The Governor of California has issued a new Executive Order which suspends certain posting, filing, and notice requirements under the California Environmental Quality Act (CEQA) until June 21st.
Governor Gavin Newsom of California has issued Executive Order N-54-20, which suspends certain posting, filing, and notice requirements under the California Environmental Quality Act (CEQA) for 60 days (starting April 23, 2020, and ending June 21, 2020) and allows these requirements to be satisfied through electronic means to enable public access and involvement consistent with COVID-19 public health concerns. Importantly, the 60-day suspension does not apply to public review periods required under CEQA.
To better understand the new EO and its direct implications to your project, we provide a brief rundown below that underscores what you need to know about the suspension of requirements concerning filing and posting notices and Native American consultation, as well as the addition of certain local lead agency requirements.
1. Suspending Requirements Regarding Posting Notices
The EO suspends the following requirements concerning filing and posting notices for a period of 60 days from April 23, 2020 to June 21, 2020:
Public Resources Code sections 21092.3 Regarding the posting of CEQA notices by the county in which a project is located.
Public Resources Code sections 21152 Regarding the procedure for filing and posting NOEs and NODs within 5 days. State CEQA Guidelines section 15062 (c)(2) The requirement that a county must post a NOE within 24 hours of receiving it and must leave it posted for 30 days.
State CEQA Guidelines section 15062 (c)(4) The special rules governing time limits for filing and posting when an applicant files a NOE.
State CEQA Guidelines section 15072(d) Requiring the county clerk to post a NOI to adopt a MND within 24 hours and leave it posted for at least 20 days.
State CEQA Guidelines section 15075 (a) Requiring the lead agency to file a NOD within 5 days of deciding to approve or carry out a project.
State CEQA Guidelines section 15075 (d) Requiring a local lead agency to file a NOD for a negative declaration with the county clerk and, when the project requires a discretionary approval from any State agency, to also file the NOD with OPR, within 5 days of project approval.
State CEQA Guidelines section 15075 (e) Requiring the county to post the NOD within 24 hours of receipt and leave it posted for at least 30 days.
State CEQA Guidelines section 15087 (d) Requiring the county to post a notice of availability of a draft EIR within 24 hours of receipt for at least 30 days. State CEQA Guidelines section 15094 (a) Requiring a lead agency to file a NOD within 5 days of project approval. State CEQA Guidelines section 15094 (d) Requiring a local lead agency to file a NOD for an EIR with the county clerk and, when the project requires a discretionary approval from any State agency, to also file the NOD with OPR, within 5 days of project approval.
State CEQA Guidelines section 15094 (e) Requiring the county to post a NOD within 24 hours, and to leave it posted for at least 30 days; also requires lead agency to keep the notice for at least 12 months.
While strict compliance with these posting and notice requirements is suspended for 60 days as identified in the executive order, local lead agencies have some additional responsibilities as outlined below.
2. New Local Lead Agency Requirements
If any of the above situations apply to a lead agency, responsible agency, or project applicant’s requirement to publicly post or file materials with any county clerk, or otherwise make such materials available to the public, the local lead agency, responsible agency, or project applicant is required to do all of the following:
a) Post the notices listed above on the lead or responsible agency’s public-facing website for the same period that physical posting would otherwise be required,
b) Submit all notices listed above to the State Clearinghouse CEQAnet Web Portal,
c) Engage in outreach to any individuals and entities known by the lead agency, responsible agency, or project applicant to be parties interested in the project in the manner contemplated by CEQA and the CEQA Guidelines.
In addition to these requirements, lead agencies, responsible agencies, and project applicants are also encouraged to pursue additional methods of public notice and outreach as appropriate for particular projects and communities.
3. Suspension of Requirements Related to Native American Consultation
Additionally, Executive Order N-54-20 suspends through June 21 certain tribal consultation timing requirements set forth in Public Resources Code sections 21080.3.1 and 21082.3, concerning when a lead agency must notify tribal representatives of a project, when a California Native American tribe must request consultation, and when the lead agency must begin the consultation process relating to an Environmental Impact Report, Negative Declaration, or Mitigated Negative Declaration under CEQA.
In practice, this means that if an initial project notification letter sent to tribal representatives by a CEQA lead agency pursuant to 21080.3.1(d) was mailed before April 22 and the 30-day response window had not closed by that date, then the requirement for the tribes to respond within 30 days of that notice has been suspended until June 21. Similarly, if a tribe has responded to a project notification letter within 30 days, and tribal consultation has yet to be initiated, then the requirement for the CEQA lead agency to initiate consultation within 30 days of that request has been suspended, and lead agencies have until the end of the 60-day suspension, to initiate consultation. These are important considerations, as they have the potential to affect the timeframe within which an Environmental Impact Report, Negative Declaration, or Mitigated Negative Declaration under CEQA may be considered complete.
The COVID-19 outbreak has necessitated an ongoing evaluation and update of regulations, presenting challenges to stay informed. A priority during this time is to work together to understand and meet legal requirements while allowing all parties to achieve their objectives.
FirstCarbon Solutions [FCS] comprises over 100 individuals offering due diligence, technical analysis, planning, environmental compliance, permitting, and mitigation/monitoring services for public and private projects. FCS has more than 30 years of experience navigating the complexities of CEQA and securing project approvals. Our technical and legal teams are ready to provide assistance and guidance in moving your project forward. Contact us for a free consultation to learn more about how we can help with your specific project requirements.