Vol 20 No 8 November 16, 2012

New Tribal Notification Procedures Will Delay
Local Land Development Process

Impacts to cultural resources are a significant aspect of the land development process – and the time required by developers to address these impacts in Virginia has just increased. On March 10, 2012, the Virginia House and Senate approved Governor McDonnell's Executive Reorganization Plan (HJ49ER), which included the elimination of the Virginia Council on Indians (VCI) and directed that an alternative mechanism for facilitating relationships between the Commonwealth and the tribes be developed. The result is a process that requires direct coordination with each tribe individually instead of a single contact with the VCI.

The VCI was established in 1983 to serve in an advisory role for the executive branch of the government, as well as to gather information on, conduct studies and research information about the Commonwealth's tribes. The abolition of the VCI was in response to the failure of the VCI members to achieve a voting quorum since 2009, the lack of participation by some tribes, and the written request of some tribes that the VCI be disbanded, as it had outlived its usefulness.

What does this mean for land development projects in Virginia?


The federal government (or the applicant's consultant at the request of the federal government) must contact the tribes individually, as opposed to a single contact with the VCI.

There are currently nine federally recognized tribes that are actively involved in consultation for projects within the Commonwealth of Virginia, as well as 11 state recognized tribes who should be invited to participate. Therefore, the elimination of the VCI may cause significant project delays, as each of these tribes will need to be contacted for projects that impact "historic properties".

The United States Government has a unique legal relationship with Native American tribal governments as set forth in the Constitution of the United States, treaties, statutes, and court decisions. Therefore federal agencies complying with the National Historic Preservation Act (NHPA) and National Environmental Protection Act (NEPA) must recognize this government-to-government relationship when consulting with the federally recognized tribes. Failure to identify and contact consulting parties, including all Native American tribes, in a timely manner may cause even more substantial delays in obtaining Section 404 permits (i.e. wetlands permits) or in moving forward with other projects related to federal undertakings. If they are not contacted early, any tribe or other interested party may request consultation status later in the process, potentially causing delays.

2) A newly established Best Management Practices protocol should be utilized when consulting with individual tribes.

To facilitate the consultation with the individual tribes, the Virginia Secretary of Natural Resources has developed Best Management Practices (BMP) for this consultation (not the kind used for stormwater!). This BMP protocol advises that consultation must be directed towards the tribal chief, be respectful and must be documented. The consultation should be done as early as possible, and depending upon the specifics of a project, is usually done by the federal agency or by a consultant at the direction of the federal agency.

Due to potential constraints, such as those discussed above, it is vital that the required cultural resource studies be conducted and that all potential consulting parties are contacted as early as possible in the development process. Therefore, if historic properties are found and cannot be avoided, mitigation of adverse impacts are likely, and if a Memorandum of Agreement (MOA) is required, early identification of consulting parties should ultimately result in a more timely resolution and a win-win situation for both the project and any identified resource.

Click here for list of Frequently Asked Questions from the Virginia Department of Natural Resources.

For additional information regarding the impacts of these changes to tribal notification and how WSSI can assist with the consultation process, contact Kim Snyder or Boyd Sipe.