Department of the Interior
Departmental Manual
Effective Date: 5/27/04
Series:
Environmental Quality Programs
Part 516: National
Environmental Policy Act of 1969
Chapter 10: Managing
the NEPA Process--Bureau of Indian Affairs
Originating Office: Bureau
of Indian Affairs
516 DM 10
10.1 Purpose. This Chapter provides supplementary
requirements for implementing provisions of 516 DM 1 through 6 within the
Department=s Bureau of Indian Affairs (BIA). This Chapter is referenced in 516 DM 6.5.
10.2 NEPA
Responsibility.
A. Deputy
Commissioner of Indian Affairs is responsible for NEPA compliance of BIA
activities and programs.
B. Director,
Office of Trust Responsibilities (OTR) is responsible for oversight of the BIA
program for achieving compliance with NEPA, program direction, and leadership
for BIA environmental policy, coordination and procedures.
C. Environmental
Services Staff, reports to the Director (OTR).
This office is the Bureau-wide focal point for overall NEPA policy and
guidance and is responsible for advising and assisting Area Offices, Agency
Superintendents, and other field support personnel in their environmental
activities. The office also provides
training and acts as the Central Office's liaison with Indian tribal
governments on NEPA and other environmental compliance matters. Information about BIA NEPA documents or the
NEPA process can be obtained by contacting the Environmental Services Staff.
D. Other
Central Office Directors and Division Chiefs are responsible for ensuring that
the programs and activities within their jurisdiction comply with NEPA.
E. Area
Directors and Project Officers are responsible for assuring NEPA compliance
with all activities under their jurisdiction and providing advice and
assistance to Agency Superintendents and consulting with the Indian tribes on
environmental matters related to NEPA. Area Directors and Project Officers are
also responsible for assigning sufficient trained staff to ensure NEPA
compliance is carried out. An
Environmental Coordinator is located at each Area Office.
F. Agency
Superintendents and Field Unit Supervisors are responsible for NEPA compliance
and enforcement at the Agency or field unit level.
10.3 Guidance
to Applicants and Tribal Governments.
A. Relationship
with Applicants and Tribal Governments.
(1) Guidance to Applicants.
(a) An "applicant" is an entity which
proposes to undertake any activity which will at some point require BIA
action. These may include tribal
governments, private entities, state and local governments or other Federal
agencies. BIA compliance with NEPA is
Congressionally mandated. Compliance is
initiated when a BIA action is necessary in order to implement a proposal.
(b) Applicants should contact the BIA official
at the appropriate level for assistance.
This will be the Agency Superintendent, Area Director or the Director,
Office of Trust Responsibilities.
(c) If the applicant's proposed action will
affect or involve more than one tribal government, one government agency, one
BIA Agency, or where the action may be of State-wide or regional significance,
the applicant should contact the respective Area Director(s). The Area Director(s), using sole discretion,
may assign the lead NEPA compliance responsibilities to one Area Office or, as
appropriate, to one Agency Superintendent.
From that point, the Applicant will deal with the designated lead
office.
(d) Since much of the applicant's planning may
take place outside the BIA system, it is the applicant's responsibility to
prepare a milestone chart for BIA use at the earliest possible stage in order
to coordinate the efforts of both parties.
Early communication with the responsible BIA office will expedite
determination of the appropriate type of NEPA documentation required. Other matters such as the scope, depth and
sources of data for an environmental document will also be expedited and will
help lead to a more efficient and more timely NEPA compliance process.
(2) Guidance to Tribal Governments.
(a) Tribal governments may be applicants,
and/or be affected by a proposed action of BIA or another Federal agency. Tribal governments affected by a proposed
action shall be consulted during the preparation of environmental documents
and, at their option, may cooperate in the review or preparation of such
documents. Notwithstanding the above,
the BIA retains sole responsibility and discretion in all NEPA compliance
matters.
(b) Any proposed tribal actions that do not
require BIA or other Federal approval, funding or "actions" are not
subject to the NEPA process.
B. Prepared
Program Guidance. BIA has
implemented regulations for environmental guidance for surface mining in 25 CFR
Part 216 (Surface Exploration, Mining and Reclamation of Lands.) Environmental guidance for Forestry
activities is found in 25 CFR 163.27 and 53 BIAM Supplements 2 and 3.
C. Other
Guidance. Programs under 25 CFR for
which BIA has not yet issued regulations or directives for environmental
information for applicants are listed below.
These programs may or may not require environmental documents and could
involve submission of applicant information to determine NEPA
applicability. Applicants for these
types of programs should contact the appropriate BIA office for information and
assistance:
(1) Partial payment construction charges on Indian irrigation
projects (25 CFR Part 134).
(2) Construction assessments, Crow Indian irrigation project (25 CFR
Part 135).
(3) Fort Hall Indian irrigation project,
(4) Reimbursement of construction costs, San Carlos Indian
irrigation project,
(5) Reimbursement of construction costs, Ahtanum
Unit, Wapato Indian irrigation project, Washington CFR Part 138).
