Two significant changes to California Environmental Quality Act (“CEQA”) noticing and filing requirements and procedures recently took effect.  First, on September 23, 2020, Governor Gavin Newsom signed Executive Order N-80-20 (“Order“), which conditionally suspends certain requirements for filing, noticing, and posting of CEQA documents with county clerk offices.  The Order provides an alternate means of complying with those requirements during the current pandemic, and extends the prior suspension by Executive Order N-54-20.[1]  It will remain in effect until it is modified or rescinded, or until the COVID-related State of Emergency instituted on March 4, 2020 is terminated, whichever occurs sooner.

Second, on November 3, 2020, the State Clearinghouse Unit of the California Office of Planning and Research (“OPR”) discontinued accepting hard copies of CEQA documents and notices of determination and exemption.  The State CEQA Guidelines require lead agencies for development projects to post certain environmental documents through OPR as part of the noticing process.  OPR will now require most CEQA documents and notices be submitted online, through the CEQAnet Database.

1. Changes to CEQA Document Submittal Procedures to the State Clearinghouse

As of November 3, OPR has implemented a new system of online-only submissions for hard copies of most CEQA documents, including Notices of Determination (“NOD”) and Notices of Exemptions (“NOE”).  The State CEQA Guidelines require lead agencies for development projects to post certain environmental documents through OPR as part of the noticing process.  OPR now requires all CEQA documents and notices be submitted through the CEQAnet Database.  The CEQAnet Database submittal platform can be found here, with the user guide available here.

Under the revised noticing scheme, applicants and environmental consultants can register with OPR by sending an email request to state.clearinghouse@opr.ca.gov.  OPR provides specific submittal requirements based on the environmental document.  CEQA documents submitted online by 3:30 PM, and NODs and NOEs submitted by 4:00 PM, can be posted the same day.  Environmental documents submitted before these cutoff times will post and begin any applicable review or statute of limitations period that day.  For determining the start of CEQA review periods, the online filing should be referenced to determine the official posting date.  Applicants should note that review periods cannot begin on a weekend or holiday.

The new OPR online submittal requirements differ depending on the entity completing the submission and the type of CEQA document.  Specific submittal requirements for all CEQA documents can be found here.  For example, if the lead agency is submitting directly to OPR, the filing must include the name of the lead agency.  If a representative party is filing on behalf of the lead agency, the filing must include the following:

1. The representative’s name, work email, and phone number.

2. The name of the lead agency representative authorizing the consulting firm/consultant and that person’s contact information.

3. Any information for other individuals needing access to the environmental documents.

For a responsible agency, the submittal should include the name of the person submitting on behalf of the responsible agency with their work email.  All submissions by environmental consultants or applicants must be approved by the lead agency or responsible agency’s representative before the document will be accepted by OPR.  The agency representative’s contact information will need to be provided with the submission to validate approval.

2. Temporary Modifications to CEQA Public Filing, Posting and Notice Requirements

On September 23, 2020, Governor Newsom signed the Order, extending the temporary modification of CEQA filing requirements with local county clerk’s offices in response to the COVID-19 pandemic.  The Order continues the conditional suspension of any applicable requirements for public filing, posting, notice, and public access set forth in Public Resources Code sections 21092.3 and 21152, as well as State CEQA Guidelines sections 15062(c)(2) and (c)(4), 15072(d), 15075 (a), (d), and (e), 15087(d) and 15094(a), (d), and (e).  It provides an alternate means of complying with CEQA during the pandemic that will remain in effect until it is modified or rescinded, or until the State of Emergency is terminated, whichever occurs sooner.

Specifically, the following public notices are not required to be filed, posted and/or made publicly available at the relevant county clerk’s office, if the appropriate alternative compliance method is met.

1. Posting of a notice of preparation (“NOP”) for an environmental impact report (“EIR”) or a negative declaration (“ND”) or mitigation negative declaration (“MND”).[1]

2. Posting of a notice of availability of a draft EIR.[2]

3. Posting of a notice of intent to adopt a ND or MND.[3]

4. Filing and posting of a NOE.[4]

5. Filing and posting of a NOD for an EIR.[5]

6. Filing and posting of a NOD for a ND or MND.[6]

The Order requires the lead agency, responsible agency, or applicant to perform certain forms of alternative compliance to satisfy the applicable CEQA requirements.  Lead agencies, responsible agencies or project applicants must comply with all of the following conditions to satisfy the alternative compliance requirements:[7]

1. Post the notices listed above on the lead or responsible agency’s website for a length of time that is equal to what would normally be required by CEQA for physical posting.

2. Submit all notices listed above to the State Clearinghouse’s CEQAnet web portal.

3. Perform all other public noticing and outreach to all other interested parties, such as notice to all entities who have requested notice.[8]

Despite the Order, public agencies or applicants who are able to comply with CEQA’s regular public filing, notice, and public access requirements may continue to do so.  The Order will not impact the normal course of compliance with CEQA when feasible.  Applicants should also keep in mind that the Order does not suspend any CEQA mandated deadlines related to public review and comment periods for environmental documents.  Lead and responsible agencies can still extend such review and comment periods to allow for additional public comment.

FOOTNOTES

[1] A prior article on Executive order N-54-20 can be found here.

[1] Cal. Pub. Res. Code §§ 21080.4, 21092.

[2] State CEQA Guidelines § 15087(d).

[3] State CEQA Guidelines § 15072(d).

[4] State CEQA Guidelines §§ 15062(c)(2), (c)(4).

[5] Cal. Pub. Res. Code § 21152.  State CEQA Guidelines, § 15094(a), (d), (e).

[6] State CEQA Guidelines §§ 15075(a), (d), (e).

[7] Nothing in the Order prevents agencies or applicants from performing supplemental noticing, including notification to community organizations.

[8] State CEQA Guidelines § 15087(a).