Loading...
HomeMy WebLinkAbout1-11-2017 PC Correspondence - Item 1 (Native American Heritage Commission)5TATE_QF__CALIEQRN)A NATIVE AMERICAN HERITAGE COMMISSION 1550 Harbor Blvd., Suite 100 West Sacramento, CA 95691 Phone (916) 373-3710 Fax (916) 373-5471 Email: nabtcQlnahc.ca.gov Website: n#12L/&_ww,nahc_ca.go_v Twitter: ®CA NAHC -- Er�mund,4�8isir�ul�L..Calov9rr'COC Meeting: Item:I January 9, 2017 Tyler Corey City of San Luis Obispo, Community Development sent via e-mail: 919 Palm Street tcorey@slocity.org San Luis Obispo, CA 93401 RECEIVED CITY OF SAN LUIS OBISPO JAN 10 2017 COMMUNITY DEVELOPMENT Re: SCH# 2015081034, Avila Ranch Development Project, City of San Luis Obispo; San Luis Obispo County, California Dear Mr. Corey: The Native American Heritage Commission (NAHC) has reviewed the Draft Environmental Impact Report prepared for the project referenced above. The review included the Project Description/Introduction, the Summary of Project Impacts (does not include Cultural Resources), Project Impacts and Mitigation Measures, Cultural Resources Section 3.5, and Appendix K, Cultural Resources prepared by Applied Earthworks for the City of San Luis Obispo. We have the following concerns: • There is no Tribal Cultural Resources section or subsection in the Executive Summary as per California Natural Resources Agency (2016) "Final Text for tribal cultural resources update to Appendix G: Environmental Checklist Form," http_//resources.ca,ggv/c _qa/docs/ab52/Clean-final-A8-52-App-0-text-Submitted.df There is no documentation of government -to -government consultation by the lead agency under SB -18 or AB -52 with Native American tribes traditionally and culturally affiliated to the project area as required by statute, or that mitigation measures were developed in consultation with the tribes. Only documented contact of tribes was by the consulting firm which does not comply with statutory requirements. • It is not apparent in the document that mitigation measures were developed in consultation with traditionally and culturally affiliated Native American tribes. Mitigation Measures CR -2a, 2b, 3a, and 3b do not specifically address Tribal Cultural Resources. Mitigation measures must take Tribal Cultural Resources into consideration as required under AB -52, with or without consultation occurring. • Mitigation language in MM CR -2a for archaeological resources (data recovery, collection, etc.) is not always appropriate for or similar to measures specifically for handling Tribal Cultural Resources. Appropriate Mitigation Measures should be developed in consultation with the tribes. • Mitigation Measure CR -3b states that training will be conducted by an archaeologist. Training for recognition of Tribal Cultural Resources may require teaching by a Tribal member and/or monitor. The California Environmental Quality Act (CEQA)', specifically Public Resources Code section 21084.1, states that a project that may cause a substantial adverse change in the significance of a historical resource is a project that may have a significant effect on the environment.2 If there is substantial evidence, in light of the whole record before a lead agency, that a project may have a significant effect on the environment, an environmental impact report (EIR) shall be prepared? In order to determine whether a project will cause a substantial adverse change in the significance of a historical resource, a lead agency will need to determine whether there are historical resources with the area of project effect (APE). CEQA was amended in 2014 by Assembly Bill 52. (AB 52).4 AB 52 applies to any project for which a notice of preparation or a notice of negative declaration or mitigated negative declaration is filed on or after July 1, 2015. AB 52 created a separate category for "tribal cultural resources"5, that now includes •a project with an effect that may cause a substantial adverse change in the significance of a tribal cultural resource is a project that may have a significant effect on the environmenta6 Public agencies shall, when feasible, avoid damaging effects to any tribal cultural resource.' Your project may also be subject to Pub. Resourms Code § 21000 et seq. z Pub. Resources Code § 21084.1; Cal. Code Regs., tit -14, § 15064.5 (b); CEQA Guidelines Section 15064.5 (b) ' Pub. Resources Code § 21080 (d); Cal. Code Regs., tit. 14, § 15064 subd.