1. National Environmental Policy Act 2018: Making NEPA Great Again!
29th Annual BIA-Tribal Provider’s Conference
Environmental Session

3. Objectives for Today’s Presentation
First a little background
What led to the passage of NEPA?
What is NEPA and what is its purpose?
Second some practical application
Does NEPA apply?
How to comply with NEPA?

4. Pre-NEPA Environmental Law
Prior to 1945
Environmental rules primarily limited to vague local ordinances and common law nuisance law
Federal legislation generally encouraged commerce and/or destruction of the environmental/natural resources

5. Pre-NEPA Environmental Law
After World War II start to see some focus on quality of life related legislation
Some concern in the scientific community over radiation in the atmosphere from nuclear tests
The use of the automobile increases greatly, leading to the increase of smog in some areas

6. Pre-NEPA Enviromental Law
Silent Spring published
Outdoor recreation growing in popularity
Widespread use of Agent Orange defoliant in Vietnam
Early federal environmental legislation

7. Pre-NEPA Environmental Law
1969 – high profile environmental disasters
Santa Barbara oil spill
Cuyahoga River in Cleveland catches fire

8. 1970 – NEPA’s Birthday
Widespread public support for NEPA – passes both houses of Congress very quickly
The law was not very long and included flowery statements of federal policy in support of the environment
To the extent there was any debate it focused on the forming of a Council on Environmental Quality
Almost no one commented on the requirement for federal agencies to include a “detailed statement” on the environmental impact of a proposed action

10. What is NEPA?
NEPA requires federal agencies to consider the environmental impacts of their proposed actions and to consider alternative actions that result in lesser impacts on the environment
“NEPA’s purpose is not to generate paperwork – even excellent paperwork – but to foster excellent action…”

11. National Environmental Policy Act
NEPA is often mistakenly referred to as the National Environmental Protection Act and there is a common misconception that NEPA requires the protection of the environment
NEPA encourages agencies to protect the environment through public and political pressure rather than by statutory requirements

12. Who Complies with NEPA?
Agency is required to comply, but agency resources are limited, so the cost of conducting environmental analysis is usually transferred to the applicant
If an applicant or consultant prepares the first draft of the environmental document, the BIA must independently review, revise, and take responsibility for the document

13. Does NEPA Apply?
Must be enough federal participation in the action to make it “federal”
Federal agency must exercise some discretion over the action

14. Is it a FEDERAL Action? Clear federal activity
Non-federal activities that are entirely or partially financed, assisted, authorized, permitted, or otherwise approved by the federal agency
If no federal involvement of any kind – NEPA does not apply

15. Is it a DISCRETIONARY Action?
The federal government must be able to exercise some discretion over the action
NEPA doesn’t apply to actions that an agency is legally obligated to perform
Example – statutorily mandated fee-to-trust

16. Connected Actions
Must consider connected actions in the same NEPA analysis. Actions are connected if they meet one of the following criteria:
Automatically trigger other actions that may require environmental review
Cannot or will not proceed unless other actions are taken
Are interdependent parts of a larger action and depend on the larger action for their justification

17. Levels of NEPA Compliance
Proposed Federal Action
Exempt

18. Exemptions
A few federal actions are exempt from NEPA whether or not they are likely to result in significant impacts. For example:
Disaster Relief: Federal action or assistance to restore a facility substantially to its condition prior to the disaster or emergency is not subject to NEPA
Some EPA Clean Water Act activities
Section 401 Water Quality Certification
Section 402 Discharge Permits
All federal actions under the Clean Air Act
Example – NEPA not required prior to
issuance of a Title 5 Permit

19. Categorical Exclusion (CatEx or CE)
Categories of actions for which no significant impact is presumed. Detailed description of categories at 43 CFR (DOI) and 516 DM 10 (BIA).
However, even if the action fits within one of the categories, cannot proceed under a CE if it looks like there will be a significant impact.
The BIA will complete a checklist to document that the action fits within a CE category and that no significant impacts will occur.

20. BIA Categorical Exclusion Process
Discuss with BIA environmental staff to see if action likely can be processed as a CE
BIA staff reviews for possible “extraordinary circumstances” that might result in a significant impact
BIA prepares CE Checklist to document that the action fits within a CE category and that no significant impacts would result

21. 5/11/2011

22. Environmental Assessment (EA)
If agency isn’t sure whether significant impacts will result, an EA is prepared
The purpose of an EA is to determine whether the project may result in significant impacts on the environment. If yes, the agency must prepare an Environmental Impact Statement (EIS). If no, the agency prepares a Finding of No Significant Impact (FONSI), which concludes the NEPA process for that action.

