1. 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

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

3. 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

4. Email me if you would like a
PDF of this flow chart:

5. 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).

6. 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

7. 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?

8. 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

9. 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

10. Recent Developments:
Changes to Appendix G

11. 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

13. 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.

14. 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

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

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

17. 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

18. 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)

19. 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

20. 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

21. 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

22. Questions? Lisa Westwood, RPA Director of Cultural Resources
ECORP Consulting, Inc.
Sacramento Region - Corporate Headquarters 2525 Warren Drive Rocklin, CA (916)
Inland Empire 215 N. Fifth Street Redlands, CA (909)
Orange County 1801 Park Court Place Building B, Suite 103 Santa Ana, CA (714)
San Diego Region 3914 Murphy Canyon Road, Suite A206 San Diego, CA (858)
Chico
55 Hanover Lane, Suite A Chico, CA (530)
New Mexico
150 Washington Avenue,
Suite 201 Santa Fe, NM (714)

23. Questions?
Andrea Clark, Partner Downey Brand LLP (916)