(a)(1); CEQA Guidelines § 15064 (a)(1) 4 Government Code 55352.3 5 Pub. Resources Code § 21074 e Pub. Resources Code § 21084 2 ' Pub Resources Code § 21084 3 (a) Senate Bill 18 (SB 18) (Burton, Chapter 905, Statutes of 2004), Government Code 65352.3, if it also involves the adoption of or amendment to a general plan or a specific plan, or the designation or proposed designation of open space. Both SB 18 and AB 52 have tribal consultation requirements. Additionally, if your project is also subject to the federal National Environmental Policy Act (42 U.S.C. § 4321 et seq.) (NEPA), the tribal consultation requirements of Section 106 of the National Historic Preservation Act of 19668 may also apply. Consult your legal counsel about compliance with AB 52 and SB 18 as well as compliance with any other applicable laws. Agencies should be aware that AB 52 does not preclude agencies from initiating tribal consultation with tribes that are traditionally and culturally affiliated with their jurisdictions before the timeframes provided in AB 52. For that reason, we urge you to continue to request Native American Tribal Consultation Lists and Sacred Lands File searches from the NAHC. The request forms can be found online at: htt :/Inahc.ca.govlresnurcesllgr sl. Additional information regarding AB 52 can be found online at http,//n@hc.ca gQv/wp-pontetnIlJptqadsI?Q151 I O/AB52TribalConsultation_Cal_E_PAPDF..pdf, entitled "Tribal Consultation Under AB 52: Requirements and Best Practices". The NAHC recommends lead agencies consult with all California Native American tribes that are traditionally and culturally affiliated with the geographic area of your proposed project as early as possible in order to avoid inadvertent discoveries of Native American human remains and best protect tribal cultural resources. A brief summary ofop rtions of AB 52 and SB 18 as well as the NAHC's recommendations for conducting cultural resources assessments is also attached. Please contact me at gayle.totton@nahc.ca.gov or call (916) 373-3710 if you have any questions Sincerely, 71I ay{e Totton, B.S., M.A., Ph.D ss ciate Governmental Project Analyst Attachment cc: State Clearinghouse e 154 U.S.C. 300101, 36 C. F. R. § 800 et seq Pertinent Statutory E-in�litlon: Under AB 52: AS 52 has added to CEQA the additional requirements listed below, along with many other requirements: Within fourteen (14) days of determining that an application for a project is complete or of a decision by a public agency to undertake a project, a lead agency shall provide formal notification to a designated contact of, or tribal representative of, traditionally and culturally affiliated California Native American tribes that have requested notice. A lead agency shall begin the consultation process within 30 days of receiving a request for consultation from a California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed pro)ect.9 and prior to the release of a negative declaration, mitigated negative declaration or environmental Impact report. For purposes of AB 52, "consultation shall have the same meaning as provided in Gov. Code § 65352.4 (SB 18).10 The following topics of consultation, if a tribe requests to discuss them, are mandatory topics of consultation: a. Alternatives to the project. b. Recommended mitigation measures. c. Significant effects." 1. The following topics are discretionary topics of consultation: a. Type of environmental review necessary. b. Significance of the tribal cultural resources. c. Significance of the project's impacts on tribal cultural resources. If necessary, project alternatives or appropriate measures for preservation or mitigation that the tribe may recommend to the lead agency. With some exceptions, any information, including but not limited to, the location, description, and use of tribal cultural resources submitted by a California Native American tribe during the environmental review process shall not be included In the environmental document or otherwise disclosed by the lead agency or any other public agency to the public, consistent with Government Code sections 6254 (r) and 6254.10. Any information submitted by a California Native American tribe during the consultation or environmental review process shall be published in a confidential appendix to the environmental document unless the tribe that provided the information consents, in writing, to the disclosure of some or all of the information to the public.13 If a project may have a significant Impact on a tribal cultural resource, the lead agency's environmental document shall discuss both of the following: a. Whether the proposed project has a significant impact on an identified tribal cultural resource. b_ Whether feasible alternatives or mitigation measures, including those measures that may be agreed to pursuant to Public Resources Code section 21082.3, subdivision (a), avoid or substantially lessen the impact on the identified tribal cultural resource .14 Consultation with a tribe shall be considered concluded when either of the following occurs: a. The parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists, on a tribal cultural resource; or b. A party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached. 