Now is the Time, California Tribes! Make Sure Tribal Cultural Beneficial Uses are Included in your Region’s 2018 Triennial Basin Plan Update

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By: Gabriela Rios | Associate | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

The U.S. Environmental Protection Agency and the California State Water Resources Control Board acknowledged for the first time in 2017 that cultural uses of waterways should be protected. The result was the creation of three new beneficial uses of water in the state: Tribal Tradition and Cultural Use (CUL), Tribal Subsistence Fishing Use (T-SUB), and Subsistence Fishing Use (SUB).  (For more information on the three beneficial uses, see our previous blog article: Protecting Tribal Uses: Cultural Activities and Subsistence Fishing to Become Beneficial Water Uses.)

Creating these new beneficial uses did not guarantee protection, or even the implementation of these beneficial uses throughout the state. In order to actually protect state waterways that are used for tribal cultural uses and tribal subsistence fishing, the various Regional Water Quality Control Boards need to first amend their basin plans to 1) include the new beneficial uses, and 2) to designate specific waterways within the basin with the beneficial uses. The opportunity is now for the tribes to voice their concerns to ensure that these actions are taken.

The basin plan amendment process is currently underway in four regions: Region 1 (North Coast Region), Region 2 (San Francisco Bay Region), Region 6 (Lahontan Region) and Region 9 (San Diego Region). It is important to note that if these uses are not included in the current basin plan updates, the CUL, SUB and T-SUB uses may not be of any use in protecting tribal cultural resources in these regions for another three, or perhaps six years.

Region 1 has an existing beneficial use based on tribal cultural use, and will be updating its basin plan to include the new beneficial uses and designates uses based on the new beneficial use definitions. Regions 2 and 6 are preliminarily including on their list for the amendment to their final basin plan the incorporation of the three new beneficial uses. However, support is needed to endorse the importance of this inclusion because if they are not seen as a priority, they may not be included in the basin plan amendment. The State Board and Regional Boards indicate that they will react to significant public concern in deciding whether such inclusion is a priority.

Region 9 (San Diego) is more problematic. It has not yet included the adoption of the CUL, SUB or T-SUB uses in its draft prioritized list for the basin plan. Region 9’s written public comment period for which the Board must provide written responses recently ended; however, public comments may still be made by interested tribes. Region 9 will be hosting a public hearing on October 10, 2018, to consider adoption of the prioritized list for the 2018 Triennial Review.  Tribes in the San Diego Region (which includes portions of Riverside County) should immediately consider writing to the San Diego Regional Water Quality Control Board in advance of the hearing and attending the hearing to voice the importance of including one or all of the new beneficial uses into the basin plan for the San Diego Region. You can learn more at the San Diego Region Water Quality Control Board (SDRWQCB) Basin Plan web page.

Finally, all tribes should encourage their respective Regional Boards to immediately begin consultations with tribes in their region regarding the location of waterways deserving the CUL, SUB and T-SUB designations and methods to meet the objectives for these protections.  We are happy to assist tribes with these efforts.

Gabriela Rios -LJR_2938Gabriela is an associate with Procopio’s Native American Law practice proup and citizen of the Cahuilla Band of Indians. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is a member of the State Bar of California.

 

Ted GriswoldTed is head of Procopio’s Native American Law practice group and primary editor for the Blogging Circle.  Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

The Need for a Better Toolbox for Protecting Cultural Resources on Federal Lands

By: Walter Rusinek | Senior Counsel | walter.rusinek@procopio.com

Two large copper mines proposed on federal lands in Arizona–the Oak Flat Mine near Superior and the Rosemont Mine south of Tucson–are being challenged because of the impacts the projects would have on Native American sacred and cultural sites. The Oak Flat area had first been set aside for protection in 1955 by President Eisenhower, and the Rosemont Mine is located in the Coronado National Forest. Continue reading

Tribal Concerns Help Enhance Review Required For An Extension of Bald and Golden Eagle Take Permits

The U.S. Fish and Wildlife Service (“USFWS”) was recently delayed in proposing a new rule increasing the maximum duration of permits for take of bald and golden eagles from five years to thirty years due to concerns raised by Tribal communities and environmental groups. The groups challenged the new rule for failing to consider the environmental consequences of this rule, as required by the National Environmental Policy Act (“NEPA”) and the Northern District Court of California agreed.

Bald and Golden Eagles are highly revered by Native American communities, including their status as a sacred bird and using eagle feathers on ceremonial headdresses, prayer sticks, doctor’s rattles, and medicine pipes. The Bald and Golden Eagle Protection Act (“BGEPA”) makes it unlawful for anyone to “take” (wound, kill, capture, trap, collect, or disturb the species) without a permit. Such permits are provided for a maximum duration of five years (“5-Year Rule”), after which the permit applicant must afford the USFWS the opportunity to re-evaluate permit conditions and determine if an extension is appropriate or if more “take” is occurring than was anticipated. The applicant must establish that an extended permit would be compatible with the preservation of the bald eagle or golden eagle.

Because the permit renewal decisions are discretionary agency actions, NEPA review occurred with each renewal. As a result, the 5-Year Rule allowed for public access to, and involvement in, agency decision-making at least every five years. Shortly after the 5-Year Rule was implemented, there was an increase in the development of wind power for renewable energy purposes. The wind industry complained that the 5-Year Rule created uncertainty regarding renewal of the eagle take permits (needed because wind turbines can kill eagles), and the Rule complicated financing for wind energy projects that last up to thirty years.

To address these concerns, in 2013, the USFWS issued a new rule extending the maximum tenure of programmatic take permits to 30 years. However, it found that the extended duration of the permits was categorically exempt from NEPA requirements. Environmental groups and Indian Tribes challenged the USFWS’s decision to not conduct any further NEPA analysis before extending the eagle take permits and the District Court agreed. The District Court noted that the 30-Year Rule was a substantive decision that changed the review process, as it reduced public participation in the permitting decision.

The Court also reasoned that the USFWS failed to explain why the environmental and cultural effects of the 30-Year Rule do not lend themselves to meaningful analysis to support a categorical exemption from NEPA. Finally, the Court concluded, that because the 30-Year Rule may have highly controversial environmental and cultural impacts on the bald and golden eagles, extraordinary circumstances prevented application of the categorical exemption to NEPA. Tribes will now have the opportunity to provide input on the cultural and environmental impact that may arise from this proposed permit extension.

Hazel is an Associate in the Native American and Environmental Practice Groups at Procopio. Her practice focuses on environmental law, including clean technology and sustainability. Hazel regularly represents businesses and individuals on project permitting, compliance and litigation matters under the Clean Air Act, the Clean Water Act, Superfund and the Endangered Species Act.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.