasible” means “capable of being accomplished in a
successful manner within a reasonable period of time, taking into account economic,
environmental, legal, social, and technological factors” (CEQA Guidelines, § 15364). Mitigation
measures may also be adopted, but are not required, for environmental impacts that are not found
to be significant (Id. at § 15126.4, subd. (a)(3)). When a lead agency relies on mitigation
measures to avoid preparation of an EIR, those proposed measures must be circulated for public
review with a proposed mitigated negative declaration prior to adoption of the project (Id. at §
15070, subd. (b)(1)). A mitigation monitoring program must also be adopted to ensure measures
are implemented (Id. at § 15097, subd. (a)).

Opportunities for Coordination: The term “mitigation” means the same thing to NEPA and
CEQA agencies for purposes of meeting their NEPA and CEQA responsibilities.19 There are
two significant differences related to mitigation between NEPA and CEQA:

19
The definition of mitigation may not be the same for other substantive environmental laws, such as the federal and
California Endangered Species Acts.

38
 1) CEQA requires that any feasible mitigation measures that can reduce a significant impact
be adopted, while NEPA does not (as long as the agency justifies its decision not to adopt
feasible measures); and
2) CEQA mitigation requirements apply only to adverse environmental impacts found to be
significant, while NEPA’s regulations apply to any adverse impacts, even if not
significant.

Agencies should make sure they are clear with each other and with the public about who is
proposing each mitigation measure and who would monitor and enforce measures that are
adopted.

Agencies should discuss whether a joint monitoring program would be efficient. CEQA
agencies used to focusing on mitigating only significant impacts will need to expect a broader
approach in joint documents, as NEPA agencies must at least consider mitigation for all adverse
impacts. NEPA agencies, in turn, should be aware of the CEQA requirement to mitigate
significant impacts if feasible.

39
 D. Stage 4: The Decision

1. How Do Agencies Document Their Final Environmental Decision Making?

Federal and California agencies must make certain findings regarding environmental effects
when they make a decision at the end of the process.

NEPA Requirement: When an EA and FONSI are prepared, the lead agency must determine
either that there are no significant impacts or that any significant impacts can be mitigated so that
they are no longer significant (40 C.F.R. § 1508.13). When a mitigated EA/FONSI is prepared,
the lead agency should adopt a mitigation monitoring and reporting program (CEQ Guidance,
Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated
Findings of No Significant Impact, January 14, 2011).

When an EIS is prepared, NEPA requires lead agencies to prepare a ROD setting forth the
agency’s decision on the project, describing the alternatives considered, and stating whether
mitigation measures have been adopted (40 C.F.R. § 1505.2). When an EIS has been prepared,
the ROD cannot be issued until 30 days after the Federal Register publishes EPA’s Notice of
Availability of the Final EIS.

CEQA Requirement: CEQA requires a lead agency to adopt several sets of determinations
prior to approving a project. Where an Initial Study and Negative Declaration were prepared for
the project, the lead agency must determine that there is no substantial evidence that the project
may cause a significant effect. Where a Mitigated Negative Declaration was prepared, the lead
agency must also adopt a mitigation monitoring and reporting program (CEQA Guidelines, §
15074).

CEQA requires agency decisions to be made with varying degrees of formality. When the
statute or the guidelines uses the term “determine” or “determination,” the agency can simply
announce a conclusion on an issue so long as there is evidence in the record to support that
conclusion. With regard to each significant effect identified in an EIR, the agency must make a
formal written finding at the end of the process (Cal. Pub. Resources Code, § 21081; CEQA
Guidelines, § 15091). The agency must state one of three possible statutory conclusions in
written findings, explain briefly why that conclusion was reached, and have support in the record
for the conclusion.

The three possible conclusions are: (1) that changes have been made or conditions required in the
project that will avoid or reduce the significant effect to a level of less than significant; (2) that
the changes are within the responsibility of another agency; or (3) that no changes are feasible.
If a significant effect can be changed to less than significant with mitigation measures alone, the
findings do not need to address alternatives (Laurel Heights Improvement Association v. Regents
of the University of California (1988) 47 Cal.3d 376, 400-403). However, if mitigation alone
leaves even one effect remaining significant, the agency must make a formal written finding as to
the feasibility of each alternative (Citizens for Quality Growth v. City of Mount Shasta (1988)
198 Cal.App.3d 433, 445).
40
Where changes were made or required in a project to lessen the significant effects shown in an
EIR, the agency must adopt a mitigation monitoring and reporting program (CEQA Guidelines, §
15091, subd. (d)). If the project as approved will result in any effects that cannot be reduced to
less than a significant level, the agency must adopt a statement of overriding considerations
explaining why the benefits of the project outweigh its remaining significant and unavoidable
effects (Id. at § 15093).