15 Any mitigation measures agreed upon in the consultation conducted pursuant to Public Resources Code section 21080.3.2 shall be recommended for inclusion in the environmental document and in an adopted mitigation monitoring and reporting program, if determined to avoid or lessen the impact pursuant to Public Resources Code section 21082.3, subdivision (b), paragraph 2, and shall be fully enforceable. 6 If mitigation measures recommended by the staff of the lead agency as a result of the consultation process are not included in the environmental document or if there are no agreed upon mitigation measures at the conclusion of consultation, or if consultation does not occur, and if substantial evidence demonstrates that a project will cause a significant effect to a tribal cultural resource, the lead agency shall consider feasible mitigation pursuant to Public Resources Code section 21084.3 (b) 17 An environmental impact report may not be certified, nor may a mitigated negative declaration or a negative declaration be adopted unless one of the following occurs: a. The consultation process between the tribes and the lead agency has occurred as provided in Public Resources Code sections 21080.3.1 and 21080.3.2 and concluded pursuant to Public Resources Code section 21080.3,2. b. The tribe that requested consultation failed to provide comments to the lead agency or otherwise failed to engage in the consultation process. ' Pub. ResDurcas Colo § 21080.3.1, subda. (d) and (e) i° Pub. Resources Code § 21480.3.1 (b) " Pub. Resourm Code § 21480.3.2 (a) Pub. Rescurms Code § 21080.3.2 (a) is Pit']. Resources Code § 21482.3 (c)(1) Pub, nesauroes Cute § 21082.3 (b) ° Pub. Resaurcas Code § 21080.3.2 (b) Pub. Ron utm Cotte § 21082.3 (a) 'r Pub. Rescuroos Code 9 210e2.3 (e) c. The lead agency provided notice of the project to the tribe in compliance with Public Resources Code section 21080.3.1 (d) and the tribe failed to request consultation within 30 days.'s This process should be documented in the Tribal Cultural Resources section of your environmental document. Under SB 18: Government Code § 65352.3 (a) (1) requires consultation with Native Americans on general plan proposals for the purposes of "preserving or mitigating impacts to places, features, and objects described § 5097.9 and § 5091.993 of the Public Resources Code that are located within the city or county's jurisdiction. Government Code § 65560 (a), (b), and (c) provides for consultation with Native American tribes on the open -space element of a county or city general plan for the purposes of protecting places, features, and objects described in Sections 5097.9 and 5097.993 of the Public Resources Code. • SB 18 applies to local governments and requires them to contact, provide notice to, refer plans to, and consult with tribes prior to the adoption or amendment of a general plan or a specific plan, or the designation of open space. Local governments should consult the Governor's Office of Planning and Research's "Tribal Consultation Guidelines," which can be found online at: https://www.opr_ga..gsWdocsf(39_t4 t)5_llpclated_GuideMes 322,�df • Tribal Consultation: If a local government considers a proposal to adopt or amend a general plan or a specific plan, or to designate open space it is required to contact the appropriate tribes identified by the NAHC by requesting a "Tribal Consultation List." If a tribe, once contacted, requests consultation the local government must consult with the tribe on the plan proposal. A tribe has 90 days from the date of receipt of notification to request consultation unless a shorter timeframe has been agreed to by the tribe.19 • There is no Statutary Tlrrl Limit on Tribal Consultation under the law. • Confidentialitu: Consistent with the guidelines developed and adopted by the Office of Planning and Research ,20 the city or county shall protect the confidentiality of the information concerning the specific identity, location, character, and use of places, features and objects described in Public Resources Code sections 5097.9 and 5097.993 that are within the city's or county's jurisdiction.21 • Conclusion Tribal u tion: Consultation should be concluded at the point in which: o The parties to the consultation come to a mutual agreement concerning the appropriate measures for preservation or mitigation; or o Either the local government or the tribe, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached concerning the appropriate measures of preservation or mitigation.zz NAHC Recommendations tor_ Cultural Resources Assessments: • Contact the NAHC for: o A Sacred Lands File search. Remember that tribes do not always record their sacred sites in the Sacred Lands File, nor are they required to do so. A Sacred Lands File search is not a substitute for consultation with tribes that are traditionally and culturally affiliated with