ML24073A300

Comment (9) of Sam Cohen on Notice of Intent to Conduct Scoping Process and Prepare Environmental Impact Statement; Pacific Gas and Electric Company; Diablo Canyon Nuclear Power Plant, Units 1 and 2

ML24073A300
Person / Time
Site:	Diablo Canyon
Issue date:	01/24/2024
From:	Cohen S Santa Ynez Band of Chumash Indians
To:	Office of Administration
References
89FR4631 00009
Download: ML24073A300 (1)

Text

SANTA YNEZ BAND OF CHUMASH INDIANS P.O. BOX 517

• SANTA YNEZ

• CA

• 93460 Tel : 805.688.7997

• Fax: 805.686.9578 www.santaynezchumash.org

Office of Administration, Mail Stop: TWFN-7-A60M, SUNSI Review Complete Template=ADM-013 U.S. Nuclear Regulatory Commission, E-RIDS=ADM-03 Washington, DC 20555 - 0001, ADD: Kim Conway, Antoinette Walker-Smith, ATTN: Program Management, Announcements and Editing Staff. Mary Neely DiabloCanyonEnvironmental@nrc.gov Comment (9)

Publication Date:1/24/2024 Citation: 89 FR 4631

RE: Notice of Intent To Conduct Scoping Process and Prepare Environmental Impact Sf.:ltement; Pacific Gas and Electric Company; Diablo Canyon Nuclear Power Plant, Units 1

.and 2, 89 FR 4631 Comment period closes: February 23, 2024 (the "Project")

To the Honorable Nuclear Regulatory Commission (NRC) :

In response to your federal register notice dated January 24, 2024, the Santa Ynez Band of Chumash Indians ("Tribe" or "Chumash") makes this demand for consultation and provides initial scoping comments for the above Project.

DO NOT DISCLOSE--CONFIDENTIAL CULTURAL RESOURCE AND ARCHAEOLOGICAL INFORMATION, subject to the protection of all federal and State law,

including, without limitation: National Historic Preservation Act of 1966, as amended (NHPA),

16 USC 470, et seq.; See Section 9 (16 USC 470hh)(limitations on access to information); -

Archaeological Resources Pi-oteftion Act of 1979, as amended (ARPA), 16 USC 470aa-mm ; See Section 9 (16 USC 470hh)(confidentiality of information containing nature and location of archaeological resources); Federal Cave Resources Protection Act of 1988 (FC RP A), 16 USC 4301-431 O; See Section 4304( confidentiality of information containing nature and location of significant caves); and Freedom of Information Act (FOIA), 5 USC 552 exceptions 3-6 (3.

Information exempted from disclosure by another statute) ; (4. Trade secrets and commercial or financial. information that is privileged or confidential), (5. Documents that are normally privileged in the civil discovery context, including agency predecisional deliberative records), (6.

Records containing information about individuals when disclosure would constitute a clearly unwarranted invasion of personal privacy).

(1) THIS IS THE TERRITORY OF THE SANTA YNEZ BAND OF CHUMASH INDIANS

Located on the Santa Ynez Reservation in Santa Barbara County, California, the Santa Ynez Band of Chumash Indians,("Chumash " or "Tribe") was federally recognized in 1901 and remains the only federally-recognized Chumash tribe in the nation. http://www.loc.gov/catdir/cpso/biaind.pdf. The Chumash original territory lies along the coast of California, between Malibu and Paso Robles, as well as on the Northern Channel Islands. The area was first settled about 13,000 years ago and at one time, the Chumash had a total population of about 18,000 people. www.santaynezchumasb.org.

(2) THE NATIONAL HISTORIC PRESERVATION ACT (NHPA)

The NHPA requires Federal agencies to consult with any Indian tribe that attaches religious and cultural signific _ance to historic properties that may be affected by a federal undertaking and take those potential effects into account in their decision making, This consultation should occur at the earliest steps in general land management or project planning and may include consultation with Tribes concerning inventory methods, management prescriptions, proposed land uses, and impacts from both human and natural effects.