Within five days of project approval, an agency must file a Notice of Determination (Id. at §
15094).

Opportunities for Coordination: Both Federal and California agencies must make certain
findings prior to making the decision on the proposed project. Federal findings under NEPA are
the determination there are no significant impacts when preparing an EA which is documented in
a FONSI, or the determinations are documented in a ROD. Those findings are generally
supported with information developed during the environmental review process. The specific
findings that CEQA requires, however, will drive how California agencies conduct the review
process. For example, CEQA documents must identify whether impacts are significant because
that finding triggers the duty to mitigate or avoid such impacts. Doing so also determines which
impacts must be addressed in the agency’s findings, since findings are not required for less than
significant effects.

Federal and California agencies must each present their own findings to their decision-makers.
The Federal EA/FONSI and ROD and the CEQA findings are not joint documents. The findings
are the separate responsibility of each agency explaining its own decision. However, joint work
is needed to make sure there is information in the administrative record to support the findings.
Agencies should coordinate with each other to make sure that their individual decisions are not
incompatible with the decisions of the other agencies involved with the project. Agencies should
collectively discuss how they will handle this type of disagreement, should it arise, before
embarking on a joint process, rather than trying to manage it ad hoc when the issue arises and
time may be short. Agencies may wish to memorialize a process for sorting out such
disagreements in their MOU.

41
 2. Which Statute of Limitations Will Apply?

The statutes of limitations for legal challenges to CEQA and NEPA decisions are different.

NEPA Requirement: NEPA challenges are generally raised under the Administrative
Procedure Act (5 U.S.C. § 551 et seq. (hereinafter APA)), focusing on final decisions and
whether they are in compliance with the law and not arbitrary or capricious. The APA statute of
limitations is six years. Other statutes, such as the Safe Accountable Flexible Efficient
Transportation Equity Act – A Legacy for Users (SAFETEA-LU, the 2005 transportation
reauthorization) or Moving Ahead for Progress in the 21st Century Act (MAP-21, the 2012
transportation reauthorization), may allow for a shorter statute of limitations period.

CEQA Requirement: CEQA challenges proceed as writs of mandate in which the trial court is
asked to determine whether the respondent agency has proceeded in the manner provided by law
and whether the agency’s determinations are supported by substantial evidence in the
administrative record (Cal. Pub. Resources Code, §§ 21168, 21168.5). CEQA provides
“unusually short” statutes of limitations on approval of projects. (Id. at § 21167.) Different
statutes of limitations for challenges apply depending on whether or how a lead agency complied
with CEQA, as outlined in CEQA Guidelines section 15112. Generally, challenges to a project’s
EIR, Negative Declaration or certified regulatory document must be filed within 30 days of the
posting of a Notice of Determination. Challenges to a determination that a project is exempt
from CEQA must be filed within 35 days of the posting of a Notice of Exemption, if one is filed,
or if not, then 180 days from project approval. All other challenges to a project based on CEQA
must be filed within 180 days of project approval.

Opportunities for Coordination: The NEPA process does not mandate a distinct statute of
limitations for challenging the environmental reviews as does CEQA. The APA’s six-year
review limit is much longer than the CEQA challenge period, which is a maximum of six months
after an agency’s decision. Consequently, the federal agency’s action could be challenged in
Federal court under NEPA after the time that a challenge could be brought under CEQA.

