On September 22, 2024, Governor Newsom signed AB 2091 creating a new CEQA exemption for nonmotorized public access. The bill adds Section 21080.28.5 to the Public Resources Code. The new exemption applies to park districts and the Great Redwood Trail Agency (GRTA) when providing new nonmotorized public access to existing roads, trails, parking areas, and similar areas owned by the park district or GRTA. To use the new exemption, the lead agency must hold a public meeting to solicit input, consider effects on natural and tribal cultural resources, make required findings, and file a notice of exemption.

What action is eligible for the new exemption?

The exemption applies to a change in use that would allow new nonmotorized public access to existing access infrastructure (e.g., roads, trails, rail lines, disturbed areas for parking) owned by a park district or GRTA. To qualify for the exemption, an activity must meet all the following requirements:

1. The lead agency must be a park district governed by an independent board as defined in Section 5500 of the Public Resources Code (e.g., a regional park or open space district) or the Great Redwood Trail Agency.
2. The public access must be to land owned by the park district or GRTA filing the exemption.
3. The new access is for low-impact nonmotorized use, such as hiking, biking, equestrian use, or nature viewing.
4. The public access is consistent with a plan adopted by the park district or GRTA.
5. The access would not require or result in a physical alteration to the environment, such as constructing a new trail or trailhead.
6. It would not be likely to result in a significant impact to tribal cultural resources or special-status species.

Note that project eligibility is limited to new public access that “causes no physical alteration to the area affected,” which would exclude construction or other landscape alterations to create new public access. The exemption may be most useful where an existing trail or road is opened to the public or an existing public facility is approved for a change in the authorized use, such as adding nonmotorized bicycles or equestrian use to a hiking trail.

How are environmental effects considered?

AB 2091 specifically precludes the use of this exemption if the public access would likely result in a significant adverse impact to tribal cultural resources or to endangered, threatened, rare, or special-status plant or animal species. The legislation does not specify the approach that a lead agency should use to determine neither of the impacts to these resources would occur. A lead agency should use its independent judgment, knowledge of the project area, and discretion to confirm the action would not affect tribal cultural resources or special-status species. As a practice pointer, we recommend providing substantial evidence to support a finding that no such significant impacts would occur. It can be in a written format aligned with the lead agency’s preference.

While the exemption does not require formal consultation with Native American tribes, from a practitioner’s perspective, informal consultation with culturally affiliated tribes may be important to determine if the public access could adversely affect tribal cultural resources and develop evidence in support of the determination. A lead agency can contact the Native American Heritage Commission to determine whether there are any documented tribal cultural resources in the project area and obtain a list of tribal contacts affiliated with the project area who may have information on tribal cultural resources. To obtain this information, the lead agency may contact the Native American Heritage Commission (NAHC) by submitting a 1:24,000 scale map of the project area and completing the NAHC Sacred Lands File and Native American Contacts List Request form.

Because the exemption is limited to new nonmotorized access to existing trails, roads, and disturbed areas, the potential for effects on special-status species would likely be limited to indirect effects, such as noise or the spread of invasive species, from the introduction of new users in the area. The lead agency should consider the existing intensity of use in the project area, the level of indirect disturbance or habitat degradation that could occur from the introduction of new users, and the presence of special-status species and their habitat. This analysis can be informed by any existing biological survey information, as well as by searching the California Natural Diversity Database for recorded occurrences of special-status species.

What is the process for using the exemption?

Once a park district or GRTA determines that new public access would qualify for the exemption, there are four steps that the lead agency must take to use the exemption:

1. The lead agency must hold a public meeting to consider public input on the proposed new access. The meeting can be during a regularly scheduled board meeting of the lead agency, or it can be a separate project-specific meeting. Options for remote public participation in the meeting must be offered. There is no requirement to respond to public comments, but they should be considered before approving the new access.
2. At least 30 days before the public meeting, the lead agency must post a written notice with a project description and the date and location of the public meeting at the project site and on the lead agency’s website.
3. The lead agency must make a finding that the proposed access meets all the eligibility requirements described above. As a best practice, it is recommended that this be in the form of written findings documenting why the access meets the eligibility requirements.
4. After the public meeting is held and the findings are made, the lead agency must file a notice of exemption with both the State Clearinghouse and the county clerk for the county(s) in which the project area is located.