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CEQA Bill to Protect Native American Cultural Resources Creates New Challenges and Opportunities for Project Applicants

On September 25, 2014, Governor Brown signed Assembly Bill 52 (“AB 52”), which modifies the California Environmental Quality Act (“CEQA”) to add new protections for Native American cultural resources and enhances the role of Native American tribes in the environmental review process. AB 52 is a significant amendment to CEQA that poses both challenges and opportunities for project applicants. A brief summary of the new law, which takes effect July 1, 2015, is provided below.

AB 52 Creates a New Category of Potentially-Significant Environmental Impacts

Under current CEQA law, lead agencies typically evaluate whether a project would impact historic or archaeological resources. Although impacts to Native Americans may be evaluated, AB 52 specifically mandates evaluation of whether a project will impact “tribal cultural resources” which include sites, features, places, cultural landscapes, sacred places, and objects with cultural value to tribes. If the potential for impacts to such resources exists, as with other environmental impacts, increasing levels of CEQA analysis, mitigation measures, and the consideration of alternatives is required. Input from a tribe as to what is culturally significant to that tribe will drive the analysis for a given project. These changes take effect on July 1, 2015.

Mandatory Tribal Consultation May Challenge Project Applicants and Lead Agencies

AB 52 establishes a new and powerful role for Native American tribes in the CEQA process through mandatory consultation provisions. If a tribe contacts a lead agency and asks to be notified of projects within a specific geographic area, the tribe must be notified of all applications triggering CEQA review in that area going forward. Upon request, the lead agency, with the participation of the applicant, must engage in consultation with the tribe that is designed to produce mitigation for impacts to tribal cultural resources. Information produced by tribes on a confidential basis may not be publicly disclosed, and in certain cases, will be included only in confidential appendices to CEQA documents. Consultation may conclude only when the parties agree on mitigation measures, or when a party acting in good faith and after making reasonable effort, concludes that an agreement cannot be reached. Lead agencies are precluded from releasing a negative declaration, mitigated negative declaration, or environmental impact report without satisfying the consultation requirement. If the parties fail to reach agreement, the lead agency is instructed to consider a list of statutory mitigation measures that include, among other things, avoidance and preservation in place.

The final version of AB 52 includes important provisions that circumscribe the ability of tribes to delay consultation requests to the detriment of project applicants. That being said, lead agencies must comply with precise notice provisions or risk challenges to adopted CEQA documents.

Project Applicants Should Take a Proactive Role in Response to AB 52

Project applicants should consider the following as lead agencies and tribes adapt to AB 52:

First, close attention should be paid to forthcoming revisions to the CEQA Appendix G checklist, which will be augmented by the Office of Planning and Research (“OPR”) to include questions specific to tribal cultural resources impacts. Interested parties should review and comment on the revisions to Appendix G, which must be adopted by OPR in final form no later than July 1, 2016.

Second, AB 52 imposes new obligations on lead agencies to provide notice to tribes and facilitate consultation; if these duties are not properly discharged, approved projects could be subject to legal challenge. Therefore, project applicants and their counsel should work closely with lead agencies to ensure that procedural boxes are checked, especially in the next several years as lead agencies begin to adjust to their new obligations under AB 52. It’s possible that some lead agencies may be unaware of their new responsibilities as of July 1, 2015.

Third, project applicants should be cognizant of the fact that although tribes have significant influence over the consultation process, the consultation is still a negotiation. Applicants and their counsel should treat the consultation process as an opportunity to both properly scope the environmental analysis and to craft reasonable mitigation measures where required.

Fourth, for projects that require a federal permit, applicants should bear in mind that compliance with Section 106 of the National Historic Preservation Act may also be required. On that basis, applicants should make certain that both the federal and state procedural requirements are satisfied.

Looking Ahead

AB 52 is one of the most significant legislative changes to CEQA in recent memory. The law both recognizes a new type of environmental impact and imposes significant procedural obligations on lead agencies as of July 1, 2015. It is incumbent on project applicants to familiarize themselves with the AB 52 in order to obtain economical and defensible entitlements.