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Most flood control projects require environmental review triggered by a federal, state, or local agency permit or decision. For example, federal agencies must consider the environmental impacts of their proposed actions under the National Environmental Policy Act (NEPA), and many states have their own “mini-NEPA” laws that require state and local agencies to identify the significant environmental impacts of their actions and avoid or mitigate those impacts.

In California, it’s not unusual for projects that involve flood protection (i.e., major work in or on levees, or modifications to dams) to undergo environmental review under both NEPA and California’s “mini-NEPA,” the California Environmental Quality Act (CEQA). This is because much of the levees in the Central Valley are considered “federal” levees (i.e., they were originally constructed by the federal government, and the state gave assurances to the federal government for their operation and maintenance). Any modification to these levees requires a permit from the U.S. Army Corps of Engineers, which triggers environmental review under NEPA.

Both NEPA and CEQA require analysis of impacts on cultural resources, and both laws are complex both individually and together. Starting this summer, state and local agencies in California will have increased requirements under CEQA – both procedural and substantive – with respect to cultural resources. Under existing law, lead agencies must assess a project’s impact on historical, archeological and paleontological resources, and propose mitigation measures for impacts determined by the lead agency to be significant.

The new requirements were added to CEQA by Assembly Bill 52 (“AB 52”), which starts from the premise that currently CEQA “does not readily or directly include California Native American tribes’ knowledge and concerns” and aims to “establish a meaningful consultation process between California Native American tribal governments and lead agencies.” The new portions of the law kick in starting July 1, 2015, wherever a state or local agency approves an activity that may cause impacts on the environment (i.e., when no CEQA exemption applies).

What the New Law Requires

AB 52 added the following procedural changes to CEQA:

  • Lead agencies must provide notice to tribes that are traditionally and culturally affiliated with the geographic area of a proposed project who have requested notice of projects proposed within that area.
  • If the tribe requests consultation within 30 days of receipt of the notice, the lead agency must consult with the tribe.
  • Consultation may include discussions about the appropriate level of environmental review, the significance of tribal cultural resources, the nature of the project’s impacts on the tribal cultural resources, and any alternatives or mitigation measures recommended by the tribe.

Substantively, AB 52 added a new category of environmental resources – “tribal cultural resources” – for consideration during the environmental review process. “Tribal cultural resources” are defined as either of the following:

(1) sites, features, places cultural landscapes, sacred places and objects with cultural value to a California Native American tribe that are either included in the state register of historical resources or a local register of historical resources, or that are determined to be eligible for inclusion in the state register; or

(2) a resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant based on the criteria for listing in the state register. Lead agencies must consider the significant of a resource to a California Native American tribe in making this determination.

“California Native American tribes” include all tribes located in California and listed on a contact list maintained by the state’s Native American Heritage Commission. As with potentially significant impacts on historical, archaeological and paleontological resources, where a project may have a significant impact on a tribal cultural resource, the lead agency’s environmental document must discuss the impact and whether feasible alternatives or mitigation measures could avoid or substantially lessen the impact.

How lead agencies can mitigate for adverse changes to tribal cultural resources

If consultation results in agreed-upon mitigation measures, those measures must be recommended for inclusion in the environmental document if they are determined to avoid or lessen the impact. AB 52 also identifies mitigation measures that may be considered to avoid significant impacts if measures are not identified during the consultation process. Recommended measures include:

  • Avoidance and preservation in place
  • Protecting the cultural character and integrity of the resource
  • Protecting the traditional use of the resource
  • Protecting the confidentiality of the resource
  • Permanent conservation easements or other interests in real property

What does this mean for project proponents in California?

It is already a common best practice among project proponents and lead agencies in California to reach out to the Native American community at the start of the CEQA process, to ensure that consultation occurs early in the process. Moreover, NEPA requires early consultation with Native American tribes, so as a practical matter flood control project proponents won’t need to modify their approach drastically as a result of AB 52.

That said, the new law introduces deadlines that don’t currently exist, and the new resource category of “tribal cultural resources” will require that lead agencies under CEQA pay closer attention to the significance of a resource to an interested Native American tribe. This particular aspect of the law may present uncertainty for lead agencies.

If you are dealing with these kinds of issues in your state, please consider posting a short description of it in our comments section below.

Photo of Andrea P. Clark Andrea P. Clark

Andrea Clark specializes in water rights and flood control, serving as general counsel to a variety of public agencies from local reclamation districts and water districts to regional joint powers authorities.

Public agencies in the water and flood control fields rely on Andrea…

Andrea Clark specializes in water rights and flood control, serving as general counsel to a variety of public agencies from local reclamation districts and water districts to regional joint powers authorities.

Public agencies in the water and flood control fields rely on Andrea for her ability to explain in understandable terms the wide range of issues impacting them, including basic transparency laws (Brown Act and Public Records Act), public bidding and contracting, bond financing, the unique nature of joint powers authorities, and elections. She also regularly counsels clients on water transfers, Proposition 218 compliance, the California Environmental Quality Act, the National Environmental Policy Act, and financing strategies for major capital improvement projects.

With a special expertise in flood control and floodplain management, Andrea is regularly asked to speak on topics ranging from flood insurance to climate change and the future of flood control policy in California. Through her representation of clients in state flood policy and speaking engagements, she has forged strong relationships with key members of the flood control community in California.

Andrea also counsels private clients, including landowners and mutual water companies, on water supply matters, including proceedings before the State Water Resources Control Board, water rights determinations, and contractual disputes with Federal agencies.