In late September, Governor Newsom signed Executive Order N-80-20 (“EO 80-20”), which, among other things, extends the protections of a handful of previously issued executive orders related to COVID-19.  As relevant to CEQA practitioners, EO 80-20 extends the previous suspension of CEQA’s requirements for filing of specified notices with the county clerk and the posting of such notices in the county clerk’s office.

Under CEQA, notices pertaining to public agency actions to approve or certify exemptions, negative declarations, mitigated negative declarations, and EIRs must be filed within five working days with the county clerk, posted by the county clerk within 24 hours, and posted in the county clerk’s office for a specified period depending on the type of CEQA document.

Previous Executive Order N-54-20 (“EO 54-20”), signed by Governor Newsom on April 22, conditionally suspended these physical noticing and posting requirements.  EO 80-20 extends the protections of EO 54-20 until EO 80-20 is modified or rescinded or the “COVID-related” State of Emergency is terminated, whichever is sooner.

Paragraph 8 of EO 54-20 suspended CEQA’s public filing, posting, notice, and public access requirements related to: (1) notices of exemption (14 Cal. Code Regs. (“CEQA Guidelines”), § 15062(c)(2), (c)(4), Pub. Res. Code, § 21152); (2) notices of intent to adopt a negative declaration or mitigated negative declaration (CEQA Guidelines, § 15072(d)); (3) notices of the availability of a draft EIR (CEQA Guidelines, § 15087(d)); and (4) notices of determination for negative declarations, mitigated negative declarations, and EIR (CEQA Guidelines, §§ 15075(a), (d), (e), 15094(a), (d), (e); Pub. Res. Code, § 21152).

The suspension of these posting requirements remains conditioned upon the lead agency, responsible agency, or project applicant (as applicable) complying with the following requirements:

(a)        Posting 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)        Submitting all materials electronically to the State Clearinghouse CEQAnet Web Portal; and

(c)        Engaging 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 sections 21100 et seq. and California Code of Regulations, Title 14, sections 15000 et seq.

Nothing in EO 80-20, or previous EO 54-20, limits the ability of lead or responsible agencies or project applicants to comply with the filing, noticing, and posting requirements to the extent feasible, and in that circumstance the conditions in paragraphs (a)-(c) would not apply.  Public agencies throughout California continue to operate with reduced in-person services and business hours due to the impacts of the on-going COVID-19 pandemic.   EO 80-20 recognizes this reality by allowing for electronic posting of notices in lieu of physical posting for the foreseeable future.