Governor Brown has signed two new bills amending the California Environmental Quality Act (CEQA). AB 52 establishes new consultation procedures with California Native American tribes, and provides that an adverse change to a tribal cultural resource is a significant impact under CEQA. AB 1104 extends an existing CEQA exemption for certain pipeline projects to biogas pipelines.
AB 52 is intended to provide greater protection for Native American sacred sites. The new law provides that a project that may cause a substantial adverse change to a tribal cultural resource is a project that may have a significant effect on the environment. The implication of this is that such projects must be subject to either a mitigated negative declaration (if mitigation measures can reduce the impacts to less than significant) or an environmental impact report (EIR).
The law allows California Native American tribes to provide written notice to lead agencies identifying geographic areas that are traditionally and culturally affiliated with the tribe. A CEQA lead agency is then required to provide notice to such tribes of projects proposed in those geographic areas, and required to consult with such tribes if the tribe requests consultation on a particular project in that geographic area.
During the consultation, the parties may propose mitigation measures to avoid or lessen any potentially significant impacts to a tribal cultural resource. Any mitigation measures agreed to during consultation shall be recommended for inclusion in the environmental document and be fully enforceable. The law also includes provisions to maintain the confidentiality of cultural information provided by the tribes.
The law provides examples of mitigation measures that should be considered to minimize impacts to tribal cultural resources, if the consultation process does not occur or measures cannot be agreed to. Among the examples of mitigation measures are avoidance and preservation in place, treating the resource with culturally appropriate dignity, and permanent conservation easements. The new law stops short of requiring that these mitigation measures be adopted.
AB 1104 expands an existing exemption under CEQA for biogas pipelines located in four select counties in the San Joaquin Valley. Pursuant to Public Resources Code section 21080.23, CEQA does not apply to the inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing pipeline, as defined, if certain conditions are met. Among the conditions are that the project be less than eight miles in length, actual construction and excavation activities do not exceed more than one mile at a time, the project is within an existing right-of-way, and will comply with local agency permit requirements. The existing exemption also requires notification to affected public agencies and private property owners.
AB 52 adds Public Resources Code section 21080.23.5 to CEQA, which defines “pipeline” to include a pipeline located in Fresno, Kern, Kings, or Tulare County that is used to transport biogas that is derived from anaerobic digestion of dairy animal waste.
By Kristen T. Castaños (ktcastaños@stoel.com, (916) 319-4674).