Opportunities and Requirements for Public Engagement in the Ceqa and General Plan Processes

• Publication year: 2021
• Author: By Jeannie Lee*

OPPORTUNITIES AND REQUIREMENTS FOR PUBLIC ENGAGEMENT IN THE CEQA AND GENERAL PLAN PROCESSES

By Jeannie Lee*

I. INTRODUCTION

Stakeholder engagement is a critical element of public agency decision-making processes. In addition to being required by law, robust engagement in a decision-making process can improve decisions, help decision-makers be more responsive to public needs, achieve shared vision and goals, and improve accountability. In California, two state statutory schemes—the California Environmental Quality Act (CEQA), Public Resources Code §§ 21000 et seq., and the Planning and Zoning Law, Government Code §§ 65100 et seq.—have requirements and opportunities for public engagement in environmental review and land use planning processes.

Both CEQA and general plan law generally establish floors, rather than ceilings, for public engagement. Public agencies may and should use their discretion to craft public engagement strategies that are appropriate for their communities and engage the public early in the planning and environmental processes. In doing so, public agencies should consider the particular needs and constraints of their communities, and ways to maximize opportunities for connecting with the public. For example, a public agency might make all environmental and planning documents available electronically on an agency's website (a common practice of many public agencies, and which CEQA regulations encourage).¹ Additionally, a public agency may take other measures to reach members of the public early on who do not have ready access to the Internet or who are otherwise unable to access information online. Early conversations with the public and affected communities can help ensure that public agencies are able to accurately identify the nature of any environmental burdens, and other concerns that should be considered during the planning and CEQA processes.

This article will broadly cover some of the provisions addressing public engagement in CEQA and the general plan process, including tribal engagement. This article also discusses best practices for local jurisdictions to consider when developing community engagement strategies in the context of preparing or amending general plans, including the environmental justice elements of general plans. Finally, this article provides a list of CEQA and planning technical advisories prepared by the Governor's Office of Planning and Research (OPR) available to public agencies. Additional provisions in CEQA and the Planning and Zoning Law may apply to particular projects, and therefore public agencies and the public are advised to refer to those statutes and guidelines for specific requirements.

II. PUBLIC ENGAGEMENT IN THE CEQA PROCESS

"Public participation is an essential part of the CEQA process."² There are a number of provisions in the CEQA statute and CEQA Guidelines that address public engagement in the CEQA process, some of which are discussed below. These provisions generally require: (1) public scoping of potential environmental issues for certain projects; (2) public review and comment on CEQA documents; and (3) public notice and hearing for proposed projects. CEQA generally provides the floor for public engagement in the environmental review process, but public agencies should consider additional opportunities to gather community input and concerns before project approval.

A. SCOPING MEETINGS

Lead agencies³ must hold at least one scoping meeting for certain projects, including projects of statewide, regional, or areawide significance.⁴ Scoping meetings are otherwise not required, but they may still be useful for public agencies trying to determine the scope of the potential environmental impacts. In general, scoping meetings are a helpful way to engage the public early in the process, to understand which populations need to be more engaged, and to identify the best ways to achieve that goal. Early engagement may also help resolve potential concerns that could arise later in the review process.⁵

B. PUBLIC REVIEW AND COMMENT

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CEQA requires that certain documents be released for public review and comment. Public comments are intended "to allow the lead agencies to identify, at the earliest possible time in the environmental review process, potential significant effects of a project, alternatives, and mitigation measures which would substantially reduce the effects."⁶ CEQA generally encourages public agencies to "include provisions in its CEQA procedures for wide public involvement, formal and informal, consistent with its existing activities and procedures, in order to receive and evaluate public reactions to environmental issues related to the agency's activities."⁷

Public review and comment periods vary depending on the type of CEQA document. For local agency draft environmental impact reports (EIRs), the public review period must not be less than 30 days, nor should the period be longer than 60 days "except under unusual circumstances."⁸ Review periods for state agency and some local agency draft EIRs that are submitted to the State Clearinghouse must be at least 45 days, unless the State Clearinghouse approves a shorter period.⁹ The period for a negative declaration or mitigated negative declaration¹⁰ must be at least 20 days; if a lead agency submits either of those documents to the State Clearinghouse the period is 30 days, unless the Clearinghouse approves a shorter review period.¹¹ Lead agencies are not required to circulate addenda for public review.¹²

For a draft EIR, negative declaration, or mitigated negative declaration, a lead agency is required to consider comments received during the public comment period.¹³ Although not required, the lead agency may also respond to any comments it receives after the close of the comment period.¹⁴ The public comments and responses are part of the package considered by the decision-makers before approving or disapproving a project.¹⁵

C. NOTICING, FILING, AND POSTING CEQA DOCUMENTS

CEQA requires that public agencies provide public notice of the preparation, availability, and approval of CEQA documents. Different notice requirements apply at different points during these CEQA processes. For example, when an agency has determined that it must prepare a CEQA document, the agency is required to prepare and circulate a notice of preparation.¹⁶ This notice is used to solicit comments from other public agencies on the scope and content of the environmental information in the CEQA document. A lead agency must also send the notice of preparation to any public members who have asked the agency for notice.¹⁷

CEQA provides specific noticing procedures for the publication of draft CEQA documents. For example, when a lead agency publishes a draft EI R, it must provide notice via mail to all organizations and individuals who have previously requested notice in writing.¹⁸ Additionally, lead agencies must give notice by at least one other method: publication in a newspaper, posting physical notice in the project area, or mailing notice to property owners and adjacent property owners.¹⁹ Lead agencies are not precluded, however, from taking additional measures by other means.²⁰

Finally, following a public agency's determination to approve or carry out a project, the agency must file a notice of determination.²¹ If an agency determines that a project is exempt from CEQA, it may choose to file a notice of exemption to obtain a shorter statute of limitations than would apply if a notice is not filed.²² Note, some statutory exemptions require the agency to file a notice of exemption with the Governor's Office of Planning and Research.²³

In general, local lead and responsible agencies file and post their notices with the relevant county clerk's office while state agencies file and post their notices using the State Clearinghouse's web-based CEQAnet database. Because of the numerous noticing requirements, the public and public agencies should be careful to consult all relevant requirements in CEQA, the Guidelines, guidance on the State Clearinghouse's website, and public agency guidance documents.

There have been recent legislative attempts to expand the scope of public notice and engagement requirements in CEQA. For example, one bill, AB 2447 (Reyes, 2018)...