42
 III. MOU Framework

A. MOU Elements
This section is intended to serve as a resource for agencies preparing a Memorandum of
Understanding (MOU) to aid in the creation of an environmental review document that satisfies
the requirements of NEPA and CEQA. The writing of an inter-agency MOU should take place
through meaningful communication and collaboration between the agencies involved and should
occur before starting to develop the NEPA/CEQA review planning and documentation. This is
necessary in order to accurately characterize the nature and scope of the project, identify the
parties and define respective roles and responsibilities, and establish a cooperative and
collaborative environment for the entirety of the project and environmental review. The Federal
and state lead agencies are encouraged to include non-lead Federal agencies in the NEPA/CEQA
MOU – all of the benefits of early, meaningful communication and collaboration between the
Federal and state lead agencies apply with equal or greater force to the non-lead Federal action
agencies. The MOU Framework should encourage the Federal and state lead agencies to bring
other Federal agencies to the table early, to plan their participation in the process, and include
them as signatories to the MOU. Each Federal agency has its own NEPA procedures (40 C.F.R.
§ 1507.3) that describe the agency’s internal review and approval process. Ideally, the MOU
should lay out the procedures for the various agencies and describe how those will be integrated
to ensure all agencies are moving forward together.

The potential elements of the MOU are outlined and explained below. This resource is not
intended to be comprehensive and not every element discussed below may be necessary for the
writing of an MOU. There is “example text” provided to stimulate thinking – not to encourage
the use of unnecessary boilerplate. Determining which elements are applicable to a particular
MOU requires consideration of the circumstances under which the MOU is being drafted. For
example, an MOU can be written for a single project, or, if a Federal and California state/local
agency work together frequently, for many projects. An MOU may also be expanded to address
cooperation in meeting environmental review and consultation requirements beyond NEPA and
CEQA.

The basic elements described below are:

a. Introduction/ Purpose
b. Goals/ Benefits
c. Defining the Aspects of the Project’s Environmental Review/ Roles and Responsibilities
d. Issue Resolution
e. Amendments/ Changes to the MOU
f. Post NEPA/ CEQA Collaboration and Cooperation

43
Agencies should, whenever practicable, follow these best practices:
• Relying on the same sets of data, field study results, and analysis for both NEPA and
CEQA;
• Determining and publishing a schedule for when and how analysis is done;
• Properly scoping activities and focusing on the project under consideration; and
• Having all agencies follow a similar timeline.

1. Introduction/Purpose

This portion of the MOU explains the need for the MOU, outlines the big-picture actions and
responsibilities for the agencies involved, and summarizes the overall goal. An MOU can be
developed and used for a specific project or a suite of projects or program (the “proposed action”
in the example text).

EXAMPLE TEXT: “The purpose of this Memorandum of Understanding is to provide a

framework for cooperation between the [Federal agency] and the [CA state/local agency] as
joint lead agencies in preparing and completing a joint environmental analysis and document
that analyzes the potential environmental consequences of [insert proposed action].

This MOU will facilitate a joint environmental review process between [CA state/local agency]
and [Federal agency], ultimately aiding the goals and missions of both agencies in the
fulfillment of their environmental reviews and simplifying the process for the public. While each
agency will assist other agencies to the best extent possible, it will ultimately be the
responsibility of [Federal Agency] to comply with the National Environmental Policy Act
(NEPA) (42 U.S.C. § 4321 et seq.), and the responsibility of [CA state agency] to comply with
the California Environmental Quality Act (CEQA) (Cal. Pub. Resources Code, § 21000 et seq.).

NEPA regulations (40 C.F.R. § 1506.2) direct federal agencies to cooperate with state and local
agencies to the fullest extent possible to reduce duplication between NEPA and state/local
requirements, including joint planning processes, environmental research and studies, public
hearings, and Environmental Impact Statements. CEQA Guidelines sections 15222 and 15226
encourage similar cooperation by state and local agencies with Federal agencies when
environmental review is required under both NEPA and CEQA. Under these conditions, the
Parties shall be joint lead agencies involved with a single planning process which complies with
all applicable laws.”

The Parties will prepare the joint environmental analysis and document pursuant to NEPA,
CEQA, and all applicable laws, executive orders, regulations, direction, and guidelines. Work
may include, but is not limited to, environmental and technical information collection/analysis,
public engagement and outreach, and drafting a joint environmental analysis document. Should

44
the decision be made to advance (authorize/approve/fund) the proposed project, this
Memorandum of Understanding continues the cooperation during the implementation of any
decision to include implementation of any mitigation measures and monitoring developed
through the NEPA/CEQA process. This cooperation serves the mutual interest of the Parties
and the public.”

2. Parties and Goals/Mutual Benefit and Interests

This section identifies the parties and their decision-making responsibilities. In other words,
provide the general – rather than “proposed action” specific – reason the parties are entering into
the MOU. The goals/mutual benefits and interests can take the form of setting out guiding
principles, such as the goal of providing better information to decision-makers and the public on
the environmental consequences of the proposed action, meeting the individual parties’
responsibilities and obligations for funding/permitting, or otherwise approving the proposed
action, satisfying regulatory requirements, and increasing collaboration.