(6) Reimbursement of construction costs, Wapato-Satus
Unit, Wapato Indian Irrigation project,
(7) Land acquisitions (25 CFR Part 151).
(8) Leasing and permitting (Lands) (25 CFR Part 162).
(9)
(10)
(11) General grazing regulations (25 CFR Part 166).
(12) Navajo grazing regulations (25 CFR Part 167).
(13) Grazing regulations for the Hopi partitioned lands (25 CFR Part
168).
(14) Rights-of-way over Indian lands (25 CFR Part 169).
(15) Roads of the Bureau of Indian Affairs (25 CFR
Part 170).
(16) Concessions, permits and leases on lands withdrawn or acquired in
connection with Indian irrigation projects (25 CFR Part 173).
(17) Indian Electric Power Utilities (25 CFR Part 175).
(18) Resale of lands within the badlands
(19) Leasing of tribal lands for mining (25 CFR Part 211).
(20) Leasing of allotted lands for mining (25 CFR Part 212).
(21) Leasing of restricted lands of members of Five Civilized Tribes,
(22) Leasing of Osage Reservation lands,
(23) Lead and zinc mining operations and leases, Quapaw Agency (25 CFR
Part 215).
(24) Leasing of Osage Reservation lands for oil and gas mining (25 CFR
Part 226).
(25) Leasing of certain lands in Wind River Indian Reservation,
(26) Indian fishing in
(27) Commercial fishing on Red Lake Indian Reservation (25 CFR 242).
(28) Use of
(29) Off-reservation treaty fishing (25 CFR Part 249).
(30) Indian fishing - Hoopa Valley Indian
Reservation (25 CFR Part 150).
(31) Housing Improvement Program (25 CFR Part 256).
(32) Contracts under Indian Self-Determination Act (25 CFR Part 271).
(33) Grants under Indian Self-Determination Act 25 CFR Part 272).
(34) School construction or services for tribally
operated previously private schools (25 CFR Part 274).
(35) Uniform administration requirements for grants (25 CFR 276).
(36) School construction contracts for public schools (25 CFR Part
277).
10.4 Major
Actions Normally Requiring an EIS.
A. The
following BIA actions normally require the preparation of an Environmental
Impact Statement (EIS):
(1) Proposed mining contracts (for other than oil and gas), or the
combination of a number of smaller contracts comprising a mining unit for:
(a) New mines of 640 acres or more, other than
surface coal mines.
(b) New surface coal mines of 1,280 acres or
more, or having an annual full production level of 5 million tons or more.
(2) Proposed water development projects which would, for example,
inundate more than 1,000 acres, or store more than 30,000 acre-feet, or
irrigate more than 5,000 acres of undeveloped land.
(3) Construction of a treatment, storage or disposal facility for
hazardous waste or toxic substances.
(4) Construction of a solid waste facility for commercial purposes.
B. If,
for any of these actions, it is proposed not to prepare an EIS, an
Environmental Assessment (EA) will be developed in accordance with 40 CFR
1501.4(a)(2).
10.5 Categorical
Exclusions. In addition to the
actions listed in the Department's categorical exclusions in Appendix 1 of 516
DM 2, many of which the BIA also performs, the following BIA actions are hereby
designated as categorical exclusions unless the action qualifies as an
exception under Appendix 2 of 516 DM 2.
These activities are single, independent actions not associated with a
larger, existing or proposed, complex or facility. If cases occur that involve larger complexes
or facilities, an EA or supplement should be accomplished.
A. Operation,
Maintenance, and Replacement of Existing Facilities. Examples are normal renovation of buildings,
road maintenance and limited rehabilitation of irrigation structures.
B. Transfer
of Existing Federal Facilities to Other Entities. Transfer of existing operation and
maintenance activities of Federal facilities to tribal groups, water user organizations,
or other entities where the anticipated operation and maintenance activities
are agreed to in a contract, follow BIA policy, and no change in operations or
maintenance is anticipated.
C. Human
Resources Programs. Examples are
social services, education services, employment assistance, tribal operations,
law enforcement and credit and financing activities not related to development.
D. Administrative
Actions and Other Activities Relating to Trust Resources. Examples are:
Management of trust funds (collection and distribution), budget,
finance, estate planning, wills and appraisals.
E. Self-Determination
and Self-Governance.
(1) Self-Determination Act contracts and grants for BIA programs
listed as categorical exclusions, or for programs in which environmental
impacts are adequately addressed in earlier NEPA analysis.
(2) Self-Governance compacts for BIA programs which are listed as
categorical exclusions or for programs in which environmental impacts are
adequately addressed in earlier NEPA analysis.
F. Rights-of-Way.
(1) Rights-of-Way inside another right-of-way, or amendments to
rights-of-way where no deviations from or additions to the original
right-of-way are involved and where there is an existing NEPA analysis covering
the same or similar impacts in the right-of-way area.
