Notice of Proposed Revised Procedures Implementing the National Environmental Policy Act (NEPA) for the Bureau of Indian Affairs (BIA)

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Notice of Proposed Revised Procedures Implementing the National

Environmental Policy Act (NEPA) for the Bureau of Indian Affairs (BIA)

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of Proposed Revised NEPA Procedures.

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SUMMARY: This notice announces a proposed revision of Appendix 4 to the

Department's NEPA procedures (516 DM, Appendix 4) which were published

in the Federal Register on March 31, 1988 (53 FR 10439).

DATES: The Appendix 4 will be adopted after a 30-day comment period.

Comments received during this time will be considered.

ADDRESSES: Send comments to: Dr. Willie R. Taylor, Director, Office of

Environmental Policy and Compliance, MIB 2340, 1849 C St NW,

Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Dr. Willie R. Taylor, Director, Office

of Environmental Policy and Compliance; telephone (202) 208-3891. For

the Bureau of Indian Affairs, contact Dr. Donald Sutherland telephone

(202) 208-4791.

SUPPLEMENTAL INFORMATION: This proposed revised Appendix 4 to the

Department manual (516 DM 6) provides more specific NEPA compliance

guidance to the BIA. In particular, it updates information about BIA

organizational responsibilities for NEPA compliance, updates guidance

to applicants, adds to those actions normally requiring preparation of

an environmental impact statement (EIS) and updates, revises, and adds

to those actions categorically excluded from the NEPA process. The

additions reflect continued BIA experience with the NEPA process and

are primarily in the land conveyance, waste management and roads and

transportation areas. The Appendix 4 must be used in conjunction with

Departmental procedures and the Council on Environmental Quality

regulations (40 CFR parts 1500-1508). In addition, the BIA has prepared

a Handbook (30 BIAM, Supplement 1) to provide technical guidance on how

to apply these procedures to its principal programs at the Area and

Agency levels.

Comments are solicited and will be considered in the final version

of Appendix 4.

516 DM 6, Appendix 4

4.1 NEPA Responsibility

A. Deputy Commissioner of Indian Affairs is responsible for NEPA

compliance of Bureau of Indian Affairs (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.

4.2 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

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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 Supplement 2 and Supplement 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, Idaho (25 CFR part 136).

4. Reimbursement of construction costs, San Carlos Indian

irrigation project, Arizona (25 CFR part 137).

5. Reimbursement of construction costs, Ahtanum Unit, Wapato Indian

irrigation project, Washington (25 CFR part 138).

6. Reimbursement of construction costs, Wapato-Satus Unit, Wapato

Indian Irrigation project, Washington (25 CFR part 139).

7. Land acquisitions (25 CFR part 151).

8. Leasing and permitting (Lands) (25 CFR part 162).

9. Sale of lumber and other forest products produced by Indian

enterprises from the forests on Indian reservation (25 CFR part 164).

10. Sale of forest products, Red Lake Indian Reservation, Minn. (25

CFR part 165).

11. General grazing regulations (25 CFR part 166).

12. Navajo grazing regulations (25 CFR part 167).

13. Grazing regulations for the Hopi partitioned lands are (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 Air Force Gunnery Range

(Pine Ridge Aerial Gunnery Range

(25 CFR part 178).

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, Oklahoma, for mining (25 CFR part 213).

22. Leasing of Osage Reservation lands, Oklahoma, for mining,

except oil and gas (25 CFR part 214).

23. Lead and zinc mining operations and leases, Quapaw Agency (25

CFR part 215).

24. Surface exploration, mining, and reclamation of lands (25 CFR

part 216).

25. Leasing of Osage Reservation lands for oil and gas mining (25

CFR part 226).

26. Leasing of certain lands in Wind River Indian Reservation,

Wyoming, for oil and gas mining (25 CFR part 227).

27. Indian fishing in Alaska (25 CFR part 241).

28. Commercial fishing on Red Lake Indian Reservation (25 CFR part

242).

29. Use of Columbia River in-lieu fishing sites (25 CFR part 248).

30. Off-reservation treaty fishing (25 CFR part 249).

31. Indian fishing--Hoopa Valley Indian Reservation

(25 CFR part 150).

32. Housing Improvement Program (25 CFR part 256).

33. Contracts under Indian Self-Determination Act

(25 CFR part 271).

34. Grants under Indian Self-Determination Act

(25 CFR part 272).

35. School construction or services for tribally operated

previously private schools

(25 CFR part 274).

36. Uniform administration requirements for grants

(25 CFR part 276).

37. School construction contracts for public schools

(25 CFR part 277).

4.3 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.

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 prepared and handled in

accordance with 40 CFR 1501.4(a)(2).

4.4 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

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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.

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

which are 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 oil and gas leases in which drilling actions will be

permitted and NEPA analysis will be prepared by the Bureau of Land

Management.

5. 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 free-use 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 development or 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 when

done in compliance with applicable federal statutes such as CERCLA,

RCRA or TSCA.

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.

3. Activities included in a ``highway safety plan'' under 23 CFR

part 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 (i.e.

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

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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.

Dated: June 27, 1995.

Willie R. Taylor,

Director, Office of Environmental Policy and Compliance.

[FR Doc. 95-16666 Filed 7-6-95; 8:45 am]

BILLING CODE 4310-02-P