EXAMPLE TEXT: The Federal and State agencies (Parties) are committed to demonstrating
cooperation as they develop the environmental review that will provide the public and decision-
makers with useful information that will inform their decision on “the proposed action.” The
Parties enter this MOU agreeing to:

• Create a framework where all Parties have a voice in the environmental review process,
and agree to open, frequent and candid communication.
• Integrate each Party’s mission and each Party’s statutory and legal responsibilities into
this framework because nothing in this MOU can alter the Parties’ independent
governing or regulatory obligations.
• Develop a coordination schedule for the environmental review with input from each
Party, and use best efforts to meet that schedule.
• Provide the necessary staffing and resources to ensure a meaningful and substantive
planning process, including attending periodic meetings and conference calls.
• Communicate with each other within an agreed upon timeframe if a Party is unable to
meet the schedule.
• Exchange information in a timely manner. The lead agencies will provide the Parties
with information and materials in an agreed upon timeframe. In turn, the Parties agree
to perform the review of documents and provide substantive feedback within the specified
timeframe.
• Designate a point-of-contact (POC) for each Party and agree that all written
communication to that Party will include the POC. The POC agrees to provide or
coordinate timely written communication on behalf of the POC’s Party. A Party wishing
to issue written binding communication regarding the Party’s approvals or disapprovals

45
 on critical issues or documents will clearly state that the written communication is
intended to represent the Party’s position. The POC’s routine communications are not
binding on that Party.
• Affirm that the lead agencies have the sole and ultimate decision-making authority for the
selection of the alternatives and Record of Decision, and primary responsibility for
NEPA and CEQA compliance as well as compliance with other relevant environmental
laws and regulations.
• Facilitate early engagement and coordination in identifying issues, studies and overall
development of the environmental review.
• Identify environmental goals for the “proposed action” with the intent of using these
goals to improve project level coordination and implementation.
• Work collaboratively to support the development of the environmental review and to
identify environmental issues related to the development of a range of alternatives and
environmental analysis.
• Efficiently identify, communicate and resolve issues or disagreements.
• Consider the views of all the Parties.

o All actions governed by applicable California state/Federal laws. An MOU does not grant
the signatories any additional rights or powers, nor does it excuse the signatories from
fulfilling any other statutory obligation they might have. As such, it is good practice to
explicitly state this in the MOU.
o Each Party is responsible for its own actions/omissions. In line with the previous element, an
MOU in no way incurs upon the signatories a shared statutory responsibility to fulfill the
obligations of the other signatories. As such, the MOU should indicate the actions for which
each signatory is responsible.

46
 3. Defining the Aspects of the Project’s Environmental Review/Roles and
Responsibilities

The MOU can identify the parties and set out how they will handle the process by describing
their respective roles and responsibilities.

o Identification of the Principal Contacts for the joint effort, and provision of their contact
information. The MOU should be viewed as an information resource for the involved
agencies. One of the most important pieces of information is who to contact at each agency.
The text of the MOU should identify the agency contact in a manner that stays current
through the entirety of the joint procedure – for instance, the MOU might designate the
contact by office rather than by name.

The MOU can be divided by sections that correlate with the stages of the process – “early
planning” and “preparing the document” are used below as examples.

Early planning. The MOU may describe roles and responsibilities for the stage preceding actual
development of analyses or documents. This early planning can include scoping and other
activities that precede drafting the NEPA/CEQA documents such as:

• Identification of affected resources.

• Identification of affected stakeholders, including organizations, members of the public,
and other agencies with responsibility for associated resource protection and management
• Outreach and management of involved stakeholders.
• Identification of data needs.
• Determination of methodologies to be applied to data collection/analysis on which
resources to include in an analysis and work on individual resources as the process moves
forward.
• Using/hiring of independent experts/specialists (e.g., academic institutions, etc.).
• Identification of research needs.
• Identification of existing research and incorporation of existing studies and information.

