HIGHLIGHTS:

  • The California Governor's Office of Planning and Research (OPR) has circulated for public comment a Discussion Draft of Proposed Changes to Appendix G of the California Environmental Quality Act (CEQA) Guidelines Incorporating Tribal Cultural Resources as required by California Assembly Bill (AB) 52.
  • AB 52 went into effect on July 1, 2015, and requires review of potential impacts to Tribal Cultural Resources as well as a new required consultation with California Native American tribes.

The California Governor's Office of Planning and Research (OPR) issued a Discussion Draft of Proposed Changes to Appendix G of the California Environmental Quality Act (CEQA) Guidelines Incorporating Tribal Cultural Resources on Nov. 17, 2015. Public comments will be accepted on this document until Dec. 18, 2015. The Discussion Draft updates the CEQA checklist found in Appendix G to address tribal resources, taking on only a bite-size piece of the draft of revised CEQA Guidelines issued by OPR in August 2015 that proposed to tackle 30 different issue areas.

Implementing AB 52

Specifically, the Discussion Draft is intended to implement California Assembly Bill (AB) 52 (Gatto, 2014), which established a new category of resources under CEQA – Tribal Cultural Resources – and set forth specific requirements and timing for lead agencies to consult with tribes on avoiding or mitigating impacts to such resources. AB 52 also directed OPR to prepare questions regarding Tribal Cultural Resources in the CEQA Guidelines Environmental Checklist Form, found in Appendix G (Public Resources Code §21083.09).

Appendix G contains a sample initial study form, and asks a series of questions designed to assist lead agencies in determining whether a project may cause a significant impact on the environment. While Appendix G is not an exhaustive list of all potential impacts and review must be tailored to address project and local conditions, the checklist is an important aid to lead agencies in preparing environmental review. Adding Tribal Cultural Resources to the checklist provides an important reminder to lead agencies of the new requirements of AB 52.

Proposed Changes

The Discussion Draft provides three alternative approaches to adding Tribal Cultural Resources to the Appendix G checklist. Each successive alternative gives more interpretation and guidance to complying with the new requirements.

  • The first alternative provides a minimal addition to the existing Cultural Resources section of Appendix G. It simply cross-references the definition of Tribal Cultural Resources promulgated by AB 52 and found in Public Resources Code, section 21074, and asks whether the project would cause a substantial impact to a Tribal Cultural Resource.
  • The second alternative, also in the existing Cultural Resources section of Appendix G, paraphrases the Public Resources Code definition of Tribal Cultural Resources to make clear the types of places and objects that are subject to new requirements, and asks whether the project would cause a substantial impact to such a resource.
  • The third alternative is the most detailed. It adds a new section to Appendix G for Tribal Cultural Resources – independent of Cultural Resources. The Tribal Cultural Resources section begins with introductory text for context and references the procedural requirements for consultation. The new section then provides additional detail on the definition of Tribal Cultural Resources and asks whether the project would cause a substantial impact to a Tribal Cultural Resource.

Next Steps for Interested Parties

Regulated parties, such as project proponents whose projects may impact Tribal Cultural Resources, should carefully review the Discussion Draft alternatives to ensure that they maintain a reasonable process for lead agency review. Tribal Governments, particularly those whose cultural resources could be threatened by future real estate development, should also review the Discussion Draft alternatives to make sure that the administrative guidance and procedures adequately protect their interests. OPR is taking public comment on the Discussion Draft until 5 p.m. on Dec. 18. Comments may be submitted electronically to ceqa.guidelines@resources.ca.gov.