The Governor of Califonia issued EO N-54-20 this past March, which temporarily suspended certain posting, filing, and notice requirements under the California Environmental Quality Act (CEQA) for 60 days. As of September 23, the Governor issued EO N-80-20 which extends the provisions of the prior Executive Order.
In March 2020, Governor Gavin Newsom of California issued Executive Order (EO) N-54-20, which suspended 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 allowed these requirements to be satisfied through electronic means to enable public access and involvement consistent with COVID-19 public health concerns. Notably, the 60-day suspension did not apply to public review or comment periods required under CEQA.
Extending a variety of COVID-related protections for California businesses, the Governor issued Executive Order N-80-20, effective September 23, 2020. The new EO extends the provisions of EO N-54-20 through March 31, 2021— conditionally suspending certain public filing and noticing requirements for projects subject to CEQA that may not be feasible due to the closure of government buildings and social distancing orders. Furthermore, lead agencies or project applicants that comply with the conditions set forth in EO N-54-20 are deemed to have fully satisfied any applicable requirements for public filing, posting, notice, and public access requirements.
Importantly, while this EO provides for an alternative procedure to comply with certain notice and filing requirements, it does not impact CEQA’s public review or comment timeframes.
To better understand the extended EO N-54-20 and direct implications to your project, the following is a brief rundown that underscores what you need to know about the suspension of requirements concerning filing and posting notices, as well as the addition of certain local lead agency requirements that may apply during the suspension. Public agencies or project applicants who are able to comply with CEQA’s existing requirements (because, for example, the county in which the project is located is open to the public and accepting notice for filing) need not comply with the processes in the suspension order.
1. Suspending Requirements Regarding Posting Notices
The extended EO suspends the following requirements concerning filing and posting notices, if an appropriate alternative is provided as discussed below:
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 Notices of Exemption (NOE) and Notices of Determination (NOD) 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 Notice of Intent (NOI) to adopt a Mitigated Negative Declaration (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 Office of Planning and Research (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 Environmental Impact Report (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 through March 31 as identified in the executive order, local lead agencies have some additional responsibilities as outlined below.
2. 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 encouraged to pursue additional methods of public notice and outreach as appropriate for particular projects and communities.
Executive Order N-80-20 remains in effect until it is modified or rescinded, or until the State of Emergency is terminated, whichever occurs sooner.
3. Suspension of Requirements Related to Native American Consultation
The provisions in Executive Order N-54-20 suspending certain timeframes for tribal consultation required under AB 52 have lapsed. AB 52 provides relevant requirements regarding tribal consultation.
From April 23 to June 21, 2020, EO N-54-20 suspended certain tribal consultation 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 EIR, Negative Declaration, or MND under CEQA. Because the suspension of consultation requirements was not extended and has lifted, the timeline for completing consultations requested before the effective date of EO N-54-20 restarted June 22, 2020. Application of the consultation process should now proceed consistent with AB 52’s requirements.
The COVID-19 pandemic has necessitated an ongoing evaluation and update of regulations, presenting challenges to stay informed. A main priority 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.