47
o Communicating with the applicant. If the environmental review is applicant-driven (e.g., the
issuance of a permit), the MOU can outline which agency will handle contact with the
applicant and ask for additional information and clarification when needed.

o Identifying and coordinating with other Federal and California state processes (e.g.,
Endangered Species Act, National Historic Preservation Act, and Native American
consultation). The MOU can assign responsibility for identifying and coordinating the
completion of CA state and Federal requirements.

o Timeframes and Milestones. This section describes the timeframe of the project, including
major project milestones. These timeframes can be as general or as specific as the
signatories find relevant or useful for the purpose of their progress, but their inclusion
provides a common roadmap for agencies to plan their work schedule around.
• Examples of Milestones include intermediate steps as well as conclusions: Scoping,
informal or formal consultation under the Endangered Species Act, consultation under the
National Historic Preservation Act Section 106 process, internal review of documents,
publication of draft documents, public comment periods, etc.

o Data and Methodology. The MOU can address the determinations that will be made
regarding what data is needed and when the amount and quality of data is considered
adequate. The MOU can describe which agency will determine which standards apply to
each stage of the planning and environmental review process.
 The agencies should have specialists work together to develop methodologies. This may
involve adopting the more stringent of two requirements or merely disclosing the
different methodologies and results to the public.
 EXAMPLE TEXT FOR USING MOST STRINGENT REQUIREMENT: “The Draft
and Final EIR/EIS and related analyses will apply whichever NEPA/CEQA
requirement or other substantive legal/regulatory requirement is more stringent in its
analysis.”

o Consultation with other parties. This element identifies those parties that are involved in the
environmental review but are not a party to the MOU, and identifies which Party to the MOU
will coordinate efforts with those entities.

o Using a Contractor:
• Selection of a contractor (if any) is a joint process. If desired, the parties in the MOU can
agree to how the lead agency will select the contractor. Both NEPA and CEQA leaders
should have a role in contractor selection to ensure the contractor can meet the NEPA and
CEQA requirements. Check with your agency counsel to ensure that any considerations
under the California and Federal Acquisition Regulations are addressed as well as State

48
 laws, including but not necessarily limited to, laws under the California Public Contracts
Code.
• Working with the contractor. The MOU should specify how each agency can work with
the contractor. For example, if one agency hires the contractor, can another agency
access that contractor directly, or must they work though the contracting agency?

Preparing the Document. The MOU should specify which agency will be responsible for
preparing particular analyses and the writing of the document. For example, the MOU can
identify the sections of the document each agency will provide (e.g., the Federal agency would
provide information and analysis specific to NEPA requirements, while the California state
agency would provide information and analysis specific to CEQA requirements).

o The MOU can identify the agencies’ responsibilities for the various determinations made
during the development of the joint analysis and documentation.
• Scope and content of the document and underlying analyses.
• Defining what constitutes “satisfactory” work.
• Describing how to include other agencies that may become involved in review.
• Determining data adequacy: significant figures, common data frameworks, file formats,
collection methodology, software, etc.

o Develop mailing lists for outreach and document distribution. This element identifies the
agency that will manage the address list for the distribution of materials, information, and the
environmental review document to stakeholders and members of the general public for
review.

o Gathering and maintaining public comments and the administrative record. Identify the
agency responsible for gathering, docketing, and maintaining the public comments as well as
the other elements of the administrative record.

o Review and respond to public comments. Designating a single agency to coordinate

responses to public comments is helpful, but the California and Federal joint lead agencies
should be actively involved in the review of comments in order to ensure all relevant issues
are addressed and receive responses as required by NEPA and CEQA.

o Organizing/running joint public meetings. Identifying which agency will be responsible for
scheduling and running public meetings will facilitate collaboration in planning and the
public comment processes as well as in any subsequent studies and analyses.

o Sharing and disclosure of information. The MOU can include a statement identifying the
type of communications and data that is subject to disclosure under laws including the
Freedom of Information Act (FOIA) and the California Public Records Act (PRA). The

49
 MOU can address whether an applicant can have access to information and whether that
makes the information subject to broader disclosure and release. Agency staff should seek
legal assistance to assist in understanding the FOIA and the PRA requirements relevant to the
various communications, data, analyses, and draft documents developed, gathered, and used
during the joint NEPA-CEQA process.

o Final approval and submission of documents to appropriate entity. Joint documents are
generally approved by authorities at different levels of government. This element identifies
those authorities as well as defines which agency will hold ultimate approval authority to
ensure that the NEPA/CEQA review meets relevant requirements.

o Media releases, hand-outs, talking points, presentations. The MOU can address how
agencies will coordinate key messages and set out the procedures for overarching
communications and consultation. The MOU can assign responsibilities for producing and
approving media releases and hand-outs for public distribution. Depending on the likely
responses and issues surrounding a project, as well as resource and staffing constraints, an
MOU may designate a particular agency to coordinate content and distribute the materials to
specific stakeholders and address concerns and responses from stakeholders and the public.

o Process for reviewing contractor work, approving publication. The MOU could address the
procedure for review of documents provided by the contractor and assign responsibility for
final approval and release or publication.

