A new statutory CEQA exemption for urban housing developments includes additional protection for tribal and cultural resources.
Assembly Bill 130 creates a new statutory exemption from the California Environmental Quality Act (CEQA), codified at Public Resources Code Section 21080.66, regarding housing development in urban areas. Gov. Gavin Newsom signed the bill into law on June 30, making the exemption’s provisions effective immediately, including a set of strong safeguards for Native American tribal and cultural resources.
Among these criteria are timelines for notification and consultation. Within 14 days of deeming a project application complete, local governments must notify all affiliated tribes and invite them to consult. Tribes have 60 days to accept, and if successful, consultation must begin within 14 days and conclude within 45 days—extendable once by 15 days upon the Tribe’s request.
Cultural Resource Mitigation Under AB 130
The tribal consultation process does not require the parties to agree on specific mitigation. Instead, the lead agency must give deference to the tribal information and the tribe’s determination regarding the significance of cultural resources. Any agreements reached must be included as binding conditions of project approval unless mutually agreed otherwise.
If requested by a tribe, the project must also include tribal monitoring during all ground-disturbing activities. Work must stop immediately upon the discovery of human remains or burial grounds.
If tribal cultural resources are identified, the project must include mitigation measures such as preservation in place, data recovery, or continued monitoring. Projects that would demolish historic structures or impact sensitive cultural lands are not eligible for the exemption. Even when the exemption applies, a Phase I Environmental Site Assessment is still required and may include a review of cultural and historical records. This represents a more structured approach than other consultation provisions and, because of the identified mitigation, provides consistency.
Project Applicant Participation in Tribal Consultation Requires Tribal Approval
Importantly, the project applicant may participate in the consultation if the tribe expressly agrees to their involvement. The applicant cannot substitute for the lead agency, and confidentiality obligations extend to the applicant, especially regarding sensitive tribal cultural resource information.
Tribal Consultation is a Mandatory Pre-requisite to Exemption and drives the Project Schedule
The tribe’s decision to respond to a lead agency’s invitation to consult has significant implications for project timelines.
If no tribes respond to the lead agency’s invitation or decline the invitation to consult within 60 days, then the consultation process is deemed complete, and the lead agency must proceed to approve/disapprove the project within 30 days. Hypothetically, a tribe could decline an invitation immediately after it is received, resulting in the approval timeframe potentially starting within just a few weeks of the application being deemed complete. This can accelerate project approval significantly.
If consultation is requested, the process can take several additional months, up to 134 days (60 + 14 + 45 (+15) = 134) before the 30-day project approval window begins. Accordingly, depending on tribal response and engagement, projects can be very quickly streamlined.
Because consultation is an essential element of the exemption, failure to appropriately comply with the notification, engagement, and any identified conditions of approval could result in loss of the exemption, forcing a project to instead complete a much more extensive CEQA review
Balancing Development with Cultural Preservation
AB 130 streamlines housing development in urban areas while upholding robust protections for tribal and cultural resources. By mandating early consultation, enforceable agreements, and careful monitoring, the law ensures that development does not come at the expense of California’s rich Indigenous heritage.
FirstCarbon Solutions (FCS), an ADEC Innovation, has extensive experience in balancing CEQA streamlining exemptions and cultural protections, and can help stakeholders ensure they are compliant amidst evolving regulations.
