Governor Newsom Extends Suspension of CEQA Filing and Noticing Requirements

Arent Fox
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Arent Fox

With precautions still in place to combat the COVID-19 pandemic that limit access to government buildings and promote social distancing, on September 23, 2020, Governor Gavin Newsom issued Executive Order N-80-20.
 

Executive Order N-80-20, among other things, extends the relief from certain public filing, posting, notice, and public access requirements under the California Environmental Quality Act (CEQA) that were first implemented under Executive Order N-54-20, issued on April 22, 2020.

Under the initial Executive Order, for 60 days, lead agencies (or in some cases applicants) were not required to submit a Notice of Preparation, Notice of Availability of Draft EIR, Notice of Intent to Adopt a Negative Declaration, Notice of Determination, or Notice of Exemption to a county clerk for filing and physical posting. Now, in accordance with the latest Executive Order, these requirements are suspended until the Executive Order is modified or rescinded, or until the State of Emergency is terminated, whichever occurs sooner. (See below for an overview of the requirements that have been suspended.)

In addition, consistent with the initial Executive Order, instead of filing the required notices with the County Clerk for posting, lead agencies, responsible agencies, or applicants must satisfy all of the following requirements:

  • 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;
  • Submit all materials electronically to the State Clearinghouse CEQAnet Web Portal; and
  • 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 sections 21100 et seq. and California Code of Regulations, Title 14, sections 15000 et seq. (Additional public notice and outreach that is appropriate for particular projects and communities is also encouraged).

Notably, the Executive Orders do not affect the provisions governing public review periods and other noticing methods (e.g., via mail, publication in a newspaper, or onsite). And the new Executive Order clarifies that lead agencies, responsible agencies, or applicants can elect to follow the standard filing and noticing procedures if the pandemic restrictions in their particular jurisdiction permit them to do so, in which case the agency or applicant would not need to satisfy the alternative posting requirements listed above.

Overview of Suspended Requirements

  • Public Resources Code Section 21092.3: A Notice of Preparation (NOP) and a notice of availability of an environmental impact report must be posted in a county clerk’s office for 30 days. A notice of intent to adopt a negative declaration must be posted for 20 days.
  • Public Resources Code Section 21152: A Notice of Determination (NOD) or Notice of Exemption (NOE) must be filed with a county clerk after the approval or determination to carry out a project becomes final and must remain posted for 30 days. A NOD must also be filed within five working days after approval.

Exemption

  • CEQA Guidelines Section 15062(c)(2) and (c)(4): A NOE filed with a county clerk by a local agency (or by the applicant) must be posted within 24 hours of receipt and must remain posted for 30 days.

Negative Declaration or Mitigated Negative Declaration (MND)

  • CEQA Guidelines Section 15072(d): A county clerk must post a notice of intent to adopt a negative declaration or MND within 24 hours of receipt and the notice must remain posted for at least 20 days.
  • CEQA Guidelines Section 15075(a): A NOD must be filed by the lead agency within five working days after the lead agency decides to carry out or approve a project.
  • CEQA Guidelines Section 15075(d): If the lead agency is a local agency, the local agency must file a NOD with its county clerk within five working days after approval. If the project requires discretionary approval from any state agency, the local agency must also file a copy of a NOD with the Office of Planning and Research within five working days of approval.
  • CEQA Guidelines Section 15075(e): A NOD filed with a county clerk must be posted within 24 hours of receipt and must remain posted for at least 30 days. 

Environmental Impact Report

  • CEQA Guidelines Section 15087(d): A notice of the availability of a draft EIR filed by the lead agency with a county clerk must be posted within 24 hours of receipt and must remain posted for at least 30 days.
  • CEQA Guidelines Section 15094(a): A lead agency must file a NOD within five working days after deciding to carry out or approve a project.
  • CEQA Guidelines Section 15094(d): If the lead agency is a local agency, the local agency must file a NOD with its county clerk within five working days after approval. If a project requires discretionary approval from any state agency, the lead agency must also file a copy of a NOD with the Office of Planning and Research within five working days after approval.
  • CEQA Guidelines Section 15094(e): A NOD filed with a county clerk must be posted within 24 hours of receipt and must remain posted for at least 30 days.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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