Under the NHPA, prior to approving federal action, agencies must take into account and enter consultatio_n concerning the effects of the action on properties eligible for inclusion in the National Register for Historic Preservation. Under the NHP A amendments of 1992, historic prdperties ofreligious and cultural importance to a Native American Tribe may be determined eligible for inclusion on the National Register of Historic Places (National Register or NRHP) and therefore subject to NHP A consultation requirements. The 1992 amendments significantly expanded the provisions of the NHP A to ensure that Tribal interests are considered in determinations of significance and effect.

(3) EXECUTIVE ORDER 130'07 "INDIAN SACRED SITES"

President Clinton's E.O. 13007 (1996) on Indian sacred sites directs Federal agencies "to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, (I) [to] accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites."

A key feature of this definition is that it is Tribes and appropriate representatives of AI/ AN religions who identify which sites are sacred to them, not the Federal Government.

(4) EXECUTIVE ORDER 13175 "CONSULTATION AND COORDINATION WITH '

INDIAN TRIBAL GOVERNMENTS"

On November 5, 2009, President Obama issued a Presidential Memorandum on Tribal Coordination. That memorandum reaffirmed Executive Order 13175, "Consultation and Coordination with Indian Tribal Governments," and emphasized the importance of strengthening government-to-government relationships with Native American tribes.

On January 26, 2021, the Biden Administration issued a Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, which reaffirms the Presidential Memorandum of November 5, 2009 and states:

It is a priority of my Administration to make respect for Tribal sovereignty and self governance, commitment to fulfilling Federal trust and treaty responsibilities to Tribal 2

Nations, and regular, meaningful, and robust consultation with Tribal Nation s cornerstones of Federal Indian policy.

(5) TRIBAL TRUST RESPONSIBILITY

The Tribal trust responsibility requires the Federal Government to maintain a fiduciary relationship towards all federally recognized Tribes. The trustee beneficiary relationship between the Federal Government and lndian Tribes has been described as resembling a "guardian-ward "

relationship. The trust relationship was first recognized by the Supreme Court in its early decisions interpreting Indian treaties, and the Court's interpretation of the trust responsibility has evolved over the years.

(6) UNDRIP

ln December 2010, the United States announced support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In announcing this support, President Obama

• st~.ted: "The aspirations it affirms - including the respect for the institutions and rich cultures of

.Native peoples - are one we must always seek to fulfill... [W]hat matters far more than any resolution or declaration - are actions to match those words." The UNDRIP addresses indigenous peoples' rights to maintain culture and traditions (Article 11 ) ; and religious traditions, customs, and ceremonies (Article 12); to participate in decision making in matters which would affect their rights (Article 18); and to maintain spiritual connections to traditionally owned lands (Article 25). ",

(7) MOU REGARDING INTERAGENCY COORDINATION AND COLLABORATION FOR THE PROTECTION OF INDIAN SACRED SITES (2012)

The Department of the lnterior (DOI) is an original signatory to that MOU REGARDING INTERAGENCY COORDINATION AND COLLABORATION FOR THE PROTECTION OF INDIAN SACRED SITES (2012) and the Action Plan to Implement the Memorandum of Understanding (MOU) Regarding Interagency Coordination and Collaboration for the Protection of Indian Sacred Sites dated March 5, 2013. Th_e Tribe believes the MOU and Action Plan should be applied to NRC even though it is not a signer to th e MOU and BLM and the National Park Servic e as parts oflnterior.

LEGAL ISSUES

(8) The EA Must Address Cultural Resources ( copied from http://www.npi.org/NEP A/impact)

Cultural resources are referred to in different ways at different points in the CEQ regulations.

The regulatory definition of the term "human environment" at 40 CFR 1508. 14 - impacts on the quality of the human en v ironment being the subjects of any NEPA document - includes "the natural and physical en v ironment and the relationship of people with that environment." The definition of "effects" at 40 CFR 1508.8 - as in "effects on the quality of the huma n environment" - includes changes in the human environment that are "ae sthetic, historic, cultural,

economic, ( or) social."