the geographic area of the project's APE. o A Native American Tribal Contact List of appropriate tribes for consultation concerning the project site and to assist in planning for avoidance, preservation in place, or, failing both, mitigation measures. ■ The request form can be found at http /1i ahc.c_a,goylresaurcesl(grmsf. Contact the appropriate regional California Historical Research Information System (CHRIS) Center (http:iloho.parks.ca.gp�/?pagq_id=1068) for an archaeological records search. The records search will determine: o If part or the entire APE has been previously surveyed for cultural resources. o If any known cultural resources have been already been recorded on or adjacent to the APE. o If the probability is low, moderate, or high that cultural resources are located in the APE. o If a survey is required to determine whether previously unrecorded cultural resources are present. • If an archaeological inventory survey is required, the final stage is the preparation of a professional report detailing the findings and recommendations of the records search and field survey. o The final report containing site forms, site significance, and mitigation measures should be submitted immediately to the planning department. All information regarding site locations, Native American human remains, and associated funerary objects should be in a separate confidential addendum and not be made available for public disclosure. o The final written report should be submitted within 3 months after work has been completed to the appropriate regional CHRIS center. 'B Pub. Resources Code § 21082.3 (d) 10 (Gov. Code § 65352.3 (a)(2)). 20 pursuant to Gov. Code section 65040 2. 2' (Gov. Code § 65352.3 (b)). 22 (Tribal Consultation Guidelines, Governor's Office of Planning and Research (2005) at p 18) 4 Examples of Mitigation Measures That May Be_Considered to Avoid or Mlnitnlze Significant Adverse IMWCLS to Trl i C�l�WBee_Qi;j : o Avoidance and preservation of the resources in place, including, but not limited to: ■ Planning and construction to avoid the resources and protect the cultural and natural context. • Planning greenspace, parks, or other open space, to incorporate the resources with culturally appropriate protection and management criteria. o Treating the resource with culturally appropriate dignity, taking into account the tribal cultural values and meaning of the resource, Including, but not limited to, the following: • Protecting the cultural character and integrity of the resource. • Protecting the traditional use of the resource. ■ Protecting the confidentiality of the resource. Q Permanent conservation easements or other interests In real property, with culturally appropriate management criteria for the purposes of preserving or utilizing the resources or places. o Please note that a federally recognized California Native American tribe or a non -federally recognized California Native American tribe that is on the contact list maintained by the NAHC to protect a California prehistoric, archaeological, cultural, spiritual, or cerernonialglace may acquire and hold conservation easements If the conservation easement Is voluntarily conveyed. o Please nate that it is the policy of the state that Native American remains and associated grave artifacts shall be repatriated. 2" The lack of surface evidence of archaeological resources (including tribal cultural resources) does not preclude their subsurface existence. o Lead agencies_ should include in their mitigation and monitoring Mpar rtirt9ro oamM Qlan provisions; for the identification and evaluation of inadvertently discover d arQh �oivgi� lrgsources. In areas of Identified archaeological sensitivity, a certified archaeologist and a culturally affiliated Native American with knowledge of cultural resources should monitor all ground -disturbing activities. o Lead agenc!e�Include in their nvtlgation and monitorina Leportjioq.program plans Qrovlelons for the �sposition of,recovered c Ijf fral items that are not burial associated in consultation with culturally affiliated Native Americans. Lead agencies shQrjld Include in their mhUgation and monitojfla reportina_�r grin plans provisions for the treatment and disposition of inadvertently discovered Native American htwrrran remains. Health and Safety Code section 7050.5, Public Resources Code section 5097.98, and Cal. Code Regs., tit. 14, section 15064.5, subdivisions (d) and (e) (CEQA Guidelines section 15064.5, subds. (d) and (e)) address the processes to be followed in the event of an inadvertent discovery of any Native American human remains and associated grave goods in a location other than a dedicated cemetery. 23 (CIV. Code § 915.3 (c)), "(Pun. Resources Code § 5007.091). 25 per Cal. Code Rags., lit. 14, section 15064.5(f) (CEQA M idellnes section 15064.5(f)).