Governor Newsom’s New Executive Order Establishes End Dates For Pandemic-Related Suspensions for CEQA Filing, Posting, Notice, and Tribal Consultation Requirements and Brown Act Meeting Requirements

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On June 11, 2021, Governor Newsom signed Executive Order N-08-21 (the “Order”) that establishes September 30, 2021, as the end date for COVID-19 pandemic-related suspensions for (1) deadlines for filing, noticing, and posting of CEQA documents with county clerk offices; (2) tribal consultation deadlines under CEQA; and (3) open meeting requirements. This end date for pandemic-related relief from normal CEQA procedures is certain to affect base requirements for ongoing projects.

CEQA Deadlines, Noticing, and Filing Requirements

In our earlier blog report, we noted that Executive Orders N-80-20 and N-54-20 had conditionally suspended certain requirements for filing, noticing, posting and public access for CEQA documents with county clerk offices and provided alternative requirements in lieu of those suspended requirements. Specifically, the previous Executive Orders suspended public noticing requirements for notices of preparation of an environmental impact report (“EIR”), negative declaration, mitigated negative declaration, notices of availability, notices of determination, and notices of exemption required under CEQA. Normally, such notices must be posted in the county clerk’s office where the proposed project or action is located. However, due to statewide orders and distancing protocols, alternative requirements allowed a lead agency, responsible agency, or project applicant to post the materials on the agency or applicant’s public-facing website; submit all materials to the State Clearinghouse CEQAnet Web Portal; and engage in outreach with interested parties. As per the Order, these alternative requirements will no longer be in effect after September 30, 2021.

Tribal Consultation Requirements

Further, Executive Orders N-80-20 and N-54-20 also suspended certain timeframes for tribal consultation under Public Resources Code sections 21080.3.1 and 21082.3. Specifically, the timeframes governing a tribe’s request for consultation and beginning of the lead agencies’ consultation process for an EIR, negative declaration, or mitigated negative declaration were suspended. Pursuant to the Order, these suspensions remain in effect only through September 30, 2021. If the timeframe for requesting or commencing tribal consultation extends beyond September 30, 2021, the tribe and lead agency will receive the benefit of the extension so long as the triggering event occurred on or before September 30, 2021.

Public Meetings

Governor Newsom’s March 17, 2020, Executive Order N-29-20 had also suspended certain State and local noticing, conducting, and accessing public hearings, including under Bagley-Keene Open Meeting Act and Brown Act. Executive Order N-29-20 provided alternate means of conducting meetings and submitting public comments through teleconference or other electronic means. All of the provisions of Executive Order N-29-20 concerning the conduct of public meetings remain in effect through September 30, 2021. Absent a further extension, previous state and local laws public meeting requirements will apply beginning October 1, 2021.

Please note, certain public meetings such as public scoping meetings for an EIR under CEQA are not specifically governed by open meetings laws. The Governor’s Office of Planning and Research, however, encourages lead agencies “to use all of the technology tools available to them to engage as many members of the public as possible.”

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