The Governor’s Office of Planning and Research has announced the availability of a draft technical advisory discussing the new CEQA requirements for tribal cultural resources that have been added by Assembly Bill 52. The new law goes into effect on July 1, 2015.
The draft technical advisory describes the new substantive and procedural requirements and provides guidance to lead agencies regarding consultation with California Native American tribes and consideration of tribal cultural resources. It also discusses the reasons for these legislative changes. Of particular note, the draft technical advisory summarizes the specific steps and timeframes for notice and consultation under the new law, and it includes a flowchart on timing and notice. Other topics addressed in the draft technical advisory include:
- Consultation: Assembly Bill 52 requires a lead agency to consult with any California Native American tribe that requests consultation and is traditionally and culturally affiliated with the geographic area of a proposed project. The consultation must take place before the determination of whether the project requires a negative declaration, mitigated negative declaration, or environmental impact report. The draft technical advisory discusses the meaning and potential topics for consultation, noting that consultation is an ongoing process, not a single event.
- Tribal Cultural Resource: To be considered a “tribal cultural resource” under Assembly Bill 52, a resource must be either (1) listed, or determined to be eligible for listing, on a national, state, or local register of historic resources; or (2) a resource that the lead agency chooses, in its discretion, to treat as a tribal cultural resource. For the latter, the draft technical advisory explains that a lead agency must determine, based on substantial evidence, that the resource meets the criteria for listing in the state register of historic resources.
- Mitigation: If a lead agency determines that a project may cause a substantial impact to tribal cultural resources, the lead agency must consider mitigation measures for that impact. Mitigation may include such measures as avoidance and preservation of the resources in place, treating the resource with culturally appropriate dignity, or permenant conservation easements or other interests in real property.
- Confidentiality: The draft technical advisory also describes the new rules governing confidentiality during tribal consultation. For example, information submitted by a California Native American tribe during the environmental review process may not be included in the environmental document or disclosed to the public without the prior written consent of the tribe. However, the information may be described in general terms in the environmental document, to inform the public of the basis of the decision. In addition, a lead agency and the tribe may share confidential information regarding tribal cultural resources with the project applicant and its agents, in which case the project applicant is responsible for keeping the information confidential to prevent looting, vandalism, or damage to the resource.
The draft technical advisory is available at http://www.opr.ca.gov/docs/DRAFT_AB_52_Technical_Advisory.pdf. Comments on the draft technical advisory should be submitted by June 1, 2015.