National Environmental Policy Act: Implementing Procedures (516 DM 6, Appendix 4)

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

National Environmental Policy Act: Implementing Procedures (516

DM 6, Appendix 4)

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final notice of revised procedures.

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SUMMARY: This notice announces revisions to Appendix 4 of the

Departmental Manual (516 DM 6) for implementing the National

Environmental Policy Act (NEPA) procedures within the Bureau of Indian

Affairs (BIA), which were published in the Federal Register on March

31, 1988 (53 FR 10439).

EFFECTIVE DATE: December 24, 1996.

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

of Environmental Policy and Compliance, at (202) 208-3891. For the BIA,

contact Donald Sutherland at (202) 208-4791.

SUPPLEMENTARY INFORMATION: This notice is published in exercise of

authority delegated by the Secretary of the Interior to the Assistant

Secretary--Indian Affairs by 209 DM 8.

Background

On July 7, 1995, the BIA published a notice in the Federal Register

(60 FR 35417) proposing revisions to 516 DM 6, Appendix 4. These

provided more specific NEPA compliance guidance to the BIA by updating

the BIA's organizational responsibilities for compliance, updating

guidance to applicants, adding to the list of actions normally

requiring an environmental impact statement(EIS), and updating,

revising and adding to the list of actions categorically excluded from

the NEPA process. The notice afforded the public 30 days to review and

comment on the proposed revisions. Certain changes in this final

version of the revisions are in response to those comments.

Discussion of Comments and Changes

The BIA received 14 comment letters on the proposed revisions to

Appendix 4. Nine of these were from four federal agencies. Of these

nine, one was from a central office and eight were from field offices.

Three Indian tribes, an environmental organization and a private

individual submitted the remaining five letters.

Seven changes were made to the proposed revisions as a result of

the comments received. Two of the changes are deletions; section

4.2.C.24 because it was contradicted by section 4.2.B., and section

4.4.G.4 because it was inconsistent with the case law (Connor v.

Burford). The other five changes are clarifications in wording. These

are in sections 4.3.A.3, 4.4.C, 4.4.H.2, 4.4.J and 4.4.L.2.

One further change was made as a result of internal BIA review, and

three as a result of Council on Environmental Quality (CEQ) review of

the proposed revisions. The BIA change is the addition at section

4.4.M.5 of the categorical exclusion for the issuance of permits under

the Archaeological Resources Protection Act (16 U.S.C. 470aa-ll) in

cases where the permitted work is connected with an action for which an

environmental analysis has been, or is being prepared. In such cases, a

separate environmental process for the archaeological permit would be

redundant.

One of the changes resulting from the CEQ review is the deletion of

section 4.4.M.3., and the subsequent re-numbering within 4.4.M. The

deleted item would have categorically excluded actions where the BIA

had concurrence or co-approval with another agency and the action was a

categorical exclusion for that agency. To be used, an exclusion must be

listed by the BIA, as well. The other two changes are clarifications in

the wording of sections 4.3.B and 4.4.H.1.

Of the comments that did not result in changes, several recommended

adding details that are covered in 30 BIAM Supplement 1. As noted under

the supplemental information for the proposed revisions, Appendix 4 is

intended to be used along with Supplement 1, as well as with

Departmental procedures and the Council on Environmental Quality's

regulations (40 CFR Parts 1500-1508). A number of other comments were

editorial suggestions that offered no measurable improvement in the

text. Yet others, while worthy of consideration in another context,

were beyond the scope of this Appendix. One, for example, argued that

BIA environmental guidance should be in the Code of Federal

Regulations, not the Departmental Manual. Responses, by section, to

comments that did not fall into one of the above three categories are

as follows:

Section 4.3.A.1

Comment: Recommendation that all mining development applications be

analyzed to determine if an EIS is required, rather than categorically

excluding applications according to production and acreage criteria.

Response: The numbers provided in this section are intended as

general guidance. The BIA understands that there will be exceptions to

this categorical exclusion, and has a procedure to determine when such

might be the case.

Section 4.4

Comment: Recommendation that program by program regulations for

NEPA compliance for a number of parts under 25 CFR be promulgated.

Response: This would not be consistent with the Government's

current policy of regulatory reduction.

Comment: Numerous suggestions for new categorical exclusions to be

added to the list.

Response: The exclusions contained in this rule are flexible enough

to cover the suggested exclusions. For example, most of the suggested

additions fall within the broader exclusion for operation and

maintenance (4.4.A.).

Section 4.4.I

Comment: Recommendation that a categorical exclusion be added for

federally funded housing projects wherein the Department of Housing and

Urban Development (HUD) will be complying with NEPA for the housing and

the only BIA action would be to acquire the land in trust.

Response: The categorical exclusion was not included because such

situations are covered under lead/cooperating agency arrangements in

HUD's environmental documents.

Comment: Question as to whether the categorical exclusion of land

conveyances where no change in land use is planned might still allow

for some degree of planned development or physical alteration of the

land without triggering NEPA review.

Response: It is unrealistic to expect land to be conveyed with no

plan whatsoever for its future use. Whether or not the conveyance may

be categorically excluded is a matter of judgement by the BIA official

responsible for NEPA compliance as to how well the plan is established.

The categorical exclusion does not, however, allow for any development

or physical alteration to actually take place.

Comment: Recommendation that all land transfers be categorically

excluded, regardless of plans for future

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development or physical alteration, as long as the subsequent activity

will be subject to NEPA review.

Response: This is in fact the way the categorical exclusion is

meant to operate. What the BIA official responsible for NEPA compliance

must decide is whether or not plans for development or physical

alteration are established to the point where NEPA review of the

proposed activity should be done in conjunction with the land transfer.

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 from this office.

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 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, 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 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 (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).

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

CFR Part 226).

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

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

26. Indian fishing in Alaska (25 CFR Part 241).

27. Commercial fishing on Red Lake Indian Reservation (25 CFR 242).

28. Use of Columbia River in-lieu fishing sites (25 CFR Part 248).

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).

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 or toxic substances.

4. Construction of a solid waste facility for commercial purposes.

B. In exceptional cases, where one of the above actions appears

unlikely to have a significant impact on the human environment, an

Environmental Assessment (EA), at least, must be prepared in accordance

with 40 CFR 1508.9. In no case may one of these actions be treated as a

categorical exclusion.

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 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

board feet.

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.

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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 (Pub. L. 94-580), Comprehensive

Environmental Response, Compensation, and Liability Act (Pub. L. 96-

516) or Toxic Substances Control Act (Pub. 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

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 (eg.

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

been acquired for a HUD housing project, and for which earlier NEPA

analysis already exists.

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. Approval of an Application for Permit to Drill for a new water

source or observation well.

4. Approval of conversion of an abandoned oil well to a water well

if water facilities are established only near the well site.

5. 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 an NEPA

analysis has been, or is being prepared.

Dated: December 16, 1996.

Dr. Willie R. Taylor,

Director, Office of Environmental Policy and Compliance.

[FR Doc. 96-32588 Filed 12-23-96; 8:45 am]

BILLING CODE 4310-W7-P