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Digital CEQA: New Executive Order Creates An Alternative Path For Complying With CEQA Notice, Posting And Public Review Requirements

On April 23, 2020, California Governor Gavin Newsom issued Executive Order N-54-20 (EO) which, in part, addresses an outstanding question related to the California Environmental Quality Act’s (CEQA) “public review” requirements, which quickly became problematic upon closure of the locations typically used to house and post CEQA-related documents.  These closures, which impact government buildings like the County Recorder’s Office, are just one of the many consequences of the COVID-19 pandemic and resultant stay-at-home orders issued in an attempt to safeguard the public and flatten the curve.  Under this EO, while the time periods for public review remain the same, all requirements related to public filing, posting, notice, and public access to draft and final documents set forth in CEQA and the CEQA Guidelines, are exempted and suspended for the next 60 days (until June 22nd), including the Notice of Preparation, Notice of Comment Period, Notice of Intent to Adopt an EIR, Negative Declaration/Mitigated Negative Declaration, Notice of Determination and Notice of Exemption[1] so long as certain substitute procedures are followed.

This EO adds to the series of local and statewide decisions that attempt to keep development moving, where possible.  Since March 4, 2020, when Governor Newsom first proclaimed the COVID-19-related State of Emergency, many jurisdictions indicated that – despite the changing protocols and procedures – processing and approving development remains an important goal.  Although government offices are closed to the public, the planning and development departments in many cities and counties continue to evaluate and issue various development permits.  Additionally, many jurisdictions have made the switch to holding live-broadcast or online public hearings with alternative methods for public participation.  Whether it is a permit approval to develop more housing supply, affordable housing or a new medical facility, with this EO in place, lead agencies and applicants can be further assured that projects subject to CEQA will not be stalled at the public noticing and commenting phases, helping to provide needed jobs and tax revenue during this period of record high unemployment and growing public deficits.

Specifically, during this 60-day exemption and suspension of the requirements for physical notice, posting and public access to paper copies of documents at specified locations, a lead agency, responsible agency or project applicant (as applicable) remains in compliance with CEQA procedural requirements if they make these relevant materials available to the public through all of the following means:

  1. 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;

  2. Submit all materials electronically to the State Clearinghouse CEQAnet Web Portal; and

  3. 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 CEQA Guidelines sections 15000 et seq.

The EO does not require, but encourages agencies and project applicants to pursue additional methods of public notice and outreach as appropriate for particular projects and communities.  Examples include applicants hosting on-line community group meetings to reach out to the public and agencies giving a phone number for persons to call to get a flash drive copy of a draft or final CEQA document in the event the person does not have access to the internet.

The EO additionally suspends the timeframes set forth in Public Resources Code sections 21080.3.2 and 21082.3 related to the California Native American tribes to request consultation regarding an Environmental Impact Report, Negative Declaration, or Mitigated Negative Declaration under CEQA and for the lead agency to begin such consultation for additional 60 days.

FOOTNOTES

[1]  See Public Resources Code §§ 21092.3 and 21152, and CEQA Guidelines §§ 15062(c)(2) and (c)(4), 15072(d), 15075(a) and (d)-(e), and 15094(a), (d)-(e).

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 118

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About this Author

Whitney Hodges, Attorney, Sheppard Mullin, Real Estate, Natural Resources
Associate

Whitney Hodges is an associate in the Real Estate, Land Use and Natural Resources practice group in the firm's San Diego office.  She also serves on the firm's Diversity and Inclusion Committee, the Recruiting Committee, and the Latin Business Team.

Areas of Practice

Ms. Hodges's practice focuses on general business litigation with an emphasis on land use litigation, real estate litigation, business torts/contracts, intellectual property, and litigation involving internet usage.  Ms. Hodges handles all aspects of litigation, including administrative, trial...

714-424-8257
Jeffrey W. Forrest, Sheppard Mullin, Real Estate Lawyer, Land Use Lititgator
Associate

Jeff Forrest is a Land Use partner in the firm's San Diego office and has been practicing law for 20 years.

Areas of practice

Jeff's practice includes complex land use planning, obtaining entitlement approvals, and land use litigation defense for clients such as Holland Partner Group, Hines, Cisterra, Lincoln Properties, Loews Resorts, Hotel Del Coronado, JStreet Hospitality, Choice Hotels, Lowe Enterprises, Greystar, BioMed Realty, Pardee Homes, KB Home, Brookfield Homes, Caydon U.S.A.,  Chevron, Integral Communities, Jay Paul Company, Steelwave, solar and renewable energy developers (NextEra, Tenaska, NRG, Con Edison Development, Wells Fargo, Sempra Renewables, Alta Gas, and Enbridge), Allied Waste, the Building Industry Association, Citigroup, Comerica Bank, Black Mountain Ranch, Sovereign Capital, LLJ Investors, and Lane Field Developers.
 
Jeff specializes in counseling compliance with and litigating the California Environmental Quality Act ("CEQA"), National Environmental Policy Act ("NEPA"), California Coastal Act, Subdivision Map Act, Mitigation Fee Act, Endangered Species Act, and global warming laws and regulations.

In doing so, his land use work covers all aspects of advising and representing residential, industrial and commercial developers through all phases of the land use regulatory process, including real estate due diligence investigations; negotiating development agreements, easements, annexation agreements, water supply assessments, and environmental permits; processing land use entitlements, and appearing before governmental agencies and commissions.

Prior to joining Sheppard Mullin, he served in the U.S. Congress as the Legislative Director & Counsel to Congressman Mike Castle following the Congressman's terms as Delaware's Governor. In Congress, he focused on bankruptcy reform, financial services modernization, corporate governance, environmental, appropriations and tax legislation.

Jeff is a Board member of the National Association of Industrial and Office Properties and a registered lobbyist with the City of San Diego, the County of San Diego, and San Diego Regional Airport Authority, and the San Diego Port Authority.

619-338-6502
Kelsey Clayton Real Estate & Land Use Attorney Sheppard Mullin San Diego, CA
Associate

Kelsey Clayton is an associate in the Real Estate, Land Use and Environmental Practice Group in the firm's San Diego office.

PRACTICES

  • Real Estate and Land Use

ADMISSIONS

  • California
619.338.6556