3 The regulatory definition of the word "significantly" at 40 CFR 1508.27 - as in "major federal action significantly affecting the quality of the human environment" - includes as measures of impact intensity :

• Impacts on an area's unique characteristics, such as "historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, and ecologically critical areas" (40 CFR 1508.27(b)(3)).

• Impacts on "districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places" and on "significant scientific, cultural, or historical resources" (40 CFR 1508.27(b)(8)).

Clearly, impacts on cultural resources are to be addressed in an EA. Note that it is not just imp *acts on historic properties that should be addressed. The regulations use "historic" and "cultural" in parallel, not as synonyms.

(9) Intentionally omitted/Reserved for future use.

(10) Record of Decision Must Mitigate any Impacts to Cultural Resources (copied from http://www.npi.org/NEPA/impact)

Once the draft environmental)i;npact Statement (DEA), it is subjected to public and agency review, and comments are addressed - this may require further analysis. Then, assuming the project has not been abandoned, or so changed that a supplemental DEA is needed, a final EA (FEA) is prepared and published. The FEIS is considered in making the agency's decision about whether and how to proceed with the action that was the subject of the EA. This decision is recorded in a Record of Decision (ROD). According to 40 CFR 1505.2, the ROD must:

• State what the decision was.

• Identify all alternatives considered.

• Specify the alternative or alternatives considered to be "environmentally preferable."

(Note that the agency does not have to select the environmentally preferable alternative,

but it does have to discuss what it is.)

• Identify and discuss the factors balanced in making the decision (whether for or against the environmentally preferable alternative). *

• State whether "all practicable means to avoid or minimize environmental harm... have been adopted, and if not, why they were not."

Having notified the world of its decision, the agency implements it. In doing so, it must carry out any mitigation, i.e., "means to avoid or minimize environmental harm," it has said in the ROD or EIS that it will carry out (40 CFR 1505.3).

4 (11) Deferral of Mitigation does not Comply with NEPA (copied from http://www.npi.org/NEPA/impact)

Deferral. With respect to historic properties, a very common problem is "deferral, " in which the agency:

• Acknowledges that it does not know much about what effects there may be on historic properties (often because such properties have not yet been identified) ;

but

• Says that whatever effects there may be, NHPA Section 106 review ( of the National Historic Preservation Act), to be performed later, will take care of them; and

• . Concludes that therefore, whatever alternative is decided on, impacts on historic properties will not be a problem.

Considering environmental impacts after a decision has been made defeats NEP A's purpose of copsidering impacts in preparing to make decisions. It also almost guarantees last-minute

.conflicts between project implementation and historic preservation.

Failure to consider things that are not historic properties. With respect to other kinds of cultural resources, a common problem is that they are not considered at all. Historic properties, or even more narrowly, archeological sites, are sometimes the only things discussed in the "cultural resource" part of an EIS. If sqcial impacts are considered, they are often considered only terms of easily quantifiable socioeconomic variables like population, employment, and use of public services. The result is that impacts on many classes of cultural resource simply are not identified or considered in deciding whether significant impacts may occur.

(12) Failure to Address Executive Order 13007

The Santa Ynez Band of Chumash Indians, a federally recognized tribe ("Tribe " ), hereby designates the Morro Rock, and those sacred sites surrounding Morro Rock both coastal and oceanic ( collectively referred to.as "Chumash Sacred Sites") as Indian sacred sites pursuant to Executive Order 13007. The Tribe is open to discussing the exact boundaries at a later date.

E.O. 13007 requires Federal land managing agencies to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and to avoid adversely affecting the physical integrity of such sacred sites. It also requires agencies to develop procedures for reasonable notification of proposed actions or land management policies that may restrict access to or ceremonial use of, or adversely affect, sacred sites.

Sacred sites are defined in the executive order as "any specific, discrete, narrowly delineated location on Federal land that is identified by an Indian tribe, or Indian individual determined to be an appropriately authoritati v e representative of an Indian religion, as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion; provided that the tribe or appropriately authoritative representative

5 of an Indian religion has informed the agency of the existence of such a site." There is no review of such determinations by a Federal agency.

