On March 6, 2018, the Bureau of Indian Affairs (BIA) published a notice in the FEDERAL REGISTER requesting comments on its list of categorical exclusions (CATEXs) under the National Environmental Policy Act (NEPA). 83 Fed. Reg. 9535 (copy attached). A CATEX is a category of actions that a federal agency has determined do not individually or cumulatively have a significant effect on the human environment. For an action covered by a CATEX, NEPA compliance does not require either an environmental impact statement (EIS) or an environmental assessment (EA), unless an “extraordinary circumstance” exists. The notice includes the current list of BIA CATEXs and requests comments on whether to revise or delete any existing CATEXs or to add any new ones. The deadline for submitting comments is May 7, 2018.
In the self-determination era, in which tribal governments perform prominent roles in the administration of federal programs in Indian Country, the use of CATEXs can enable tribes to use their resources more efficiently. Moreover, in many situations, especially transactions involving tribal trust or restricted land, the tribe does practically all the work, including the preparation of NEPA documents, and the BIA is then called upon to approve the transaction, exercising statutory authority delegated from the Secretary of the Interior. As such, the potential for streamlining NEPA compliance through the expanded use of CATEXs has been a topic of discussion in the ongoing consultation that the Department of the Interior (DOI) is conducting with tribes regarding possible changes in the regulations for acquisitions of land in trust.
The statutory requirement of NEPA is that an EIS must be prepared for any major federal action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). This requirement is implemented through regulations issued by the Council on Environmental Quality (CEQ). 40 C.F.R. Parts 1500 – 1508. Under the regulations, a proposed action complies with NEPA if the action is covered by a CATEX. Each federal agency is required to adopt its own list of CATEXs, as one part of agency-specific procedures to supplement to the CEQ regulations. 40 C.F.R. § 1507.3. A CATEX is one of two ways to achieve NEPA compliance without an EIS. The other way is that an agency may prepare, or require an applicant to prepare, a less-detailed kind of document known as an EA. If, based on an EA, the responsible federal official signs a finding of no significant impacts (FONSI), an EIS is not required. Using a CATEX generally takes much less time and resources than preparing an EA and FONSI. As such, CATEXs reduce the extent to which agencies must devote resources to the analysis of proposed federal actions that have no potential to result in significant environmental impacts, allowing them to focus their resources on proposals that do have such potential.
In addition to commenting on the contents of the BIA’s CATEX list, the FEDERAL REGISTER notice can also be seen as an opportunity to call for improvements in how the BIA makes this information available to tribal governments and to the affected public. Where this information is published is the legacy of decisions made by DOI officials nearly 40 years ago, not long after the CEQ promulgated its regulations in 1978. DOI adopted its supplemental procedures in 1980, and a decision was made to publish the DOI procedures as title 516 of the Departmental Manual (DM). The document was published one time as a notice in the FEDERAL REGISTER. 45 Fed. Reg. 27541 (April 23, 1980). Each DOI bureau was required to develop a list of classes of actions that are “normally” treated as categorical exclusions and a list of “typical classes of actions” that “normally” require an EIS. The lists for each DOI bureau were originally published as appendices to 516 DM chapter 6, but this system was later changed such that each bureau’s list was moved to a separate chapter in 516 DM. For example, the BIA’s lists were originally published as 516 DM 6, App. 4, and were subsequently moved to 516 DM 10.
The original rationale for publishing the DOI NEPA procedures in the DM, rather than in the Code of Federal Regulations (as several other agencies chose to do), was that DOI regarded its NEPA procedures as internal guidance intended for the officials and staff of DOI bureaus, rather than documents that should be readily available to the public.
In 2008, DOI made a change in the codification of its NEPA procedures. This change was made through a final rule that moved most of the content of what had been 516 DM to a new Part 46 in Title 43 of the Code of Federal Regulations. 73 Fed. Reg. 61292 (2008). A list of Department-wide CATEXs is now codified at 43 C.F.R. § 46.210; the DOI list of extraordinary circumstances is at 43 C.F.R. § 46.215. Some of the content of 516 DM, however, was left in the DM, including bureau-specific NEPA procedures. Thus, the official codification of the BIA’s CATEX list remains 516 DM Chapter 10. The DM is available on a DOI website (Electronic Library of Interior Policies: https://elips.doi.gov/elips/browse.aspx?dbid=0), but the DM on that site is not kept up to date. The edition of 516 DM 10 on that site was issued in 2004. As discussed in the March 6, 2018, FEDERAL REGISTER notice, the BIA has adopted three CATEXs in recent years, but none of the new ones can be found in the edition of the DM on the DOI website.
In the era of tribal self-determination, the information contained in the BIA’s NEPA implementing procedures should be readily accessible by tribal governments. This could be accomplished by moving most of the content regarding BIA NEPA compliance from the DM to the Code of Federal Regulations, presumably title 25 where BIA regulations are usually codified.
Please let us know if we may provide additional information or assistance regarding the BIA’s request for comments on its list of categorical exclusions.