UPDATE: Navigating Development and Regulatory Compliance During the COVID-19 Pandemic Response

Federal, state, and local responses to COVID-19 are disrupting construction, planning, and other development activities throughout California.  As local and state shelter-in-place orders are issued or updated by public health officials, local and state agency staff, state and federal regulators, and developers scramble to interpret these orders, which are as novel as the coronavirus itself.  With the everchanging responses to the pandemic, it is impossible for us to address all of the construction and development related issues that our clients may be facing, or may encounter.  But, working with our clients, land use authorities, and environmental resource regulators during this crisis thus far has provided us with some insights on best practices that may ease some of the long term disruptions to public agencies and development communities. 

CEQA and Land Use Entitlements

In a letter dated March 22, 2020, the League of California Cities asked Governor Newsom to “pause” various statutory deadlines under the California Environmental Quality Act (CEQA), Permit Streamlining Act, Subdivision Map Act, and other development—related statutes.  The Cities are requesting up to an additional 120 days to review and process permit applications.  As of April 6, the Governor had not issued any orders extending the timelines.  Doing so could delay new development projects by weeks or months, including the review and approval of new housing projects, which the Governor has been urging local agencies to expedite, and not delay.  While the Governor has not extended the timelines to review and process development applications, and the Office of Planning and Research (OPR) announced on March 24 that “there has been no change to the deadlines, noticing, or filing requirements contained within CEQA,” court closures may result in extended deadlines to file CEQA lawsuits and County Clerks have not been reliably posting new CEQA notices.

Although most city and county planning department offices are closed, planning and building staff are working remotely.  A number of local agencies (including the cities of San Francisco and Los Angeles) issued emergency ordinances or modified their standard practices, extending existing land use and building permits, allowing electronic delivery of building and permit application materials, or supplying “drop boxes” in lieu of personal appointments.  But, some jurisdictions are also delaying the review of permit applications that were in the pipeline when the shelter-in-places orders were issued, or are temporarily suspending acceptance of new permit applications.  Some agencies are holding virtual public hearings, but the use of video and telephone conferencing to hold public hearings has not been uniformly implemented throughout the state, delaying some public hearings, and raising some concerns about the public’s ability to meaningfully participate in the review process. 

Overall, the environmental review and land use entitlement processes continue to move forward throughout the state, and most agencies are trying to adapt.  Due to differences in local ordinances, practices, and remote working technology, developers and stakeholders should monitor state and local agency websites for updates on how to file applications, submit comments, or communicate with planning and building staff.  If you have a project in the pipeline, be patient, encourage staff to conduct virtual hearings, and work with your consultants to facilitate access to application materials.  For those with existing development entitlements, now is a good time to review development agreements and other land use approvals to identify conditions that may need to be extended or revised in light of restrictions on construction activities or new financial realities, and to document efforts to comply with existing conditions or with noncompliance as result of the COVID-19 response.

State and Federal Resource Compliance

The regulatory branches of the state and federal resource agencies, including the California Department of Fish and Wildlife, State and Regional Water Quality Control Boards, U.S. Fish and Wildlife Service, and U.S. Army Corps of Engineers continue to accept permit applications and discharge their regulatory responsibilities, but staff are working remotely consistent with local and statewide shelter-in-place and social distancing orders.  As a result, site visits have been postponed and field activities sharply curtailed, which may delay permitting and complicate compliance with existing permit conditions. 

The U.S. Army Corps of Engineers, Sacramento District is strongly encouraging applicants to submit permit applications, requests for jurisdictional determinations, and other materials electronically to their general email inbox.  We recommend submitting materials electronically to all of the California Districts (San Francisco, Sacramento, and Los Angeles) and to other federal and state resource agencies, and we have encountered some difficulties in locating materials that were physically delivered during the past several weeks, even materials that were delivered before the shelter-in-place orders were issued, but that may not have made their way out of the mailroom.  

The State Water Resources Control Board announced that timely compliance by the regulated community with all State and Regional Water Board orders and other requirements (including regulations, permits, contractual obligations, and funding conditions) is generally considered to be an essential function during the COVID-19 response.  As a result, the Water Boards consider compliance with board-established orders and permits to be within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives.  The announcement recognizes that compliance activities should be conducted consistent with social distancing policies and that it may not be feasible to implement all actions needed for compliance.  But, the regulated community is responsible for reporting any lack of compliance due to the COVID-19 response to Water Board staff.  The Environmental Protection Agency (EPA) announced a temporary policy regarding EPA enforcement, designed to provide enforcement discretion for civil violations, such as noncompliance with routine monitoring and reporting obligations that are the result of the pandemic.  To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic response.

On April 6, the Advisory Council on Historic Preservation (ACHP) announced that the National Historic Preservation Act (NHPA) Section 106 deadlines “for the response of State and Tribal Historic Preservation Officers, and Indian tribes and Native Hawaiian organizations that attach religious and cultural significance to historic properties affected by the undertaking, regardless of its location (collectively, States/Tribes/NHOs), will be considered paused while, due to the COVID-19 outbreak, an office is closed or work conditions are such that the States/Tribes/NHOs are unable to carry out their Section 106 duties or statutory rights to consultation in a timely fashion (e.g., staff unavailability due to health reasons; restricted access to records; state or tribal laws requiring hard copy records; lack of Internet access or telework capabilities).”  The clock will resume once the conditions are no longer in effect.  The California SHPO has not announced any delays or difficulties with teleworking at this time.  The ACHP also issued a blanket extension of expedited Section 106 consultations, until May 29, for all federal agencies regarding undertakings that respond to emergencies and disaster declarations related to the COVID-19 response.

Similar announcements have not been issued by other California or federal resource agencies. However, state and federal wildlife, clean water and historic preservation laws and permits remain in effect, and the regulated community likely will be expected to comply with existing rules, regulations, and permit conditions unless it is unsafe, or infeasible, to do so.  Informally, some wildlife regulators have nonetheless acknowledged that routine monitoring and reporting may be compromised and that survey and monitoring protocols may have to be adjusted.

Now is a good time to evaluate whether resource permit conditions can be met, including whether it is feasible to conduct spring wildlife monitoring, perform necessary site inspections, or move forward with plans for summertime resource restoration activities.  We are working closely with the regulated community and regulators to address compliance difficulties and to document decisions to forego otherwise required habitat management and monitoring.