It is important to note that a sacred site may not meet the National Register criteria for a historic property and that, conversely, a historic property may not meet the criteria for a sacred site. However, in those instances where an undertaking may affect a historic property that is also considered by an Indian tribe to be a sacred site, the Federal agency should,

in the course of the Section 106 review process, consider accommodation of access to and ceremonial use. of the property and avoidance of adverse physical effects in accordance with E.O.

13007.

The Advisory Council on Historic Preservation (ACHP) has explained "The ~elationship Between Executive Order 13007 Regarding Indian Sacred Sites and Section 106," http://www.achp.gov/eo13007-106.html

\\. To the extent that the requirements of the executive order and ACHP's regulations are similar, Federal agencies can use the Section 106 review process to ensure that the requirements of E.O. 13007 are fulfilled. For example, E.O. 13007 requires that agencies contact Indian tribes regarding effects and the Section 106 regulations require consultation with Indian tribes to identify and resolve adverse effect s to historic properties.

~ ! t Consultation regarding the identification and evaluation of historic properties of religious and cultural significance to an Indian tribe could include identification of tho se properties that are also sacred sites. Similarly, consultat ion to address adverse effects to such historic properties /sacred sites could include discussions regarding access and ceremonial use.

(13) Failure to address the Chumash Sacred Sites as Traditional Cultural Properties (TCP) eligible for protection on the National Register:

National Register Bulletin No. 3,8 (hereinafter referred to as "NPS Bull. No. 38"), Guidelines for ev aluating and Documenting Traditional Cultural Properties (1990 ; revised 1992; 1998) under NHP A http://www.nps.gov/n r/publications/bulletins/pdf s/nrb38.pdf

A. Locations for traditional ceremonies are defined as a TCP: NPS Bull No. 38, p. 1, provides :

The traditional cultural significance o f a historic property, then, is s ignificance derived from the role the prop erty plays in a community's historically rooted beliefs, customs, and practices.

Examples of properties possessing such significance include:***

• a location where Native American relig ious practitioners have historically gone, and are known or thought to go today, to perform ceremonial _activities in accordance_with traditional cultural rule s of practice ;

6 B. Mountain tops and rock outcroppings like at SSFL are TCP ' s: NPS Bull. No. 38, p. 2,

provides :

Traditional cultural properties are often hard to recognize. A traditional ceremonial location may look like merely a mountaintop, a lake, or a stretch of river; a culturally important may look like any other aggregation of houses, and an area where culturally important economic or artistic activities have been carried out may look like any other building, field of grass, or piece of forest in the area. As a result, such places may not necessarily come to light through the conduct of archeological, historical, or architectural surveys. The existence and significance of such locations often can be ascertained only through interviews with knowledgeable users of the area,

or through other forms of ethnographic research.

C. _ NRC must engage specialists as part of its TCP study: NPS Bull. No. 38, p. 10, provides :

In general, the only reasonably reliable way to resolve conflict among sources is to review a wide enough range of documentary data, and to interview a wide enough range of authorities to minimize the likelihood either of inadvertent bias or of.. being deliberately misled. Authorities

_consulted in most cases should include both knowledgeable parties within the group that may attribute cultural value to a property and appropriate specialists in ethnography, sociology, history, and other relevant disciplines. 7

D. Specific events like the Solstice ceremony at Morro Rock and other Chumash Sacred Sites qualify as TCP : } '{PS Bull. No. 38, p. 11, provides :

For example, the National Register defines a "site" as "the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure, whether standing, ruined,

or v anished, where the location itself possesses historic, cultural, or archeological value regardless of the value of any existing structure." 9 Thus a property may be defined as a "site" as long as it was the location of a significant event or activity, regardless of whether the event or activity left any evidence of its occurrence. A culturally significant natural landscape may be classified as a site, as may the specific location where significant traditional events, activities, or cultural observances have taken place. A natural object such as a tree or a rock outcrop may be an eligible object if it is associated with a significant tradition or use. A concentration, linkage, or continuity of such sites or objects, or of structures comprising a culturally sign i ficant ent ity, ma y be classified as a district.

