Starting in January 2024, cities, counties, and special districts face new requirements for notifying the public about their project approvals under the California Environmental Quality Act (“CEQA”).
Under SB-69, in addition to filing a Notice of Determination (“NOD”) or Notice of Exemption (“NOE”) with the county clerk of each county where the project is located within five days of project approval, the local lead agency also must file the NOD or NOE with the State Clearinghouse at the Governor’s Office of Planning and Research (“OPR”). Additionally, the State Clearinghouse and county clerks are now required to post any NODs or NOEs on their official internet websites within 24 hours of receipt.
As discussed below, it is important for all public agencies and real parties in interest to understand the new procedural requirements in SB-69, because failure to comply with these new requirements could prevent an agency from relying on the shortened statute of limitations that would otherwise apply to lawsuits challenging project approvals under CEQA.
Procedural Requirements for NODs and NOEs Before Adoption of SB-69
Before SB-69 was adopted, Public Resources Code section 21152(a) required all local lead agencies (e.g., counties, cities, or special districts) to file a NOD with the county clerk of each county where a project is located within five days of approving a project that is subject to CEQA. Additionally, Public Resources Code section 21152(b) provided that, if a local lead agency approved a project that is not subject to CEQA, then it could file a NOE with the county clerk of each county where the project is located. Lastly, Public Resources Code section 21152(c) provided that a NOD or NOE filed with the county clerk must be made available for public inspection or posted on the county’s website within 24 hours of filing. If these requirements were met, then it initiated a short 30-day (for NODs) or 35-day (for NOEs) statute of limitations to file lawsuits challenging the project approval under CEQA. (Public Resources Code section 21167.)
Separately, before SB-69 was adopted, state agencies that decided to move forward with a project that was subject to CEQA were required to file a NOD or NOE with the OPR State Clearinghouse. This requirement did not apply to projects approved only by local lead agencies.
Procedural Requirements for NODs and NOEs Following Adoption of SB-69
Following the adoption of SB-69, a local lead agency that approves a project that is subject to CEQA must file a NOD with both the relevant county clerk(s) and the OPR State Clearinghouse within five days of project approval. Additionally, if a local lead agency elects to file a NOE, it must be filed with the county clerk(s) where the project is located and with the OPR State Clearinghouse.
SB-69 also amended the requirements that apply to the county clerk and the OPR State Clearinghouse upon receipt of NODs or NOEs from local lead agencies. Under Public Resources Code section 21152(c)(1) and (c)(2), as amended by SB-69, the county clerk and OPR State Clearinghouse must now make any NODs or NOEs publicly available and post them on their official website within 24 hours of filing by a local lead agency.
Effect of New Procedural Requirements on Statute of Limitations under CEQA
The Legislature’s stated intent in adopting these new requirements is that the shortened statute of limitations under Public Resources Code section 21167 will only apply if a local lead agency files the NOD or NOE with both the relevant county clerk(s) and OPR State Clearinghouse. However, the Legislature did not state that a county clerk’s or OPR State Clearinghouse’s failure to post a NOD or NOE on their official website will affect the applicable statute of limitations.
Section 1 of SB-69 provides that:
It is the intent of the Legislature that, for purposes of Section 21167 of the Public Resources Code, a notice required by subdivision (a) of Section 21152 of the Public Resources Code or a notice authorized by subdivision (b) of Section 21152 of the Public Resources Code is filed, and the applicable limitations periods under subdivisions (b), (c), (d), and (e) of Section 21167 of the Public Resources Code commence when, the local agency complies with the requirements in subdivision (a) or (b) of Section 21152 of the Public Resources Code, as appropriate.
In other words, it appears that if a local lead agency complies with subdivision (a) or (b) of Public Resources Code section 21152 by filing a NOD or NOE with the relevant county clerk(s) and OPR State Clearinghouse, then it can rely on the shortened statute of limitations in Public Resources Code section 21167 even if a county clerk or OPR State Clearinghouse fails to post the NOD or NOE on their website as required by subdivision (c) of Section 21152. However, best practices would involve ensuring that the NOD or NOE are posted online.
Take Aways for Public Agencies and Project Proponents
Filing a NOD or NOE immediately following project approval has long been an important procedural consideration for public agencies and project proponents who rely on the shortened statutes of limitation in Public Resources Code section 21167 to ensure that a project’s approvals are “final” before construction begins. The certainty provided by shortened statutes is an important feature of CEQA.
SB-69 adds new hurdles for public agencies to jump through when filing a NOD or NOE, and failure to jump through these new hurdles can extend the applicable statute of limitations under CEQA from 30 days (or 35 days) to 180 days. As a result, public agencies and project proponents should be aware of the new requirements created by SB-69 and ensure that they are met following project approval.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys or any of Kronick’s Municipalities and Special Districts or Water Law attorneys.
Eric Robinson
erobinson@kmtg.com | 916.321.4576
Russell Frink
rfrink@kmtg.com | 916.321.4588
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