Public noticing under CEQA can be taken for granted. Yet, a misstep in noticing procedure carries both minor and major risks, from having to recirculate notification to getting sued.
Noticing is Necessary
Noticing is sometimes seen as the easy part of CEQA, but the process is an alphabet soup of categories and acronyms that isn’t clearly laid out in a single resource.
In addition, there needs to be familiarity with case law that provides guidance on legally defensible notification, as well as with other laws that have noticing requirements that overlap with the CEQA process.
The following are some insider tips and tricks to manage CEQA noticing accurately and effectively.
Notice of Exemption (NOE)
An NOE is filed with the County Clerk after a discretionary application is approved. Publishing online is not required, but strongly encouraged, as it can shorten the challenge period from 180 days to 35 days. The reason for filing an exemption should be articulated clearly and explicitly, for example:
Weak: “It is a Class 1.”
Strong: “This project qualifies as a Class 1 categorical exemption in accordance with CEQA, in that it consists of two on-premise signs.”
Notice of Preparation (NOP)
The NOP notifies the public, as well as reviewing and responsible agencies of a 30-day response period, which starts from the date notice is received, not the date the notice was mailed. Sending notices via traceable methods, such as certified mail, is a good practice.
Another good practice is to use the jurisdiction’s (lead agency) mailing list as it not only maintains consistency with other projects they are processing, but also lessens the risk of missing an entity that should have gotten the notice.
Notice of Availability (NOA)
NOAs announce that a draft environmental impact report (EIR) is available for viewing, or that an EIR is being recirculated due to new information about a previously approved project. The NOA is sent to anyone who has requested notice and it is published in a general circulation newspaper. If the notice is also mailed, it needs to be sent to property owners and occupants contiguous to a project site.
An additional back-up notification measure is to post the NOA physically at or near the project site. Sometimes people don’t go through their mail or read the paper. Posting at the project site is another step to ensure proper notification.”
The notice also should include a statement about whether the project site appears on any list of places containing hazardous materials. Even if the site is not on a list, that should be stated.
Timing Best Practices
The various avenues for dissemination have different lead times, so it is important to consider transmittal timing. The State Clearinghouse states takes up to 3 days to distribute documents, while County Clerks post notices within 24 hours. Deadlines for inclusion in general circulation newspapers may vary, so it’s best to check with the newspaper in question regarding their lead times for publishing notices in print and online. Don’t forget to factor in how long will it take for CEQA documents to be delivered to the filing agencies. Delivery timing varies, however, using overnight services can make it more predictable.
County Clerk Filing Best Practices
When delivering to a large municipal complex, know which building to go to and at which office/window to deliver the notice. As basic as it sounds, a phone call ahead of time confirming where to file will prevent wandering the floors and hallways of large municipal complexes, particularly if a deadline is looming. There have also been cases where a helpful person at a counter has accepted a filing, only for the filer to find out later that the notice was given to the wrong person who didn’t know where to correctly route it. You should also check the following, prior to filing:
- Fees and payment methods. Confirm preferred payment method, and/or whether they will allow you to combine the county fee and the California Department of Fish & Wildlife fee in one payment.
- Signature requirements. Original signature may be required, however, a duplicate signature may also be accepted.
For more information, contact Carey Fernandes.