E. Native American ceremonies qualify as TCP : NPS Bull. No. 38, p. 15, provides :

National Register guidelines stress the fact that properties can be listed in or determined eligible for the Register for their association with religious history, or with persons significant in religion, if such significance has "scholarly, secular recognition." 13 The integral relationship among traditional Native American culture. history, and religion is widely recognized in secular scholarship. 14 Studies leading to the nomination of traditional cultural properties to the Register should have among their purposes the application of secular scholarship to the association of particular properties with broad patterns of traditional history and culture. The fact that traditional history and culture may be di scus sed in religious terms.does not make it less historical

7 or less significant to culture, nor does it make properties associated with traditional history and culture ineligible for inclusion in the National Register.

F. Lack of use does not make a property TCP ineligible: NPS Bull. No. 38, p. 18, provides:

The fact that a property may have gone unused for a lengthy period of time, with use beginning again only recently, does not make the property ineligible for the Register. For example, assume that the Indian tribe referred to above used the mountain peak in prehistory for communication with the supernatural, but was forced to abandon such use when it was confined to a distant reservation, or when its members were converted to Christianity. Assume further that a revitalization of traditional religion has begun in the last decade, and as a result the peak is again being used for vision quests similar to those carried out there in prehistory. The fact that the contemporary use of the peak has little continuous time depth does not make the peak ineligible; the peak's association with the traditional activity reflected in its contemporary use is what must be considered in determining eligibility.

{14) Chumash Sacred Sites as Traditional Cultural Landscapes must also be included in '

Section 106 consultations and the EA

Traditional cultural landscapes, because they are often a property type such as a district or site, are identified in the same manner in the Section I 06 process as other types of historic properties ofreligious and cultural signi_fi~ance to Indian tribes or Native Hawaiian organizations. The regulations at 36 CFR Section 800.4 outline several steps a federal agency must take to identify historic properties. In summary, to determine the scope of identification efforts, a federal agency,

in consultation with the State Historic Preservation Officers (SHPO)/Tribal Historic Preservation Officer (THPO), must:

I. Determine and document the area of potential effect for its undertaking; 2. Review existing information ; and,

3. Seek information from consulting parties including Indian tribes or Native Hawaiian organizations.

Based on the information gathered through these efforts, the federal agency, in consultation with the SHPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by the undertaking, develops and implements a strategy to identify historic properties within the area of potential effects.

Identification efforts may include background research, oral history interviews, scientific analysis,- and field investigations. http://www.achp.gov/natl-qa.pdf

There is no single defining feature or set of features that comprise a traditional cultural landscape. Such places could be comprised of natural features such as mountains, caves,

plateaus, and outcroppings; water courses and bodies such as rivers, streams, lakes, bays, and inlets; views and view sheds from them, including the overlook or similar locations ; vegetation that contributes to its significance ; and, manmade features including archaeological sites ;

buildings and structures ; circulation features such as trails ; land use patterns; evidence of cultural

8 traditions, such as petroglyphs and evidence of burial practices ; and markers or monuments, such as cairns, sleeping circles, and geoglyphs. http://www.achp.gov/natl-qa.pdf

Based on such research, the ACHP TRADITIONAL CULTURAL LANDSCAPES ACTION PLAN advises as follows :

The ACHP, as the agency with responsibility for overseeing the Section 106 review process, and DOI, through the National Park Service (NPS), as the agency with responsibility for overseeing the National Register of Historic places, should provide leadership in addressing Native American cultural landscapes in the national historic preservation program. Together, the ACHP and NPS should:

--Promote the recognition and protection of Native American traditional cultural landscapes both within the federal government and the historic preservation community as well as at the state and local levc;ls, and,

--Address.the challenges of the consideration of these historic properties in the Section 106 review process as well as in NEPA reviews. http://www.achp.gov/pdfs/native-american-,.

