New Order Extends Suspension of Certain CEQA Filing and Noticing Requirements

On September 23, 2020, Governor Gavin Newsom issued Executive Order N-80-20 (Order). Among its provisions, the Order extends the prior suspension by Executive Order N-54-20 of public noticing requirements mandated by certain sections of the California Environmental Quality Act (CEQA) and CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et seq.) that may not currently be possible due to the closure of government buildings and social distancing orders.

This Order, like the prior one, neither lengthens timelines for public review nor suspends noticing requirements altogether. Rather, it temporarily suspends certain specific noticing requirements that rely upon public postings in government buildings by county clerks. Noticing otherwise required by CEQA through mail, email, publication, or posting at a project site may still be required.

PRIOR SUSPENSION OF FILING AND NOTICING REQUIREMENTS

The old order, Executive Order N-54-20 (issued April 22, 2020), suspended the requirement that lead agencies, responsible agencies, or project applicants file the following five notices with the county for public posting.

• If a lead agency determines a project is exempt from CEQA, either the lead agency or project applicant must file a Notice of Exemption (NOE) with the county clerk. The county clerk shall post the NOE for 30 days.
• If a negative declaration (ND) or mitigated negative declaration (MND) is required a Notice of Intent (NOI) to adopt an ND or MND must be filed by a lead agency with the county clerk. The county clerk shall post the NOI for 20 days.
• If an Environmental Impact Report (EIR) is required a Notice of Preparation (NOP) shall be posted by the lead agency for 30 days in the office of the county clerk.
• Once the draft EIR is completed, the lead agency shall file a Notice of Availability (NOA) with the county clerk indicating the document is available for public review. The clerk must post the NOA for 30 days.
• A lead agency shall file a Notice of Determination (NOD) with the county clerk five-working-days after approving the project that the CEQA document (ND, MND, or EIR) was prepared for. The county clerk must then post the NOD for 30 days.

NEW ORDER EXTENDS SUSPENSION

The new Order extends suspension of the above filing and notice requirements until the sooner of (1) the Order's modification or rescission, or (2) the termination of the current California State of Emergency relating to COVID-19. As under the prior order, the suspension is conditioned upon the lead agency, responsible agency, or project applicant taking the following actions:

• Posting the otherwise-required notices to the relevant agency's or applicant's public-facing website for the same period ordinarily required of physical posting in the county clerk's office;
• Submitting all such notices electronically to the State Clearinghouse; and
• 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 otherwise contemplated by applicable provisions of CEQA and the CEQA Guidelines.

A lead agency, responsible agency, or project applicant may also choose to follow the standard public filing and notice procedures specified in CEQA and the CEQA Guidelines provided that applicable COVID-19 restrictions permit posting by the county clerk and public inspection of the required notices.

The Order does not dispense with requirements for public distribution or availability of CEQA documents other than the five types of notices specifically listed above. For example, lead agencies are still required to send NOIs to adopt an ND or MND to all owners and occupants of property contiguous to the project and to publish the NOI in a newspaper of general circulation. As the Governor's emergency orders and other orders, rules, and policies during the pandemic are frequently being updated, please reach out to us with questions on how Executive Order N-80-20 or any other order or restriction will impact specific development projects.