School districts planning capital improvement projects this summer or planning for the reopening of schools (consistent with the recent guidance from the California Department of Public Health and the California Department of Education (https://bit.ly/37luy7S)) are reminded that it is important to continue to comply with the California Environmental Quality Act (“CEQA”) during the COVID-19 pandemic. In consideration of the current COVID-19 pandemic, CEQA notice requirements and statutes of limitations have been modified, as described below. Additionally, health and safety measures to address social distancing rules may be a project under CEQA. Please see the brief discussion below. However, an exemption to CEQA may apply.
The Governor's Executive Order N-54-20 (the “Order”), dated April 22, 2020 (https://bit.ly/2BYxhIG), suspends several notice requirements under CEQA including, Notices of Preparation, Notices of Availability, Notices of Intent to Adopt Mitigated Negative Declarations, Notices of Determination, and Notices of Exemptions, through June 21, 2020. The Order recognizes that many county clerk/recorder offices have been closed during the COVID-19 pandemic and are not able to accept such notices. As the State begins to reopen, please check with your local clerk/recorder office to see if they are now open and able to accept CEQA notices.
If the county clerk/recorder office is not yet open in your county, the Order provides that the lead agency, responsible agencies, or project applicants must provide notice of a CEQA project in the following manner:
- Post the CEQA notice on the lead agency's website
- Submit the CEQA notice to the State Clearinghouse (https://ceqanet.opr.ca.gov)
- Register at [email protected] in order to submit notices
- Engage in outreach to any individuals and entities known to be interested in the project
Additionally, lead agencies, responsible agencies, and project applicants are encouraged to pursue other methods of public notice and outreach as appropriate for particular projects and communities.
Statute of Limitations
On May 29, 2020, the Judicial Council of California issued a Circulating Order to amend its earlier-issued Emergency Rule 9 (https://bit.ly/3dTQh97) as applicable to causes of action arising under CEQA. Under the amended Emergency Rule 9, the tolling period for CEQA claims expires on August 3, 2020. On August 3, 2020, the clock starts running on the statute of limitations for a Notice of Determination (30 days) or a Notice of Exemption (35 days). If a Notice of Determination or a Notice of Exemption is not filed, the statute of limitations to bring a challenge is 180 days. As a result of amended Emergency Rule 9, the risk of a legal challenge to a project exists during the tolling period plus the period of the applicable statute of limitations.
Actions That May Trigger CEQA
As school districts make plans to reopen schools and to ensure appropriate social distancing and other health and safety measures, certain actions may be subject to CEQA.
Measures taken by school districts to address the health and safety issues of COVID-19 that are not subject to CEQA include:
- Additional cleaning and cleaning agents
- Separating seats
- Installing internal dividers
- Reducing capacity (depending on how this is achieved)
Actions that may be considered projects under CEQA
- Transfer of students to another school
- Installation or construction of temporary structures
- Installation of portable classrooms
- Acquisition of property
- Reopening surplus or closed school sites
- Changes to arrival times
- Longer school days
- Addition of lights (due to longer school days)
Exemptions to CEQA
CEQA exempts “emergency repairs to public service facilities necessary to maintain service” and “specific actions necessary to prevent or mitigate an emergency.” The CEQA guidelines further provide that specified emergency projects are exempt from CEQA such as, “emergency repairs to publicly or privately owned service facilities necessary to maintain service essential to the public health, safety or welfare, including emergency repairs include those that require a reasonable amount of planning to address an anticipated emergency.” An emergency under CEQA is defined as, “a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services.”
There may also be categorical exemptions that apply to projects, including:
- Class 1: Existing Facilities
- Class 2: Replacement/Reconstruction
- Class 3: New Construction or Conversion of Small Structures
- Class 11: Accessory Structures
- Class 14: Minor Additions to Schools
- Class 22: Changes in Grade Structure (no change to transportation)
- Class 27: Leasing New Facilities
Parker & Covert has extensive experience in handling CEQA compliance matters. Should you have any questions or need assistance with school district projects and CEQA compliance matters, please contact us by e-mail or by telephone at (714) 573-0900 (Southern California office) or (916) 245-8677 (Northern California office).
 California Public Resources Code §§ 21080(b)(2), (4).
 14 Cal. Code Reg. § 15269(b).
 California Public Resources Code § 21060.3.
 14 Cal. Code Reg. § 15301.
 14 Cal. Code Reg. § 15302.
 14 Cal. Code Reg. § 15303.
 14 Cal. Code Reg. § 15311.
 14 Cal. Code Reg. § 15314.
 14 Cal. Code Reg. § 15322.
 14 Cal. Code Reg. § 15327.
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