By Nedda Mahrou
Recently, California Governor Gavin Newsom issued an Executive Order suspending various timeline aspects of the California Environmental Quality Act (CEQA). This will be relevant to all CEQA practitioners in the areas of land use and water law.
Background
The COVID-19 global pandemic has resulted in extensive federal, state and local legislation touching various topics, from government relief to eviction moratoriums. In California, these mandates have also impacted some of the rules that would typically apply to matters governed by the California Environmental Quality Act. On April 22, 2020, Governor Gavin Newsom issued Executive Order N-54-20, which includes provisions that suspend the filing, posting, notice, and public access requirements related to certain notices under CEQA for a period of 60 days. This suspension does not apply to provisions governing the time for public review.
CEQA Provisions Suspended
The specific CEQA provisions that are subject to Executive Order N-54-20’s 60-day suspension are below:
Public Resources Code § 21092.3—requiring that notices relating to the preparation and availability of an Environmental Impact Report (EIR) to be posted by the county clerk for 30 days, and requiring a notice of intent to adopt a negative declaration to be posted for 20 days.
Public Resources Code § 21152—governing local agency requirements for filing notices of determination and notices of exemption.
CEQA Guidelines § 15062, subds. (c)(2) and (c)(4)—governing a public agency’s filing of a notice of exemption for projects that are exempt from CEQA.
CEQA Guidelines § 15072, subd. (d)—requiring notice of intent to adopt a negative declaration or mitigated negative declaration to be posted at the office of the county clerk for at least 20 days.
CEQA Guidelines § 15075, subds. (a),(d), and (e)—requiring the lead agency to file a notice of determination within five days of deciding to approve a project for which there has been a negative declaration or mitigated negative declaration prepared. This § also requires the notice of determination to be posted by the county clerk for at least 30 days.
CEQA Guidelines § 15087, subd. (d)—requiring that a notice of availability of a draft environmental impact report for public review be posted at the office of the county clerk for at least 30 days.
CEQA Guidelines § 15094, subds. (a), (d), and (e)—requiring the lead agency to file a notice of determination within five days of deciding to approve a project for which an environmental impact report was approved. This § also requires the notice of determination to be posted by the county clerk for at least 30 days.
Use of Electronic Means
Section 8 of Executive Order N-54-20 will also allow certain notice requirements under CEQA to be satisfied through electronic means in order to allow public access and involvement consistent with COVID-19 public health concerns. The order’s electronic noticing provisions are as follows:
In the event that any lead agency, responsible agency, or project applicant is operating under any of these suspensions, and the lead agency, responsible agency, or project applicant would otherwise have been required to publicly post or file materials concerning the project with any county clerk, or otherwise make such materials available to the public, the lead agency, responsible agency, or project applicant (as applicable) shall do all of the following:
a) Post such materials on the relevant agency’s or applicant’s public-facing website for the same period of time that physical posting would otherwise be required;
b) Submit all materials electronically to the State Clearinghouse CEQAnet Web Portal; and
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 the Public Resources Code § 21100 et seq. and California Code of Regulations, Title 14, § 15000 et seq.
Tribal Consultations
Executive Order N-54-20 also has a provision regarding CEQA’s tribal consultation process. Under the § 9 of the order, the timeframes set forth in Public Resources Code §s 21080.3.1 and 21082.3, within which a California Native American tribe must request consultation and the lead agency must begin the consultation process relating to an environmental impact report, negative declaration, or mitigated negative declaration under CEQA, are suspended for 60 days.
Conclusion and Implications
In addition, Executive Order N-54-20 encourages lead agencies, responsible agencies, and project applicants to pursue additional methods of public notice and outreach as appropriate for particular projects and communities.
Governor Newsom’s Executive Order of April 22, 2020 predominantly suspends certain important deadlines. This 60-day suspension periods imposed by Executive Order N-54-20 are set to expire on June 22, 2020. It will be important for CEQA practitioners to review all the temporary changes made as deadlines and notice requirements play a crucial role in compliance. Executive Order N-54-20 may be accessed online at the following link:
https://www.gov.ca.gov/wp-content/uploads/2020/04/N-54-20-COVID-19-4.22.20.pdf
