BILL ANALYSIS Ó
SB 659
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 659
AUTHOR: Hancock
AMENDED: April 9, 2013
FISCAL: Yes HEARING DATE: May 1, 2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT: ARCHAEOLOGY
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA):
1) Requires lead agencies with the principal responsibility
for carrying out or approving a proposed discretionary
project to prepare a negative declaration, mitigated
negative declaration, or environmental impact report (EIR)
for this action, unless the project is exempt from CEQA
(CEQA includes various statutory exemptions, as well as
categorical exemptions in the CEQA guidelines). (Public
Resources Code §21000 et seq.).
2) Requires the Office of Planning and Research (OPR) to
prepare and develop guidelines for the implementation of
CEQA. Requires OPR, at least once every two years, to
review the guidelines and recommend proposed changes or
amendments to the Secretary of the Resources Agency to
certify and adopt. (§21083).
This bill requires OPR, on its next review of the guidelines
and in cooperation with the State Historical Resources
Commission, to develop changes to the guidelines establishing
professional qualifications for a person performing
archaeological evaluation pursuant to CEQA.
COMMENTS :
1) Purpose of Bill . According to the author, this bill
SB 659
Page 2
attempts to address a "problem of under qualified
archaeologists practicing cultural resource management for
the purposes of CEQA due to a lack of standards for
people/organizations/agencies trying to find a qualified
archaeological consultant. More specifically, we are
trying to address the problem that local governments and
lead agencies have when trying to find a qualified
consultant for CEQA mandated archaeology. In many
situations they do not know what a qualified archaeologist
looks like and can end up hiring under qualified
archaeologists. This can result in under qualified
archaeologists practicing archaeology that harms cultural
and historical sites. Additionally, Indian Tribes have
observed that the use of under qualified archaeological
consultants has resulted in the loss of significant Native
American cultural sites as a result of their failure to
locate or report those sites during the environmental
review process."
2) Brief background on CEQA . CEQA provides a process for
evaluating the environmental effects of a project, and
includes statutory exemptions as well as categorical
exemptions in the CEQA guidelines. If a project is not
exempt from CEQA, an initial study is prepared to determine
whether a project may have a significant effect on the
environment. If the initial study shows that there would
not be a significant effect on the environment, the lead
agency must prepare a negative declaration. If the initial
study shows that the project may have a significant effect
on the environment, then the lead agency must prepare an
EIR.
Generally, an EIR must accurately describe the proposed
project, identify and analyze each significant
environmental impact expected to result from the proposed
project, identify mitigation measures to reduce those
impacts to the extent feasible, and evaluate a range of
reasonable alternatives to the proposed project. Prior to
approving any project that has received an environmental
review, an agency must make certain findings. If
mitigation measures are required or incorporated into a
project, the agency must adopt a reporting or monitoring
program to ensure compliance with those measures.
SB 659
Page 3
If a mitigation measure would cause one or more significant
effects in addition to those that would be caused by the
proposed project, the effects of the mitigation measure
must be discussed but in less detail than the significant
effects of the proposed project.
3) Is the problem about the qualifications of the professional
hired or the quality of the work performed ? Like any other
profession, simply because a person has specified
credentials does not necessarily mean that particular
person produces quality work. Furthermore, a person
without specified qualifications may be brilliant at their
job.
The sponsor cites the following example from the Pala
Environmental Department/Tribal Historic Preservation
Office, "Irreparable damage has been done to human burials
at the Luiseno village site Tomkav because the
archaeologists who assessed the site in the 1990s failed to
identify human skeletal remains that were found during the
CEQA review. In 2012, construction on Horse Ranch Creek
Road disturbed more burials. If the archaeologists who
studied the property in the 1990s had been doing their job
properly, the presence of human remains would already have
been known. Because these archaeologists failed to do
their duty, sacred sites were desecrated and Luiseno
ancestors were unearthed and their burial place destroyed.
We need standards in place to ensure that oversights like
this do not happen again."
The example cited specifically notes, "If the archaeologists
who studied the property in the 1990s had been doing their
job properly, the presence of human remains would already
have been known" and further notes that the archaeologists
"failed to do their duty." The desecration of sacred sites
was due to how the job was performed, or lack thereof, but
nothing is mentioned about the lack of credentials or
qualifications of the archaeologist being the reason for
the desecration of sacred sites.
It seems that the issue trying to be resolved may have more to
do with how a job is performed and the quality of work
SB 659
Page 4
rather than an archaeologist's credentials.
4) Archaeologists now, are marine biologists or botanists
next ? The stated goal of this bill is to help provide
guidance to lead agencies on what to look for when hiring
an archaeologist for purposes of CEQA. In addition to
cultural resources, an environmental review includes many
other environmental factors to assess, such as biological
resources, agriculture and forestry resources, air quality,
geology/soils, hydrology/water quality, noise, land
use/planning, transportation, traffic, and greenhouse gas
emissions. All of these fields require some degree of
specialized expertise and knowledge, and if the people
doing the CEQA review do not perform their jobs correctly,
then there may be permanent damage to project sites, living
creatures, or other environmental elements. SB 659
specifies that there is a need to include qualifications
for archaeologists in the CEQA guidelines. However, this
bill unnecessarily elevates one profession over all the
others required to properly conduct an environmental
review.
5) Qualified but not necessarily hirable . As noted by the
source of this bill, some governmental agencies have
contracting requirements that mandate an agency to hire the
lowest bidder. What happens when the lowest bidder does
not meet specified qualifications? Is the agency put at
risk of liability for hiring the lowest bidder if that
archaeologist is not "qualified"? Or can the agency be in
violation of its own contracting regulations for not hiring
the lowest bidder if they hire a "qualified" archaeologist
who is not the lowest bidder?
6) Amendment needed . To ensure that archaeological
evaluations performed pursuant to CEQA are done properly,
it would be more effective to provide guidance on what is
required to effectively perform an archaeological
evaluation rather than simply require that the person hired
have specific qualifications. Instead of requiring OPR to
establish professional qualifications about who should
perform an archaeological evaluation under CEQA, an
amendment is needed to require OPR to establish
requirements on how to perform a proper archaeological
SB 659
Page 5
evaluation.
SOURCE : Anmarie Medin
SUPPORT : None on file
OPPOSITION : California Licensed Foresters Association