(2) Service line agreements to an individual residence, building or
well from an existing facility where installation will involve no clearance of
vegetation from the right-of-way other than for placement of poles, signs
(including highway signs), or buried power/cable lines.
(3) Renewals, assignments and conversions of existing rights-of-way
where there would be essentially no change in use and continuation would not
lead to environmental degradation.
G. Minerals.
(1) Approval of permits for geologic mapping, inventory,
reconnaissance and surface sample collecting.
(2) Approval of unitization agreements, pooling or communitization agreements.
(3) Approval of mineral lease adjustments and
transfers, including assignments and subleases.
(4) Approval of royalty determinations such as royalty rate
adjustments of an existing lease or contract agreement.
H. Forestry.
(1) Approval of free-use cutting, without permit, to Indian owners
for on-reservation personal use of forest products, not to exceed 2,500 feet
board measure when cutting will not adversely affect associated resources such
as riparian zones, areas of special significance, etc.
(2) Approval and issuance of cutting permits for forest products not
to exceed $5,000 in value.
(3) Approval and issuance of paid timber cutting permits or
contracts for products valued at less than $25,000 when in compliance with
policies and guidelines established by a current management plan addressed in
earlier NEPA analysis.
(4) Approval of annual logging plans when in compliance with
policies and guidelines established by a current management plan addressed in
earlier NEPA analysis.
(5) Approval of Fire Management Planning Analysis detailing
emergency fire suppression activities.
(6) Approval of emergency forest and range rehabilitation plans when
limited to environmental stabilization on less than 10,000 acres and not
including approval of salvage sales of damaged timber.
(7) Approval of forest stand improvement projects of less than 2000
acres when in compliance with policies and guidelines established by a current
management plan addressed in earlier NEPA analysis.
(8) Approval of timber management access skid trail and logging road
construction when consistent with policies and guidelines established by a
current management plan addressed in earlier NEPA analysis.
(9) Approval of prescribed burning plans of less than 2000 acres
when in compliance with policies and guidelines established by a current
management plan addressed in earlier NEPA analysis.
(10) Approval of forestation projects with native species and
associated protection and site preparation activities on less than 2000 acres
when consistent with policies and guidelines established by a current
management plan addressed in earlier NEPA analysis.
I. Land
Conveyance and Other Transfers. Approvals or grants of conveyances and other transfers of interests
in land where no change in land use is planned.
J. Reservation
Proclamations. Lands established as
or added to a reservation pursuant to 25 U.S.C. 467, where no change in land
use is planned.
K. Waste
Management.
(1) Closure operations for solid waste facilities when done in
compliance with other federal laws and regulations and where cover material is
taken from locations which have been approved for use by earlier NEPA analysis.
(2) Activities involving remediation of hazardous waste sites if
done in compliance with applicable federal laws such as the Resource
Conservation and Recovery Act (P.L. 94-580), Comprehensive Environmental
Response, Compensation, and Liability Act (P.L. 96-516) or Toxic Substances
Control Act (P.L. 94-469).
L. Roads
and Transportation.
(1) Approval of utility installations along or across a
transportation facility located in whole within the limits of the roadway
right-of-way.
(2) Construction of bicycle and pedestrian lanes and paths adjacent
to existing highways and within the existing rights-of-way.
(3) Activities included in a "highway safety plan" under
23 CFR 402.
(4) Installation of fencing, signs, pavement markings, small
passenger shelters, traffic signals, and railroad warning devices where no
substantial land acquisition or traffic disruption will occur.
(5) Emergency repairs under 23 U.S.C. 125.
(6) Acquisition of scenic easements.
(7) Alterations to facilities to make them accessible for the
elderly or handicapped.
(8) Resurfacing a highway without adding to the existing width.
(9) Rehabilitation, reconstruction or replacement of an existing
bridge structure on essentially the same alignment or location (e.g., widening,
adding shoulders or safety lanes, walkways, bikeways or guardrails).
(10) Approvals for changes in access control within existing
right-of-ways.
(11) Road construction within an existing
right-of-way which has already been acquired for a HUD housing project and for
which earlier NEPA analysis has already been prepared.
M. Other.
(1) Data gathering activities such as inventories, soil and range
surveys, timber cruising, geological, geophysical, archeological,
paleontological and cadastral surveys.
(2) Establishment of non-disturbance environmental quality
monitoring programs and field monitoring stations including testing services.
(3) Actions where BIA has concurrence or co-approval with another
Bureau and the action is categorically excluded for that Bureau.
(4) Approval of an Application for Permit to Drill for a new water
source or observation well.
(5) Approval of conversion of an abandoned oil well to a water well
if water facilities are established only near the well site.
(6) Approval and issuance of permits under the Archaeological
Resources Protection Act (16 U.S.C. 470aa-ll) when the permitted activity is
being done as a part of an action for which a NEPA analysis has been, or is
being prepared.