traditional-cultural-landscapes-action-plan-11-23-2011.pdf

(15) U.N. Declaration on the Rights oflndigenous Peoples must now be followed after December 2010

In December 2010, the United States announced support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In announcing this support, President Obama stated : "The aspirations it affirms-including the respect for the institutions and rich cultures of Native peoples - are one we must always seek to fulfill... [W]hat matters far more than any resolution or declaration - are actions to match those words." The UNDRIP addresses indigenous peoples ' rights to maintain culture and traditions (Article 11 ); and religious traditions, customs, and ceremonies (Article 12); to participate in decision making in matters which would affect their rights (Article 18); and to maintain spiritual connections to traditionally owned lands (Article 25).

The ACHP will now incorporate UNDRIP in the Section I 06 review process :

While the Advisory Council on Historic Preservation ' s ( ACHP) work already largely supports the United Nations Declaration on the Rights of Indigenous Peoples, additional and deliberate actions will be taken to more overtly support the Declaration. The Sect ion I 06 review process provides'lndian tribes and Native Hawaiian organizations (NHOs) with a very important opportunity to influence federal decision making when properties of religious and cultural significance may be threatened by proposed federal actions. While federal agencies are required to consult with Indian tribes and NHOs and to take their comments into account in making decisions in the Section I 06 review process, adding the principles of the Declaration to that consideration may assist federal agencies in making decisions that result in the protection of historic properties of religious and cultural significance to Indian tribes and NH O s.

http://www.achp.gov/docs/UN%20Declaration%20Plan%203-21-13.pdf

9 (16) Underwater testing is required.

Pedestrian surveys are of limited utility and never alone are sufficient when there are known areas of habitation or ceremony. While such Phase I is an excellent first step, we request additional underwater archaeological testing for all areas scheduled for any excavation.

Sometimes th~ lead agency will argue that archaeological survey is not warranted for a particular project or there may be factors that justify additional investigation even though a Phase I study has been completed with negative results. Following is a list of environmental and cultural factors that should be considered when assessing the overall cultural sensitivity of Newh~ll. (Please note that this list is not exhaustive and each factor must be weighted both individually and collectively on a case-by-case basis.)

a. Areas with high viewshed or visibility such as or ridgelines, peaks, ledges, outcrops, benches, or prominent hills; and

b. Areas with a relatively high density of sites in the vicinity; and

c. Areas where past ethnographic studies have revealed associated placenames ~ Keep in mind that placenames do not always refer to places where evidence of pa,~~ cultural activity exists; and

d. Areas near known sites. Mapped boundaries of sites most frequently reflect only cultural residue that was visible on the surface when the site was recorded and do not necessarily reflect the actual extent of the site. In addition, loci such as cemeteries or other areas may be adjacent to or nearby but separate from the main habitation; and

e. Areas near known rock art sites or rocky outcroppings of the type where rock shelters and art have traditionally been located; and

f. Areas in or near known gathering areas; and

g. Though all sites are potentially worthy of protection, named, ethnohistorically documented village sites are of the highest priority and therefore warrant the greatest amount of protection possible.

(17) Exhaustion of Non-Excavation Methods of remediation.

To the extent feasible, NRC should exhaust all non-excavation methods of remediation before performing any excavation that could potentially impact cultural and historic sites.

10 (18) Prior disturbance is NOT Dispositive:

The mantra that cultural sites have been disturbed and therefore automatically are not significant is oftentimes incorrect:

a. Disturbed sites still may contain valuable information. The newer approach is to treat disturbed sites as having the potential to provide information even if they have been disturbed;

b. Disturbed sites still have spiritual significance;

c. Disturbance may only be on the surface, while much excavation may continue to depths of up to 20 feet.

.(19) Need to Analyze Cumulative Impacts to Cultural Resources:

~RC must account for other remediation projects in other NRC lands:

,: d. Need to add California Wind Energy and Coastal Development cultural sites;

e. Need to add all Villages;

f. Other areas within each Village.

