BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 52 (Gatto) - Native Americans: California Environmental
Quality Act.
Amended: July 2, 2014 Policy Vote: EQ 6-0
Urgency: No Mandate: Yes (see staff comment)
Hearing Date: August 14, 2014 Consultant:
Marie Liu
SUSPENSE. AS AMENDED.
Bill Summary: AB 52 would establish procedures and requirements
under CEQA for the purpose of avoiding or minimizing impacts to
tribal cultural resources.
Fiscal Impact (as approved on August 14, 2014):
One-time costs to the General Fund for the Office of
Planning and Research (OPR) to revise its CEQA Guidelines
One-time costs of $3 to $5 million to the General Fund to
the Native American Heritage Commission (NAHC) to develop a
database identifying traditional and cultural areas and the
lead agencies that overlap these areas.
Ongoing costs of $600,000 to the General Fund to the NAHC
to assist lead agencies and maintain the required database.
Unknown costs to the General Fund and various special funds
for increased CEQA costs for projects which the state is the
lead agency or the project proponent.
Background: The California Environmental Quality Act (CEQA)
provides a process for evaluating the environmental effects of a
project.
OPR is required to develop guidelines for the implementation of
CEQA ("CEQA Guidelines") and to update these guidelines every
two years. Though they are referred to as "guidelines," the CEQA
guidelines are adopted regulations adopted by the Natural
Resources Agency upon recommendation of OPR.
Proposed Law: This bill would require that public agencies must
seek to avoid damaging effects to any tribal cultural resource.
To this end, under CEQA, a lead agency would be required to
consult with a federally- recognized Native American tribe that
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is traditionally and culturally affiliated with the geographic
area of the proposed project, if the tribe has requested to be
involved. The consulting tribe or tribes would be able to
propose mitigation measures to avoid or lessen potential
significant impacts to a tribal cultural resource. Agreed upon
mitigations would be required to be included in the
environmental impact report and in an adopted mitigation
monitoring program. These requirements would apply to projects
that submit a notice of preparation or notice of negative
declaration or mitigated negative declaration on or after
January 1, 2015.
This bill would require the NAHC, by July 1, 2016, to provide
each federally-recognized tribe with a list of all public
agencies, and their contact information, that may be a lead
agency under CEQA within the geographic area with which the
tribe is traditionally and culturally affiliated. The NAHC would
also be required to assist a lead agency in identifying the
traditionally and culturally affiliated Native American tribes
within a project area.
This bill would define a tribal cultural resource as a resource
that meets one of several criteria, one of which is a resource
that is listed on the NAHC's Sacred Lands File for which a tribe
has submitted sufficient evidence demonstrating that the sacred
places are of special religious or social significance.
This bill would require the OPR to prepare and develop
recommended amendments to the CEQA Guidelines to separate the
consideration of paleontological resources from cultural
resources and add the consideration of tribal cultural
resources.
Staff Comments: In order for the NAHC to provide each
federally-recognized Native American tribe with a list of
potential lead agencies that have jurisdictions that overlap the
geographic area for which the tribe is traditionally and
culturally affiliated, the NAHC would have to identify the
tribes' traditional and cultural areas and then overlay the
geographical jurisdictional boundaries of a myriad of federal,
state, and local agencies who could serve as a lead agency under
CEQA. This activity will necessitate the creation of a
geographically-based database at a cost of $3 to $5 million to
the NAHC.
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The NAHC would also have ongoing costs to update the database as
needed, assist lead agencies with identifying relevant
federally-recognized Native American Tribes, and determining
whether there is sufficient evidence supporting a sacred place.
Staff notes that the NAHC has largely deferred to tribes to
determine the religious or social significance of their sacred
places, with some reference to ethnographic histories, when
determining resources on the current Sacred Lands File.
Determining "sufficient" evidence could be challenging and
time-intensive especially if there are conflicting claims
between tribes. On-going costs are estimated at $600,000
annually.
OPR would be required to amend the CEQA Guidelines to update
Appendix G of Chapter 3, as specifically required by this bill,
and to generally update the Guidelines to reflect the
consultation process outlined in the bill. OPR anticipates that
these updates would cause a significant amount of staff time and
would likely involve substantial public input and involvement.
Staff notes that the consultation processes created by this bill
only applies to federally-recognized tribes while other existing
Native American-related CEQA provisions apply to both
federally-recognized and non-federally-recognized tribes. The
guidelines would have to be updated to make this distinction.
The guidelines would have to be updated to make this
distinction. OPR is likely to incur guideline update costs in
the mid-hundreds of thousands of dollars, which would be
consistent with OPR's costs to update the CEQA Guidelines
regarding mitigating greenhouse gas emissions as required by SB
97 (Dutton) Chapter 185, 2007.
This bill would also result in unknown costs to the state as a
lead agency or as a project proponent. Presumably the
consultation required in this bill will result in increased CEQA
compliance costs for increased staff time for consultations and
potential mitigations, some of which may have occurred
regardless of passage of this bill. While these costs are
indeterminable, staff notes that the state is the project
proponent for billions of dollars of projects that are subject
to CEQA annually.
This bill creates a state-mandated local program as it would
require actions of a local agency serving as the lead agency
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under CEQA. However, the local lead agency would have fee
authority, which makes the mandate non-reimbursable by the
states.
Author Amendments:
Change intent language to recognize California Native American
tribes.
Define "California Native American tribe" as a federally or
nonfederally recognized tribe located in California.
Specify consultation and other requirements in the bill are
required with a federally recognized California Native
American tribe.
Allow the confidential exchange of information regarding
tribal cultural resources submitted by a California Native
American tribe among the lead agency, the tribe, and project
applicant.
Require confidential information to be published in a
confidential appendix.
Revise the requirements that must be met before a lead agency
certifies an environmental impact report.
Require a lead agency to "evaluate and select" instead of
"consider" feasible mitigations if there will be a significant
effect to a tribal cultural resource but there are no agreed
upon mitigation measures or the mitigation measures are not
included in the environmental document.
Clarification amendments.