New CEQA Guidelines for Tribal Cultural Resources

LOS ANGELES—CEQA Guidelines for tribal cultural resources are changing. Now, tribal cultural resources are a separate category under CEQA, and in July 2016, the guidelines will be revised, according to Michelle Hickey, of counsel at Pircher, Nichols & Meeks. To find out more about these changes and how they will affect developers, we sat down with Hickey for an exclusive interview. Here, she talks about the changes to the guidelines, what happens when tribal boundaries overlap and what developers need to know to navigate through these projects.

GlobeSt.com: How are tribal cultural resources treated differently from the past? 

Michelle Hickey: There have been several major changes in how tribal cultural resources are treated under CEQA.  Tribal cultural resources are now a new, separate category of resources.  By July 1, 2016, the CEQA Guidelines will be revised to update the Appendix G CEQA Checklist to provide for the separate consideration of paleontological resources from tribal cultural resources and to provide relevant sample questions regarding tribal cultural resources.  In addition, the lead agency must consider tribal cultural values, including the significance of the resource to a California Native American tribe, in addition to the scientific and archaeological values of a resource when determining impacts and mitigation.

Moreover, to ensure that the tribal cultural values are considered by the lead agency, a tribal consultation process has been added.  After July 1, 2015, all lead agencies approving projects are required, if formally requested by a culturally affiliated California Native American tribe, to begin consultation with such tribe or tribes regarding the impacts of a project on tribal cultural resources prior to the release of any negative declaration, mitigated negative declaration or draft environmental impact report.  Negotiations cannot be concluded until an agreement is reached or the tribe or lead agency determines that an agreement cannot be reached. 

GlobeSt.com: How will these changes impact California developers?

Hickey: The changes to CEQA have the potential to cause delay and additional uncertainty to the CEQA review process.  The tribal consultation can only start after a thirty-day notice has been provided to all tribes that have requested such consultation.  Until consultation begins, the lead agency cannot release the negative declaration, mitigated negative declaration or environmental impact report.  If a consultation is requested by a tribe or tribes, the lead agency must continue the consultation until the parties agree to mitigation measures or an impasse has been reached.  Only then can the lead agency complete the CEQA review process and adopt the negative or mitigated negative declaration or certify the environmental impact report.  In addition to delay, the new tribal consultation process may cause additional uncertainty and, thus, risk.  The developer may not be allowed to participate in the consultation process between the lead agency and a tribe despite such consultation process resulting in an agreement on mitigation measures that must be recommended for inclusion in the environmental document and in any adopted mitigation monitoring program.  Moreover, CEQA environmental reviews will now be subject to challenge based on the failure to comply with the new requirements, creating the potential for additional delay, uncertainty and risk.

GlobeSt.com: Are there geographic markets in Southern California that will be more largely impacted?

Hickey: At this point in the early implementation of the new requirements, it is difficult to identify which geographic markets will be more impacted.  This is due in part because the location of many tribal resources is not readily available, and it is unknown at this time which tribes will actively request tribal consultation.  Most projects will likely not be involved in a lengthy tribal consultation process; however, projects that have the potential to impact tribal cultural resources could be significantly affected.  Without expert assistance, it may be difficult for a developer to determine if a project has the potential to impact a tribal cultural resource because of the broad nature of, and confidentiality protections afforded to, tribal cultural resources.  Tribal cultural resources include site features, places, cultural landscapes, sacred places or objects which are of cultural value to a tribe that are eligible or listed on the California or a local historic register or that the lead agency, in its discretion and with substantial supportive evidence, has determined to be a significant tribal cultural resource.

GlobeSt.com: How will these new guidelines play out in areas where there are multiple or overlapping tribal boundaries?

Hickey: The lead agency is required to consult with any California Native American tribe that has submitted a written request to the lead agency to be informed by the lead agency of proposed projects in the geographic area that is traditionally and culturally affiliated with the tribe.  Accordingly, there will be lead agencies whose jurisdiction covers a geographic area affiliated with more than one tribe.  Indeed, as of July 15, 2015, two tribes had already filed a formal request with the County of Los Angeles to receive such notices. The consultation with different tribes cannot be combined unless agreed to by the lead agency and the tribes.  Thus, there is the potential for separate consultations to take place that result in different mitigation measures, all of which must be recommended for inclusion in the environmental document and in an adopted mitigation monitoring and reporting program.

GlobeSt.com: How will the new requirements affect projects already underway, if at all?

Hickey: The new requirements apply only to a project that has a notice of preparation that an environmental impact report will be prepared or a notice of intent to adopt a negative declaration or mitigated negative declaration filed on or after July 1, 2015.  Accordingly, those projects that have such notices but have not completed the CEQA environmental review process are not subject to the new requirements. 

GlobeSt.com: What is your advice to developers navigating through these new requirements?

Hickey: Developers should take the following steps to navigate the new requirements and to assess and, if possible, avoid unnecessary delay and risk.  First, the developer should attempt to determine if the project will impact cultural resources and if those impacts can be avoided or mitigated.  Second, the developer should determine early in the planning process of a project whether or not a tribe submitted the required formal request to receive notice.  Third, if a tribe has requested notice and the project is likely to impact cultural resources, the developer should discuss the timing of the consultation process with the lead agency to determine and, if possible, obtain a commitment from the lead agency as to the length of time the consultation process will be allowed to continue before an impasse is declared.  Fourth, a developer should request to participate in the tribal consultation process and should consider submitting for consideration in the consultation measures or revisions to project design or operations that will mitigate potential impacts and supporting documentation.  Finally, the developer should monitor the lead agency's compliance with the new requirements and ensure that such compliance is memorialized in the environmental review and project approval findings to reduce the risk of legal challenge for failure to comply.