(20) NEW MITIGATION: Native American monitoring during any ground disturbing activities r '

(21) Need to protect Chumash Sacred Sites from trespassers and vandals.

(22) Deferral of Mitigation until Record of Decision (ROD):

g. It is problematic to defer any mitigation until ROD as it prevents meaningful comment;

h. Commenter reserve the right to ask for recirculation of the DEA or FEA for any such deferred ll_litigation.

(23) Need NEPA Mitigation Plan

http://www.whitehouse.gov/sites/default/files/microsites/ ceq/20100218-nepa-mitigation monitori _~g-draft-guidance.pdf

February 18, 2010

MEMORANDUM FOR HEADS OF FEDERAL DEPARTMENTS AND AGENCIES FROM: NANCY H. SUTLEY, Chair, Council on Environmental Quality

SUBJECT:

DRAFT GUIDANCE FOR NEPA MITIGATION AND MONITORING I. INTRODUCTION

To provide for the performance of mitigation, agencies should create internal processes to ensure that mitigation actions adopted in any NEPA process are documented and that monitoring and

11 appropriate implementation plans are created to ensure that mitigation is carried out. See Aligning NEPA Processes with Environmental Management Systems (CEQ 2007) at 4

( discussing the use of environmental management systems to track implementation and monitoring of mitigation).

http: //ceq.hss.doe.gov/nepa/nepapubs/ Aligning_NEPA _Processes_ with_ Environmental_ Manage ment_ Systems_ 2007.pdf(http://www.slideshare.net/whitehouse/aligning-nepa-processes ).

Agency NEPA implementing procedures should require clearly documenting the commitment to mitigate the measures necessary in the environmental documents prepared during the NEPA process (40 C.F.R. § 1508.10) and in the decision documents such as the Record of Decision.

When an agency identifies mitigation in an EIS and commits to implement that mitigation to achieve an environmentally preferable outcome, or commits in an EA to mitigation to support a FONSI and proceeds without preparing an EIS, then the agency should ensure that the mitigation is ad.opted and implemented.

Methods to ensure implementation should include, as appropriate to the agency's underlying authority for decision-making, appropriate conditions in financial agreements, grants, permits or other approvals, and conditioning funding on implementing the mitigation. To inform performance expectations, mitigation goals should be stated clearly. These should be carefully specified in terms of measurable performance standards to the greatest extent possible. The agency should also identify the duration of the agency action and the mitigation measures in its

• decision document to ensure that the terms of the mitigation and how it will be implemented are clear. *",

If funding for implementation of mitigation is not available at the time the decision on the proposed action and mitigation measures is made, then the impact of a lack of funding and resultant environmental effects if the mitigation is not implemented warrant disclosure in the EA or EIS. In cases where, after analyzing the proposed actions with or without the mitigation, the agency determines that mitigation is necessary to support the FONS! or committed to in the ROD, and the necessary funding is not available, the agency may still be able to move forward with the proposed action once the funding does become available. The agencies should ensure that the expertise and professional judgment applied in determining the appropriate mitigation measure is reflected in the administrative record, and when and how those measures will be implemented are analyzed in the EA or EIS.

Under NEPA, a federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions. See 42 U.S.C. § 4332(2)(A). For agency decisions based on an EIS, the regulations require that, "a monitoring and enforcement program shall be adopted... where applicable for mitigation." 40 C.F.R. §1505.2(c). In addition, the regulations state that agencies may "provide for monitoring to assure that their decisions are carried out and should do so in important cases." 40 C.F.R. § 1505.3. Monitoring plans and programs should be described or incorporated by reference in the agency decision documents.

12 REQUEST FOR NOTICE

The Chumash hereby request notice of all further communications as to the Scoping Process and any future draft or final Environmental Impact Statement.

Sincerely,

Sam Cohen, Esq.

Government Affairs and Legal Officer Santa Ynez Band of Chumash Indians Main : 805-688-7997 Cell : 805-~45-9083

CC:

Santa Ynez Tribal Elders Council

13