Environmental Review: NEPA, TEPA and Tribes

NEPA – good and bad for Tribes Tribes can use as tool to slow, examine, participate in process and urge changes in projects that impact their resources. Tribes can use as tool to slow, examine, participate in process and urge changes in projects that impact their resources. Tribal Projects under the same scrutiny and may be used by those against projects with no real interest in environment. Tribal Projects under the same scrutiny and may be used by those against projects with no real interest in environment. “NEPA appeared too late to stop much of the bad (to tribal resources) and is easily subverted to hinder much of the good.” Rodgers 2005, “Environmental Law in Indian Country”, p.366 “NEPA appeared too late to stop much of the bad (to tribal resources) and is easily subverted to hinder much of the good.” Rodgers 2005, “Environmental Law in Indian Country”, p.366

Tribal Role in NEPA Under CEQ regulations the lead federal agency on a NEPA action must consult with and seek comments from affected Tribes. Under CEQ regulations the lead federal agency on a NEPA action must consult with and seek comments from affected Tribes. Tribes may be designated the lead agency in certain projects. Commonly, HUD programs. Sec. 104(h) Housing and Community Development Act of Tribes may be designated the lead agency in certain projects. Commonly, HUD programs. Sec. 104(h) Housing and Community Development Act of Tribes may be a “cooperating agency” with the federal lead agency on NEPA process for projects affecting a tribe. Tribes may be a “cooperating agency” with the federal lead agency on NEPA process for projects affecting a tribe.

Involvement in the process can further Tribal interests - Scoping – make sure Tribal concerns addressed. - Cooperating agency – can guide process to include review of Tribal concerns and inclusion of Tribal data. - Commenting – provide Tribal information and views. - Monitoring and Mitigation – to track impacts and make sure mitigation is done properly. - Compliance with applicable laws, Treaties and Executive Orders (EJ, consultation)

Endangered Species Act (ESA) and NEPA Process ESA triggered by presence of a listed species or their designated critical habitat in project area – it is best to address ESA and NEPA process together. ESA triggered by presence of a listed species or their designated critical habitat in project area – it is best to address ESA and NEPA process together. It is possible to avoid designation of critical habitat on Reservation if Tribe has Service approved habitat plan. It is possible to avoid designation of critical habitat on Reservation if Tribe has Service approved habitat plan. Secretarial Order 3206 (1997) – critical habitat (on Reservation) shall not be designated …unless determined essential to conserve a listed species. Secretarial Order 3206 (1997) – critical habitat (on Reservation) shall not be designated …unless determined essential to conserve a listed species.

Clean Water Act and Environmental Review If project has triggered Clean Water Act such as a Section 401 Certification requirement under environmental review. If project has triggered Clean Water Act such as a Section 401 Certification requirement under environmental review. In Indian country instead of WA DOE, EPA will usually issue 401 certification. In Indian country instead of WA DOE, EPA will usually issue 401 certification. Tribe may be delegated 401 certification authority, if so will issue cert from Tribe. Tribe may be delegated 401 certification authority, if so will issue cert from Tribe.

Tribal Environmental Policy Acts (TEPA) Range of coverage and approaches: General Policy guidance or principles – can be especially important on tribal projects. General Policy guidance or principles – can be especially important on tribal projects. Little NEPA – primarily process oriented – open review and alternatives consideration. Little NEPA – primarily process oriented – open review and alternatives consideration. General permit for activities effecting the environment. General permit for activities effecting the environment.

Typical Provisions may include land-use and permit activities subject to review. land-use and permit activities subject to review. Categories of actions exempt from review Categories of actions exempt from review Checklists or other reports required Checklists or other reports required Determination re: significance (if EA or EIS required) Determination re: significance (if EA or EIS required) Opportunity for public review and comment (at least for EIS) Opportunity for public review and comment (at least for EIS) Administrative appeal process Administrative appeal process

Which hat are you wearing? Tribes can be both regulators and project proponents. Tribes can be both regulators and project proponents. Environmental staff who review and issue permits may also be asked to write EA for NEPA Environmental staff who review and issue permits may also be asked to write EA for NEPA Consider assigning different staff or hiring outside consultants to write tribal EAs for review by Tribal and Federal staff, especially if Tribal permits also required. Consider assigning different staff or hiring outside consultants to write tribal EAs for review by Tribal and Federal staff, especially if Tribal permits also required.

When do TEPA apply to Fee lands? Is there a “Tribal action?” Is there a “Tribal action?” For purely land-use activities such as zoning the analysis may follow Brendale, which included whether the County had authority to issue a DNS under Washington SEPA on Reservation. For purely land-use activities such as zoning the analysis may follow Brendale, which included whether the County had authority to issue a DNS under Washington SEPA on Reservation. For Environmental Regulation apply Montana 2nd exception. Does project impact tribe’s “health and welfare?” For Environmental Regulation apply Montana 2nd exception. Does project impact tribe’s “health and welfare?” Are other tribal permits or federally delegated permits required? Are other tribal permits or federally delegated permits required? Swinomish approach – all projects on Reservation regardless of land ownership treated the same. MOU with County provides additional support for jurisdiction on fee lands. Swinomish approach – all projects on Reservation regardless of land ownership treated the same. MOU with County provides additional support for jurisdiction on fee lands.

Why add TEPA to the Federal Environmental Review Process on Reservation? To identify issues that must be addressed in other regulation, especially if Tribal permit programs. To identify issues that must be addressed in other regulation, especially if Tribal permit programs. Tribal decision making authority – ownership of the process and sovereignty. Tribal decision making authority – ownership of the process and sovereignty. Make sure Tribal concerns are addressed in culturally appropriate way. Make sure Tribal concerns are addressed in culturally appropriate way. May have lower trigger threshold or fewer exemptions than federal. May have lower trigger threshold or fewer exemptions than federal.