23. EA Process - Alternatives
Meet or conference with BIA env’l staff to discuss the proposed action and alternatives
Will try to develop realistic alternatives to the proposed action that will still meet the purpose and need of the action
Important to spend time early to get a solid estimate of the project and alternatives – if there are changes later it will often require revising the analysis, which results in additional time and expense

24. EA Process – Prepare Document
The tribe will prepare the EA or contract for the EA to be prepared
The EA should follow the format outlined in the BIA NEPA Handbook
Incorporation by reference
What is a significant impact?
Review context and intensity of the impact
A draft EA is submitted to BIA env’l staff for review

25. EA Process – Public Review
When EA is complete, it is usually made available to the public for at least 30 days for review
For actions that require little to no mitigation, may be able to skip the separate EA review step

26. Finding of No Significant Impact (FONSI)
After public review, the agency reviews the analysis in the EA and any public comments received to determine whether the action may result in significant impacts
If not, a FONSI is prepared and made available to the public for at least 30 days before the action can be taken
If significant impacts may result, agency prepares Environmental Impact Statement

27. 5/11/2011

28. Environmental Impact Statement (EIS)
EIS is the most rigorous level of NEPA analysis
Purpose of the EIS is to analyze the potential environmental impacts of an action and disclose those impacts to the public
Can decide to prepare EIS after preparing EA or can skip EA and go straight to EIS
516 DM 10.4 contains a list of actions that normally require an EIS, but can go straight to EIS for other actions as well

29. EIS Process - Scoping
BIA is required to publish a Notice of Intent (NOI) to prepare an EIS as soon as possible after making the decision to prepare the EIS
Scoping – process to determine scope of EIS
Begins after publication of NOI
Identify cooperating agencies / interested parties
Identify issues to be addressed in EIS
Usually includes a scoping meeting
Scoping Report

30. EIS Process – Prepare Document
The EIS consultant must be selected by the BIA and a 3-party agreement must be signed between the consultant/BIA/Tribe that says that although the Tribe is paying, the consultant agrees not to be biased and to follow the direction of the BIA
An administrative draft EIS is submitted to BIA env’l staff for review then to Cooperating Agencies/Solicitor for review

31. EIS Process – Public Review
When the Draft EIS is complete, it is made available first to cooperating agencies and the DOI Solicitor and then to the interested parties and the public for at least 45 days for review
Usually a public hearing is held to receive public comments
Draft EIS must be filed with the U.S. Environmental Protection Agency (EPA)

32. EIS Process – Final EIS
BIA and consultant compile and review all comments
Final EIS is prepared
Includes responses to all substantive comments
Includes revisions to text as necessary
Must identify a preferred alternative
Preliminary Final EIS is submitted to cooperating agencies and the Solicitor
Final EIS is published and filed with the EPA

33. Record of Decision (ROD)
No sooner than 30 days after the publication of the Final EIS, a ROD is published
Unlike the FONSI, the ROD usually includes the agency decision on the proposed action as well as a formal finding regarding environmental impacts
ROD usually responds to comments received
ROD states which alternative has been selected
Must give rationale if env’l preferred alt. not selected
ROD must give an explanation if all mitigation measures were not incorporated

34. 5/11/2011

35. 5/11/2011

36. How to Streamline NEPA? EO 13807 SO 3355
MOU Implementing One Federal Decision
A bunch of internal memos
Planning to revise NEPA regs?

37. Executive Order (EO) 13807
Only applies to Major Infrastructure Projects
Only applies if preparing an EIS
2 years or less from beginning to end
One Federal Decision
CEQ to enhance and modernize environmental review process
Recent CEQ Federal Register publication – revising NEPA regs?

38. Secretarial Order (SO) 3355
Applies to all Department of Interior agencies including BIA
Like EO 13807, only applies if preparing EIS
Unlike EO 13807, applies to all actions
Shorter time limit than EO – one year from beginning to end
Also includes page limits – 150/300 pages
Only Deputy Secretary of Interior can grant waivers to time/page limit requirements

39. 5/11/2011

40. The Fine Print MOU on One Federal Decision April 27, 2018 Memos
Agencies (including DOI) agree to comply with EO and cooperate to achieve One Federal Decision
April 27, 2018 Memos
Use new NEPA database
Update NEPA Handbook
Replaces surname process with briefing process
Requires contemporaneous preparation of files
April 30, 2018 Memo
Clear and concise NEPA comments
June 11, 2018 Memo
No more Cooperating Agency MOUs between federal agencies

41. The Fine Print continuted
July 23, 2018 Memo
BIA must track, estimate, and report EIS costs
August 6, 2018 Memo
EAs 75 pages or less
EA process 6 months or less
If can’t meet the page or time limits, consult with Solicitor, Bureau Director, and first-line SES
August 9, 2018 Memo (ERM 10-11)
Guidance for determining whether FAST-41, EO 13807, and/or SO 3355 apply
Oct 19, 2018 Memo (NPM-TRUS-37)
Handbook revisions pending, in meantime follow recent directives

42. More Fine Print?
Future Memo on Categorical Exclusions and NEPA Applicability?
Future revision of Categorical Exclusion categories?
Future CEQ revisions to NEPA regulations?

43. Post NEPA Supplemental documents Mitigation monitoring and enforcement
program required
Lawsuits!

44. Questions???