Implementing AB 52: Tribal Cultural Resources for Flood Protection Projects Andrea P. Clark – Downey Brand Lisa D. Westwood – ECORP Consulting APA California Conference September 26, 2017

Critical Steps and Thresholds of AB 52: What you need to know

What You Need to Know Amended CEQA to mandate early tribal consultation prior to and during CEQA for post-7/1/2015 projects Added a new environmental issue, Tribal Cultural Resources (TCRs); must address even if no tribes wish to consult Significant impact on TCR = significant effect on environment Affects the timing and ability to release and certify/adopt EIRs and ND/MNDs There is a very specific process with timelines and thresholds

Email me if you would like a Lwestwood@ecorpconsulting.com PDF of this flow chart:

Procedures/Timelines Tribe contacts NAHC to request agency contact lists NAHC responds to tribe with agency lists Tribe sends to agency, general notification request letters including contact person Outside of the CEQA Process NAHC assembles master list of all agencies CEQA lead agency CEQA lead agency reviews application and determines it complete; the CEQA process begins. Agency notifies tribe’s contact person (for tribes that requested consultation) of project in writing, with map and project description, and notification that tribe has 30 days to respond. Applicant (internal or external) submits application to CEQA lead agency Within 14 days Inside the CEQA Process Tribe responds in writing to indicate desire to consult Lead agency initiates Consultation within 30 days of receiving request to consult Tribe DOES NOT respond to indicate desire to consult or does not wish to consult Within 30 days Lead agency documents such in the administrative record / CEQA doc and moves on. This is the earliest point at which you could safely publish an NOI (NOP can be earlier if you are preparing an EIR for other reasons).

Procedures/Timelines Lead agency initiates consultation within 30 days of receiving request Now you can release your CEQA document Tribe may consults with other members/elders/experts Initial meeting with tribe to present the project Agency/applicant may host project area tour Does tribe express concern for TCRs in project area? Yes Lead agency evaluates evidence for being eligible for CRHR, local registry, or NRHP based on “substantial evidence” and being geographically defined relative to the project area. Are there TCRs present in the project area for the purpose of CEQA? No Document such in CEQA doc and move on You could publish an NOI No Document such in CEQA doc and move on Yes Confidential information must be withheld from public distribution

Procedures/Timelines What are appropriate mitigation measures? Consult on impacts to TCRs What type of CEQA document is appropriate? What alternatives to avoid TCRs are feasible? (this SHALL be included in consultation if the tribe specifically requested so) Will the project have a significant or less-than-significant impact on the TCR? Will the project significantly impact TCRs?

Procedures/Timelines Will the project significantly impact TCRs? Consult on impacts to TCRs What are appropriate mitigation measures? What alternatives to avoid TCRs are feasible? (this SHALL be included in consultation if the tribe specifically requested so) What type of CEQA document is appropriate? Will the project have a significant or less-than-significant impact on the TCR? No Document such in CEQA doc and move on This is the latest point at which you could publish an NOI (if no impact) or an NOP (if TCR is the only impact) Did the parties agree to mitigation measures? Yes

Procedures/Timelines Did the parties agree to mitigation measures? Incorporate mitigation measures into selected CEQA doc and MMRP, as well as alternatives considered; become legally enforceable Agency can now certify the EIR or adopt the ND/MND Yes Lead agency documents good faith and reasonable effort (documented by its administrative record) and uses its own best judgment on which mitigation measures to implement No e.g., preservation and avoidance; protecting cultural character, traditional use, and confidentiality; and use of conservation easements

Recent Developments: Changes to Appendix G

TCRs are not part of the cultural resources section Changes to Appendix G 1. Make a change to the table of contents entitled “Environmental Factors Potentially Affected” TCRs are not part of the cultural resources section

Changes to Appendix G 2. Add a statement to the Environmental Checklist Form at the beginning of Appendix G, which provides a general description and cover sheet for a proposed project: “requested consultation” ≠ requesting noticing Note: This is the only resource-specific question on this form.

Always LSIMI for archaeology! Changes to Appendix G 3. Cultural Resources and Paleontology are still (unfortunately) in one section, but note one word change: Always LSIMI for archaeology! formal dedicated

Both rows must be answered Changes to Appendix G Both rows must be answered

Overview Federal and State Regulatory Contexts Coordination of Consultation Key Legal Issues

Party Initiating Contact Regulatory Context Regulatory Context Agency Tribes When Applies Party Initiating Contact Reaction Timing Schedule Section 106 NHPA Federal Federally-recognized Prior to issuance of a permit, license, or funding Federal Agency Proactive Tends to be later in the process, post-CEQA No timeframes Senate Bill 18 Local (Cities/ Counties) California Native American Tribes Prior to General Plan and Specific Plan adoptions or amendments Local Agency Tends to be earlier in the process, in conjunction with CEQA 90 day window to initiate, followed by CC/BOS noticing Public Comment: CEQA State/Local Any member of the public CEQA Reactive Near the end of CEQA, after the draft environmental document has been released to the public Initial Study: 30 calendar days   EIR: 45 calendar days Public Comment: NEPA NEPA (note, this often occurs in conjunction with Section 106) Near the end of NEPA, after the draft environmental document has been released to the public EA: 30 calendar days EIS: 45 calendar days Assembly Bill 52 Earliest point in the process, at the start of CEQA 14 days from start; 30 day response window; 30 day initiation window; then no time frames

Federal Regulatory Context What is the Federal Undertaking? NEPA NEPA and Section 106 NHPA are two separate statutory obligations Section 404, 408 Authorizations and Section 7, 10 Triggers Section 106 NHPA Section 106 (National Historic Preservation Act) Federal agencies must account for effects on historic properties. Inventory the Area of Potential Effects Evaluation of Significance (eligibility for NRHP) Determine and Resolve Adverse Effect (MOA/PA)

State Regulatory Context State/Local Regulations Water Quality – 401, 1602 Central Valley Flood Protection Board Public Resources Code Specifies procedures to follow where human remains or grave goods are found during project work Native American Heritage Commission identifies Most Likely Descendant tribe Property owner confers with MLD on disposition of remains Differences from federal law in definitions of burials, e.g., NAGPRA

Key Legal Issues Conflict between federal and state laws Human remains and grave goods – does federal law apply? USACE mitigation obligation vs. tribal desire to rebury Categorical Exemptions Text of AB 52 doesn't require consultation for categorical exemptions, but it may be advisable under certain circumstances Not available if substantial adverse change in significance of historical resource Operation and maintenance

Tips and Tools Early coordination – uncertainty Documentation/confidentiality Relationship building Addressing conflicts in federal and state law Leveraging technology for early identification Discretion and negotiation in mitigation

Questions? Lisa Westwood, RPA Director of Cultural Resources ECORP Consulting, Inc. Lwestwood@ecorpconsulting.com Sacramento Region - Corporate Headquarters 2525 Warren Drive Rocklin, CA 95677 (916) 782-9100 Inland Empire 215 N. Fifth Street Redlands, CA 92374 (909) 307-0046 Orange County 1801 Park Court Place Building B, Suite 103 Santa Ana, CA 92701 (714) 648-0630 San Diego Region 3914 Murphy Canyon Road, Suite A206 San Diego, CA 92123 (858) 279-4040 Chico 55 Hanover Lane, Suite A Chico, CA 95973 (530) 809-2585 New Mexico 150 Washington Avenue, Suite 201 Santa Fe, NM 87501 (714) 222-5932

Questions? Andrea Clark, Partner Downey Brand LLP aclark@downeybrand.com (916) 520-5424