On April 22, 2020, Governor Newsom signed Executive Order N-54-20 to address the need to extend certain government functions and legal requirements as a result of the March 4 State of Emergency regarding COVID-19. This included, among other things, a suspension of certain legally mandated timeframes for tribal consultation in CEQA, which were set forth by the amendments of Assembly Bill 52. Section 9 of the Executive Order (EO) states:
The timeframes set forth in Public Resources Code sections 21080.3.1 and 21082.3, within which a California Native American tribe must request consultation and the lead agency must begin the consultation process relating to an Environmental Impact Report, Negative Declaration, or Mitigated Negative Declaration under the California Environmental Quality Act, are suspended for 60 days.
The applicable timeframes in Section 21080.3.1 pertain to the amount of time a tribe has to respond to a project notification letter from a CEQA lead agency, and the amount of time within which the lead agency must initiate consultation, if requested. Under normal circumstances, a tribe has 30 days to respond to request consultation (21080.3.1[b]), and the lead agency must initiate consultation within 30 days of receiving that request (21080.3.1[e]). The EO suspends those timeframes until June 21, 2020, unless otherwise rescinded, extended, or modified. This will affect projects in the following manner:
- If an initial project notification letter was mailed pursuant to 21080.3.1(d) before April 22 and the 30-day response window had not closed by that date, then the requirement for the tribes to respond within 30 days of that notice has been suspended. As a practical matter, this means that under these circumstances, tribes have until June 21, or the end of the 60-day suspension, to request consultation.
- If a tribe has responded to a project notification letter within 30 days, and tribal consultation has yet to be initiated pursuant to 21080.3.1(e), then the requirement for the CEQA lead agency to initiate consultation within 30 days of that request has been suspended. This means that lead agencies have until June 21, or the end of the 60-day suspension, to initiate consultation.
This is important because CEQA documents cannot be released until consultation, if requested, has been initiated. For some projects, this means that the release of some CEQA documents may be postponed until after June 21.
The timeframes in Section 21082.3 pertain to the ability of the CEQA lead agency to take action on a CEQA document after consultation has concluded or a good faith effort has been made. Under normal circumstances, when a tribe failed to respond to the notice within 30 days, the CEQA lead agency can adopt or certify the CEQA document without further consultation (21082.3[d]). Under this EO, because the timeframe for tribes to respond to request consultation has been suspended, the lead agency cannot take such action under 21082.3(d)(3) simply because the tribe failed to respond within 30 days.
Lastly, the requirement to notify tribes by letter within 14 days of determining that an application for a project is complete or a decision by a public agency to undertake a project (21080.3.1[d]) appears to be unaffected by this Executive Order, which specifies only the affected timeframes as being “within which a California Native American tribe must request consultation and the lead agency must begin the consultation process.”
The Executive Order also suspends the requirements for physical posting of a hard copy document in a public location as well as physical posting of notices at the County Clerk’s office and the State Clearinghouse. Because most physical government offices are closed, the EO allows online posting of documents and notices, which must be posted for the same amount of time as the physical copy.