Important Modifications to Certain CEQA Requirements Due to the Ongoing State of Emergency as a Result of COVID-19

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Executive Order N-80-20

In late September, California Governor Gavin Newsom once again addressed certain CEQA requirements as part of Executive Order N-80-20 (Order), citing the ongoing nature of the COVID-19 pandemic.[1]  Paragraph 6 of the Order extends the conditional suspension of certain filing, posting, and noticing requirements imposed by CEQA on lead and responsible agencies and project applicants, as such suspension was previously established in Executive Order N-54-20.[2]  If able, however, agencies and applicants may continue to comply with the applicable state requirements modified by the Order.

Specifically, under the Order, certain public notices do not need to be filed, posted, and made available to the public if an alternative method of compliance is achieved.  Such notices include notices of preparation of a negative declaration (ND), mitigated negative declaration (MND) and environmental impact report (EIR); notices of availability of a draft EIR; notices of intent to adopt an ND or MND; notices of exemption (NOE); and notices of determination (NOD) for an ND, MND, and EIR.  To comply with CEQA, if the agency or applicant is unable to satisfy the state law requirements, the Order allows them to pursue the following alternative methods, all of which must be satisfied: (1) posting of the notice on the agency’s website for the same length of time required by CEQA for physical posting; (2) submittal of notices to the State Clearinghouse’s portal; and (3) providing notice to all interested parties who requested notice as part of the outreach.

The Order remains in effect until modified or rescinded, or until the State of Emergency is lifted, whichever occurs sooner.

Further, since November 3, 2020, the California Office of Planning and Research (OPR), and specifically its State Clearinghouse, has required online submissions of most CEQA documents to satisfy the noticing requirements.[3]  In lieu of hard copies, the documents must be submitted electronically to the CEQAnet database.[4]  For purposes of commencement of the public review period or a statute of limitations, it is important to note the time the document is submitted.  For example, if a notice of availability of a draft EIR is submitted before 3:30 p.m., the public review period begins the same day.  OPR also has outlined specific submittal requirements based on the entity doing the submittal that must be followed for the submittal to be valid to satisfy CEQA.  Additional detail is available at the OPR website identified in footnote 3.

[1] The Order can be accessed at: https://www.gov.ca.gov/wp-content/uploads/2020/09/9.23.20-EO-N-80-20-COVID-19-signed.pdf.

[2] Order N-54-20 can be accessed at: https://www.gov.ca.gov/wp-content/uploads/2020/04/N-54-20-COVID-19-text-4.22.20.pdf.

[3] The user guide for online submissions is available at: https://opr.ca.gov/clearinghouse/ceqa/document-submission.html.

[4] The CEQAnet web portal is available at: https://ceqanet.opr.ca.gov/.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]