50
 4. Issue Resolution

o Identify potential issues. This element applies to any other agency needing to contact or
discuss the document with the contractor. It should also be addressed by the agency in the
agreement with the contractor.

o Raising Potential Issues. Some joint processes may identify issues or potential areas of
concern early in the collaboration. Including those issues in the MOU allows the involved
agencies to focus on resolving and ameliorating them as part of the planning and
environmental review.

o Issue Resolution Process. Conflicts will arise during the joint document process on any
number of issues, including proper procedure, methodologies for
studies/surveys/determinations, amount of information to be developed/included in the
documents, and strategies for addressing questions raised in the public comment process.
Agencies should establish a method for productively resolving these conflicts in the MOU.
Involvement of agency counsel early is important, particularly where any legal requirements
are at issue. If the involved parties feel the joint process could become contentious, include a
process to identify and engage a facilitator or mediator.

EXAMPLE TEXT: “In case of a dispute arising from the implementation of this
Memorandum of Understanding, the Parties shall exhaust alternative dispute resolution
methods such as negotiation and mediation before elevating the issue to their leadership.
Parties shall act in good faith to resolve the dispute.”

EXAMPLE TEXT: “If disagreements on the findings, conclusions, impacts, or resource

condition in the joint environmental analysis cannot be resolved, each Party shall provide an
explanation of assumptions used to reach these conclusions including reasons for the
differing conclusions for insertion in separate NEPA/CEQA sections of the document.”

o Format of environmental document. Agency regulations may mandate a set format for
environmental reviews. An MOU can address any differences between agency NEPA and
CEQA document formats by describing the format that will be used.
 The MOU can specify whether any agency has the ability to halt publication if the
document does not meet their needs, and set out a process for making sure that all
comments are adequately addressed.

51
 5. Amendments/Changes to the MOU

o Mutual consent needed to modify the MOU. The MOU should outline the procedure for
modifications made to the MOU, especially stating that mutual consent between all parties is
necessary to modify the structure or provisions in the MOU.

o Notice for amendment/termination of the MOU. The MOU should state how much time a
party must give in its notice to amend or terminate the MOU.

6. Post NEPA/CEQA collaboration and Cooperation:

o Implementing/monitoring/enforcing mitigation. Depending on the project and its

requirements, agencies involved in the MOU might have statutory authority to enforce
mitigation elements in the project. This element of the MOU outlines the mitigation
measures that are relied upon in concluding the NEPA/CEQA review and identify which
agency(s) will have a role in implementation and/or monitoring.

52
Since 2007, the California Department of Transportation (Caltrans) and the Federal Highway
Administration (FHWA) have participated in a unique environmental program referred to as
“NEPA Assignment,” which is authorized under the transportation reauthorization laws. To
implement the program, Caltrans and FHWA entered into a Memorandum of Understanding
pursuant to 23 U.S.C. 327. Under this MOU, FHWA assigned, and Caltrans accepted,
responsibility for NEPA. First established as a Pilot Program by the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A legacy for Users (SAFETEA-LU), this was made
permanent, renewable every five years, with the enactment of the Moving Ahead for Progress in
the 21st Century Act (Map-21) in 2012.

53
 IV. Joint Analyses Involving the California Energy Commission

Over the past several years, pursuit of renewable energy goals has increased the relevance of
coordinating joint NEPA and CEQA review processes. The Federal government has targets for
renewable energy production on public lands and has offered financial incentives for projects,
while California has an aggressive Renewable Portfolio Standard. Large scale renewable energy
projects proposed for Federal land or pursuing Federal funding have also required state licensing
or local permitting, requiring both NEPA and CEQA compliance.

