The outbreak of COVID-19 has driven businesses, government agencies, and other organizations to rapidly develop plans to ensure the health and safety of workers while mitigating financial risk and continuing to conduct essential operations.
The outbreak of COVID-19 has driven businesses, government agencies, and other organizations to rapidly develop plans to ensure the health and safety of workers while mitigating financial risk and continuing to conduct essential operations.
With massive changes to the workforce, work processes, and the availability of services and information taking place, how can California Lead Agencies simultaneously abide by the California Environmental Quality Act (CEQA) public disclosure requirements while complying with social distancing guidelines and ensuring public safety? What steps can cities, counties, districts, and agencies take to confidently navigate the public release and distribution of a Draft EIR during this time?
We spoke with some industry professionals to get their input on best practices for working with Lead Agencies that are preparing and/or anticipating releasing a Draft EIR during the COVID-19 restrictions. Here’s what they had to say.
1. Initiating the EIR Process: Virtual scoping meeting.
Although a scoping meeting is only required for projects of statewide, regional, or areawide significance, Lead Agencies typically hold a scoping meeting as a best practice to solicit input on the scope of the Draft EIR.
Additionally, even if a scoping meeting is not required for a specific project, a responsible or trustee agency, or a project applicant may also request a scoping meeting to assist the lead agency in determining the scope and content of the environmental information that responsible agencies may require in the EIR. If such a request is made, the lead agency is required under CEQA to convene the meeting as soon as possible, but no later than 30 days after the request.
Due to the shelter in place order, and the likelihood that the size of public gatherings will continue to be restricted for the near future, EIR scoping meetings may need to be conducted virtually. Work with responsible and trustee agencies and the project applicant early in the process to identify if a scoping meeting is desired, or required, and to schedule virtual meetings. If the lead agency decides to hold a scoping meeting virtually, your environmental consultant can help prepare an effective virtual presentation.
2. Releasing a Draft EIR: Reach out to all non-state agency contacts who responded to the NOP.
Although sending hard copies for review is typically recommended, not all those who responded to the Notice of Preparation (NOP) require a hard copy of the EIR at this time. Reach out to all non-state agency responders to confirm whether they can access the EIR online, along with all related appendices and documents incorporated by reference, or whether they require a hard copy.
Clearly publicize that the Draft EIR and any documents incorporated by reference, are available electronically. Be sure that documents are capable of being downloaded.
2. Comply with CEQA’s legal requirements, but notify the public of their options for review of the Draft EIR.
Making the Draft EIR and any documents incorporated by reference available electronically, is a good practice in general and required by CEQA whenever possible, and it is particularly important in response to the current executive orders. This should be communicated clearly and offered as the first option for the review.
However, because CEQA requires that a physical copy of the document be made available in a public location, if Lead Agency offices remain open to the public, and if it is safe to do so, we recommend continuing to comply with the requirements of Guidelines Section 15087 and providing physical copies of the Draft EIR in an area accessible to the public, such as a vestibule or lobby area. We suggest that any hard copy of the document include a cover sheet explaining where the EIR and documents incorporated by reference can be accessed on-line, to ensure the public can review it without the need to physically touch the document.
If Lead Agencies offices are not open to the public—or to avoid unnecessary travel and risk on the part of the public—physical copies may also be made available by mail to members of the public who request it.
3. Consider potential benefits of extending the 45-day period comment period.
Under CEQA, a Draft EIR generally requires a minimum public review and comment period of 45 days when submitted to the State Clearinghouse. With individuals, families, and organizations across the State now under considerable stress due to mounting concerns regarding COVID-19, we recommend considering extending this period to 60 days. A longer review period would not only allow the public more time to evaluate the document, it would also demonstrate consideration for those reviewing the document both on an individual and organizational level.
The key during this time is to work together to provide creative solutions to the unique problems presented by COVID-19 that meet legal requirements but allow all parties to achieve their objectives.
4. Considerations when holding public hearings.
A public hearing during the 45-day period is not required under CEQA and is dependent on local jurisdiction and local ordinances. Should a public hearing be required, it should follow any Executive Orders from the Office of the Governor and current State public health directives. Lead Agencies may consider holding the hearing remotely, for example, with participants dialing in. If a remote meeting is held for the project, we recommend including that information in the relevant notices for the project. Check with the local agency regarding their capacity and ability to hold remote hearings. The local agency’s bylaws should also be carefully reviewed to determine the scope of discretionary actions that can be taken under a remote setting.
5. Clearly communicate the public’s options for commenting on documents.
Clearly communicate how and when comments will be received on any CEQA document that is circulated during the shelter-in-place directive. Public agencies are not required to hold public hearings to receive comments on draft EIRs and, in fact, under CEQA, the comment part of the EIR process may be conducted entirely in writing, if the Lead Agency so chooses and local regulations allow.
To facilitate the comment process, identify whether individuals can drop off comments at the Lead Agency offices, or if the Lead Agency will be closed to the public. Regardless of whether the Lead Agency’s offices are open to receive comments, we recommend that agencies accept comments in a variety of formats, including via electronic mail, fax, and regular mail, during this time. Clearly identify an email address that comments should be directed to and a day and time by which electronic or faxed comments must be submitted. If comments will be accepted by regular mail, communicate the date that such letters must be postmarked by.
Lead Agencies should also include how responses will be provided in any explanation regarding the submittal of comments. Note that CEQA explicitly allows Lead Agencies to provide responses to comments in an electronic format.
The COVID-19 outbreak has upturned the lives and businesses of people across California. It presents challenges that encourage creative solutions and rely on keeping the lines of communication open between project stakeholders. The key during this time is to work together to provide creative solutions to the unique problems presented by COVID-19 that meet legal requirements but allow all parties to achieve their objectives.
Many of these solutions will require technological expertise in addition to practical knowledge. FCS has over 30 years of experience navigating the complexities of CEQA and project approvals and has an experienced and tech-savvy team ready to provide assistance with virtual meetings, presentations, and electronic document distribution. As the situation surrounding COVID-19 is constantly shifting, staying on top of any recent changes will be key to moving your project forward.
FirstCarbon Solutions (FCS) comprises over 100 individuals offering due diligence, technical analyses, regulatory compliance, and permitting services for public and private projects. Want to learn more? Contact us for a free consultation to find out how we can help.
