New Cultural Resources Regulations in CEQA

New CEQA Regulation: AB 52

by Paul Curfman and Jonathan Hidalgo

Effective July 1, 2015, lead agencies are now required to offer Native American tribes that have submitted written requests to participate in consultations to protect tribal cultural resources, the opportunity to consult on California Environmental Quality Act (CEQA) documents prior to submitting a Mitigated Negative Declaration (MND) or Environmental Impact Report (EIR).

Assembly Bill 52 (AB 52) will also formally establish a new requirement under CEQA to protect tribal cultural resources by January 2016. With AB 52, CEQA analyses must consider “tribal cultural values, as well as scientific and archaeological values when determining impacts and mitigation.” Tribal Cultural Resources are defined as “sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American Tribe” that are either included or determined to be eligible for inclusion in the California Register of Historical Resources or local registers of historical resources.

How this Legislation Might Impact Your Project

AB 52 requires lead agencies to consider the effects of projects on tribal cultural resources and to conduct consultation with federally and non-federally recognized Native American tribe(s) early in the environmental planning process.  If your project has filed a Notice of Preparation (NOP) or a notice of Negative Declaration or Mitigated Negative Declaration (MND) on or after July 1, 2015, and the tribe has submitted a request for consultation, your project is subject to AB 52.

After January 1, 2016 Appendix G of the CEQA Guidelines will be amended per PRC Section 21083.09 to separate the consideration of paleontological resources from tribal cultural resources and will also add consideration of tribal cultural resources to the sample questions under cultural resources.

Integrating AB 52 with CEQA

The best practice is to contact the Native American Heritage Commission (NAHC) upon initiating environmental review to identify the California Native American Tribes liaison for the project, and the tribal contact person(s). Within 14 days of approving a project (or a decision is made by a public agency to undertake a project), the lead agency is to provide formal written notification to the designated contact listed by the NAHC. This can be done concurrently with preparation of the environmental document.

The written notification to the tribe should include a brief description of the project and its location, the lead agency contact information, and a clarification of the tribe’s limited 30-day opportunity to request consultation. Lead agencies are to begin consultation within 30 days of receiving the tribe’s request. Lead agencies and project proponents should provide time in their schedules for the 30-day response period and time for consultations. A proposed Mitigated Negative Declaration (MND) or a Draft EIR cannot be released for public review before the tribe(s) has had the opportunity to participate in consultation. Consultation is considered complete when a mutually agreed upon set measures to mitigate or avoid significant impacts, if such impacts exist, to tribal cultural resources is defined. Failure for the lead agency and the tribe to agree is also a reason to consider the consultation complete.

If multiple tribes are involved in the process, the lead agency is to conduct concurrent consultations, though it is recommended these consultations be conducted individually. Lead agencies are not obligated under AB 52 to attempt to reconcile differences if tribes disagree about their preferred mitigation for any shared Cultural Resources.

Tips to Consider

  • A California Native American tribe must submit a written request to the relevant lead agency to initiate the requirements of AB 52.
  • Information submitted by a California Native American tribe during consultation is to be kept confidential and not included in the public review draft of the CEQA document without consent of the tribe. PRC 21082.3 specifies that it does not prohibit the confidential sharing of information among the lead agency, a California Native American tribe, and the applicant.
  • AB 52 does not limit the ability of a California Native American tribe to participate as an interested tribe, person, citizen, or member of the public on CEQA reviews.
  • AB 52 specifically does not expand the applicability of CEQA to projects located on Native American tribal reservations or Rancherias.
  • The lead agency is required to include agreed-upon mitigation measures in the MND or Draft EIR, along with the related Mitigation Monitoring and Reporting Program (MMRP). Lead Agencies must include feasible mitigation pursuant to PRC Section 21084.3. Those measures would be reflected in the MMRP.

Conclusion

The new provisions introduced by AB 52 provide opportunity to formalize a process that has historically varied in timing and scope. The new consultation process will provide tribes with more opportunities to participate and have their views reflected in environmental documents. Tribal resources will gain a consistent evaluation and impacts should be mitigated in a uniform method. Upon completion of the new Appendix G questions, lead agencies will become familiar with the statutory and regulatory provisions and AB 52 is expected to easily integrate in to the environmental review process.

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