The California Energy Commission licenses thermal power plants 50 megawatts and larger, as
well as the plant’s related facilities such as transmission lines, fuel supply lines, water pipelines,
etc. The Energy Commission’s licensing process is a certified regulatory program under CEQA,
meaning that the documents prepared in that process will serve as the functional equivalent of an
Environmental Impact Report (CEQA Guidelines, § 15251, subd. (j)). Regulations governing
the power plant siting certification process are contained in Division 2 of Title 20 of the
California Code of Regulations and are available online at
http://www.energy.ca.gov/reports/title20/index.html.

Though it is a functionally equivalent process, the Energy Commission’s licensing process is

unique in several ways. For example, the licensing proceedings are adjudicatory, and staff is a
party separate from the decision-maker. Further, the proceedings include evidentiary hearings
with sworn testimony. Such differences can be disorienting, and require additional coordination
between state and Federal partners. The process of the California Energy Commission is
summarized and roughly equated to the NEPA process in the table below. Note, however, not all
Federal agencies view the steps identified in the following table as equivalents. These
differences highlight the benefit to Federal and California agencies of working through such
procedural issues beforehand in an MOU.

54
Table 4: Summary and Comparison of NEPA and the CEC’s Power Plant Siting Processes

National Environmental Policy Act California Energy Commission Process

Initial Review for Applicability of a Initial Review for Plant Size
Categorical Exclusion • Projects under 50 MW are not subject
• Excluded if there are no extraordinary to CEC jurisdiction
circumstances • Projects under 100 MW may be
licensed or may be subject to the Small
Power Plant Exemption (note: this still
requires an environmental document)

Environmental Assessment
• If no significant impacts, adopt a
Finding of No Significant Impact
• If significant impacts can be mitigated,
prepare a mitigated FONSI
• If impacts may be significant, prepare
an Environmental Impact Statement

Environmental Impact Statement Process Application for Certification

Notice of Intent Application for Certification Accepted

Scoping Informational Hearing(s); Site Visit

Draft EIS Preliminary Staff Assessment Filed

Filing with EPA, which publishes a Notice of

Availability in the Federal Register

Public Agency Review and Comment Preliminary Staff Assessment Public

Workshop

Final EIS Final Staff Assessment

Evidentiary Hearings

Final EIS and Filing with EPA, which Presiding Member’s Proposed Decision
publishes a Notice of Availability in the
Federal Register

30 Day Review Period (Agency may convert Public Review and Comment Period (30 Days)
this into a public review and comment period).

Record of Decision Decision

55
Beyond the procedural differences noted above, substantive differences between NEPA and
CEQA, as well as differences in agency mission, may require special attention in the project’s
pre-planning process. As noted in this handbook, while the NEPA requirement for a “purpose
and need” statement and CEQA’s requirement for identification of “project objectives” are
facially similar, in practice they may differ. For example, under CEQA, project objectives for a
renewable energy project might include the production of renewable energy, fulfillment of state
policy goals, and local economic development. Under NEPA, on the other hand, the Bureau of
Land Management’s primary objective might be to fulfill its statutory obligation to approve or
deny a right-of-way application for a solar energy project on public land, rather than the broader
goals or underlying purpose of the project itself. These differences become important in
selecting the range of alternatives. As suggested in this handbook, Lead Agencies should
cooperatively review proposed project purpose and need and project objectives statements. If
necessary, a joint document may describe the Federal agency’s purpose and need and the CEQA
project objectives in separate sections, together with an explanation of why the agencies’ goals
differ (e.g., that their statutory authorities or obligations require a different focus).

Examples of alternatives considered in recent NEPA and CEQA reviews for California energy
projects include:

• reduced acreage, reduced megawatt and modified footprint alternatives, as well as

alternative sites that focus on disturbed sites, degraded sites, contaminated sites, and
fallow or impaired agricultural lands;

• alternative generating technologies and providing a description of the benefits associated

with those technologies; and

• relocating portions of the project in other areas, including private land, to reduce
environmental impacts.

Substantively, Energy Commission projects may require analysis beyond what NEPA would
otherwise require. For example, the California Energy Commission has specific regulations
requiring it to analyze several issues related to energy, including transmission, generating
efficiency, and reliability (See, e.g., Cal. Code Regulations, tit. 20, § 1743).

Though challenging, these differences can be addressed through close coordination. As

suggested in this handbook, pre-project planning and development of a Memorandum of
Understanding between the state and Federal agency partners can help facilitate the joint
environmental review process.

56