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

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?

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

Pre-NEPA Environmental Law 1945-1962 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

Pre-NEPA Enviromental Law 1962 - 1968 Silent Spring published Outdoor recreation growing in popularity Widespread use of Agent Orange defoliant in Vietnam Early federal environmental legislation

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

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

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…”

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

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

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

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

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

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

Levels of NEPA Compliance Proposed Federal Action Exempt

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

Categorical Exclusion (CatEx or CE) Categories of actions for which no significant impact is presumed. Detailed description of categories at 43 CFR 46.210 (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.

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

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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.

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

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

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

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

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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

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

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

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)

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

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

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

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?

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 13807 – 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

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The Fine Print MOU on One Federal Decision April 27, 2018 Memos Agencies (including DOI) agree to comply with EO 13807 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

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

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

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

Questions???