Environmental Review: NEPA,
TEPA and Tribes
NEPA – good and bad for Tribes
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Tribes can use as tool to slow, examine, participate in
process and urge changes in projects that impact their
resources.
Tribal Projects under the same scrutiny and may be used
by those against projects with no real interest in
environment.
“NEPA appeared too late to stop much of the bad (to
tribal resources) and is easily subverted to hinder much
of the good.” Rodgers 2005, “Environmental Law in
Indian Country”, p.366
Tribal Role in NEPA
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Under CEQ regulations the lead federal agency on a
NEPA action must consult with and seek comments from
affected Tribes.
Tribes may be designated the lead agency in certain
projects. Commonly, HUD programs. Sec. 104(h)
Housing and Community Development Act of 1974.
Tribes may be a “cooperating agency” with the federal
lead agency on NEPA process for projects affecting a
tribe.
Involvement in the process can
further Tribal interests
-Scoping
– make sure Tribal concerns addressed.
Cooperating agency – can guide process to include
review of Tribal concerns and inclusion of Tribal data.
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Commenting – provide Tribal information and views.
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Monitoring and Mitigation – to track impacts and
make sure mitigation is done properly.
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Compliance with applicable laws, Treaties and
Executive Orders (EJ, consultation)
Endangered Species Act (ESA) and
NEPA Process
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ESA triggered by presence of a listed species or their
designated critical habitat in project area – it is best to
address ESA and NEPA process together.
It is possible to avoid designation of critical habitat on
Reservation if Tribe has Service approved habitat plan.
Secretarial Order 3206 (1997) – critical habitat (on
Reservation) shall not be designated …unless
determined essential to conserve a listed species.
Clean Water Act and Environmental
Review
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If project has triggered Clean Water Act such as
a Section 401 Certification requirement under
environmental review.
In Indian country instead of WA DOE, EPA will
usually issue 401 certification.
Tribe may be delegated 401 certification
authority, if so will issue cert from Tribe.
Tribal Environmental Policy Acts
(TEPA)
Range of coverage and approaches:
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General Policy guidance or principles – can be
especially important on tribal projects.
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Little NEPA – primarily process oriented – open
review and alternatives consideration.
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General permit for activities effecting the
environment.
Typical Provisions may include
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land-use and permit activities subject to review.
Categories of actions exempt from review
Checklists or other reports required
Determination re: significance (if EA or EIS
required)
Opportunity for public review and comment (at
least for EIS)
Administrative appeal process
Which hat are you wearing?
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Tribes can be both regulators and project
proponents.
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Environmental staff who review and issue
permits may also be asked to write EA for NEPA
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Consider assigning different staff or hiring
outside consultants to write tribal EAs for review
by Tribal and Federal staff, especially if Tribal
permits also required.
When do TEPA apply to Fee lands?
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Is there a “Tribal action?”
For purely land-use activities such as zoning the analysis may follow
Brendale, which included whether the County had authority to issue
a DNS under Washington SEPA on Reservation.
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For Environmental Regulation apply Montana 2nd exception. Does
project impact tribe’s “health and welfare?”
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Are other tribal permits or federally delegated permits required?
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Swinomish approach – all projects on Reservation regardless of land
ownership treated the same. MOU with County provides additional
support for jurisdiction on fee lands.
Why add TEPA to the Federal
Environmental Review Process on
Reservation?
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To identify issues that must be addressed in other
regulation, especially if Tribal permit programs.
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Tribal decision making authority – ownership of the
process and sovereignty.
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Make sure Tribal concerns are addressed in culturally
appropriate way.
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May have lower trigger threshold or fewer exemptions
than federal.